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WARREN v. U.S.

July 13, 2005.

HELEN WARREN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge

OPINION AND ORDER

PRELIMINARY STATEMENT

Before the Court is Petitioner Helen Warren's pro se application to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 and to reconsider her sentence pursuant to Federal Rules of Criminal Procedure 32 and 35. For the reasons stated herein, the motions are denied.

  BACKGROUND

  A. Indictment and Plea

  Helen Warren ("Warren") and five co-conspirators were charged in a two-count superseding indictment filed on February 7, 2002. Warren was charged in Count One with conspiracy to distribute in excess of one kilogram of heroin and five kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b) (1) (A) and 846.*fn1 On July 1, 2002, Warren pleaded guilty before Magistrate Judge Gorenstein, pursuant to a written plea agreement. At this time, Warren was represented by her court-appointed attorney, Aubrey Lees, Esq.

  In the Plea Agreement, the parties stipulated that: (i) Warren's base offense level was 36 pursuant to § 2D1.1(c)(2) of the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") because the offense involved the distribution of at least ten but less than thirty kilograms of heroin; (ii) Warren was eligible for relief from a statutory 10 year minimum sentence and a two-level reduction pursuant to the "safety-valve," 18 U.S.C. § 3553(f); U.S.S.G. §§ 2D1.1(b)(6)*fn2 and 5C1.2; (iii) Warren received a two level reduction pursuant to U.S.S.G § 3E1.1(a) for acceptance of responsibility and a one level reduction pursuant to § 3E1.1(b) for entering her plea in a timely manner. Warren's resulting stipulated offense level was 31. The parties further stipulated that Warren had a Criminal History Category of I. The resulting Guidelines range was 108 to 135 months' imprisonment.

  The Plea Agreement also contained a waiver of Warren's right to appeal or collaterally attack the sentence, provided that the sentence fell in the stipulated Guidelines range. The agreement provided:
Neither a downward nor an upward departure is warranted from the stipulated Sentencing Guidelines range of 108 to 135 months. Neither party will seek a departure from nor seek any adjustment to the range. Neither party will suggest that the Probation Department consider such a departure or adjustment, or suggest that the Court sua sponte consider such a departure or adjustment.
. . . .
The defendant will neither appeal, nor otherwise collaterally attack her sentence provided that the Court imposes a sentence within the stipulated to Guidelines range.
(Warren Br. at 5).

  During the plea proceeding, Magistrate Judge Gorenstein confirmed that Warren could speak, understand, and write English, that she had never been hospitalized for narcotics addiction, alcoholism, or mental illness, and that she was not presently under the influence of any drug. (Plea Tr. at 2-3).*fn3 Warren also confirmed that she had discussed her case with her attorney, Ms. Lees, and that she was satisfied with Ms. Lees's representation. (Id. at 4). Warren stated that she understood the penalties that she faced and the rights she would have had at trial. (Id. at 5-7). She also confirmed that she understood that she was giving up these rights by entering a guilty plea. (Id. at 7).

  The Magistrate then addressed the Plea Agreement. Warren allocuted that she had not been induced to plead guilty by any promises as to her sentence. (Id. at 8). She expressed her understanding that Judge Schwartz would not be bound by the stipulated range when imposing sentence, and that she would be bound by her guilty plea no matter what sentence Judge Schwartz ultimately imposed. (Id. at 8-9). Magistrate Judge Gorenstein then specifically addressed Warren's understanding of the waiver under the Plea Agreement: THE COURT: Now, do you understand that under the terms of this plea agreement, if the judge sentences you to a prison term that is no longer than the maximum of this range, that is, no longer than 135 months, you are giving up your right to challenge that through an appeal or through an attack on your conviction or any other way.

  Do you understand that, Miss?

  THE DEFENDANT: Yes.

 (Id. at 9-10).

  After the Government recited the elements it would have had to prove for conviction, Warren admitted the charged conduct. (Id. at 11-13). She admitted to participating with others in the transportation of more than one kilogram of heroin and more than five kilograms of cocaine. (Id. at 12). This conduct subjected Warren to a potential sentence of lifetime imprisonment and a statutory minimum of 10 years. See 21 U.S.C. § 841(b)(1)(A)(i), (ii). Magistrate Judge Gorenstein concluded that Warren understood the nature of the charge and the consequences of her plea and that the plea was ...


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