TERRERO v. UNITED STATES OF AMERICA
MEMORANDUM OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 2/22/17. (js)
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
Civil No. 17-236 (JBS)
[Cr. No. 1:16-cr-128 (JBS)]
UNITED STATES OF AMERICA,
SIMANDLE, Chief District Judge:
This matter is before the Court upon a petition by Edward
Terrero for relief under 28 U.S.C. § 2255, filed January 9,
2017, seeking to vacate the sentence imposed by this Court on
September 13, 2016 in United States v. Edward Terrero, Criminal
Number 16-128-01 (JBS).
Mr. Terrero pleaded guilty and was
sentenced to a term of 57 months for the crime of conspiracy to
distribute and possess with intent to distribute heroin in
violation of 21 U.S.C. § 846.
Receiving the benefit of the
safety valve under U.S.S.G. § 5C1.2, the defendant’s advisory
Guideline Range was determined by Total Offense Level 23 and
Criminal History Category I, for a recommended range of 46 to 57
The Court has preliminarily reviewed Petitioner’s Section
2255 filing pursuant to Rule 4(b) of the Rules Governing Section
2255 proceedings for the United States District Courts.
4(b) provides in relevant part that the judge must promptly
examine the Section 2255 motion and, “[i]f it plainly appears
from the motion, and the attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the motion and direct the clerk
to notify the moving parties.”
Petitioner Terrero alleges that he is entitled to relief
under 18 U.S.C. § 3582(c)(2) and Amendment 782 of the U.S.
He alleges that he is entitled to the
two-point reduction under the provisions of Amendment 782
(effective Nov. 1, 2014) regarding drug quantities in the table
at U.S.S.G. § 2D1.1(c)..
A review of the record in the underlying sentencing
indicates that the Petitioner indeed received the benefit of
Amendment 782 at the time of his sentencing in September, 2016,
and that his Section 2255 petition has no merit, as now
This Court sentenced Mr. Terrero employing the November 1,
2015 version of the Sentencing Guidelines.
See PSI § 20.
was no dispute, as Defendant Terrero stipulated, that he was
held responsible for approximately six kilograms of heroin that
were the subject of the conspiracy, and that he was a minor
participant, as he also stipulated.
See PSI ¶ 4(2).
As the PSI
correctly indicated, the Base Offense Level for this quantity of
heroin is 32 pursuant to U.S.S.G. § 2D1.1(c)(4), which included
the Amendment 782 in question, effective November 1, 2014.
Defendant received the drug-related minor role adjustment,
pursuant to U.S.S.G. § 2D1.1(a)(5), further reducing his base
offense level to 30.
Next, the Court recognized the stipulated adjustment for
role in the offense as a minor participant, decreasing by two
more levels, U.S.S.G. § 3B1.2(b), to Level 28.
PSR § 24.
Court further found at the sentencing hearing that the defendant
should receive the benefit of the safety valve under U.S.S.G. §
5C1.2(a), subtracting two additional points.
And finally, the
Court awarded three points for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a) & (b).
The total offense level
was thus 23.
The Court also reduced Mr. Terrero’s criminal history
computation, finding that his criminal convictions resulted in a
criminal history score of two points, placing him into Criminal
History Category I.
Mr. Terrero’s ultimate sentence of 57 months was within the
recommended guideline range, and the Court stated its reasons in
detail upon the sentencing record, which Petitioner does not
dispute in this Section 2255 motion.
In short, Mr. Terrero is mistaken that he did not receive
the benefit of Amendment 782.
It is quite plain that his
sentence was computed pursuant to the November 1, 2015
sentencing guidelines, which already included the Amendment 782
“Drugs-Minus-Two” reduction in § 2D1.1(c) , which had become
effective November 1, 2014.
To the extent that the Section 2255 Petition also alleges
that defense counsel was ineffective for permitting the alleged
error under Amendment 782 to occur, citing Strickland v.
Washington, 466 U.S. 668 (1984), that allegation is likewise
As explained above, Petitioner’s sentence
squarely applied the drug quantity table for heroin that had
been enacted as of November 1, 2014, pursuant to Amendment 782.
Defense counsel could not have been more effective in
representing Mr. Terrero.
Accordingly, the Court will not require the United States
to respond to this Petition, which will be dismissed.
The Court further finds that no certificate of
appealability will issue, as reasonable jurists could not
disagree as to the result.
February 22, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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