DeBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this case is the motion of pro se Petitioner, Casey Coley ("Mr. Coley" or "Petitioner"), to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (ECF No. 114). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the court will deny the motion.
By an indictment filed on July 22, 2009, Petitioner was charged with knowing, intentional, and unlawful distribution, on various dates, of a mixture or substance containing a detectable amount of 3, 4-methylenedioxymethamphetamine ("MDMA"), commonly known as "Ecstasy, " Benzylpiperazine ("BZP"), and marijuana. (ECF No. 1). Then, by a superseding indictment filed on January 20, 2010, Petitioner was charged with knowing, intentional, and unlawful distribution of a quantity of: (1) a mixture or substance containing a detectable amount of 3, 4-MDMA (Counts 1, 2, and 5); (2) a mixture or substance containing a detectable amount of BZP, which is commonly distributed as "Ecstasy" (Counts 3 and 6); (3) MDMA combined with BZP (Count 4); and (4) marijuana (Count 6). The superseding indictment also charged Mr. Coley with possession with intent to distribute marijuana (Count 8). (ECF No. 36).
On April 12, 2010, following a four-day trial, a federal jury convicted Petitioner of distribution of benzylpiperazine ("BZP"), in violation of 21 U.S.C. § 841(a); distribution of marijuana, in violation of 21 U.S.C. § 841(a); and possession with intent to distribute marijuana, also in violation of 21 U.S.C. § 841(a). This court sentenced Petitioner to fifty-one months of imprisonment followed by five years of supervised release. (ECF No. 91). The court also ordered that Petitioner, a citizen of Jamaica, to surrender to a duly authorized immigration official for deportation. ( Id. at 4). Judgment was entered on September 3, 2010. Petitioner appealed, arguing that: (1) the Government withheld exculpatory evidence in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963); (2) the district court abused its discretion in refusing to give some of his proposed jury instructions on the defense of entrapment; (3) the district court erred in refusing his instruction defining reasonable doubt and that this issue should be reviewed de novo; (4) the district court's admission of recordings of transactions between Coley and a confidential informant violated his Sixth Amendment Rights; (5) the district court erred in denying his motion to dismiss the charges in the indictment related to BZP; and finally (6) the district court erred in including acquitted conduct in calculating the advisory Guidelines range. The United States Court of Appeals for the Fourth Circuit affirmed on all grounds. See United States of America v. Coley, 47 F.Appx. 501 (4th Cir. 2011). On February 21, 2012, the Supreme Court of the United States denied his petition for a writ of certiorari. See Coley v. United States, 132 S.Ct. 1609 (2012).
On February 18, 2013, while in federal custody, Petitioner timely filed the instant motion to vacate, set aside, or correct his sentence. Petitioner was released from the Bureau of Prisons ("BOP") on March 20, 2013 and was turned over to the U.S. Immigration and Customs Enforcement for deportation. Petitioner was deported to Jamaica, his native country, on April 25, 2013. On the same date, the Government responded to Petitioner's motion pursuant to the court's order. (ECF No. 116).
II. Standard of Review
28 U.S.C. § 2255 requires a petitioner asserting constitutional error to prove by a preponderance of the evidence that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law." While a pro se movant is entitled to have his arguments reviewed with appropriate deference, see Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978), if the Section 2255 motion, along with the files and records of the case, conclusively shows that he is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be summarily denied. See 28 U.S.C. § 2255(b).
Petitioner makes the following arguments in the Section 2255 motion: (1) the court erred in using phenmetrazine as the closest comparative substance to BZP when determining his total marijuana equivalence for sentencing purposes; (2) the court violated 21 U.S.C. § 841(b)(1)(C) by imposing five years of supervised release; (3) ineffective assistance of counsel at trial and on appeal; and (4) this court committed procedural error at sentencing by failing to apply 18 U.S.C. § 3553(a).
A. Use of Phenmetrazine as the Closest Comparative Substance to Calculate Petitioner's Sentence
Petitioner argues that the court "should have used the marijuana table of equivalency, rather than phenmetrazine. This error resulted in a much higher sentence." (ECF No. 114, at 4). This argument lacks merit.
When Petitioner was sentenced in 2010, BZP was not listed in the drug quantity/equivalency tables in the Sentencing Guidelines, U.S.S.G. § 2D1.1(C). Mr. Coley asserts that "Congress has never criminalized BZP itself, " and thus "the court should have used the marijuana table of equivalency" to reach a guideline sentence. (ECF No. 114, at 4). In order to calculate Mr. Coley's base-offense level, however, the court was required to use the "marihuana equivalency of the most closely related controlled substance referenced in [the] guideline." U.S.S.G. § 2D1.1 cmt. n.5. Section 2D1.1 of the Sentencing Guidelines, cmt. n.5 provides, in relevant part:
In the case of a controlled substance that is not specifically referenced in this guideline, determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline. In determining the most closely related controlled ...