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UNITED STATES v. RAMOS

July 16, 1997

UNITED STATES OF AMERICA
v.
EDWIN RAMOS



The opinion of the court was delivered by: DUBOIS

 DuBOIS, J.

 JULY 16, 1997

 Currently before the Court is the Motion of Edwin Ramos under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For the reasons set forth herein, Petitioner's request for an evidentiary hearing will be granted for the limited purpose of further developing the factual record with respect to two issues: (1) petitioner's claim that his counsel was ineffective for failing to appeal his sentence and (2) petitioner's claim that the Government breached the September 11, 1990 Plea Agreement when it reiterated a stipulation relating to sentencing contained in that Plea Agreement at the March 21, 1991 Change of Plea Hearing but then argued to the contrary at sentencing. Excepting only these two issues, on which the Court will rule after the hearing, Petitioner's request for an evidentiary hearing will be denied. Moreover, all claims, excepting those two relating to the two issues to be addressed at the hearing, will be dismissed or denied.

 I. Background

 Edwin Ramos pled guilty to conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846. He and his co-conspirators, identified as the Ramos Cocaine Organization ("RCO"), distributed massive amounts of cocaine and crack cocaine on the 1700 block of Mt. Vernon Street in Philadelphia, Pennsylvania from early 1987 to late 1990. Although the plea to that charge was not presented to the Court until a change of plea hearing on March 21, 1991, the Plea Agreement was signed by petitioner, his attorney and the attorneys for the Government on September 11, 1990. In that Agreement petitioner also agreed to plead guilty to certain counts charged in a separate indictment that was pending before Judge Waldman. *fn1"

 Petitioner was scheduled to plead guilty in both matters on November 30, 1990. Petitioner did plead guilty on the morning of November 30, 1990 in the case before Judge Waldman. However, immediately prior to the scheduled afternoon change of plea hearing in this Court, the Government received a telephone call corroborating the accuracy of previously learned information that petitioner had violated the conditions of his bail by obstructing justice. See Nov. 30, 1991, Tr. at 6, 11. After that information was proffered to the Court by the Government, the change of plea hearing in this Court was continued and petitioner's bail was revoked pending a hearing. By Order dated December 13, 1990, the Order of September 19, 1990 authorizing petitioner's pre-trial release was revoked. Petitioner's Motion for Reconsideration was denied after a hearing on January 28, 1991.

 Petitioner was sentenced on January 22, 1993. His base offense level for distribution of in excess of fifteen (15) kilograms of crack cocaine under § 2D1.1(a)(3) was 42; pursuant to § 2D1.2(a)(1), two levels were added because all of the distribution occurred within 1,000 feet of a school. Additionally, the offense level was increased two levels for obstruction of justice under § 3C1.1. Petitioner's total offense level was thus 46. Petitioner had six (6) criminal history points, placing him in Criminal History Category III. The Guideline sentence for someone with an offense level of 46 in Criminal History Category III was life imprisonment.

 The Government filed a Motion to Permit Departure from Guideline Sentencing Range and from Mandatory Minimum Sentence under § 5K1.1 of the Guidelines and 18 U.S.C. § 3553(e) and the Court granted the Motion. The Court, departing downward from the Guideline imprisonment term of life, sentenced petitioner to 276 months imprisonment to be served concurrently with a prior sentence of thirteen (13) years imposed by Judge Waldman. By Order dated September 9, 1994, the Court reduced petitioner's sentence eighteen (18) months, from 276 to 258 months, so as to credit petitioner for time served under that prior sentence.

 II. Discussion

 A. Retroactive Amendment of Sentencing Guidelines

 First petitioner argues that his sentence should be reduced in light of the retroactive application of Amendment No. 505 to the Sentencing Guidelines. *fn3" Pursuant to the retroactive application of that Amendment, the sentencing court may, at its discretion under 18 U.S.C. § 3582(c)(2), reduce the sentences of defendants whose responsibility for the quantity of drugs distributed placed them at a base offense level greater than 38 under the Guidelines in effect at the time of their sentencing. See U.S.S.G., Amendment 505 (retroactive effective Nov. 1, 1995 by § 1B1.10(c)). Because petitioner's base offense level calculated based on drug quantity was 42 under the Guidelines in effect at his sentencing, his sentence must be reevaluated under the retroactive Amendment.

 Application of the retroactive Amendment in this case reduces petitioner's base offense level from 42 to 38. The adding of two levels to the base level pursuant to § 2D1.2(a)(1) for distribution within 1,000 feet of a school and two levels for obstruction of justice under § 3C1.1 yields a total offense level of 42. *fn4" The Guideline imprisonment range for a total offense level of 42, in any criminal history category, is 360 months imprisonment to life imprisonment.

 Thus, the question before the Court is whether it should reduce petitioner's sentence pursuant to 18 U.S.C. § 3582(c)(2) because the guideline sentence under the retroactive amendment is 360 months to life imprisonment instead of life imprisonment. After reviewing the sentencing transcript and the presentence report, and considering petitioner's cooperation, the Court concludes that it should not reduce petitioner's sentence. In departing downward pursuant to § 5K1.1 and 18 U.S.C. § 3553(e), the Court would have imposed the same sentence even if, at the time of sentencing, the Guideline sentencing range was 360 months to life imprisonment. Finally, the Court notes that the extent of the departure, to 276 months, is substantial whether starting from a guideline sentence of 360 months to life, or life.

 B. Ineffective Assistance of Counsel


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