IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CIVIL ACTION No. 07-4313

 :

 v. :

 :

FERNANDO PEÑA : CRIMINAL ACTION No. 03-487-09

MEMORANDUM

Padova, J. July 21, 2008

Before the Court is Fernando Peña’s Motion to Vacate, Set Aside or Correct Sentence

pursuant to 28 U.S.C. § 2255. For the following reasons, the Motion is denied.

I. BACKGROUND

 The Superseding Indictment in this case charged Peña and twelve co-defendants with

conspiring to distribute in excess of 50 grams of cocaine base in Reading, Pennsylvania, in violation

21 U.S.C. § 846. After a jury trial before the Honorable Franklin Van Antwerpen, Peña was

convicted of this charge. Thereafter, the case was transferred to the undersigned for sentencing, and

on March 14, 2005, we sentenced Peña to 260 months of incarceration, five years of supervised

release, a $1,000 fine, and a $100 special assessment. 

Peña appealed to the United States Court of Appeals for the Third Circuit, arguing that he

was a competitor rather than a member of the drug dealing conspiracy charged in the case, and that

we erred in permitting the Government to call new witnesses at sentencing in order to enhance his

guideline calculation. The Third Circuit rejected these claims, and affirmed his conviction and

sentence on January 17, 2007. See United States v. Keyes, 214 Fed. Appx. 145 (3d Cir. 2007). Peña

subsequently filed a petition for writ of certiorari, which the United States Supreme Court denied

on June 25, 2007. Peña v. United States, 127 S. Ct. 3030 (2007). Thereafter, he timely filed the

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instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“§ 2255

Motion”).

II. LEGAL STANDARD

Peña has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:

A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose

such sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside or

correct the sentence.

28 U.S.C. § 2255(a). “Section 2255 does not provide habeas petitioners with a panacea for all

alleged trial or sentencing errors.” United States v. Rishell, Civ. A. Nos. 97-294-1, 01-486, 2002

WL 4638, *1 (E.D. Pa. Dec. 21, 2001). In order to prevail on a Section 2255 motion, the movant’s

claimed errors of law must be constitutional, jurisdictional, “a fundamental defect which inherently

results in a complete miscarriage of justice,” or “an omission inconsistent with the rudimentary

demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962).

III. DISCUSSION

Peña asserts six grounds for habeas relief. We will address each in turn. 

A. Presentation of Perjured Testimony

Peña first argues that his conviction should be reversed because the Government bribed

cooperating witnesses to commit perjury at trial in violation of 18 U.S.C. § 201(c)(2), which

prohibits individuals from “directly or indirectly giving, offering, or promising anything of value to

any person as a witness upon a trial . . . before any court . . . .” Peña contends that proof of the

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Government’s misconduct can be found by “analyzing and contrasting the [witnesses’] testimonies,”

which show that “cooperating witnesses who never before mentioned [Peña] in any of their

statements before the police and the grand jury, suddenly mentioned [him] after the prosecutorial

attorney purposely addressed the questions to implicate [Peña].” (Peña Reply Br. at 3.) According

to Peña, we should find that the witnesses’ testimony was untruthful and reverse his conviction

because, “in the absence of such testimonies, the government had [no] ‘consistent evidence against

Petitioner to enforce his conviction.’” (Id. at 4.) 

 It is “firmly established that it is ‘the jury’s prerogative to decide all questions of

credibility.’” United States v. Haut,107 F.3d 213, 220 (3d Cir. 1997) (quoting United States v.

Gambino, 926 F.2d 1355, 1367 (3d Cir. 1991)). Indeed, “[i]t is a basic tenet of the jury system that

it is improper for a district court to ‘substitute[] [its] judgment of the facts and the credibility of the

witnesses for that of the jury. Such an action effects a denigration of the jury system . . . .’” Id.

(quoting Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir. 1960) (alterations in Haut)); see also

id. (“‘Under our system of jurisprudence a properly instructed jury of citizens decides whether

witnesses are credible.’” (quoting United States v. Giampa, 758 F.2d 928, 935 (3d Cir. 1985))).

