satisfies all of the procedural requirements for bringing the instant section 2255 petition. First, because Bailey effected a change in the substantive meaning of a criminal statute, rather than merely establishing a new constitutional rule of criminal procedure, it must be applied retroactively. United States v. Turner, 914 F. Supp. 48, 48-50 (W.D.N.Y. 1996); Abreu v. United States, 911 F. Supp. 203, 206-07 (E.D. Va. 1996); Bell v. United States, 917 F. Supp. 681, 683-84 (E.D. Mo. 1996).
In order to bring her claim at this stage, petitioner must also establish cause and prejudice based on her failure to raise the claim earlier. Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993). Here, Rodriguez has established good cause for failure to raise this argument, as the new law upon which she relies was not decided until after her conviction became final. Abreu v. United States, 911 F. Supp. at 207; Bell v. United States, 917 F. Supp. at 684. Rodriguez also has established actual prejudice since a failure to vacate her conviction on Count Thirteen would constitute "a complete miscarriage of justice." See Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Because Bailey applies to the present case and all procedural requirements are satisfied, petitioner's motion to vacate Count Thirteen is granted.
II. Reinstatement of Indictment
Although the Government concedes that Count Thirteen should be vacated, it argues that the proper remedy would be to vacate the plea and sentence for both counts to which she pled guilty and restore Counts One and Eleven of the indictment. The Government theorizes that Rodriguez's motion to vacate constitutes a tacit repudiation of the Plea Agreement, and the effect of this repudiation should be to return the parties to their positions prior to the Plea Agreement.
The Court begins its analysis by noting that plea agreements are construed according to standard principles of contract law. United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995); United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir.), cert. denied, 509 U.S. 931, 125 L. Ed. 2d 742, 113 S. Ct. 3060 (1993). Because a plea agreement implicates a defendant's constitutional rights, however, contract principles will not always dictate the outcome of the analysis. United States v. LaTray, 739 F. Supp. 88, 95 (N.D.N.Y. 1990) (citing Staten v. Neal, 880 F.2d 962, 965 (7th Cir. 1989); Cooper v. United States, 594 F.2d 12, 16-20 (4th Cir. 1979)).
In the present case, the Plea Agreement required Rodriguez to plead guilty to (1) 21 U.S.C. § 841(b)(1)(B), a lesser included offense of Count One; and (2) the section 924(c) count, in exchange for the dismissal of the remaining charges. The Plea Agreement is silent on whether the defendant would have the right to bring a subsequent collateral attack after sentencing. Rodriguez's decision to bring the present motion thus cannot be termed a breach of any express provision of her contract with the Government. Petitioner promised to plead guilty to two counts and she has fulfilled that obligation.
The Government nonetheless argues that the present motion is a de facto breach of the Plea Agreement in that its effect is to undermine her guilty plea. The Government thus cites United States v. Liguori, 430 F.2d 842 (2d Cir. 1970), cert. denied, 402 U.S. 948, 91 S. Ct. 1614, 29 L. Ed. 2d 118 (1971), for the proposition that the Government may re-indict a defendant on counts dismissed pursuant to a plea agreement in the event the defendant successfully challenges a conviction stipulated in that agreement. In Liguori, the defendant pled guilty to violating section 4744(a) of the Marihuana Tax Act under a plea agreement which required the Government to dismiss several narcotics trafficking counts. Id. at 843. The Supreme Court subsequently decided Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), which held that a defendant's timely assertion of the privilege against self-incrimination is a complete defense to prosecution under section 4744(a). Based on this intervening change in law, Liguori successfully challenged his conviction on a 28 U.S.C. § 2255 motion. United States v. Liguori, 430 F.2d at 849. In vacating his conviction, however, the Second Circuit specifically noted that the Government would be entitled to re-indict the defendant on the five dismissed counts. Id. at 849 n.4.
The Court finds Liguori to be distinguishable from the present case. In Liguori, the defendant was obligated under the plea agreement to allocute to the facts necessary to sustain a conviction under the relevant statute. As a result of the intervening change in law caused by Leary, Liguori sought to rely on his initial invocation of the privilege against self-incrimination, thereby rescinding his part of the bargain. Under those circumstances, the Government could not be obligated to fulfill its promises under the agreement. In contrast, Rodriguez has not revoked her promise to admit her knowledge of the presence of firearms at the drug processing site. In other words, unlike Liguori, Rodriguez has not revoked her promise to allocute to the conduct that constituted a criminal violation prior to the change in law.
The Government also relies on United States v. Reguer, 901 F. Supp. 525, 529 (E.D.N.Y. 1995), where a court permitted the restoration of the original indictment after the defendant successfully challenged his conviction under a plea agreement as a result of an intervening change in law. The court reasoned:
By successfully moving to vacate his plea, Reguer has breached the agreement; in contract terms, he has revoked his acceptance. As part of the agreement, the government promised to dismiss the other pending charges, and in reliance on the agreement these charges were indeed dismissed. The appropriate remedy for the government, then, would be to treat their motion to reinstate the indictment as essentially a motion to vacate the dismissal of the charges dismissed in 1988. Just as Reguer has voided his plea and the consequences therefrom, so should the government be permitted to void their consent to the dismissal of the pending charges.
