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HERNANDEZ v. UNITED STATES

November 2, 1993

David Hernandez, Petitioner,
v.
United States of America, Respondent.


Sifton


The opinion of the court was delivered by: CHARLES P. SIFTON

SIFTON, District Judge.

 Petitioner, David Hernandez, moves pro se to set aside or correct his sentence and presentence investigation report ("PSR") pursuant to Rules 35 and 32(c)(3)(D) of the Federal Rules of Criminal Procedure or pursuant to 28 U.S.C. § 2255.

 On September 12, 1990, petitioner pled guilty before this Court to Count 2 of a fourteen-count indictment charging him with conspiracy to possess and/or distribute heroin from an unknown date to April 5, 1989, in violation of 21 U.S.C. § 846. Since petitioner was a juvenile at the time the charged crimes were committed, his written consent to be prosecuted as an adult for the crime of conspiracy was required. Petitioner's consent was obtained at the plea hearing in exchange for the dismissal of more serious charges against him. On December 14, 1990, petitioner was sentenced to ninety-seven months imprisonment, three years supervised release, and a $ 50 special assessment.

 DISCUSSION

 Section 2255 of title 28, United States Code, *fn1" entitles a federal prisoner to move the sentence court to "vacate, set aside, or correct" a sentence that "was imposed in violation of the laws or Constitution of the United States."

 Petitioner advances several claims as bases for the relief he seeks. Petitioner alleges that the Court impermissibly considered juvenile proceedings against him in imposing sentence and in permitting petitioner to be treated as an adult. In addition, the petitioner alleges that he (1) was improperly held accountable for the acts of co-conspirators when his sentence was determined, (2) was denied access to the courts after his sentencing, (3) was forced or persuaded to plead guilty by the use of trickery, (4) received ineffective assistance of counsel, (5) was not advised of his right to appeal at sentence, and (6) was entitled to a sentence reduction pursuant to federal sentencing guidelines due to his (i) status as a minor or minimal participant in the conspiracy to which he was a part, (ii) diminished capacity, and (iii) acceptance of responsibility. Petitioner's claims are addressed seriatim below.

 Petitioner first alleges that the Court improperly considered information in the PSR that was either erroneous or should not have been considered, including prior uncounselled juvenile court proceedings.

 A criminal defendant has a due process interest in the sentencing stage of his prosecution. United States v. Malcolm, 432 F.2d 809, 815 (2d Cir. 1970); Inzone v. United States, 707 F. Supp. 107, 108 (E.D.N.Y. 1989). That due process is abridged when a defendant is sentenced on the basis of "materially untrue" statements. Inzone, 707 F. Supp. 107 at 108 (quoting Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948)). Pursuant to Rule 32(a)(1)(A), a sentencing court shall afford defendant and defendant's counsel the opportunity to read and discuss the PSR made available pursuant to subsection (c)(3)(A) or (c)(3)(B) of the rule.

 Where the record reveals that the defendant was provided with an opportunity to review the PSR, post-sentence motions to correct alleged inaccuracies contained therein are appropriately denied. See United States v. Sambino, 799 F.2d 16, 17 (2d Cir. 1985) (Rule 35 motion); United States v. Sheppard, 621 F. Supp. 706, 708 (S.D.N.Y. 1985) (§ 2255 motion). Review of the record indicates that the petitioner and his counsel were afforded the opportunity to read the PSR. Petitioner did challenge some facts contained within the PSR prior to sentencing. Petitioner challenged and the government concurred with petitioner's charge of an inaccuracy in the PSR with respect to the stipulated amount of heroin involved in the offense, thereby reducing petitioner's base offense level from 34 to 32. Petitioner was also informed by the Court that the pipe bomb discovered in petitioner's bedroom would not, contrary to the recommendation contained within the PSR, yield a two-level enhancement imposed pursuant to Section 2D.1(b)(1) of the sentencing guidelines. Petitioner offered no other challenge to facts contained within the PSR before he was sentenced; even today he does not allege with any degree of specificity what information contained within the PSR is inaccurate.

 Even if the PSR contained inaccuracies and petitioner had objected to such inaccuracies, petitioner's claim that such inaccuracies affected his sentence simply fails on the merits. The PSR listed petitioner's criminal history for the purposes of determining sentence level as "none." Because the petitioner had, according to the PSR's criminal history computation, no prior record apart from the instant offense, his criminal history category was I. The petitioner's base offense level total of 32, minus two for acceptance of responsibility, yielded an offense level total of 30 and, thus, a guideline range of 97-121 months, a minimum of three years supervised release, and a mandatory $ 50 assessment. Petitioner's sentence was at the lowest end of that range. Petitioner's sentence was not influenced by his criminal history or any other defect in the PSR.

 The petitioner claims that he should not have been held accountable for the acts of co-conspirators in determining his sentence. However, petitioner's sentence was, in fact, not determined based on the conduct of co-conspirators. The Court specifically stated that petitioner was not being sentenced for the activities of the entire Hernandez organization of which he was a part. The base offense level was calculated on the basis of petitioner's own participation in the negotiation for two kilograms of heroin. In addition, as discussed above, the lowest guideline range sentence was imposed by the Court.

 The petitioner next claims that he was denied access to the courts after sentencing. The only basis for such a claim appears in connection with petitioner's desire to appeal the sentence, which is discussed below.

 Petitioner next claims that his guilty plea was induced through the use of trickery and bullying tactics by his counsel. Petitioner also alleges that, due to his difficulty understanding English and mental problems, he was not fully competent ...


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