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United States of America v. Terry Hughes

August 23, 2012

UNITED STATES OF AMERICA
v.
TERRY HUGHES



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

MEMORANDUM

Presently before the Court is Defendant Terry Hughes' pro se petition for relief under 28 U.S.C. § 2255 (ECF No. 450 Ex. A).*fn1 For the following reasons, the Petition will be granted.

I. BACKGROUND

On July 26, 2007, Defendant was one of ten individuals indicted as part of a conspiracy to commit identity theft and bank fraud. (Indictment, ECF No. 1.) Defendant is identified in the Indictment as a "check runner," responsible for cashing illegitimate checks at bank locations. (Id. at ¶¶ 4, 5, 17.) Defendant clashed with his co-conspirators and was assaulted after seeking to withdraw from the conspiracy. (Id. at ¶ 20.) Defendant was twenty-one years old at the time of his arrest, indictment, conviction and sentencing, and was eighteen or nineteen years old at the time of many of the acts charged in the Indictment.

On August 22, 2007, pursuant to a cooperation agreement, Defendant entered a plea of guilty to conspiracy, in violation of 18 U.S.C. § 371, two counts of bank fraud and aiding and abetting, in violation of 18 U.S.C. §§ 1344 and 2, and four counts of aggravated identity theft and aiding and abetting, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2. (Min. Entry, ECF No. 166; Guilty Plea Agreement, ECF No. 167.) Defendant agreed to testify on behalf of the Government against his co-conspirators, and did so at subsequent trials.

On December 21, 2007, the Court sentenced Defendant to time served plus an additional thirty days' imprisonment, to be followed by transfer to a halfway house or rehabilitation facility, as well as forty-two months of supervised release and financial penalties including restitution. (Judgment 2-7, ECF No. 248.) The Court departed downward from the suggested United States Sentencing Guidelines ("Guidelines") range of 75 to 159 months imprisonment. (Pre-Sentence Investigation Report ("PSR") ¶ 133.)

Prior to his indictment, Defendant had twice been convicted of crimes. In November 2005, Defendant pleaded guilty, in Delaware state court, to forgery and attempted theft. (Id. at ¶¶ 95-97.) In October 2005, Defendant pleaded guilty, in the Philadelphia Court of Common Pleas, to attempted statutory sexual assault and the corruption of minors. (Id. at ¶¶ 98-100.)

Defendant's past is defined by his drug use. Defendant has been addicted to cocaine, and has used marijuana, heroin, ecstasy and PCP. (Id. at ¶¶ 122-23.) He has also abused prescription pills and alcohol. (Id. at ¶ 123.) His frequent relapses have brought him to the attention of the Probation Office and this Court repeatedly for violations of supervised release ("VOSR"). (See ECF Nos. 381, 385, 394, 400, 412.) These violations have stemmed from his drug problem, and have not involved any new criminal activity.

Defendant violated the terms of his supervised release by leaving a residential re-entry center ("RRC"), and a warrant for his arrest was issued on March 10, 2011. (ECF Nos. 426-27.)

Defendant was subsequently arrested, and a hearing was held on April 7, 2011 to determine how best to proceed.

At his VOSR hearing, all interested parties-the Government, the United States Probation Office, Defendant's counsel and Defendant himself-agreed that a sentence of thirty months' imprisonment would be imposed. (VOSR H'rg Tr. 3-4, ECF No. 434.) Although this sentence exceeded the Guidelines range of three to nine months in prison, Defendant agreed to a lengthier sentence for a single reason: so that he would be admitted to the Bureau of Prisons' ("BOP") Residential Drug Abuse Program ("RDAP"). (Id. at 4, 7.)*fn2 Defendant understood that if he completed RDAP, he would receive consideration in the form of a sentence reduction. (VOSR H'rg Tr. 7.) The Court "strongly recommend[ed]" that Defendant be admitted to RDAP. (Id. at 8.) At all times, all parties believed and understood that Defendant was willingly accepting a more punitive sentence in order to benefit from RDAP and a sentence reduction if he successfully completed the drug program.

Defendant is currently incarcerated at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"). In an April 23, 2012 letter, Defendant stated that BOP determined him "to be ineligible for the sentence reduction due to a precluding offense in [his] criminal history." (April 2012 Letter, ECF No. 450 Ex. A.)*fn3 The exact reasons for this determination are unclear. However, it is clear that Defendant has not received all the benefits of RDAP, specifically the reduction in sentence associated with the program.

On July 5, 2012, Defendant submitted to the Court, by letter, certificates confirming that he had completed the 500 Hour Residential Drug Treatment Program on June 4, 2012. Defendant also submitted documents indicating that, while incarcerated, he has pursued an array of educational, vocational and spiritual trainings. Defendant's drug treatment counselor further wrote in a letter that Defendant has not violated any rules while incarcerated, is a positive influence on other inmates, and "is generally perceived by treatment staff as genuine in his desire to change his thinking."

On July 26, 2012, Defendant filed this Petition to reduce his sentence. (Pet.) The Government responded, opposing the Petition, on August 9, 2012. (Gov't's Resp., ECF No. 449.) A conference was held with counsel on August 17, 2012. On August 20, 2012, Defendant requested that the April 23, 2012 Letter be treated as a ...


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