Peña asks us to reject the apparent credibility determinations of the jury and find that certain

cooperating witnesses were lying, having been “bribed” by the Government. The law is plain that

the Government may not knowingly present false testimony and that if does so, the defendant’s

conviction is tainted. Napue v. Illinois, 360 U.S. 264, 269 (1959) (noting that “implicit in any

concept of ordered liberty” is “[t]he principle that a State may not knowingly use false evidence,

including false testimony, to obtain a tainted conviction . . . .”). However, Peña offers no evidence

that the Government knew that any testimony it was presenting in this case was false. Moreover,

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on cross-examination at trial, Peña’s attorney was free to, and did, challenge various witnesses’

credibility by inquiring about their failure to identify Peña as a member of the conspiracy in prior

statements and/or testimony, as well as their plea agreements with the Government. (See, e.g., N.T.

2/10/04, at 1-287:15 to 1-289:25; N.T. 2/12/04, at 3-143:3 to 3-150:9, 3-339:5 to 3-341:11.) Under

these circumstances, the jury considered the very allegations that Peña is making here and

nonetheless credited the witnesses’ testimony as it saw fit. Applying established law, we will not

second-guess the jury’s conclusions in that regard and find that Peña was wrongfully convicted.

Peña’s § 2255 Motion is therefore denied with respect to this ground for relief.

B. Ineffective Assistance of Counsel

Peña asserts two claims of ineffective assistance of counsel. First, he asserts that counsel was

ineffective for failing to file a motion requesting that his trial be severed from that of the six codefendants who were tried alongwith him. Second, he asserts that counsel was ineffective for failing

to file a motion in limine seeking to prohibit the Government from introducing evidence of phone

numbers at trial. 

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held that

criminal defendants have a Sixth Amendment right to “reasonably effective” legal assistance. Id.

at 687. To prove constitutionally inadequate representation, a criminal defendant must demonstrate

both that (1) his attorney’s performance was deficient, i.e., that the performance was unreasonable

under prevailing professional standards, and (2) that he was prejudiced by the attorney’s

performance. Id. Prejudice arising from an attorney’s unreasonable performance is proven if “there

is a reasonable probability that, but for counsel’s professional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability

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sufficient to undermine confidence in the outcome.” Id. As such, counsel cannot be found to be

ineffective for failing to pursue a meritless claim. See United States v. Sanders, 165 F.3d 248, 253

(3d Cir.1999) (“There can be no Sixth Amendment deprivation of effective counsel based on an

attorney's failure to raise a meritless argument.”); see also Parrish v. Fulcomer, 150 F.3d 326, 328

(3d Cir.1998).

1. Failure to Request Severance

Federal Rule of Criminal Procedure 8(b) provides in relevant part that an “indictment or

information may charge two or more defendants if they are alleged to have participated in the same

act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.

. . . All defendants need not be charged in each count.” Fed. R. Crim. P. 8(b). As a general rule,

defendants who are jointly indicted should be jointly tried. United States v. Sebetich, 776 F.2d 412,

427 (3d Cir. 1985). This is because joint trials “promote efficiency and serve the interests of justice

by avoiding the scandal and inequity of inconsistent verdicts.” United States v. Urban, 404 F.3d 754,

775 (3d Cir. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 537 (1993)); see also United

States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991) (where defendants are charged with a single

conspiracy and the same evidence would be presented at separate trials, the public interest in judicial

economy favors a joint trial). Nevertheless, under Criminal Rule 14(a), “[i]f the joinder . . . of . .

. defendants in an indictment . . . or a consolidation for trial appears to prejudice a defendant . . . ,

the court may . . . sever the defendants' trials . . . .” Fed. R. Crim. P. 14(a). 

Such severance is only appropriate “if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” Zafiro, 506 U.S. at 539. “[P]rejudice should not be found in

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Peña and all six of his co-defendants at trial were charged with conspiracy. The co- 1

defendants, however, were also charged with various counts of possession with intent to distribute

cocaine base and other related crimes. 

