MEMORANDUM OPINION AND ORDER
JOHN D. RAINEY, Senior District Judge.
Pending before the Court is Defendant David Esquivel's (Esquivel) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. D.E. 23.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
Esquivel was arrested in December 2009, after he was found to be in possession of two firearms and approximately 11.8 grams of cocaine base. D.E. 1. He was indicted later the same month for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and for possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and arraigned on both charges. D.E. 7, Minute Entry Dec. 29, 2009.
Esquivel pled guilty to count one of the indictment (the drug charge) pursuant to a plea agreement in February 2010. Minute Entry Feb. 16, 2010, D.E. 12. In exchange for his guilty plea to count one of the indictment and his waiver of his right to appeal or to file a motion to vacate, set aside, or correct sentence, the Government agreed to recommend maximum credit for acceptance of responsibility and to recommend a sentence of imprisonment at the lowest end of the applicable guidelines. D.E. 12 at ¶¶ 1, 2, 7.
A Presentence Investigation Report (PSR) was prepared. D.E. 14. Esquivel's base offense level of 24 was based upon a drug quantity consisting of 5.03 grams of crack cocaine or cocaine base, 3.15 grams of cocaine, and 2.44 grams of marijuana, all converted to marijuana equivalents. D.E. 14 at ¶ 19. All of the drugs were found in his home before he was arrested. Two levels were added for possession of the firearms, and after credit for acceptance of responsibility, Esquivel's total offense level was 23. Id. at ¶¶ 13-20.
Esquivel had a number of previous convictions, including two Burglaries of a Habitation in 1995, Theft in 1995, Bail Jumping/Failure to Appear in 1996, and Possession of a Controlled Substance in 1998. A number of his offenses did not score due to their age. Id. at ¶¶ 30-35. His criminal history points totaled 9, resulting in a criminal history category of IV. Id. at ¶¶ 36-39. His Guideline sentencing range was 120 months. He was also subject to a mandatory minimum sentence of 10 years. Id. at ¶¶ 56-57.
Sentencing was held in August 2010. No objections were filed to the PSR. D.E. 16. Esquivel was sentenced to 120 months in the Bureau of Prisons, eight years supervised release, and a $100 special assessment. D.E. 18. Judgment was entered on the docket on June 2, 2010. Id . Esquivel did not appeal.
III. MOVANT'S ALLEGATIONS
Esquivel claims that his counsel was ineffective before the plea and that he is factually innocent of the drug trafficking charge and is only guilty of simple possession. D.E. 23 at pp. 3-4.
A. 28 U.S.C. ...