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Tello v. United States

United States District Court, S.D. Indiana, Indianapolis Division

November 21, 2019

MARIO ALFONSO TELLO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          TANYA WALTON PRATT, JUDGE.

         This matter is before the Court on the motion of Mario Alfonso Tello (“Mr. Tello”) for relief pursuant to 28 U.S.C. § 2255. For the reasons explained in this Entry, the motion must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. The § 2255 motion

         A. Background

         On July 19, 2016, Mr. Tello was charged in a four-count Indictment along with two others. Specifically, he was charged in Count 1: conspiracy to possess with the intent to distribute and/or distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and Count 3: attempted possession with the intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. See United States v. Tello, 1:16-cr-151-TWP-DKL-3 (hereinafter “Crim. Dkt.”); Crim. Dkt. 32.

         On October 19, 2016, an Information was filed pursuant to 21 U.S.C. § 851, alleging that Mr. Tello had a prior felony drug conviction. Crim. Dkt. 64.

         Title 21 U.S.C. § 841(b)(1) in effect at the time of his sentencing stated: “If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment.” 21 U.S.C. § 841 (effective Aug. 3, 2010, to December 20, 2018). Section 851, however, provides that, “[n]o person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.” 21 U.S.C. § 851. A “felony drug offense” is defined as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marijuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44).

         Mr. Tello's prior felony drug convictions at the time the Indictment was filed consisted of:

1. 1998 Possession of Marijuana, Felony, 79th District Court of Brooks County, Falfurrias, Texas, No. 99-04-06326. Crim. Dkt. 89, Presentence Investigation Report (PSR) at ¶ 37.
2. 2006 Possession of Cocaine, Felony, Marion County Superior Court, Indianapolis, Indiana, No. 49G14-0604-FD-072348. PSR at ¶ 40.

         On December 15, 2016, a petition to enter plea of guilty and plea agreement pursuant to Federal Rules of Criminal Procedure 11(c)(1)(C) was filed. Crim. Dkt. 73. Mr. Tello agreed to plead guilty to Count 3 of the Indictment and the United States agreed to dismiss Count 1, as well as refrain from filing a second Information pursuant to § 851 alleging that Mr. Tello had a second prior felony drug conviction. Id. at p. 1 and 11-12.

         Based on the filing of a single § 851 Information, the statutorily required minimum sentence was 20 years and the maximum sentence was life imprisonment. PSR at ¶ 74. The parties agreed to a term of imprisonment of 240 months, the mandatory minimum under the statute. Crim. Dkt. 73 at ¶ 9.

         Mr. Tello waived the right to appeal the conviction and sentence imposed and waived the right to any collateral attacks on his conviction or sentence with the exception of ineffective assistance of counsel. Id. at ¶¶ 14-15.

         On March 17, 2017, the Court accepted Mr. Tello's plea agreement, finding that the plea of guilty was knowingly and voluntarily made and supported by an independent basis of fact. Crim. Dkt. 92 (Judge Larry J. McKinney presiding). The Court accepted the terms of the plea agreement and sentenced Mr. ...


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