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Toledo v. United States

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Submitted: May 14, 2009

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

Denise D. Toledo pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). She was sentenced to the statutorily mandated minimum of 180 months’ imprisonment as an armed career criminal pursuant to 18 U.S.C. § 924(e). Toledo appeals from the denial of her motion pursuant to 28 U.S.C. § 2255 to vacate her sentence based on ineffective assistance of counsel. She alleges that she is entitled to post-conviction relief because her attorney withdrew objections to her presentence report that, if sustained, likely would have resulted in a lesser sentence. In particular, she asserts that the predicate offenses relied on at sentencing no longer constitute violent felonies following the Supreme Court’s decision in Begay v. United States, 128 S.Ct. 1581 (2008). The district court*fn1 denied Toledo’s motion but granted a certificate of appealability. We affirm.

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