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Acosta v. United States

December 17, 2008


The opinion of the court was delivered by: Tucker, J.


Presently before this Court is Petitioner's Habeas Corpus Petition to Vacate/Set Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 66), and the Government's Memorandum in Opposition (Doc. 68). For the reasons below, this Court will deny Petitioner's Motion in part and dismiss Petitioner's Motion in part.


On June 29, 2005, Petitioner Jorge Leonardo Acosta pled guilty to a two-count indictment charging him with possession with intent to distribute more than five kilograms of cocaine, and conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 846. These violations all arise from his participation in a scheme with co-defendant Mark McNeil to deliver almost seven kilograms of cocaine on December 10, 2004, to a person who, unknown to Petitioner and his co-defendant, was cooperating with law enforcement. In furtherance of this scheme, Petitioner drove to Maryland to retrieve the cocaine, bringing a seventeen (17) year-old juvenile with him. Once Petitioner obtained the cocaine, he gave it to the juvenile, directing him to place it in the car. Petitioner and the juvenile then drove to Delaware and met co-defendant, at which point the three proceeded to Pennsylvania where they delivered the cocaine to the cooperator. Petitioner pled guilty to this offense, and entered his guilty plea pursuant to a written, signed guilty plea agreement.

Prior to sentencing, the Probation Office issued a Presentence Investigation Report ("PSR"). Consistent with the parties' stipulations in the plea agreement, the Probation Office calculated the guideline range as follows: Pursuant to U.S.S.G. § 2D1.1(c)(4), the base offense level for Acosta's crime was thirty-two (32) (for offenses involving at least 5 kilograms but less than 15 kilograms of cocaine). Two levels were subtracted pursuant to § 2d1.1(b)(7), because Acosta met the "safety valve" provisions of U.S.S.G. § 5C1.2(a)(1) through (5). Two levels were added pursuant to § 3B1.4 because Acosta used a minor to commit this crime. Finally, pursuant to U.S.S.G. § 3E1.1(a), the offense level was reduced two levels, and pursuant to § 3E1.1(b), the offense level was reduced one additional level, for acceptance of responsibility and timely notification to the government. As a result, the total offense level was twenty-nine (29). PSR, ¶¶ 17-29. Acosta had one prior conviction for driving while impaired, for which he was sentenced to thirty (30) days imprisonment. PSR, ¶¶ 27-31. With an offense level of twenty-nine (29) and a criminal history category of one (I), the final guideline range was eighty-seven (87) to one hundred eight (108) months. PSR, ¶ 51.

At sentencing, this Court accepted the findings in the PSR. Although there was a statutory mandatory minimum sentence of one hundred twenty (120) months, this Court found that the Safety Valve provisions of 18 U.S.C. § 3553(f) applied, and sentenced below the mandatory minimum. Petitioner received a sentence of ninety (90) months, five (5) years supervised release, $2,000 fine, and a $200 special assessment.

Petitioner then filed a notice of appeal to the United States Court of Appeals for the Third Circuit. However, the Government filed a motion to dismiss the appeal, as Petitioner's guilty plea agreement included a specific appellate waiver. On December 4, 2006, the Court of Appeals granted the Government's motion.

Petitioner filed this pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on June 4, 2006.


28 U.S.C. § 2255 provides that a prisoner in custody under sentence of the Court, who believes that the sentence was imposed in violation of the constitution or laws of the United States, or is otherwise subject to collateral attack, may move the Court which imposed the sentence to vacate, set aside, or correct the sentence. Relief for a habeas corpus petition is proper where judgment was made without jurisdiction, the sentence is not authorized by law, or the prisoner's constitutional rights have been infringed upon.


In his § 2255 motion, Petitioner raises the following claims: 1) ineffective assistance of counsel in violation of the Sixth Amendment; and 2) violation of the Equal Protection Clause of the Fourteenth Amendment. This Court will deny Petitioner's motion for habeas relief in part and dismiss in part because Petitioner's claims fail to entitle him to the relief sought. The Court will address each argument in turn.

A. Ground One - Ineffective Assistance of Counsel

Petitioner alleges that counsel was ineffective for three reasons. First, Petitioner argues that counsel failed to properly object to the two level sentencing enhancement pursuant to U.S.S.G. ยง 3B1.4, using a minor to commit a crime. Second, Petitioner asserts that counsel incorrectly represented Petitioner's stipulation concerning the participation of a minor during the plea hearing. Finally, Petitioner claims that counsel was ineffective for failing to inform him that the Court of Appeals ...

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