Free Affidavit - District Court of Arizona - Arizona

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_ UNITED STATES DISTRICT COURT j ———COpY
I FOR THE DISTRICT OF ARIZONA J -
E NDV 2 7 2006
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I SBY o»EwH,aT“§’,TQ;gjggIgunr
ABERLARDO SEPULVEDA URIBE, : ‘ L_A_mge$?mw%_;_gé;8TY _:_
PETITIONER.` : CRIM. NO. CR-Oh—3l9—O2—PHX(SRE`“ ’‘‘
: CIVIL NO. h
. V. :
UNITED STATES OF AMERICA, : SS: AFFIDAVIT OF
RESPONDENT. : ABELARD0 SEPULVEDA URIBE.
` PETITIONER'S AFFIDAVIT
IN SUPPORT OF MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE.
NOW COMES ABELARDO SEPULVEDA URIBE, Petitioner affiant in the
above captioned matter and hereby depose and say pursuant to 28 U.S.C.
§l7h6, under penalty of perjury, the following:
(1) I am the same Abelardo Sepulveda Uribe who was previously
"defendant" in the above captioned case of United States of America v.
_Abelardo Sepulveda Uribe in the United States District Court of Arizona
°case number CR Oh 319 O2 PHX (SRB).
(2) I was represented by, David M. Ochoa, P.O. BOX 22126, Phoenix,
Arizona 85028-2126, on first stage of trial, plea and sentence. I was
represented by Gail Gianasi Natale, Arizona State Bar #10389. 817
North Second Street, Phoenix, AZ 8500h, on appeal.
(3) During Plea Agreement, I was represented by David M. Ochoa, we
enter into agreement with the Government, and I assume responsibility I
for the cocaine involve on the offense, despite, there was found just
a gram, on my person. I
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` {Q) l was found accountable for 85 grams of cocaine accordingly
with my Plea Agreement, the Plea Agreement stipulate to 50 but less
than 100 grams of cocaine. Pursuant to Federal Rule of Criminal Pro-
cedure 1l(c)(1)(C). ,
(5) At Plea Colloquy held on September 07, 2004 the District Court
didn't agreed with the drug stipulation and, argue that I had to plead
guilty to a higher quantity of drug. The Prosecutor, alleged that base
on the fact that they didn’t want to disclosed the identity of the co-
operating witness, they stipulate to found me accountable just for the
cocaine, my other co—defendant plead to the marijuana and a third co-
defendant plead to firearms. l U
(6) On November 23, 2004, another attempt to plea was made this
time a complete Rule ll, demonstrate that obviously a plead guilty to
85 grams of cocaine regarding drug quantity, (See Plea Colloquy trans-
cript of November 23, 200é, page 22 line 10-11) this is the only factual
basis a plead to 85 grams of cocaine.
(7) At sentencing on May 17, 2005, after having an evidentiary
hearing on April 4, 2005, the Government as requested by the Court
amended the Plea regarding the stipulation of sentence. The Court
advise me that it was the same November 23, 2004 plea, the one that .
1 signed, but with some modification, that obviously were made under
the Court's request. (Sentencing transcript page 27).
(8) The Court accepted the amended plea and state as follow:
Case 2:04-cr—00319—SRB Document 124 Filed 11/27/2006 Page 2 of 4

‘ rm coser; ‘
It is judgment of the Court that the defendant is guilty
of possession of cocaine with intent to distribute, a
class C felony in violation of Title 2l United States Code
_ Section Sal; and illegal alien in possession of a firearm,
a class C felony, in violation of Title 18 United States
Code, Section 922 and 92A.
I‘ve read the pre—sentence report in this matter its re-
commendation. We've held an evidentiary hearing. I've
had substantial discussion with Counsel, and I've, also
sentence the two other c0—defendants. _ .
Mr. Batista, do you agree that the offense level and
Criminal History category calculation under the advisory
guidelines and based on the Court's findings is 27 and I,
respectively?
MR. BAIISIA:
Yes, your Honor. -
THE COURT: _
Any errors or objections?
MB. BATISIA:
- No, your Honor.
. THE COURT:
Mr. Ochoa, do you agree as well? `
MR. OCHOA:
Yes, your Honor.
(Sentencing transcript page 29).
(9) Accordingly with the above stated Counsel for defendant Mr.
Ochoa, was Ineffective because, there is no factual basis in the plea
- Agreement, neither was presented at Plea Colloquy on November 23,
200h, the only day that Petitioner was advise of nature of charges,
factual basis, and consequences of plea, to support a guideline 27, I.
cgi
Case2:O4-cr—OO319—SRB Document124 FiIed11/27/2006 Page3of4 A

9 (IG} The District Court in s desperation for a higher sentence,
induce the Prosecutor to error, and Counsel for Petitioner didn't g
object. The only factual basis for a sentencing range establish by l
plea and stated in open Court by Petitioner is 85 grams of cocaine,
there is no sentencing level of 27 for 85 grams of cocaine in the
guidelines. ·
(See Plea Agreement page 9 and Plea Colloquy November 23, 200é, page 22).
(11) Accordingly Counsel Ocboa was ineffective and Appeal Counsel
Gail Gianasi was also ineffective because didn't properly revised the
Plea Agreement, Plea Colloquy transcript and just file an Anders brief,
_ to the Court of Appeals, despite, Petitioner's advise about the errors.
Accordingly, Petitioner's Sentence should be vacated.
Respectfully Submitted
g5s·,tM*J>® 5·e,§ugx/@01kKJ
ABELARD0 SEPULV D URIBE
_ REG. N0. 81916-008
LSCI ALLENNOOD
P.0. BOX 1000
WHITE DEER, PA 17887
Done this [Z day of QQMCM épp- , 2006
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