6

a joint trial just because all evidence adduced is not germane to all counts against each defendant.”

Id. (citing United States v. Sandini, 888 F.2d 300, 307 (3d Cir. 1989)). Similarly, defendants “‘are

not entitled to severance merely because they may have a better chance of acquittal in separate

trials.’” Urban, 404 F.3d at 775 (quoting Zafiro, 506 U.S. at 540). “In determining whether there

is prejudice, the court must consider ‘whether the jury can reasonably be expect to compartmentalize

the evidence . . . . ’” Sebetich, 776 F.2d at 427 (quoting United States v. De Larosa, 450 F.2d 1057,

1065 (3d Cir. 1971)). The burden of showing prejudice from joinder lies with the defendant seeking

severance, and the decision whether to sever lies within the sound discretion of the trial judge.

Eufrasio, 935 F.2d at 568 (citing United States v. DePeri, 778 F.2d 963, 983 (3d Cir. 1985); United

States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981)). 

Peña’s severance argument ultimately depends upon a factual premise that counsel’s failure

to request severance, and the district court’s resulting failure to sever, caused him prejudice. In this

regard, Peña contends that he was prejudiced by being tried alongside his co-defendants. He asserts

that there was insufficient evidence at trial to convict him of conspiracy and, thus, he must have been

convicted based on evidence relevant only to his co-defendants. However, on direct appeal, the 1

Third Circuit expressly concluded that there was sufficient evidence adduced at trial to establish that

Peña was a member ofthe charged conspiracy, explaining that “viewing the evidence in the light most

favorable to the government, a reasonable jury could have concluded beyond a reasonable doubt that

[Peña was] supplied with drugs for distribution by Perez and Acevedo-Hernandez and knew of, and

intended to benefit from, the mutual control of the area.” Keyes, 214 Fed. Appx. at 152. Thus,

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contrary to Peña’s argument, the Third Circuit has already determined that there was sufficient

evidence on which to convict him irrespective of any improper inferences that the jury could have

conceivably drawn from evidence introduced against Peña’s co-defendants.

Moreover, we find that trial in this case was not so complex or confusing as to give rise to an

inference, much less a conclusion, that the jury was unable to distinguish the evidence relevant to

Peña from that relating only to his co-defendants. Although seven defendants (including Peña) were

tried together on twenty separate counts, trial lasted only six days, and there were only four days of

witness testimony. Furthermore, the court correctly instructed the jury that it was to “give separate

consideration to each charge and each Defendant, and not think of them as a group.” (N.T. 2/13/04,

at 4-315.) “We presume that the jury follows such instructions.” Urban, 404 F.3d at 776. 

Given the policy preference for trying co-conspirators together jointly in one trial, see

Eufrasio, 935 F.2d at 568, and Peña’s failure to suggest any basis on which we could reasonably

conclude that the jury was unable to properly compartmentalize the evidence against the various

defendants in this case, we find that Peña has failed to establish that he suffered any prejudice on

account of his counsel’s failure to request a severance. Peña’s § 2255 Motion is, consequently,

denied with respect to this ground for relief. 

2. Failure to File Motion in Limine to Exclude Phone Numbers

Peña also asserts that trial counsel was ineffective in failing to file a motion in limine

requesting that the trial court exclude “the evidence regarding the phone numbers.” (§ 2255 Mot. at

¶ 12F.) At trial, the Government introduced into evidence cell phone records showing that the

various co-defendants/co-conspirators were in telephone contact with one another. With respect to

Peña in particular, an intelligence analyst with the Reading Area Violent Crimes Task Force testified

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On direct appeal, Peña’s co-defendants, Calvin Goodrich and Angel Castillo-Bienvenido, 2

argued that the phone number evidence against them should have been excluded as hearsay. The

