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Donovan v. United States

March 9, 2008

JOHN DONOVAN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Presently before this Court is pro se Petitioner John Donovan's Motion to Correct his Sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's Motion is denied.

II. BACKGROUND

On March 7, 2006, Petitioner appeared before this Court, executed a Waiver of Indictment, and pled guilty to a one-count Indictment charging him with possession with intent to distribute a mixture or substance containing marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). That charge carried a possible maximum sentence of 20 years imprisonment, a $1,000,000 fine, or both. (Docket No. 24, ¶ 1).

Under the terms of the plea agreement, Petitioner and the Government agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was 17, and that Petitioner's criminal history category was II, which resulted in a Guidelines sentencing range of 27 to 33 months, a fine of $5,000 to $1,000,000, and a period of supervised release of 3 years. (Docket No. 11, ¶¶ 7-11.)

Included in the plea agreement is Petitioner's acknowledgment that he: knowingly waives the right to appeal, modify pursuant to Title 18, United States Code, Section 3582(c)(2), and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section II ¶9, above, notwithstanding the manner in which the Court determines the sentence. (Docket No. 24, ¶ 16).

On April 12, 2006, this Court sentenced Petitioner to a 33-month term of imprisonment and a 3-year term of supervised release, and declined to impose a fine. The Clerk of the Court filed the sentencing judgment on April 17, 2006. Petitioner did not appeal his conviction or sentence.

On April 13, 2007, Petitioner filed the instant Motion to Correct his Sentence pursuant to 28 U.S.C. § 2255. (Docket No. 34). The Government filed an Answer and Memorandum of Law on June 22, 2007. (Docket Nos. 41-42). Petitioner filed a reply on August 21, 2007. (Docket No. 46).

III. DISCUSSION

A. Standard of Review

Title twenty-eight U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, or is otherwise subject to ...


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