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Terrero v. United States

March 23, 2007

RE: PEDRO TERRERO
v.
UNITED STATES OF AMERICA,



The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Litigants:

This matter comes before the Court on pro se prisoner Pedro Terrero's motion to vacate, set aside, or correct his plea-bargained sentence pursuant to 28 U.S.C. § 2255. There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, the motion is DISMISSED WITH PREJUDICE and the relief requested therein is DENIED.

BACKGROUND

Pedro Terrero was arrested, charged, and indicted for conspiracy to distribute and to possess with the intent to distribute five kilograms or more of cocaine. (Pet'r Br. 2; Resp't Br. Ex. A.) Following his indictment, Terrero entered into the following plea agreement:

1. Terrero would plead guilty to conspiracy to distribute and to possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), 846, stipulate to a Base Offense Level of 36 for 50-150 kilograms of cocaine and an agreed total Guidelines offense level between 33-31, and waive his rights to file an appeal or collateral attack on sentencing, including a motion under 28 U.S.C. § 2255; and

2. the United States Attorney for the District of New Jersey, in turn, would accept the guilty plea, refrain from seeking further criminal charges, and stipulate to the same Base Offense Level and an agreed total Guidelines offense level.*fn1

(Pet'r Br. 2, 6; Resp't Br. Ex. B.) In accordance with this agreement, Terrero filed a Rule 11 application for permission to enter a guilty plea and, then, pled guilty to the indictment during a hearing held on June 2, 2005 before this Court. (Resp't Br. Ex. C, Ex. D.) The Probation Office and the government calculated the total adjusted offense level to be 31 with a criminal history category I, resulting in a Guidelines range of 108-135 months. (Resp't Br. 3.) Granting the government's motion for a downward departure under 5K1.1 and 18 U.S.C. 3553(e), the Court sentenced Terrero to 96 months imprisonment on October 20, 2005. (Resp't Br. Ex. D.) Terrero did not file an appeal.

ANALYSIS

28 U.S.C. § 2255 provides that a prisoner in custody under a sentence from a federal court may move the court which imposed the sentence to either vacate, set aside, or correct the sentence. This section, however, does not afford a remedy for all errors that may have been made at trial or at sentencing. United States v. Addonizio, 442 U.S. 178 (1979). Errors warranting modification must raise "a fundamental defect which inherently results in a complete miscarriage of justice." Id. at 185 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A prisoner can challenge his or her sentence on the ground that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255.

Terrero raises two constitutional challenges to the sentenced imposed: (1) an Apprendi-based claim, and (2) a claim of ineffective assistance of counsel. His arguments are addressed in turn.

A. Terrero's Apprendi Claim

Terrero argues that his sentence contains numerous constitutional defects based on the principles laid out in Apprendi v. New Jersey, 50 U.S. 466 (2000). (Pet'r Br. 6-10.) These arguments are premised on Terrero's claim that he only pled to Count One of his indictment for "over 5 kilograms of cocaine," but was sentenced for 50-150 kilograms of cocaine. Id. He further argues that this ...


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