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ARROYO-ANGULO v. UNITED STATES

April 10, 1997

CLIMACO ARROYO-ANGULO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 Pro se petitioner Climaco Arroyo-Angulo ("Arroyo-Angulo") brought this action pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. *fn1" Petitioner contends that he was denied effective assistance of counsel and that this Court erred in calculating his sentence. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the Court has decided the motion based on the written submissions of the parties. For the reasons stated below, petitioner's motion will be denied.

 BACKGROUND

 The Court has reviewed petitioner's record of conviction. From this record, the Court gleans the following factual information. Arroyo-Angulo is a citizen of Colombia, South America. In 1973, petitioner unlawfully entered the United States. Later that year, the United States Immigration and Naturalization Service ("INS") captured and deported him. Petitioner unlawfully reentered the United States in 1974. Again, the INS captured and deported him.

 Subsequently, petitioner was caught hiding on a ship arriving in New York. Once again, petitioner was arrested and charged with unlawful entry into the United States. The District Court, Eastern District of New York sentenced petitioner to one year imprisonment. Following this sentence, petitioner was taken into custody by the INS. Later, upon marriage to a United States citizen, the INS released Arroyo-Angulo on bond.

 While on bond, petitioner was arrested for making false statements on a passport application. After entering a guilty plea, the Court sentenced Arroyo-Angulo to three years confinement at Levenworth Honor Camp ("Levenworth").

 Arroyo-Angulo escaped from Levenworth on October 31, 1981. Petitioner remained at large until March 22, 1985 when he was arrested for cocaine distribution in Seattle, Washington. Arroyo-Angulo plead guilty, and the District Court of Kansas sentenced him to six years confinement, including one year to be served concurrently for the escape from Levenworth. At the conclusion of this sentence, Arroyo-Angulo was released to INS officials who deported him for the fourth time on January 8, 1991.

 Ever the slow learner, Arroyo-Angulo reentered the United States sometime between January, 1991 and June 15, 1992. See Stipulation P 6. On June 15, 1992, petitioner was arrested and charged with conspiracy to violate the Comprehensive Drug Reform Act, in violation of New Jersey Statute Section 2C:5-2. When arrested, Arroyo-Angulo identified himself as Samuel DeLeon. A fingerprint comparison revealed his true identity.

 The United States filed a criminal complaint against Arroyo-Angulo, charging him with violating 8 U.S.C. § 1326(a)(2), Reentry of A Deported Alien. *fn2" The government offered Arroyo-Angulo a plea agreement. Initially, petitioner rejected the plea agreement, forcing the government to prepare for trial. Two days before trial, however, Arroyo-Angulo consented to a stipulated trial and plead guilty.

 At sentencing, the Court placed petitioner in Total Offense Level 22 and Criminal History Category V. As such, the United States Sentencing Guidelines (the "Guidelines") provided a sentencing range of 77 to 96 months. Largely due to petitioner's prior criminal conduct, this Court imposed the maximum term, 96 months.

 Arroyo-Angulo now moves to modify this Court's sentence, claiming that he was denied effective assistance of counsel. Specifically, Arroyo-Angulo challenges his counsel's: (1) failure to object to the Court's use of the 1991 version of the Guidelines; (2) failure to ask for a downward departure under 18 U.S.C. § 3553(a); and (3) recommendation to proceed with a stipulated trial in lieu of a guilty plea.

 DISCUSSION

 I. General

 As an initial matter, the Court recognizes that petitioner's pro se petition must be read liberally. See Boag v. MacDougall, 454 U.S. 364, 365, 70 L. Ed. 2d 551, 102 S. Ct. 700 (1982); Todaro v. Bowman, 872 F.2d 43, 44 n.1 (3d Cir. 1989). Despite the Court's liberal reading, the Court concludes that petitioner has not offered any ...


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