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Perez v. United States

July 1, 2008

FRANCISCO PEREZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

The petitioner, Francisco Perez, moves pro se pursuant to 28 U.S.C. § 2255 to set aside or correct his sentence, which was entered following his guilty plea to one count of possessing ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The petitioner claims ineffective assistance of trial counsel, based on his counsel's failure to object to the criminal history calculations in the plea agreement and the Pre-Sentence Report ("PSR"). The petitioner alleges that several of these calculations were erroneous, resulting in an improper Criminal History Category being assigned to him.

The petitioner also had moved initially to reduce his sentence based on a November 1, 2007 amendment to the criminal history calculations in the United States Sentencing Guidelines ("Sentencing Guidelines"). The petitioner argued that his counsel was ineffective for not anticipating the issuance of this amendment, that the amendment should be applied retroactively to him, and that his sentence accordingly should be reduced under 18 U.S.C. § 3582(c)(2). In his Traverse, however, the petitioner abandons this claim. The petitioner acknowledges that the Sentencing Guidelines amendment, apparently Amendment 709, does not affect his sentence because it does not change the rule that prior offenses separated by an arrest are counted separately in calculating criminal history points. See U.S.S.G. § 4A1.2(a)(2).

For the reasons explained below, this petition must be dismissed because it is time-barred, and, in any event, is without merit.

I.

On February 21, 2006, the petitioner pleaded guilty, pursuant to a written plea agreement (the "Plea Agreement"), to one count of possessing ammunition in and affecting interstate commerce, after previously having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

In the Plea Agreement, the defendant and the Government stipulated that the Sentencing Guidelines in effect as of November 1, 2005, applied to the defendant's plea. (Plea Agreement at 2.) The parties also stipulated that the defendant's Offense Level was twenty-one: the defendant committed the offense subsequent to sustaining two previous felony convictions for controlled substance offenses, resulting in a Base Offense Level of twenty-four, pursuant to § 2K2.1(a)(2), and he received a three-level reduction for timely acceptance of responsibility, pursuant to § 3E1.1(a) and (b). (Plea Agreement at 2.) The defendant was assigned Criminal History Category VI, based on eighteen criminal history points, calculated under U.S.S.G. §§ 4A1.1 and 4A1.2, for having six prior convictions and for committing the offence while under a criminal justice sentence and less than two years after his release from imprisonment. (Plea Agreement at 2--4.) Eighteen criminal history points was far in excess of the thirteen points required for Criminal History Category VI.

Based on these calculations, the parties stipulated that the defendant's Sentencing Guidelines range was seventy-seven to ninety-six months, that a sentence within this range would be reasonable in light of the factors set forth in 18 U.S.C. § 3553(a), that neither a downward nor an upward departure from this range was warranted, and that neither party would seek a sentence outside the stipulated Sentencing Guidelines range. (Plea Agreement at 4.) The defendant also agreed not to file a direct appeal, nor litigate under 28 U.S.C. § 2255, any sentence within or below this range. (Plea Agreement at 4--5.)

The Pre-Sentence Report ("PSR") independently calculated the defendant's Offense Level, Criminal History Category, and Sentencing Guidelines range, arriving at the same conclusions as did the Plea Agreement. (PSR 5--10, 14.) Similarly, on May 26, 2006, following issuance of the PSR, Perez's trial counsel submitted a letter to this Court that acknowledged Perez was appropriately assigned Criminal History Category VI, corresponding to a sentencing range of seventy-seven to ninety-six months imprisonment.

At sentencing on June 2, 2006, the Court adopted the PSR's findings of fact and sentenced the defendant principally to seventy-seven months imprisonment, to be followed by a three-year term of supervised release. (Sent. Tr. 9.) The judgment was filed on June 13, 2006.

On November 15, 2007, without having pursued a direct appeal of his conviction, Perez submitted the current § 2255 petition. The petitioner argues that his trial counsel was ineffective for failing to challenge the Criminal History Category and supporting calculations contained in the Plea Agreement and the PSR.

II.

The Government argues that the petition is time-barred. Section § 2255 motions are governed by a one-year statute of limitations. See 28 U.S.C. § 2255(f). ...


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