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Anderson v. United States

January 9, 2007

ROY MARTIN ANDERSON PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

On March 8, 2005 the petitioner pled guilty to possession with intent to distribute approximately 27.375, 55.9639 and 55.4947 grams of cocaine hydrochloride. Petitioner was sentenced to 151 months imprisonment, three years supervised release and a $300 special penalty assessment. Judgment was entered on July 28, 2005. Petitioner did not file a direct appeal. Petitioner is presently imprisoned at the FCI Texarkana, Texas facility.

On June 27, 2006 Petitioner filed a pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §2255 arguing that: (1) he was "supposed to receive a sentence of 30 months"; (2) he "signed a plea agreement to that effect"; (3) he first learned that he was receiving a 151 month sentence at the sentencing hearing and was never told by counsel that he was not going ro receive a 30 month sentence; and (4) his attorney was supposed to file an appeal and when he found out that an appeal was not filed it was to late to file. The government responded on October 6, 2006

Petitioner, appointed counsel and Assistant United States Attorney appeared before the Court on this date. Petitioner confirmed that his intent is to challenge his sentencing and not change of plea. Petitioner argues that he requested his trial counsel file an appeal from his sentence and his counsel failed to do so. For the reasons stated on the record, the Petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §2255 is hereby granted. The prior sentence given July 28, 2005 is hereby vacated. The court will re-schedule this matter for resentencing forthwith. The time for appeal will commence to run from the date of the resentence. Hollis v. United States, 687 F. 2d 257 (8th Cir. 1982).

IT IS SO ORDERED this 9th day of January, 2007.

20070109

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