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U.S. v. Gutierrez

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


July 3, 1991

UNITED STATES OF AMERICA
v.
ALBERTO GUTIERREZ, APPELLANT

Appeal from the United States District Court for the District of New Jersey; D.C. Criminal No. 89-00125-10; (Honorable Alfred J. Lechner, Jr.).

Mansmann and Scirica, Circuit Judges and Pollak, District Judge.*fn*

JUDGMENT ORDER

After considering the contentions raised by appellant, to wit, that:

1. The court erred in including 1000 grams of cocaine as an amount "under negotiation" to establish the proper base offense level under the Federal Sentencing Guidelines;

2. Appellant should have been granted a two level reduction under the Federal Sentencing Guidelines for acceptance of responsibility;

3. The United States Attorney breached a plea agreement with appellant and the matter must be remanded for sentencing in front of a different judge and for preparation of a presentence report by a different probation officer; and,

4. Appellant's plea of guilty was not voluntary and appellant should be allowed to withdraw his plea and set this matter for trial, it is

ADJUDGED AND ORDERED that the judgment of the district court be and is hereby AFFIRMED.


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