Third Circuit held that the trial court “did not abuse its discretion in allowing [the analyst] to

describe certain telephone number[s] as belonging to Goodrich.” 214 Fed. Appx. at 156. It further

held that “a proper foundation should have been laid for the phone records analyzed by [the

analyst],” but that such error did not affect Castillo-Bienvenido’s substantial rights under a plain

error standard because the phone records were “of minimal significance in light of the other

overwhelming evidence of Castillo-Bienvenido’s guilt.” Id. In that regard, it noted: “Though

corroborative of the witness testimony regarding the co-defendants’ association with each other, the

telephone records did not ‘make the case’; it was obviously the credibility of numerous cooperating

witnesses offered at trial that convicted the Appellants.” Id. at 156-57.

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that the records showed that co-defendant Mustafa Sheriff called Peña 217 times, that co-defendant

Calvin Goodrich called Peña 62 times, and that co-defendant Andrew Cruz called Peña 108 times.

(N.T. 2/13/04, at 4-166:7 to 4-167:10.) On cross-examination, Peña’s counsel questioned the analyst

as to how she knew that the number Sheriff, Goodrich, and Cruz called on these occasions belonged

to Peña, noting that the cell phones’ directories indicated that the number belonged to “Moya” and

“Dawn Lizzie,” neither of which were known nicknames for Peña. (Id. at 4-180:22 to 4-182:17.) In

addition, Peña’s counsel argued in his closing that there was no basis on which the calls to Moya and

Dawn Lizzie could be attributed to Peña. (Id. at 4-286:2-25.) 

Peña’s § 2255 claim, while not well defined, appears to concern the phone numbers that were

attributed to him at trial. Specifically, he appears to argue that counsel should have filed a motion

in limine to exclude the evidence that certain phone numbers belonged to him, instead of merely

raising questions regarding the attribution of the numbers on cross-examination and in closing. While

we are unclear as to the precise legal basis on which Peña believes his counsel should have moved

to exclude this evidence, we find that counsel’s conduct with respect to this evidence was not 2

objectively unreasonable and did not prejudice Peña.

In order to show that counsel’s performance was objectively unreasonable, a defendant must

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show that his counsel made errors so serious that he was not “functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.” Id. “In evaluating counsel’s performance, [the Court is]

‘highly deferential’ and ‘indulge[s] a strong presumption’ that, under the circumstances, counsel’s

challenged sanctions might be considered sound . . . strategy.” Buehl v. Vaughn, 166 F.3d 163, 169

(3d Cir. 1999) (quoting Strickland, 466 U.S. at 689). Here, counsel plainly considered the evidence

about which Peña now complains and developed a strategy for addressing that evidence – namely,

attacking it on cross-examination and in closing argument. While another strategy, such as filing a

motion in limine, might also have been effective, “Strickland and its progeny make clear that

counsel’s strategic choices will not be second-guessed by post-hoc determinations that a different trial

strategy would have fared better. Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006) (citing

Strickland, 466 U.S. at 689). We therefore find that counsel’s conduct fell within the wide range of

strategic decisions that counsel is entitled to make, was not “objectively unreasonable” and did not

deny Peña “the ‘counsel’ guaranteed [to him] by the Sixth Amendment.” Strickland, 466 U.S. at 687.

We also conclude that the introduction of the cell phone records did not prejudice Peña. As

detailed in the Third Circuit’s opinion on direct appeal, the other evidence against Peña was

considerable. See generally 214 Fed. Appx. at 151-52. Cooperating witness Kenneth Williams

testified that Peña sold drugs at 50 South 10th Street, and that co-defendant Wilfredo Ortiz also sold

at that location for Peña. (N.T. 2/10/04, at 1-219:12-24, 1-224:10-22.) Williams further testified that

Peña worked with certain of his co-defendants packaging drugs at 37 South 9th Street. (Id. at 1-

230:25 to 1-232:5.) Jasmine Lawson, another cooperating witness, testified that she sold drugs in the

area of 10th and Franklin streets in the summer of 2002; that one could only sell drugs from that

location if you had the approval of Peña, Mustafa Sheriff, Angel Castillo-Bienvenido or Miguel

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Acevedo-Hernandez, all of whom were involved with drug trafficking in the area; and that on at least

one occasion, she packaged crack cocaine for Peña. (N.T. 2/12/04, at 3-95:3 to 3-97:4; 3-99:3 to 3-

101:21; 3-103:8-18.) Yet another witness, Lydia Carrera-Aponte testified that she observed Peña and

three of his co-defendants selling crack cocaine in her apartment building. (Id. at 3-176:17 to 3-

177:14.) 

