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UNITED STATES v. GAITHER

May 20, 1996

UNITED STATES OF AMERICA
v.
SAMUEL GAITHER



The opinion of the court was delivered by: RAMBO

 Before the court is Defendant's motion to vacate a sentence pursuant to 28 U.S.C. § 2255 and the government's motion to reinstate Count II of the indictment to the captioned criminal case. Briefs have been filed by both parties and the motions are ripe for disposition.

 I. Background

 Defendant was charged in 1989 in a two count indictment. Count I charged Defendant with use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Count II charged Defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

 On March 19, 1996, Defendant filed a motion under 28 U.S.C. § 2255 to vacate his conviction, asserting that his conviction for using a firearm during and in relation to a drug trafficking crime could not be sustained under Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). The government concedes that the basis for Defendant's guilty plea is insufficient for a conviction in light of Bailey, and therefore it does not oppose Defendant's § 2255 motion to vacate his conviction.

 On April 10, 1996, the United States moved to reinstate Count II of the indictment. Defendant opposes the motion on the ground that the five-year statute of limitations for prosecuting the crime has expired. *fn1" The government offers three arguments in response. First, it asserts that Defendant violated the plea agreement when he successfully moved to vacate his conviction and sentence. For this reason, the United States maintains that the statute of limitations was tolled with respect to Count II when it was dismissed pursuant to the plea agreement. (United States' Brief at 2-3.) Second, the government argues that because it has pursued this case with diligence, and engaged in no dilatory conduct, allowing reinstatement is not in conflict with the rationale underlying the statute of limitations. (Id. at 3-4.) Finally, the government urges that as a policy matter Defendant must not be permitted to "reap the windfall" of having his conviction under the plea agreement vacated while avoiding charges dismissed pursuant to the same agreement. (Id. at 5-6.) The court will address each of these arguments in turn.

 II. Discussion

 A. Violation Of The Plea Agreement

 The government relies heavily upon United States v. Reguer, 901 F. Supp. 525 (E.D.N.Y. 1995), for all three of its arguments in favor of reinstatement. In Reguer, as in the case at bar, after the defendant entered a guilty plea the Supreme Court decriminalized the conduct which was the basis for the plea, and the defendant successfully moved to vacate his conviction. The Reguer court was faced with the question whether the government was entitled to reinstate a part of the indictment which was dismissed pursuant to the plea agreement, over five years before the defendant's conviction was vacated. Invoking contract theory, the Reguer court set forth the following explanation for its decision that the statute of limitations had been tolled by the defendant's motion to vacate:

 
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. Under this analysis, the May 1988 indictment becomes "pending" just as if it had never been dismissed.

 Id. at 529 (footnote omitted). The coherence of this analysis, of course, presupposes that by successfully moving to vacate the plea agreement the defendant breached it. This court fails to understand how this could be so.

 Here, Defendant's indictment, plea and incarceration are improper under Bailey. The United States "confesses that the factual basis for Defendant's guilty plea, [while sufficient to sustain the conviction when the plea agreement was executed] . . ., is insufficient to sustain defendant's conviction in light of the Supreme Court's recent decision in United States v. Bailey. " (United States' Brief at 2.) Under such circumstances, "the federal government has no valid interest in . . . [Defendant's] continued punishment . . . ." United States v. Liguori, 430 F.2d 842, 849 (2d Cir. 1970), cert. denied, 402 U.S. 948, 29 L. Ed. 2d 118, 91 S. Ct. 1614 (1971) (citing United States v. Miller, 406 F.2d 1100, 1104 (4th Cir. 1969)). Because Defendant's continued incarceration in the wake of Bailey would result in a "complete miscarriage of justice," Warner v. United States, 926 F. Supp. 1387, 1996 WL 242889, *2 (E.D. Ark. 1996) (internal quotations and citation omitted), his decision to seek release is entirely proper, and is not a breach of the plea agreement.

 Assuming the relevance of contract analysis, Defendant's inability to perform his obligations under the plea agreement is more closely parallel to the discharge of performance by a supervening impracticability, Second Restatement of Torts, § 261, or prevention by government regulation or ...


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