Opinion
96 CR. 450 (DLC)
November 1, 2002
MEMORANDUM OPINION AND ORDER
Through a letter dated July 30, 2002, defendant Jose Dominguez-Menas ("Dominguez") seeks to be resentenced because of assistance Dominguez has given law enforcement authorities in the prosecution of others. Construing the letter as an attempt to file a Rule 35 motion, the application is denied. See Rule 35, Fed.R.Crim.P.
The letter has not been construed as a petition for a writ of habeas corpus. Dominguez' time to file a habeas petition has long since elapsed. Dominguez does not contend that his conviction is invalid.
The relevant facts are few. Dominguez was arrested on May 22, 1996, during the sale of more than five kilograms of cocaine and more than a kilogram of heroin. On October 21, 1996, he pleaded guilty, and was sentenced on May 2, 1997, principally to 140 months in prison. Dominguez did not appeal.
Between his plea and sentence, and after his sentence, Dominguez met with an Assistant United States Attorney and law enforcement officers pursuant to proffer agreements in an effort to obtain a cooperation agreement with the Government. The Government never entered into a cooperation agreement with Dominguez. In the years that followed, Dominguez provided additional information to law enforcement officers in an effort to win reduction of his sentence.
In a letter of July 30, 2002, Dominguez advises the Court that the Government "offered" to have him resentenced if any arrests were made because of information that he provided to the Government. He contends that one or more arrests have been made because of information that he provided and that the Government has not lived up to its bargain with him. He requests resentencing and credit for his cooperation. The Government opposes the motion in a letter of September 27, 2002. In a letter received on October 2, Dominguez provides additional information to support his motion.
Any post-sentence reduction of a sentence for substantial assistance to law enforcement in governed by Rule 35(b), Fed.R.Crim.P. Rule 35(b) allows a court to reduce a sentence to reflect a defendant's substantial assistance in the investigation or prosecution of another person if the Government moves for a resentencing within one year after sentence is imposed. The Rule allows a court to consider a Government motion made after that time if the substantial assistance involves information not known by a defendant until the one year has elapsed.
As Rule 35 indicates, a court's authority to act is restricted to those instances in which the Government has made a motion. Here, the Government has not made any motion. Moreover, there is a substantial question, based on the submissions presently before the Court whether a motion made at this time would in any event by denied as untimely.
Where the Government has entered into a written agreement with a defendant in return for the defendant's substantial assistance, a defendant is entitled to specific performance of the agreement. See United States v. Suarzo, 2000 WL 1558737, at *2 (S.D.N.Y. Oct. 18, 2000) (collecting cases). Here, there was no written agreement between the defendant and the Government.
In the absence of an agreement, the defendant must show that the prosecutor's refusal to file a Rule 35 motion was based "on an unconstitutional motive," such as the defendant's race or religion. Wade v. United States, 504 U.S. 181, 185-86 (1992). Dominguez does not contend that the Government refused to act here because of an unconstitutional motive. Moreover, the Government has described several reasons for its refusal to move for a reduction of sentence. Where the Government's refusal to make an application is rationally related to legitimate Government ends, the refusal to file a motion for a reduction of sentence is honored. Id. at 186.
For all of these reasons, Dominguez' motion for a reduction of sentence or to compel the Government to move for a reduction of sentence is denied.
SO ORDERED.