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DAVIS v. UNITED STATES

December 11, 1986

DAN DAVIS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Mills, District Judge:

OPINION ORDER

A question of FAIRNESS!

Did the Government live up to the plea agreement?

No.

Dan Davis, currently incarcerated in the federal correctional facility at Marion, Illinois, moves this Court for a correction of his sentence pursuant to 28 U.S.C. § 2255. On July 3, 1985, Davis was sentenced to 42 months' imprisonment on Count II of an indictment charging the distribution of a controlled substance.

The present motion alleges, inter alia, that the United States Parole Commission violated the terms of Davis' plea agreement by using information concerning his prior cocaine distribution — disclosed to the Government pursuant to Davis' promise of cooperation — in its determination of his eligibility for parole.*fn1

I

On February 7, 1985, a federal grand jury returned a three-count indictment charging Davis with conspiracy to deliver cocaine and with two deliveries of the drug on October 30, 1984, and December 11, 1984. The conspiracy allegedly began "no later than October 30, 1984, and continu[ed] until the date of this indictment."

Pursuant to a plea agreement entered on April 19, 1985, Davis pleaded guilty to both deliveries of the cocaine and the Government agreed to dismiss the conspiracy charge. As part of the agreement, Davis agreed to cooperate fully with the Government in its investigation of others involved in cocaine trafficking. Specifically, Davis agreed to:

  . . . cooperate fully with law enforcement
  officials . . . As part of that cooperation, the
  defendant specifically agrees that he will provide
  complete and truthful information . . . he has
  concerning the distribution and possession of
  controlled substances of any kind on his part and on
  the part of others . . .
  The United States of America promised: The government
  agrees that it will not use any statement or
  testimony by the defendant, either directly or
  indirectly, to bring additional criminal charges
  against the defendant . . .
  And further, the United States Attorney's office agreed to:
  . . . fully apprise the District Court and the United
  States Probation Office of the nature, scope and
  extent of defendant's conduct regarding the charges
  against him . . . including all matters in
  aggravation and mitigation relevant to the issue of
  sentencing.

On April 29, 1985, Davis agreed to an interview and gave oral statements to authorities in an effort to cooperate. Thereafter, on May 10, 1985, he appeared and testified before a federal grand jury. In addition, Davis agreed and was ready ...


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