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United States v. Toledo

January 10, 2008

UNITED STATES OF AMERICA,
v.
HECTOR TOLEDO, JR., PETITIONER



The opinion of the court was delivered by: Yvette Kane, Chief Judge

(Chief Judge Kane)

MEMORANDUM

Before the Court is Petitioner Hector Toledo, Jr.'s pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 819.) After the Court provided Petitioner with an administrative notice related to successive petitions, see United States v. Miller, 197 F.3d 644 (3d Cir. 1999); see also Adams v. United States, 155 F.3d 582 (2d Cir. 1998), Petitioner elected to proceed with the motion as filed. (Doc. Nos. 821 & 822.) His motion and memorandum in support thereof were then served upon the Government, which filed a timely brief in opposition. (Doc. No. 832.) Thereafter, Petitioner filed a traverse to the Government's brief. (Doc. No. 837.) Thus, the motion is fully briefed and ripe for disposition. Upon due consideration of Petitioner's arguments and the Government's response thereto, the Court finds that Petitioner is not entitled to § 2255 relief and will deny the motion.

I. BACKGROUND

On March 17, 2007, a grand jury in the Middle District of Pennsylvania returned an indictment against Petitioner Hector Toledo, Jr., and twelve co-defendants, alleging various violations of federal controlled substances laws. Pursuant to a plea agreement, Petitioner pleaded guilty to one count of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 841(b)(1)(C), for his role as one of the leaders of "T.N.U.," a loosely organized street gang that traveled to New York City to obtain heroin for sale in central Pennsylvania. (Doc. No. 821, at 2.) The three remaining counts brought against Petitioner were dismissed by the Government.

Following Petitioner's guilty plea, the probation office conducted a presentence investigation and issued a presentence report ("PSR") that calculated the applicable guideline range in Petitioner's case to be 360 months to life, based on an offense level of 42 and a criminal history score of VI. The plea agreement negotiated by defense counsel, however, capped Petitioner's possible sentence at 240 months, the statutory maximum penalty for conspiracy to distribute and possession with intent to distribute under 21 U.S.C. § 841(b) (PSR at 1, ¶¶ 87-88.)

Defense counsel submitted a sentencing memorandum on Petitioner's behalf presenting arguments related to the quantity of drugs, the extent of any leadership role enhancement, the use of a juvenile enhancement, and the PSR's failure to credit Petitioner with acceptance of responsibility for his actions. (Doc. No. 731.) Defense counsel further argued that Petitioner's criminal history category of VI overstated the true nature of his criminal history. (Id. at 5.) In the sentencing memorandum, defense counsel also presented the Court with "other factors to consider when imposing the sentence guidelines," including the following:

* Toledo's parents raised him in a lifestyle of drug use and abuse;

* Toledo observed, from an early age, his parents using and abusing drugs;

* As a juvenile, Toledo was placed in a wilderness school and boot camp facility;

* Toledo's father was incarcerated Toledo was very young;

* Toledo lived on the on the streets with his mother, who continued abusing drugs, during the time of his father's incarceration;

* After Toledo's father was released from prison, Toledo began living with him. (Toledo's father became clean while in prison and has ...


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