Free Reply/Response Misc - District Court of Connecticut - Connecticut

Case 3:00-cr-00227-SRU Document 1423 Filed 11/O2/2005 Page 1 of 4
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UNITED STATES DISTRICT I
DISTRICT OF CONNECTICU 1
UNITED srrmzs oi= AiviERicA ; Z”[tihrNllllinn2%lLFRidi M0
HECTOR GONZALEZ : NOVEMBER 1, 2005
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SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT 1
OF THE DEFENDANT’S RESENTENCING E
The defendant seeks to provide further legal authority to the Court as to the
issue of whether the enhancement of his base offense level by the inclusion of the 1
crack cocaine conspiracy alleged in Count 13 of the indictment as relevant conduct
constituted a violation of his plea agreement with the government. 1
Additional Argument:1 _ I _ 1 :
l In 1QGTlSF5il,`.>DlG_S.ElQl'€S|'TICl'I1ZS(Sl'S subject._to‘ordina`ryicontract law principles, · Q
except that any ambiguity is resolved "strict|y against the Governm.ent." See
States v. Ready, 82 F.3d 551, 559 (2d Cir. 1996) . ·
To determine whether a plea agreement has been breached, a court must look
to "what the parties reasonably understood to be the terms of the agreement." _
States v. Miller, 993 F.2d 16, 20 (2d Cir. 1993). A sentence imposed pursuant to a plea
agreement "must follow the reasonable understandings and expectations of the 1
defendant with respect to the bargained—for sentence." United States v. Ferrara, 954 F. 1
2d 103, 105 (2d Cir. 1992). Furthermore, the government must adhere not only to the 1
‘ The argument against this enhancement is taken,.aimost verbatim, the
argument of Attorney Laurie S. Hershey. Esq., the attorneylfor the defendant in his 1
appeal from his sentence to the United State’s Court of Appeals for the Second Circuit
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B Case 3:00-cr-00227-SRU Document 1423 Filed 11/02/2005 Page 2 of 4
letter of the plea agreement, but also to its spirit. See, United States v. Palladin, 347 F. l
3d,30 (2d Cir. 2003)
Moreover, "because plea bargaining requires defendants to waive fundamental
constitutional rights, this Court has held prosecutors engaging in plea bargaining to the
most meticulous standards of both promise and performance" United States v. Lawlor,
168 F. 3d 663,336 (2d Cir. 1999), citing United States v. Velez Carrero, 77 F. 3d 11, i
(1st Cir. 1996) (internal quotation marks omitted). Where a plea agreement is I
ambiguous as to whether the Government can justifiably pursue an enhancement, it
has consistently been held that any such ambiguity must be construed against the }
Government. See, United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002); @Le_d
States v. Ready, 82 F .3d 551, 558-59 (2d Cir. 1996).
Here, in seeking an enhancement for the crack cocaine conspiracy as "reIevant
conduct," the government violated both the spirit and the letter of the plea agreement. l
A centerpiece of the agreement was that in exchange for the defendant’s plea to count
12, the government would dismiss count 13 charging the crack cocaine conspiracy.
Furthermore, the government would agree to credit for time served on the New York
indictment which charged an aspect of the crack cocaine conspiracy. Indeed, the plea
agreement referred to the New York case as "reIevant offense conduct for the offenses
to which he is pleading guilty.
lt therefore eviscerated the plea bargain to punish the defendant, under the
rubric of "reIevant conduct", for the same conduct which formed the basis of the count
that the government agreed to dismiss in exchange for the guilty plea. Othenivise put,
the prosecution gave with one hand while it took away with the other. If the defendant
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F Case 3:00-cr-00227-SRU Document 1423 Filed 11/02/2005 Page 3 of 4
was going to be punished for the crack cocaine conspiracy s "relevant conduct", what J
value was there for him in having count 13 dismissed?
lt was certainly the reasonable understanding of the defendant that the plea
agreement offered the defendant protection from punishment for count 13 of the
indictment and for the related conduct that led to the New York conviction because this
formed the very quid pro quo of the contract. Yet, the sentence in this case did not
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"follow the reasonable understandings and expectations of the defendant with respect `
to the bargained-for sentence." Ferrara, 954 F.2d at 105. i
Generally, "the remedy for a breached plea agreement is either to permit the I
plea to be withdrawn or to order specific performance of the agreement? United States
v. Brody, 808 F. 2d 944, 947 (2d Cir. 1986). In this case, the defendant does not seek
to withdraw his guilty plea but does seek specific performance of the plea agreement- —
i.e. that the Court sentence him in conformity with the plea agreement by not enhancing
his offense level for the crack cocaine conspiracy. .
Respectfully submitted, l
·’ RGON ,· EZ
J 1 / I? i
By: ¢ 7 4. M /’ Q
D nald Dakers I
l-lis Attorney
Ct 13257 i
18 Pepperidge Lane (
Madison, CT 06443
(Tel) (203) 946-4811 ;
(Fax) (203) 498-1238

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, Case 3:00-cr-00227-SRU Document 1423 Filed 11/O2/2005 Page 4 of 4
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CERTIFICATION OF SERVICE i
This is to certify that a copy of the foregoing memorandum was mailed this 1st
day of November, 2005, to Alex V. Hernandez, A.U.S./-\., United States Attomey’s
Office, Federal Building and U.S. Courthouse, 915 Lafayette Blvd. Rm #309,
Bridgeport, CT 06604, and Alina P. Marquez, A.U.S.A., United States Attorney’s Office,
Federal Building and U.S. Courthouse, 915 Lafayette Blvd. Rm #309, Bridgeport, CT
06604. E
nald D. Dakers J
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