IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
August 13, 2012
UNITED STATES OF AMERICA
STEVEN ALLISON SMITH
The opinion of the court was delivered by: Judge Conner
AND NOW, this 13th day of August, 2012, upon consideration of the motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 600), filed by Steven Allison Smith ("Smith"), wherein Smith asserts that the January 9, 2011, United States Supreme Court decision in DePierre v. United States, ---- U.S. ---, 131 S. Ct. 2225 (2011) (holding that the term "cocaine base" as used in 21 U.S.C. § 841(b)(1), means not just "crack cocaine" but cocaine in its chemically basic form), alters the calculation of his sentence because the "indictment lists only an unspecified amount of cocaine base," (Doc. 600, at 4), and it appearing that Smith entered a plea of guilty to a Rule 11(c)(1)(C) binding plea agreement (see Doc. 399), and that pursuant to the plea agreement Smith waived his "right to challenge any conviction or sentence or the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255" (see id. ¶ 22), and the court finding that Smith's motion is barred by the terms of his binding plea agreement, and the court further finding that Smith entered a plea of guilty to Count II of the Seventh Superseding Indictment (Doc. 406) which specifically charges possession with intent to distribute crack cocaine (see Doc. 346; see also Doc. 399 ¶ 13 (wherein the binding plea agreement states that "defendant is responsible for distributing or possessing with intent to distribute between 50 and 150 grams of crack cocaine")) and that DePierre has no bearing on the calculation of his sentence,*fn1 see R. GOVERNING § 2255 CASES R. 4(b) (stating that court must review the motion before ordering service on government), and the court concluding that it plainly appears that Smith is not entitled to relief, see id., it is hereby ORDERED that the motion to vacate, set aside or correct sentence is DENIED.
CHRISTOPHER C. CONNER United States District Judge