Sterrett v. USA - 2255

Filing 2

MEMORANDUM AND ORDER denying 444 Motion to Vacate (2255) as to Cheryl M. Sterrette in criminal case 11cr428. Signed by Judge Marvin J. Garbis on 1/3/2017. (kw2s, Deputy Clerk)(c/m 1/3/17)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA

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vs.

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CHERYL STERRETTE
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CRIMINAL NO. MJG-11-0428
(Civil No. MJG-16-2731)

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MEMORANDUM AND ORDER
The Court has before it the Motion Pursuant to 28 U.S.C. §
2255 to Vacate, Set Aside Sentence in Light of Retroactive
Effect of the Clarifying Amendment (794) [Document 444] filed by
Defendant Sterrette ("Petitioner") and the materials filed
relating thereto.

The Court finds that a hearing is

unnecessary.
On February 19, 2014, Petitioner was convicted on a plea of
guilty to conspiracy to commit bank fraud and aggravated
identity theft.

On May 16, 2014, the Court imposed the

sentence of 12 months on the conspiracy charge and a consecutive
mandatory 24 months on the aggravated identity theft charge.
By the instant Motion, filed July 29, 2016, pursuant to 28
U.S.C. § 2255, Petitioner seeks to have her sentence reduced.
Petitioner asserts that she was wrongly denied consideration of
a Guideline Offense Level adjustment for her minor role in the
conspiracy offense.

However, 28 U.S.C. § 2255 provides for a

one-year period of limitations for filing motions to vacate a
sentence with exceptions not here relevant.
Petitioner was, in fact, given a four Offense Level
adjustment in determining her Guideline Sentencing range for the
conspiracy charge.

Thus, her range was determined on the bases

of offence Level 9 with Criminal History Category IV, a range of
12 to 18 months.

She was sentenced at the low end of the range.

The Court must also note that the instant motion was filed
late.

28 U.S.C. § 2255 provides for a one-year period of

limitations for filing motions to vacate a sentence with
exceptions not here relevant.

The one-year filing period runs

from the date that the judgment of conviction became final.
U.S.C. § 2255(1).

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In United States v. Dorsey, 988 F. Supp. 917,

918 (D. Md. 1998), Judge Legg of this Court held that a judgment
becomes final for this purpose on the date that a petitioner can
no longer pursue a direct appeal.

Accord Clay v. United States,

537 U.S. 522, 525 (2003).
Petitioner’s sentence was imposed on May 16, 2014, and
Judgment was entered June 4, 2014.

The last day on which

Petitioner could have timely filed a Notice of Appeal was on or
about June 18, 2014.

The instant motion, filed July 29, 2016,

was filed more than two years late.

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For the foregoing reasons:
1.

The Motion Pursuant to 28 U.S.C. § 2255 to
Vacate, Set Aside Sentence in Light of
Retroactive Effect of the Clarifying Amendment
(794) [Document 444] is DENIED.

2.

The civil case shall be dismissed with prejudice.

3.

Judgment shall be entered by separate Order.

SO ORDERED, this Tuesday, January 3, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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