United States District Court, N.D. Georgia, Rome Division
FINAL REPORT AND RECOMMENDATION
WALTER E. JOHNSON, Magistrate Judge.
This matter has been submitted to the undersigned Magistrate Judge for consideration of movant Jason Antti's pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255  ("Motion to Vacate"), as amended  ("Amended Motion"), the government's Motion to Dismiss and Response , and Mr. Antti's Response . For the reasons stated below, the undersigned RECOMMENDS that the government's Motion to Dismiss be GRANTED, that the Motion to Vacate be DISMISSED as barred by Mr. Antti's plea agreement, and that the Court DECLINE to issue a certificate of appealability.
I. PROCEDURAL HISTORY
A federal grand jury in the Northern District of Georgia returned a three-count indictment against Mr. Antti, charging him in Count One with crossing a state line with intent to engage in a sexual act with another person who had not attained the age of twelve years, in violation of 18 U.S.C. § 2241(c); in Count Two with knowingly attempting to induce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2242(b); and in Count Three with travel in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b). United States v. Antti, No. 4:12-CR-30-RLV-WEJ-1 (N.D.Ga. Oct. 9, 2012), Indict. . Pursuant to a negotiated plea agreement in which the government agreed to dismiss any and all remaining counts in Case Number 4:12-CR-30-RLV-WEJ-1, Mr. Antti entered a guilty plea to an Information charging him with knowingly attempting to induce a minor to engage in sexual activity, in violation of § 2242(b). (Information ; Guilty Plea & Plea Agreement  1, 3; Plea Tr. .) The plea agreement included an appeal waiver provision, which provided that Mr. Antti
voluntarily and expressly waives the right to appeal the conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding (including, but not limited to, motions filed pursuant to 28 U.S.C. § 2255) on any ground, except that [Mr. Antti] may file a direct appeal of an upward departure or a variance from the sentencing guideline range as calculated by the district court.
(Guilty Plea & Plea Agreement 7.) This provision of the plea agreement further provided that Mr. Antti could file a cross appeal if the government appealed the sentence. (Id.) Mr. Antti signed the plea agreement and a separate certification section, which states in relevant part:
I understand that the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated, from appealing my conviction and sentence or challenging my conviction and sentence in any post-conviction proceeding. No one has threatened or forced me to plead guilty, and no promises or inducements have been made to me other than those discussed in the Plea Agreement.
(Id. at 9-10.)
At the plea hearing, Mr. Antti was sworn in and confirmed that he understood the nature of the charge against him and that he had talked it over with his attorney. (Plea Tr. 3-4.) Mr. Antti also acknowledged that he had read, understood, and discussed the plea agreement with his attorney. (Id. at 6-7.) The Court then explained to Mr. Antti the rights he was giving up in pleading guilty, and Mr. Antti stated that he understood. (Id. at 7-10.) Mr. Antti also understood that he faced a possible maximum sentence of life imprisonment and a mandatory minimum sentence of ten years of imprisonment. (Id. at 10-11.) The Court reviewed the terms of the appeal waiver provision of the plea agreement and its consequences, and Mr. Antti affirmed that he understood the effect of the waiver. (Id. at 14-15.) Mr. Antii then confirmed that no one had promised him anything not included in the plea agreement or threatened him to plead guilty. (Id. at 16.) The prosecutor summarized what the evidence would show if the case went to trial, and Mr. Antti agreed with those facts. (Id. at 16-19.) The Court accepted Mr. Antti's plea. (Id. at 20.)
At the sentencing hearing, the Court determined that Mr. Antti's guideline range was 188 to 235 months of imprisonment and sentenced him to 180 months of imprisonment followed by fifteen years of supervised release. (Sentencing Hr'g Tr.  34-35; J. .) Mr. Antti did not file a direct appeal of his convictions and sentences.
Mr. Antti timely filed the instant Motion to Vacate, asserting, in pertinent part, that "[t]he Government did not uphold their end of the Plea Agreement." (Mot. Vacate 5.) In his Amended Motion, which supercedes his initial Motion to Vacate, Mr. Antti argues only that his "[p]lea was induced by misrepresentations" in that he expected his sentence to be at the low end of the guideline range, which he believed was fifty-seven to seventy-one months of imprisonment, and his supervised release term to be no more than five years. (Am. Mot. 4.) The government moves to dismiss the Motion to Vacate as barred by Mr. Antti's valid appeal waiver. (Gov't Mot. & Resp. 9-11.) In his response, Mr. Antti restates what he contends he reasonably expected his sentence would be at the time he entered his guilty plea. (Movant's Resp.)
A. Legal Standards
A federal prisoner may file a motion to ...