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Sander v. United States

United States District Court, M.D. Florida, Fort Myers Division

July 1, 2019

JENNIFER NICOLE SANDER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #680)[1] filed on August 29, 2016. The government filed a Response in Opposition to Motion (Cv. Doc. #6) on October 28, 2016. The Court finds that an evidentiary hearing is not required.

         I.

         On September 28, 2011, a federal grand jury in Fort Myers, Florida returned a twelve-count Indictment (Cr. Doc. #3) charging petitioner and others with conspiracy to manufacture, to possess with intent to distribute and the distribution of 28 grams or more of crack cocaine (Count One). Petitioner was also charged with co-defendant Jophaney Hyppolite on a substantive count of distribution of crack cocaine (Count Twelve). On April 24, 2012, petitioner ratified a Plea Agreement (Cr. Doc. #219) in open court, which included a provision for three levels for acceptance of responsibility and an agreement to cooperate. On April 25, 2012, petitioner's plea of guilty pursuant to the Plea Agreement was accepted. (Cr. Doc. #221.)

         On October 15, 2012, the government filed a Motion for Downward Departure of Defendant's Sentence Based Upon Substantial Assistance (Cr. Doc. #395) based on petitioner's testimony in front of the grand jury and testimony during the trial of her co-defendants. The presentence report reflects that petitioner denied ever possessing a firearm, and that the government believed that the “silencer” was a flash suppressor, but that it had no information that petitioner possessed a firearm. (Cr. Doc. #641, ¶ 45.) Two levels were added because members of the conspiracy possessed weapons. (Id., ¶ 62.) Counsel for defendant specifically objected to paragraphs 45 and 62, arguing that petitioner never possessed any guns. The objection was overruled. (Id., Addendum, p. 31.)

         Petitioner was found to have been involved in more than 112 grams of cocaine base, but less than 196 grams of cocaine base giving her a Base Offense Level of 28. After receiving 3 levels for acceptance of responsibility, petitioner's Adjusted Offense Level was 27. Petitioner was found to be a career offender because she was 29 years old when she committed the offense, the offenses of conviction were for controlled substance offenses, and petitioner had at least two qualifying prior felony convictions[1]bring her Total Enhanced Offense Level to 34. (Id., ¶ 67.)

         When sentencing petitioner, the Court found that her criminal history of Category VI overstated the seriousness of her criminal history and departed down to a criminal history category V. The Court also granted the government's motion, and departed six levels. After considering the advisory recommendations of the United States Sentencing Guidelines and all the factors identified in 18 U.S.C. § 3553(a)(1)-(7), the Court sentenced petitioner to a term of imprisonment of 130 months as to each count, each count to be served concurrently, followed by a term of supervised release. (Cr. Doc. #396.) Judgment (Cr. Doc. #403) was filed on October 16, 2012.

         Petitioner did not appeal to the Eleventh Circuit, and the conviction became final 14 days after the Judgment on October 30, 2012. See Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000).

         II.

         Federal prisoners whose convictions became final after April 24, 1996, the effective date of The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), have one year from the latest of any of four events to file a § 2255 Motion:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...

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