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Sanchez v. United States

December 28, 2009

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



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

MEMORANDUM AND ORDER

On December 8, 2008, Francisco Sanchez ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. For the reasons explained herein, the petition is DENIED.

BACKGROUND

On June 20, 2007, Petitioner pled guilty to knowingly and intentionally conspiring to distribute and possess with intent to distribute one kilogram or more of substance containing heroin, in violation 21 U.S.C. § 841(a)(1). Petitioner's Plea Agreement with the United States Attorney's Office for the Eastern District of New York included the following passage:

The defendant agrees not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 or any other provision the conviction or sentence in the event that the Court imposes a term of imprisonment of 121 months or below. (Plea Agreement ¶ 4.) The following exchange took place during Petitioner's plea allocution:

THE COURT: [T]here's a mandatory minimum sentence of 10 years with regard to this particular charge and there is a five year minimum supervised release term.... Do you understand that?

THE DEFENDANT: Yes I understand.

THE COURT: In addition, you understand that the maximum fine you would pay here is $4 million. There's a $100.00 special assessment. And the other penalties would include your deportation or removal back to Columbia. Do you understand?

THE DEFENDANT: Yes, I understand.

THE COURT: There is a sentencing guideline which I will review. They are advisory, but I will review them and consider them before imposing sentence. Do you understand that, sir?

THE DEFENDANT: Yes, I understand.

THE COURT: In addition, those guidelines at this point in time are calculated to be a level 30. That's assuming you have no prior criminal history, your sentence would be from 97 to 121 months.

THE DEFENDANT: I understand. *************** THE COURT: If I sentence you to more than 121 months, you could appeal my sentence. If I sentence you to 121 ...


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