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Bell v. United States

February 16, 2009

JULIAN ALEXANDER BELL, 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 Julian Bell's Motion to Vacate, Set Aside, or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. (Docket No. 18). Also before this Court is the government's Motion to Dismiss the petition. (Docket No. 19). For the reasons discussed below, Petitioner's motion is denied and the government's motion is granted.

II. BACKGROUND

On April 14, 2006, Petitioner appeared before the Honorable John T. Elfvin, United States District Judge, executed a Waiver of Indictment, and pled guilty to a one-count Information charging him with illegal re-entry after having previously been deported, in violation of 8 U.S.C. § 1326(a). 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 21, and that Petitioner's criminal history category was II, which resulted in a Guidelines sentencing range of 41 to 51 months. (Docket No. 10, ¶ 11). This calculation included a 16 -level enhancement pursuant to section 2L1.2(b)(1)(A)(i) of the United States Sentencing Guidelines, because Petitioner had previously been deported for a drug trafficking offense for which the sentence imposed exceeded 13 months. (Government Exhibit B, Petitioner's Criminal History, Docket No. 20, p. 8).

Included in the plea agreement is the Petitioner's acknowledgment that he:

Agrees that the following specific offense characteristic does apply: The 16-level increase pursuant to Guidelines Section 2L1.2(b)(1)(A)(i) in that the defendant was deported after having been convicted of a drug trafficking offense for which the sentence exceeded 13 months.

Agree[s] to the Sentencing Guidelines calculations set forth in the agreement, and neither party will advocate or recommend the application of any other Guideline, or move for any Guideline departure pursuant to Chapter 5K of the Sentencing Guidelines, except as specifically set forth in this agreement.

[K]nowingly waives the right to appeal, modify pursuant to Title 18, United States Code, Section 3742 and collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment.

Both parties, however, reserve the right to seek a non-Guideline sentence and to bring to the attention of the Court all information deemed relevant to a determination of the proper sentence in this action. The government reserves the right to oppose any defense motion or request.

Read the agreement, which consists of 13 pages. [He] had a full opportunity to discuss this agreement with [his] attorney, ROXANNE JOHNSON, Esq. [He] agrees that it represents the total agreement between [Petitioner] and the government...[Petitioner] fully agrees with the contents of this agreement. (Docket No. 10, ¶¶ 7, 12(a), 12(b), 23,25).

Petitioner appeared for sentencing on July 28, 2006, at which time his lawyer requested that Judge Elfvin impose a non-Guidelines sentence of 30 months. After hearing from all counsel and Petitioner, Judge Elfvin denied the request for a non-Guidelines sentence and imposed a sentence of 41 months imprisonment, the lowest end of the Guideline range. Petitioner did not appeal.

Petitioner filed the instant motion on April 3, 2007. After full briefing, the motion was submitted for decision on July 27, 2007. By Order dated October 17, 2007, this case was reassigned to ...


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