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UNITED STATES v. MUSTAKEEM

April 14, 1995

UNITED STATES OF AMERICA,
v.
MOHAMMED MUSTAKEEM, Defendant.



The opinion of the court was delivered by: LEE

 April 14, 1995

 Presently before the Court is a Supplemental Motion to Vacate, Set Aside or Correct Sentence of the defendant, Mohammed Mustakeem, pursuant to 28 U.S.C. § 2255 (Document No. 150), which will be DENIED for the reasons hereinafter set forth. Defendant is currently incarcerated in the Federal Corrections Institution located in Loretto, Pennsylvania.

 Defendant advances three due process challenges to the Court's sentencing decision: (1) that his sentence should be vacated, set aside or corrected because the November, 1992, amendments, specifically Amendment Nos. 439 and 447, of the sentencing guidelines should be retroactively applied to his sentence; (2) sections 1B1.3 and 2D1.1 of the sentencing guidelines are inapplicable in a "reverse-sting" operation; and (3) section 2D1.1 is inapplicable to Mustakeem's sentence as Mustakeem did not produce any controlled substances or engage in any actions which were "intended to produce or reasonably capable of producing such substances."

 I. BACKGROUND

 In February, 1991, a jury convicted Mustakeem of conspiracy to distribute and possess with intent to distribute in excess of five hundred (500) grams of a mixture of a substance containing a detectable amount of cocaine. On August 2, 1991, Defendant was sentenced by the Court to a period of incarceration of 121 months, to be followed by a sixty (60) month period of supervised release.

 In August, 1993, Defendant filed pro se a Motion to Compel Return of Seized Property. By Order dated August 3, 1994, the Court granted in part and denied in part Defendant's motion and ordered the government to continue its investigation in order to locate certain other property of Defendant's which had not been located. Defendant then filed a Motion for Reconsideration of the Court's August 3, 1994 Order.

 In June, 1994, Defendant filed pro se a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging ineffectiveness of counsel at both the trial and sentencing stages of this matter. Subsequent to the filing of this motion, the Court appointed attorney Kim Wm. Riester as counsel for Defendant. On December 8, 1994, counsel for Mustakeem filed the instant motion, pursuant to 28 U.S.C. § 2255, alleging two claims for relief: (1) that Mustakeem was denied effective assistance as guaranteed by the Sixth Amendment of the Constitution; and (2) that Mustakeem was denied his constitutional right to due process of law as guaranteed by the Fifth Amendment when the Court improperly imposed a sentence under the United States Sentencing Guidelines ("USSG"). On December 9, 1994, the Court held an evidentiary hearing on the Motions to Vacate. *fn1"

 In his supplemental motion, Mustakeem alleges that certain amendments to the sentencing guidelines that became effective after his sentence and a subsequent Third Circuit decision, U.S. v. Collado, 975 F.2d 985 (3d Cir. 1992), clarified the application of the sentencing guidelines and can, therefore, be applied retroactively. Mustakeem contends that an alleged misapplication of the sentencing guidelines effectively increased his sentence, resulting in his being held accountable for four kilograms of cocaine, with a resulting offense level of 30, rather than being held accountable for only one kilogram of cocaine, with a resulting offense level of 26.

 Mustakeem further contends that the provisions of USSG § 1B1.1(3) are inapplicable in a "reverse-sting" *fn2" situation as "there was no reasonable foreseeability to specific amounts distributed by the co-conspirators since none of the conspirators did not engage in any distributions." Supplemental Motion, at unnumbered 3.

 II. DISCUSSION

 A. Retroactivity of Sentencing Guidelines

 1. Amendments to USSG Section 1B1.3

 Mustakeem asserts that the Court misapplied the sentencing guidelines by holding him vicariously liable for the entire amount of cocaine involved in the conspiracy. The thrust of Mustakeem's argument relies on certain amendments to USSG section 1B1.3(a), in specific, Amendment No. 439 in Appendix "C" to the Guidelines Manual. Amendment No. 439 establishes "a stricter, more detailed and individualized standard for a sentencing court to follow when it determines a conspirator's 'relevant conduct.'" United States v. DiMaio, 1994 U.S. Dist. LEXIS 772, *16, No. CRIM. 89-0003-11, 1994 WL 25376, at *5 (E.D. Pa. 1994), aff'd, 37 F.3d 1489 (3d Cir. 1994).

 Mustakeem claims that the 1992 amendment to USSG section 1B1.3(a) and the accompanying commentary clarify the meaning of the phrase "jointly undertaken criminal activity" by focusing on the scope of the criminal activity a particular defendant agrees to jointly undertake. The amended ...


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