Criminal Law

Dist. Ct. erred in denying defendant’s motion to reduce his 240-month term of incarceration on charge of distribution of crack cocaine, where term of defendant’s plea agreement allowed defendant to seek such relief if, as here, Supreme Ct. subsequently determined that Fair Sentencing Act (FSA) applied to his case. While Dist. Ct. treated defendant’s motion as request for relief under 18 USC section 3582(c)(2), Dist. Ct. should have treated defendant’s motion as petition for relief under 28 USC section 1955, based on defendant’s argument that his sentence was imposed contrary to law. Moreover, defendant’s motion should have been allowed so as to grant him new sentencing hearing where: (1) under Dorsey, 132 SCt 2321, FSA applied to his sentence since his offense occurred prior to effective date of FSA and his sentencing hearing took place after said effective date; (2) under FSA, defendant was subject to only 120-month mandatory minimum sentence instead of 240-month mandatory minimum sentence that Dist. Ct. believed applied to instant case; and (3) record did not indicate that Dist. Ct. would have imposed instant sentence had it been aware of lower mandatory minimum sentence.

Dist. Ct. did not err in dismissing for lack of jurisdiction plaintiff’s action seeking to “correct record” to reflect that he was not career offender, and thus was entitled to reduced sentence. Defendant had previously filed unsuccessful habeas petition, and dismissal of instant motion was appropriate, where defendant’s motion was essentially successive habeas petition to which defendant had failed to obtain prior permission to file. Ct. rejected defendant’s claim that instant motion was proper under Rule 36 as correction of “clerical error,” where Ct. found that substance of defendant’s motion concerning contents of his pre-sentence report that had characterized his prior convictions in certain way was substantive matter.

Defendant was entitled to acquittal on charge of conspiracy to commit bribery, where said charge arose out of undercover government sting operation, and where record supported defendant’s claim that he was entrapped into committing said offense. While defendant ultimately wrote check to fictional govt. official for purposes of obtaining pharmaceutical services contract, govt. conceded that defendant was not predisposed to commit said offense prior to efforts by government officials to have defendant commit said offense. Moreover, record established existence of entrapment defense where: (1) defendant did not initially respond to frequent FBI emails and telephone calls about scheme to obtain contract; (2) FBI invented false deadlines for defendant to commit to scheme; (3) FBI granted defendant significantly more benefits than what he was originally promised as inducement for him to join scheme; and (4) FBI pressed defendant to join scheme after it learned that defendant was thinking about joining instant scheme as means to help friend.