So viewed, the government will be held to the remedy of
specific performance.*fn11 "It is . . . the rule in this circuit
that if specific performance is the applicable remedy, the
defendant must be resentenced by a different district judge than
the one who presided over the now-vacated original sentence."
United States v. Nolan-Cooper, 155 F.3d at 241 (applying the
requirements of Santobello v. New York, 404 U.S. at 263, 92
S.Ct. at 499). See United States v. Badaracco, 954 F.2d 928,
941 (3d Cir. 1992) ("Because [defendant] has already served a
considerable portion of a custodial sentence, permitting the
withdrawal of his plea would be an empty remedy. It follows that
specific performance is the only adequate remedy, i.e.,
resentencing under conditions in which the government adheres to
its plea agreement."). The sentence imposed on Almodovar will be
vacated, and the case re-assigned for resentencing before another
V. Remaining Grounds
The remaining grounds for relief are as follows:
First, defendant challenges the application of the crack
cocaine guidelines. Upon evidentiary hearings, it was found that
the government had met its burden of establishing that the
substance involved was crack. Memorandum opinion, March 14, 1996
at 4. This finding was affirmed. United States v. Almodovar,
100 F.3d 948 (3d Cir. 1996) (slip op. at 2 n. 1). Section 2255
motions "may not be employed to relitigate questions which were
raised and considered on direct appeal." See United States v.
DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993) (citation
Second, defendant's argument that the disparity between his
sentence and the sentences of his co-conspirators requires
downward departure under Koon v. United States, 518 U.S. 81,
116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), is also rejected. The
Sentencing Guidelines permit departure based on factors outside
the "heartland" created by the sentencing guidelines. The Koon
decision, which post-dates defendant's sentencing, clarifies
certain departure issues. However, whether or not Koon would
benefit petitioner, this argument is rejected on the merits. See
memorandum opinion, March 14, 1996 at 6. Koon does not change
the standard established by our Court of Appeals that disparity
of sentences is not a proper basis for downward departure. See
United States v. Higgins, 967 F.2d 841, 845 (3d Cir.
Defendant's argument that it was error to add two points for
obstruction of justice will be dismissed. Defendant has asserted
no reason to contradict the previous finding that a two-point
addition was appropriate under U.S.S.G. § 3C1.1. Memorandum
opinion, March 14, 1996 at 9. Moreover, because defendant failed
to raise this issue on direct appeal, absent evidence of cause
and prejudice, it is procedurally defaulted. See United States
v. Essig, 10 F.3d 968, 979 (3d Cir. 1993).
1. The testimony of defense witnesses and of prosecution
witnesses not in conflict
therewith was substantially credible and worthy of belief.
2. Under the facts of this case, the government acted in bad
faith by not agreeing to give defendant an opportunity to
cooperate in April, 1994, prior to the last sentencing
continuance, and thereafter retracting the offer.
3. The government also acted in bad faith in consenting to
seven continuances for cooperation when the reasons it eventually
gave in its sentencing memorandum for denying the § 5K1.1 motion
were known to it more than a year earlier, before the first
continuance and after defendant had already given substantial
4. The government shall file a § 5K1.1 motion,
18 U.S.C. § 3553(e) motion, and this action will be re-assigned to another
judge for sentencing, in accord with United States v. Isaac,
141 F.3d 477 (3d Cir. 1998).
5. The other § 2255 grounds for relief are without merit.
AND NOW, this 26th day of May, 2000, upon hearing, defendant
Juan Almodovar's motion to vacate, alter, or set aside sentence
is granted in part and denied in part. 28 U.S.C. § 2255.
Defendant's sentence shall be vacated immediately before
resentencing. This action shall be assigned to another judge for
resentencing, and the government is directed to file a motion for
downward departure on behalf of defendant for substantial
assistance under U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e).