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PARRADO v. U.S.

June 24, 2002

FREDDIE PARRADO, A/K/A "GILBERT MERCADO," PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Leisure, District Judge.

OPINION AND ORDER

Petitioner Freddie Parrado, acting pro se, moves for a reduction of his sentence pursuant to 28 U.S.C. § 2255. In the alternative Parrado claims that his guilty plea was neither knowingly nor voluntarily entered. For the following reasons, Parrado's petition is denied.

BACKGROUND

A. Factual and Procedural History

On July 17, 1996, the Grand Jury filed an indictment, charging Parrado with distributing and possessing with intent to distribute five kilograms and more of mixtures and substances containing a detectable amount of cocaine in violation of 21 U.S.C. § 846. Thereafter, Parrado waived formal indictment, and on July 2, 1997, the government issued a superceding information S2 96 Cr. 505(PKL) (the "Information") charging him with the same violation of 21 U.S.C. § 846.

On June 30, 1997, Parrado entered into a plea agreement with the government. See Plea Agreement of Freddie Parrado, June 30, 1997 (the "Plea Agreement"). The plea agreement stipulated that he distributed and possessed with intent to distribute at least 15 but less than 50 kilograms of cocaine. See Plea Agreement at 2. Further, the plea agreement established that his base offense level was 34 under the Federal Sentencing Guidelines (the "Sentencing Guidelines"). See id. Due to Parrado's cooperation, however, the parties stipulated to reducing the base offense level to 31. See id. at 2-3. His criminal history included seven points and a rating of IV under the Sentencing Guidelines. See id. at 3. The parties stipulated that his sentencing range was 151 to 188 months. See id. at 4.

On July 2, 1997, Parrado pleaded guilty to the violation of 21 U.S.C. § 846, before The Honorable John F. Keenan, United States District Judge in this Court. See Parrado's Plea Allocution, July 2, 1997 (the "Plea Allocution"), at 15. On February 4, 1998, I sentenced Parrado to 151 months in prison. See Transcript of Parrado's Sentencing, February 4, 1998 (the "Sentencing Transcript"), at 9. During the plea allocution Judge Keenan fully complied with the requirements of Rule 11(c) of the Federal Rules of Criminal Procedure then construed by the courts. In this regard, Judge Keenan carefully discussed with the defendant the veracity of his guilty plea, and inquired as to whether Parrado understood the charges against him. See Plea Allocution at 4 and 7. Judge Keenan also explained the possible sentencing range Parrado faced, detailed the terms of a mandatory supervised release and explained that the sentencing judge may depart from the Sentencing Guidelines. See id. at 10. Next, Judge Keenan inquired, "Are you offering a plea of guilty of your own free will?" Parrado answered, "Yes." See id. at 14. Judge Keenan specifically inquired whether Parrado understood the terms of the plea agreement, to which Parrado responded affirmatively. See id. at 13.

B. Petitioner's Claims

Parrado claims that his sentence is invalid under the new rule of Apprendi v. New Jersey because the judge rather than the jury determined the quantity of narcotics involved. See 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Parrado also attempts to rely on Jones v. United States, 530 U.S. 1271, 120 S.Ct. 2739, 147 L.Ed.2d 1002 (2000). See Parrado's Reply to The Government's Memorandum In Opposition to Parrado's § 2255 Motion ("Parrado's Reply"). Further, Parrado asserts that he pleaded guilty and was "convicted of 5 kilos; not the 15 to 50 that he was sentenced for." Parrado's Reply at 7. In the alternative, petitioner alleges that his guilty plea was not voluntary or knowing. See id. at 4.

DISCUSSION

I. Timeliness of the Petition

Section 2255 sets forth the following time restrictions:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall ...

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