Id. The circumstances presented in Reguer, however, are markedly different from the case before this Court, as there the defendant received a sentence of probation, an order of restitution and a $ 150,000 fine. Here, in contrast, Rodriguez received a sentence that included 123 months incarceration, more than half of which she already has served. Unlike the defendant in Reguer who was able to void the consequences arising out of his plea agreement, Rodriguez has suffered a severe detriment that will not be erased with the vacating of the section 924(c) count.
Indeed, the only court that has addressed the issue presented here refused to restore the original indictment after the petitioner's successful post-Bailey section 2255 motion. See United States v. Gaither, 926 F. Supp. 50, 1996 U.S. Dist. LEXIS 7169, No. CRIM.1: CR-89-224-001, 1996 WL 271938 (M.D. Pa. May 20, 1996). In Gaither, the court rejected the Government's contention that a successful collateral attack constituted a tacit repudiation of the plea agreement, reasoning that (1) the petitioner's failure to seek release would have been a "complete miscarriage of justice"; and (2) even under contract principles, the defendant was excused from performing due to intervening impracticability, namely the intervening change in law. Id. at *2-3. The court in Gaither explicitly disagreed with the reasoning of Reguer, finding that its analysis incorrectly assumed that a successful motion to vacate automatically constitutes a breach of a plea agreement. Id. at *2.
The Court is also persuaded by the reasoning of the closely analogous decision in United States v. Youngworth, 1989 U.S. Dist. LEXIS 12817, No. C-CR-89-81, 1989 WL 129262 (W.D.N.C. Oct. 26, 1989), where a court again rejected the Government's attempt to restore an original indictment after a successful collateral attack. In Youngworth, the parties entered into a plea agreement under which the defendant would plead guilty to two counts involving pretrial violations in exchange for the dismissal of two narcotics counts. Id. at *7. Subsequently, however, the defendant successfully challenged one of the counts to which he pled guilty, under 28 U.S.C. § 2255, on the ground that that count failed to charge the proper elements of the offense. Id. at *8. In response, the Government refiled the two narcotics counts, asserting that the successful section 2255 petition constituted a tacit breach of the plea agreement, thereby absolving the Government of its obligation to dismiss those charges. Id. at *9. The Court rejected the Government's contention, in part because:
Unlike the situation presented in a case where a defendant attacks a plea bargain before the execution of a sentence, there is no way that the Defendant in this case can be restored to his former position. He has irrevocably paid for his part of the bargain by spending nearly a year in prison. To permit the Government now to renege its part of the plea agreement and reinstitute the heroin charges would enable the Government to enjoy substantial benefits from the plea agreement (the Defendant's incarceration on Count One) and escape its obligation to dismiss the heroin charges.
Id. at *10.
Here, as in Youngworth, the parties cannot be restored to their positions prior to the plea agreement. The restoration of the former indictment would have the effect of conferring upon the Government the sizable benefit of Rodriguez's incarceration without obligating the Government to provide anything in return, a scenario the Court finds to be impermissible. Accordingly, the Government's motion to restore the original indictment is denied.
The Government argues, in the alternative, that the Court should resentence Rodriguez on Count One based on United States Sentencing Guidelines (the "Guidelines") section 2D1.1(b) (1), which provides for a two-point increase in the offense level "if a dangerous weapon (including a firearm) was possessed" during the commission of a narcotics offense.
See U.S.S.G. § 2D1.1(b)(1). Rodriguez does not oppose the Government's request to increase her offense level on resentencing under this provision, but argues that she also should receive an additional one-point offense level reduction for acceptance of responsibility under the current version of Guidelines section 3E1.1.
After careful consideration, the Court concludes that it does not have jurisdiction to resentence Rodriguez on Count One. In order to modify a prior sentence, a district court must act pursuant to some federal statutory authority. United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996) (citing United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir. 1994)). One such statute, 18 U.S.C. § 3582(c), permits a court to modify a sentence in accordance with Federal Rule of Criminal Procedure 35. See 18 U.S.C. § 3582(c). Rules 35(a) and (b), however, pertaining to correction of sentences on remand and based on subsequent substantial assistance, respectively, do not apply to the present case. See Fed. R. Crim. P. 35(a) & (b). Rule 35(c), permitting correction of sentence on motion of the Court, similarly provides no statutory basis as that subsection requires any modification to be made within seven days of the imposition of sentence. See Fed. R. Crim. P. 35(c).
The other obvious possible jurisdictional basis for resentencing petitioner on the unchallenged counts is 28 U.S.C. § 2255, the statute forming the basis for the present challenge to the section 924(c) conviction. Section 2255 provides, in part:
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.