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Fullenwider v. United States

United States District Court, D. New Jersey

November 6, 2019

LARRY L. FULLENWIDER, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          Larry L. Fullenwider Federal Prison Camp Petitioner Pro se

          Alisa Shver, Assistant U.S. Attorney U.S. Attorney's Office District of New Jersey Attorneys for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Larry L. Fullenwider (“Petitioner”) filed a Motion to Vacate, Set Aside or Correct a Federal Sentence pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion”). ECF No. 1. Presently before the Court is Respondent United States of America's (“Respondent”) Amended Motion to Dismiss. ECF No. 8.[1]

         For the reasons that follow, the Amended Motion to Dismiss will be granted.

         I. BACKGROUND

         On September 2, 2014, Petitioner pled guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. 1349. Plea Agreement, United States v. Fullenwider, No. 1:10-cr-510 (D.N.J. Sept. 2, 2014), ECF No. 185. As part of the plea agreement, Petitioner agreed to waive his appellate and post-conviction rights in the event he received a sentence of 46 months or less. Plea Hearing Tr., Fullenwider, No. 1:10-cr-510 (D.N.J. Sept. 2, 2014), ECF No. 264 at 50:6 to 51:25; ECF No. 185 at p. 8 (waiving in Schedule A of plea agreement appellate and post-conviction rights to challenge a sentence within or below the range of a total offense level of 21 (37-46 months)(United States Sentencing Guidelines effective Nov. 1, 2013, Criminal History Category I)).

         The Honorable Jerome B. Simandle, U.S.D.J., conducted Petitioner's sentencing hearing on May 13, 2015 and sentenced Petitioner to a term of 46 months of imprisonment with three years of supervised release. Judgment of Conviction, Fullenwider, No. 1:10-cr-510 (D.N.J. May 13, 2015), ECF No. 281. Petitioner did not file a direct appeal or a petition for writ of certiorari with the Supreme Court of the United States. ECF No. 1 at 4.

         Petitioner filed a motion to vacate, set aside or correct his federal sentence pursuant to 28 U.S.C. § 2255 on October 26, 2016. ECF No. 1. Petitioner filed his memorandum of law on December 9, 2016, arguing that Amendment 794 of the Sentencing Guidelines should be applied retroactively to his sentence. ECF No. 3. Amendment 794 amends U.S.S.G. § 3B1.2 (Mitigating Role) and became effective on November 1, 2015, six months after Petitioner was sentenced. Id. at 12.

         Respondent United States moves to dismiss the § 2255 motion as time-barred, prohibited by the plea agreement, and as without merit. ECF No. 8. Petitioner argues that his motion is timely under § 2255(f)(3) because it was filed less than one year after Amendment 794 became effective. ECF No. 5 at 3. He asserts that the facts of his case support retroactive application of the amendment to give him a minor role adjustment. Id. at 9-13.

         II. DISCUSSION

         Petitioner raises one ground for relief in his § 2255 motion: that he is entitled to a downward adjustment pursuant to Amendment 794 of the Sentencing Guidelines due to his mitigating role in the crime for which he was sentenced. Section 2255 provides in relevant part that:

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which ...

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