In light of this evidence, we find, just as the Third Circuit found with regard to Peña’s codefendants, Calvin Goodrich and Angel Castillo-Bienvenido, that the telephone records, although

corroborative of the witness testimony, simply did not “make the case” against Peña. Keyes, 214 Fed.

Appx. at 156. Rather, “it was obviously the credibility of numerous cooperating witnesses offered

at trial that convicted” him. Id. at 156-57. Peña’s § 2255 Motion is therefore denied with regard to

this ground for relief. 

C. Use of Prior Convictions to Enhance Sentence

Peña next argues that we erred in considering prior state convictions that were not felonies

when we calculated his criminal history for sentencing purposes. Specifically, Peña argues that

consideration of his prior misdemeanor convictions was in contravention of the Supreme Court’s

decision in Lopez v. Gonzalez, 549 U.S. 47, 127 S. Ct. 625 (2006), which held that “a state offense

constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct

punishable as a felony under that federal law.” Id. at 633. Peña misunderstands the Lopez decision.

Lopez involved removal proceedings for a permanent resident of the United States, Jose

Antonio Lopez, who was convicted under state law of aiding and abetting another person’s possession

of cocaine. The removal proceedings were commenced pursuant to a provision in the Immigration

and Nationality Act (“INA”) that provides for removal of individuals convicted of an “aggravated

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In United States v. Estrada-Mendoza, 475 F.3d 258 (5th Cir. 2007), on which Peña relies, 3

the United States Court of Appeals for the Fifth Circuit found Lopez to affect a defendant’s offense

level calculations under the Guidelines under the specific circumstances of that case, which are

readily distinguishable from those in the instant case. Estrada-Mendoza involved an individual who

had been convicted of unlawfully entering or remaining in the United States pursuant to 8 U.S.C. §§

1325-26. With such a conviction, U.S.S.G. § 2L1.2(b)(1) provides for an eight level increase in the

defendant’s offense level if he was “previously deported, or unlawfully remained in the United

States, after . . . a conviction for an aggravated felony.” The Fifth Circuit noted that § 2L1.2(b)(1)

adopts the INA definition of “aggravated felony,” 475 F.3d at 260 (citing Lopez, 127 S. Ct. at 627),

11

felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines “aggravated felony” to include “illicit

trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section

924(c) of title 18).” 8 U.S.C. § 1101(a)(43)(B). Although the INA does not define “illicit trafficking,”

Title 18 defines that term to include “any felony punishable under the Controlled Substance Act (21

U.S.C. 801 et seq.).” 18 U.S.C. § 924(c)(2). Lopez’s drug offense was a felony under the applicable

state law, but did not constitute a felony under the Controlled Substance Act (“CSA”). 127 S. Ct. at

629 (citing S.D. Codified Laws, §§ 22-3-3, 22-42-5; 21 U.S.C. 844(a)). Lopez therefore argued that

his offense did not constitute an “aggravated felony” under the INA. The Supreme Court analyzed

the precise statutory language in the INA and the CSA, and agreed that Lopez’s state felony

conviction did not constitute an “aggravated felony” under the INA, reiterating that an “aggravated

felony” is “a felony punishable under theControlled Substance Act,” and holding that “a state offense

constitutes a ‘felony punishable under the Controlled Substance Act’ only if it proscribes conduct

punishable as a felony under that federal law.” Id. at 633. 

