Free Reply to Response - District Court of Connecticut - Connecticut

Case 3:00-cr-00158-AWT Document 87 Filed 01/18/2005 PaQ£Z1@£f41AL {
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UNITED STATES OF AMERICA,
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; v. Case No. 3:00—CR—158(AWT) ip;§Qjs,; ,gpqT
i 3:04—cv—2031(Aw·1·) g ,3--,-**
E MIGUEL GUERRERO—CEDENO,
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REPLY T0 GOVERNMENT'S RESPONSE DATED
JANUARY 4TH 2005
COMES NOW the Movant Miguel Cedeno, in Proper Person,
who respectfully files this Reply to the Response of the Government
dated January 4, 2005, and in support states as follows:
I. INUXTGHMID Reggest to take Judicial Notice
Movant personally wrote his Attorney- William Bloss
for his transcripts and paperwork two—times and Counsel never
provided this documentation. Counsel did not even respond. Movant
has just now received copies of the requested Transcripts, Plea
Agreement, PSR, etc., from the U.S. Attorney's Office appended
to it's Response. Movant request Leave of the Court to Amend the
§2255 in light of this information.
II. Argument: _
Movant advances essentially two arguments for relief
in reply to the Government's Response and the newly received
documentary evidence.
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__ _ Case 3:00-cr-OO1?8-5AWT Document 87 Filed O1/&862005 Page 2 of 4
U a.):Dfug Quantity: U
Although Mgvaht allegedly stipulated to 1.5 kilograms 0f
crack cocaine, this drug amount was not charged by indictment. The
Indictment charged QQ grams of crack cocaine. This would have -
caused the Base Offense Level under the Guidelines to be level
Q2, not QQ as charged. In Qgited States v. Thomas, 274 F.3d 655
(2nd Cir. 2001), it was held that drug quantity was an element ¤
I of the offense under 21 U.S.C. §841(b)(l), which must be charged
in the indictment. Here the Indictment charged QQ grams of crack
cocaine, not 1.5 kilograms. Thus, Constructive Amendment of the I
Indictment occurred where Movant was sentenced to the greater 1.5 I
kilograms under Blakely v. Washington, 542 U.S. ___ (2004);
Thomas, supra., Agg Sgg Sullivan v. Louisiana, 508 U.S. 275 (1992)
(Court cannot supplant it's determination as to what the jury
would find).
— Also, a Defendant in the guilty plea context, even if 1
admitting elements/sentencing factors not charged in the indictment,
cannot be found by the District Court to have commited those acts
and be punished for them. glaggly v. Washington, supra. (This
would mean a man charged with manslaughter could be found guilty
of First Degree Murder). This would also amount to Plain Construct-
ive Amendment of the Indictment. Thus, pursuant to Blakely,
Counsel was ineffective in allowing his client to be sentenced
under a Civil Case Standard of Proof by a Judge for facts not
charged in the indictment that increased punishment. Alsg gg;
-2-

_ J Case 3:OO—cr-OO1£E8—)AWT Document 87 Filed O1/g%2005 Page 3 of 4 f
United States v. Kissick, 69 F.3d 1055 (10th Cir. 1995).
(Ineffective Assistance of Counsel as it relates to Counsel allowing
his client to receive a guidelines enhancement). Movant's Base
Offense Level must be reduced to level 3;, See Thomas, supra.
b.) Safety Valve Eligibility:
The Plea Agreement at page 4, para. 3. “Guidelines
Stipulation", states that the “Defendant may attempt to qualify
for relief under 18 U.S.C. §3553(f) and U.S.S.G. §§5Cl.2 and
2Dl.l(b)(6)“.
`Certainly, the Movant met the five—criteria to receive
the Safety Valve Departure. However, his lawyer suggested to this
Court that he did not, this apparently in an attempt to preserve
the Appellate Issue on the Motion to Suppress. Movant should
receive the Safety Valve Departure. See paragraph 13 of the PSR 1
in support.
Relief Reguested
_ In light of Blakely, Thomas and Kissick supra., the Movant's
Base Offense Level should be reduced to gg minus Q levels for
Acceptance of Responsibility under U.S.S.G. §3El.l. and 2 l
additional levels for Safety Valve pursuant to U.S.S.G. §5Cl.2,
for a final offense level 21, (70 to 87 months) and any other
relief this Honorable Court deems Just and appropriate, on light
of United States v. Booker and pnited States v. FanFan.
Respectfully Submitted,


Miguel Cedeno, Egg Se
#13924-014
FCI-ELKTON
P.O. BOX 10
Lisbon, Ohio 44432
.-3.. I

__ 4 _ Case 3:OO—cr-OO1i8¤AWT Document 87 Filed O1/Q%2005 Page40f4
. ,_,/ .
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that one true and correct copy of this
Reply was sent via First Class Mail to the U.S. Attorney, District
of Connecticut, P.O. BOX 1824, New Haven, Connecticut, 06508,on
this Itfqday of January, 2005.

Miguel Cedeno
A/K/A Miguel Machuca
Reg.No. 13924-014