Mejia v. USA CV-97-424-M 01/29/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Alfredo L. Mejia

v. Civil No. 97-424-M

United States of America

O R D E R

Petitioner has filed a motion under

to

vacate, set aside, or correct his federal sentence. He asserts

two bases for his motion: 1) The government breached the terms

of his plea agreement; and 2) His appointed counsel provided

ineffective assistance in violation of his Sixth Amendment

rights.

The motion, memorandum, files and records of the case

conclusively show that the petitioner is entitled to no relief,

with one probable exception. Petitioner's ineffective assistance

claim can fairly be read to include a claim that the Guideline

Sentencing Range calculation was incorrect, because drug

guantities, related to "relevant conduct" that occurred prior to

the conspiracy offense charged in Count I, were improperly used

to determine the ten year mandatory minimum sentence applicable

to Count I . That ten year mandatory minimum resulted in a GSR

(Total Offense Level 29, Criminal History Category I) of 120 to

121 months of imprisonment. It appears that the mandatory

minimum sentence applicable to Count I (based only on drug

guantities relevant to the offense of conviction) should have been 5 years, not ten (i.e. excluding the pre-conspiracy relevant

conduct drug guantity). Thus, the GSR should have been 97 to 121

months, not 120 to 121 months. See e.g. United States v. Camilo,

(1st Cir. 1994) (unpublished); United States v.

Rodriquez,

(7th Cir. 1995); United States v. Wizlo,

(9th Cir. 1995); United States v. Darmond,

(2d Cir. 1993) .

Petitioners counsel did make the point in his written

objection to the presentence report, but appears not to have

pursued it at the sentencing hearing or on appeal. Because that

issue seems to have merit, and because it can fairly be said to

fall within the broad claim for relief asserted by Petitioner,

notice of the petition shall be served upon the United States

Attorney, who shall respond on or before February 20, 1998,

advising the court as to the government's position relative to

the court's intention to grant relief by correcting petitioner's

sentence to imprisonment, that is, reducing it from 120 months to

the lowest point in the applicable guideline range (97 months),

thereby insuring that no prejudice results from the apparent

calculation error.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 29, 1998 cc: Alfredo L. Mejia Paul M. Gagnon, Esg.

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