Putting the Lopez holding into context, it becomes clear that Peña’s reliance on that holding

is misguided. Contrary to Peña’s assertion, Lopez in no way prohibits a sentencing court applying

the Federal Sentencing Guidelines from considering state convictions that would not constitute

felonies under federal law in calculating a defendant’s criminal history. Rather, it merely construes 3

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and therefore held that the analysis of Lopez applied so that the eight level increase could not be

imposed for a state conviction unless the crime constituted a felony under the CSA. Id. at 261.

U.S.S.G. § 2L1.2(b)(1) is not at issue in the instant case and, thus, Estrada-Mendoza provides no

meaningful guidance here. 

12

the meaning of “aggravated felony” as used in the INA. Notably, the Guideline provisions that we

used in calculating Peña’s criminal history points never used that term. Moreover, the Guidelines

explicitly permit a sentencing court to consider state misdemeanor convictions in calculating a

defendant’s criminal historypoints. See U.S.S.G. § 4A1.2(c). Accordingly, Peña’s reliance on Lopez

is unavailing, and he has provided us with no basis on which to conclude that we otherwise erred in

considering his misdemeanor convictions in calculating his criminal history. Peña’s § 2255 Motion

is therefore denied with respect to this ground for relief. 

D. Enhancement of Sentence Based on Facts Not Found Beyond a Reasonable Doubt 

Peña next argues that we erred in enhancing his sentence based on facts that the jury did not

find beyond a reasonable doubt. Specifically, Peña contends that we erred in enhancing his sentence

based on drug quantities, his role as a leader, supervisor and/or manager, and his routine use of a

firearm, when the jury did not find those facts beyond a reasonable doubt. 

As a general rule, a defendant may not use a § 2255 Motion to relitigate issues that were

litigated on direct appeal. United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993). On direct

appeal, Peña argued, just as he does here, that we erred in considering factors not proven to a jury

beyond a reasonable doubt. The Third Circuit, applying United States v. Booker, 543 U.S. 220 (2005)

(holding that the right to jury trial is violated when defendant’s sentence is increased beyond statutory

maximum based on judge’s findings of fact beyond those established by a guilty plea, a jury verdict

proved beyond a reasonable doubt, orthose admitted by defendant), explicitly rejected this argument,

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explaining as follows:

We have reviewed the record in this case to determine whether the

district court erred in relying upon judge-found facts to enhance Peña’s

sentence beyond the statutory maximum for his crime. Peña was

convicted of conspiracy to distribute cocaine base of 50 grams under

21 U.S.C. § 846. Peña J.A. 1397. The maximum penalty under the

statute is life imprisonment. 21 U.S.C. § 841(b)(1)(A). Peña was

sentenced to 260 months in prison, below the statutory maximum.

Peña J.A. 1461.

At the sentencing hearing held on March 14, 2005, over Peña’s

objection, the Government called Mustafa Sheriff and Manuel Perez

to testify to the quantity of crack cocaine Peña distributed during the

course of the conspiracy, his role in the conspiracy, and his possession

of a gun. Peña J.A. 1426-52. Based on this testimony, the district

court found, by a preponderance of the evidence, that he was

responsible for the distribution of 1.5 kilograms of crack cocaine, was

a leader/supervisor of the organization, and had possessed a firearm in

connection with the offense. Peña J.A. 1454-57. Those findings, to

which Peña has presented no factual rebuttal, made his offense level

42 and, with his criminal history of VI, his guideline sentencing range

was determined to be 360 months to life. After considering the

advisory Sentencing Guidelines and all relevant “3553(a) factors,”

including the seriousness of the offense and Peña’s extensive criminal

history, the court sentenced Peña to 260 months incarceration and five

years supervised release. Peña J.A. 1457, 1459-61. This sentence was

within the range allowed by statute, which imposed a mandatory

minimum sentence of 10 years imprisonment and a maximum term of

life imprisonment.

