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UNITED STATES v. MOTTO

November 12, 1997

UNITED STATES of AMERICA
v.
WILLIAM MOTTO



The opinion of the court was delivered by: SHAPIRO

 Norma L. Shapiro, J.

 November 12, 1997

 By final Order dated August 22, 1997, the court sentenced defendant William Motto ("Motto") to a term of imprisonment of 72 days for violation of probation. Pending before the court are motions to correct or reduce the sentence pursuant to Federal Rule of Criminal Procedure 35 (as applicable to offenses committed prior to November 1, 1987), filed by the United States (the "government") and Motto. For the reasons stated below, Motto's motion will be granted.

 FACTS

 Motto was convicted of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 846; possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and operating a continuing criminal enterprise in violation of 21 U.S.C. § 848. Count 34 of the indictment, charging Motto with violation of 21 U.S.C. § 841(a)(1), is at issue here.

 On March 12, 1986, Judge Anthony J. Scirica ("Judge Scirica") suspended imposition of sentence on Count 34. On February 15, 1990, defendant sought post-conviction relief pursuant to 28 U.S.C. § 2255. The § 2255 petition was reassigned to this judge for disposition.

 On September 4, 1991, this court granted Motto's § 2255 petition in part and denied it in part. The court vacated sentence on all counts and scheduled a new sentencing hearing. On November 4, 1991, the court, imposing a fine of $ 100,000 and forfeiture of assets, re-sentenced Motto to a general sentence of 13 years on two of the counts. The court, suspending imposition of sentence on Count 34, placed Motto on probation for a period of five years and fined Motto $ 25,000.

 On June 25, 1992, the court further reduced Motto's sentence pursuant to Federal Rule of Criminal Procedure 35(b). The court amended the November 1, 1991 sentence for Count 34 as follows:

 
On Count 34, a fine in the amount of $ 25,000 is imposed but imposition of sentence of custody is SUSPENDED and, upon release from custody, defendant is placed on probation for a period of five (5) years, the first six (6) months of which are to be spent at Greater Philadelphia Center for Community Corrections ("GPCCC"), with work-release privileges and release for medical treatment only except by express permission of the court.

 The court held preliminary hearings on June 30, 1997 and July 1, 1997 and final revocation of probation hearings on August 15 and 18, 1997. On August 18, 1997, the court found Motto to be in violation of probation and sentenced him to 34 additional days of incarceration. The court modified that Order on August 22, 1997, to clarify that the total period of incarceration was 72 days. The court did not impose a term of special parole for the new sentence imposed on Count 34.

 The government has filed a motion under Federal Rule of Criminal Procedure 35 to correct the sentence of 72 days incarceration imposed in August, 1997, by adding a mandatory term of special parole of at least three years. Motto has filed a motion under Rule 35(b) to vacate the August, 1997 sentence and impose ...


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