United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28
U.S.C. § 2255 AND DENYING CERTIFICATE OF
WALTON PRATT, JUDGE.
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.
The § 2255 motion
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.
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.
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. §
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.
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.
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 ¶
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.
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