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Colon v. United States

December 18, 2008

EDGARDO COLON, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

MEMORANDUM OPINION & ORDER

Edguardo Colon ("Petitioner") pleaded guilty to a federal drug trafficking offense through a plea agreement that included a general waiver of his right to collaterally attack his sentence ("Plea Agreement"). Petitioner filed a pro se petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, claiming, inter alia, that his counsel at sentencing had been ineffective ("Petition").*fn1 The United States Government ("Government") responded by filing a Motion to Dismiss arguing that in the Plea Agreement Petitioner waived his right to bring a petition on the grounds asserted.*fn2 Petitioner then attempted to file an appeal to the Government's Motion to Dismiss.*fn3 Because the District Court had not yet evaluated or ruled on the merits of Petitioner's § 2255 claims the Third Circuit dismissed for lack of appellate jurisdiction.*fn4 This Court then ordered Petitioner, still acting pro se, to file a Response to the Motion to Dismiss, which he has done.*fn5 The Court has carefully considered these filings, as well as the Plea Agreement and the transcripts of all relevant hearings, and the matter is now ready for disposition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was one of the orchestrating forces behind the "Sanchez Organization," an organization that distributed heroin from various locations in and around the downtown area of Allentown, Pennsylvania.*fn6 Sometime before January 2002, Petitioner and Isaisa Sanchez began to sell "bundled" or pre-packaged heroin, purchasing "loose" heroin in large quantities and breaking it down for individual sale to street customers. Petitioner and Sanchez hired employees who acted in various capacities to carry out drug sales and to collect drug proceeds on behalf of the organizational leadership.*fn7 As a result of such activities Petitioner was charged with conspiracy to distribute more than 1 kilogram of heroin in violation of 21 U.S.C. §§ 846.*fn8

Additionally, Petitioner was charged with one count of possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c).

Petitioner entered into a Plea Agreement with the Government on February 9, 2006, in which he agreed to plead guilty to the conspiracy count. In return, the Government promised to dismiss the charge of possession of a firearm pursuant to 18 U.S.C. § 924(c).*fn9 The Plea Agreement includes a provision whereby Petitioner waives his right to appeal or collaterally attack his conviction and sentence in all but a few narrow circumstances.*fn10 The provision states, in relevant part:

In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.

(a) Notwithstanding the waiver provision above, if the government appeals from the sentence, then the defendant may file a direct appeal of his sentence.

(b) If the government does not appeal, then notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:

(1) the defendant's sentence on any count of conviction exceeds the statutory maximum for that count . . . .

(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines;

(3) the sentencing judge, exercising the Court's discretion pursuant to United States v. Booker, 125 S.Ct. 738 (2005), imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court. If the defendant does appeal pursuant to this paragraph, no issue may be presented by the defendant on appeal other than those described in this paragraph.*fn11

In addition, the Plea Agreement states that prior to signing it, Petitioner fully discussed his options with his appointed counsel, David J. Goldstein, Esquire, and also that Petitioner was satisfied with Goldstein's services.*fn12 Notably, the Plea Agreement also states that "[n]o one has promised or guaranteed to the defendant what sentence the Court will impose,"*fn13

The Court held a change-of-plea hearing on February 9, 2006, in which Petitioner, Goldstein and Assistant United States Attorney John M. Gallagher participated. The Petitioner's primary language is Spanish, although he does speak English. An interpreter was sworn in by the Court in order to translate the proceedings to the Petitioner if needed. However, Petitioner replied to most of the Court's questions in English. The Court began by explaining to Petitioner that any answers or statements he might make in the hearing must be truthful.*fn14

Petitioner stated that he understood.*fn15 The Court asked Petitioner if he was satisfied with the representation Goldstein had provided as counsel and he stated that he was.*fn16 The Court then explained to Petitioner the charges against him,*fn17 and Gallagher, at the Court's direction, recited the elements of the Plea Agreement.*fn18 Gallagher explained that the Government was agreeing, at the time of sentencing, to move to dismiss the second Count against Petitioner, which was possession of a firearm in furtherance of a drug-trafficking crime.*fn19 Counsel also recited that the Government was agreeing and stipulating that Petitioner participated in the conspiracy from January 2002 through August 2004 and that Petitioner was an organizer or leader of that conspiracy, though it was noted that he left the conspiracy before its completion. The Government stated that because Petitioner's guilty plea demonstrated acceptance of responsibility for his misconduct that he was eligible for a two-level downward departure from the sentencing guidelines.*fn20 The Government also noted that the agreement contained an appellate waiver.*fn21

Petitioner then informed the Court that he had read the Plea Agreement with his lawyer, had no questions about it and understood the rights ...


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