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United States v. Acevedo

United States District Court, D. Massachusetts

July 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDGAR ACEVEDO, Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         Presently before the Court is a motion to vacate filed by Edgar Acevedo ("Acevedo" or "petitioner") pursuant to 28 U.S.C. § 2255, challenging his guilty plea offered in December, 2014, and the sentence that followed.

         I. Background

         In December, 2014, petitioner pled guilty to conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c).

         The indictment charged Acevedo with conspiring with several co-defendants to kidnap John Doe ("Doe") at gunpoint and hold him for ransom. At Acevedo's Rule 11 hearing, the government proffered the following facts that he did not dispute: two armed co-conspirators 1) stopped Doe's vehicle, 2) forced him from the car into a van driven by Acevedo, 3) demanded a ransom from Doe's wife and 4) held him at a house owned by Alfred Vasquez ("Vasquez"), a co-conspirator, in Lawrence, Massachusetts.

         FBI agents rescued Doe after five days and tracked the ransom money, coated with fluorescent fingerprint powder, to Vasquez's primary residence. They encountered Acevedo upon their arrival and arrested him after his hands tested positive for fingerprint powder residue.

         The government produced three witnesses to testify that Acevedo was part of the kidnapping scheme. Moreover, analysis of Acevedo's cellphone records from the three weeks prior to the kidnapping revealed that he had 114 calls with Vasquez and 89 calls with another co-conspirator.

         Acevedo was the last conspirator to plead guilty and several times attempted to sever the charges against him from the charges against his co-conspirators. He vigorously objected to portions of the Pre-Sentence Report ("PSR"), arguing that he 1) was unaware of the plan to kidnap Doe, 2) could not have foreseen the use of a gun by his co-conspirators, 3) was not present in the house where Doe was held and 4) played a minor role in the conspiracy itself.

         At sentencing, this Court heard arguments from defense counsel regarding petitioner's objections to the PSR and addressed the first 13 objections, which related to the facts recited in the PSR that increased his offense level. Defense counsel did not offer any rebuttal evidence in support of his objections to the PSR nor did she request an evidentiary hearing.

         A. Procedural History

         Acevedo was charged by indictment in April, 2012. After this Court denied his motions to sever, Acevedo pled guilty at a Rule 11 hearing in December, 2014, the day before he was scheduled to go to trial.

         Notwithstanding Acevedo's objections at sentencing, the Court adopted the PSR's recommended offense level of 37 and criminal history category I, resulting in a guidelines imprisonment range of 210 to 262 months. This Court then sentenced Acevedo to 192 months imprisonment, two years supervised release and a $100 special assessment.

         Acevedo appealed his below-guidelines sentence to the First Circuit Court of Appeals ("First Circuit") in March, 2015. He argued that this Court 1) failed to hold a hearing to resolve the factual disputes raised by his objections to the PSR at sentencing and 2) erred in calculating his offense level. He submitted that there was an undue disparity between his sentence and those of his co-conspirators. The First Circuit affirmed his sentence in June, 2016.

         In August, 2016, Acevedo appealed the decision of the First Circuit to the United States Supreme Court. In October, 2016, the Supreme ...


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