We find the sentencing judge correctly applied the Guidelines in an

advisory capacity in Peña’s case, establishing that the applicable

guideline range under the Sentencing Guidelines would be 360 months

to life. In sentencing Peña to 260 months in prison, the judge

explicitly acknowledged that the Sentencing Guidelines were advisory.

We find the sentence imposed to be reasonable, and we therefore

affirm.

 Keyes, 214 Fed. Appx. at 154-55 (footnote omitted).

Peña nevertheless argues that there are changed circumstances that warrant addressing this

Case 2:03-cr-00487-JP Document 551 Filed 07/21/08 Page 13 of 16
Cunningham is the only case Peña cites that both post-dates the Third Circuit’s January 17, 4

2007 decision on direct appeal and is binding on this Court. 

14

sentencing issue anew. A defendant may relitigate an issue that was adjudicated on direct appeal if

there is “newly discovered evidence that could not reasonably have been presented at the original trial,

a change in applicable law, incompetent prior representation by counsel, or other circumstances

indicating that an accused did not receive full and fair consideration of his federal constitutional and

statutory claims . . . .” United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979) (footnotes

omitted). Peña appears to contend that there was a “change in applicable law,” as he asserts that the

Supreme Court’s decision in Cunningham v. California, 549 U.S. 270 (2007), constitutes a “new or

changed circumstance” that warrants reconsideration of his Booker argument. However, Peña does

4

not state how Cunningham changed the law, much less explain how any such change should result

in a reversal of his sentence. 

Further, the Third Circuit has stated that Cunningham “stands for the proposition that judicial

determinations of aggravating sentencing factors violates the Sixth Amendment when performed

under a mandatory sentencing scheme.” United States v. Williamson, No. 07-1373, 2008 WL

948316, *1 (3d Cir. Apr. 9, 2008). Accordingly, where, as here, we were applying the non-mandatory

Guidelines, and “found facts that increased the applicable Guideline range, not facts that raised the

sentence above the statutory maximum,” Cunningham is simply inapposite. Id. (rejecting argument

that Cunningham precludes a sentencing court from “making findings necessary for a firearm

enhancement and determination of drug quantity”). We therefore deny Peña’s § 2255 Motion with

respect to this ground for relief.

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E. Sentencing for Crime That Was Not Proven Beyond a Reasonable Doubt

In his next claim, Peña asserts that the “sentencing court violated [his] Fifth Amendment

Rights of due process when it ignored that there was in this case a complete absence of material and

physical evidence to punish Petitioner for a crime that cannot be proven ‘beyond a reasonable doubt.’”

(§2255 Mot. at ¶ 12E.) According to Peña, “the Government presented at trial only testimonial

evidences [sic] from cooperating witnesses,” which were “contradictoryand inaccurate.” (Id.) There

is no way to understand this claim except as a claim of insufficient evidence, which the Third Circuit

has already addressed and rejected. See DeRewal, 10 F.3d at 105 n.4 (stating that defendant may not

use § 2255 Motion to relitigate issues that were litigated on direct appeal). Accordingly, we deny

Peña’s Motion with respect to this ground for relief as well. 

An appropriate Order follows.

Case 2:03-cr-00487-JP Document 551 Filed 07/21/08 Page 15 of 16
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CIVIL ACTION No. 07-4313

 :

 v. :

 :

FERNANDO PEÑA : CRIMINAL ACTION No. 03-487-09

ORDER

AND NOW, this 21st day of July, 2008, upon consideration of Defendant Fernando Peña’s

Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Criminal Docket No.

508), and all attendant and responsive briefing, IT IS HEREBY ORDERED that:

1. The Motion is DENIED. 

2. As Defendant has failed to make a substantial showing of the denial of a constitutional

right, there is no basis for the issuance of a certificate of appealability.

3. The Clerk is directed to CLOSE Civil Action No. 07-4313.

BY THE COURT:

 /s/ John R. Padova, J. 

John R. Padova, J.

Case 2:03-cr-00487-JP Document 551 Filed 07/21/08 Page 16 of 16