Free Motion to Continue - District Court of Connecticut - Connecticut

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· i UNITED STATES DISTRICT COURT I
DISTRICT OF CONNECTICUT NEW il [ I 35 p
UNITED STATES OF AMERICA : F _]· _: j
u V. ; N0. 2 :03CR229(RNC) {K J = ii i;
FAUSTINO FLEURY :
MOTION FOR EXTENSION OF TIME L; ii I
The United States Attorney, through H. Gordon Hall, Assistant United -StatesA;QAttomey,Ti-Q I
respectfully moves the Court to continue the date for sentencing in this case froinlthe
assigned date of November 7, 2005. In support ofthe motion, the undersigned represents aséfbllows:
l. The defendant is scheduled for sentencing in this case on November 7, 2005.
2. The Court had continued a previously scheduled sentencing so defense counsel could
obtain an examination ofthe defendant, which has been completed. The report ofthe examination
was received by the undersigned on November l.
3. Defense counsel has filed a supplemental memorandum in aid of sentencing, received on
November 3, in which he relates the findings reflected in the report to issues in the defendant’s
sentencing. Government counsel has reviewed the memorandum and the report, and has discussed
both with defense counsel. Notwithstanding these discussions, there appear to be significant
outstanding issues between the parties which both parties prefer to resolve amicably.
4. More importantly, between the date on which the defenda;nt’s plea was entered and today,
the law ofthe Second Circuit appears to have changed in a manner which may have a significant
impact on the viability of the defendant’s plea. At the time of the plea, it was settled law in the
Second Circuit that the identity and quantity of controlled substances involved in a drug offense are
not elements of the offense. E United States \ g, 345 F.3d 149, 152-53 (2d Cir. 2003). This




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Case 3:03-cr—OO22@vC Document 157 Filed 11/QZIGOO5 Page 2 of 4
· is because Section 84l(a)(l), and Section 846, which incorporates that section by reference, contain
no mens rea requirement regarding the quantity or identity of controlled substances beyond that the
controlled substance appears in Schedule I or Il. Lch In this case, the defendant was charged in the
indictment with conspiracy to possess with intent to distribute more than 1 kilogram of heroin, in
violation of 21 U.S.C. §846. At the time of the entry of the defendant’s plea, he executed a plea
agreement in which he stipulated that one kilogram of heroin was reasonably attributable to him by
virtue of his involvement in the charged conspiracy. However, under questioning by Magistrate !
Judge Martinez, he indicated that he was not clear at the time on the identity or quantity ofthe illegal i
drug with which he knew he was dealing, but that he thought it was heroin or cocaine. Under the
law as it existed at the time, this did not appear to present an issue at the plea, and appeared to be an i
issue which could be resolved by the Court at the time of sentencing. Accordingly, on authority of
@g, the parties urged the Magistrate Judge to accept the plea, and she did. The quantity and drug
identity issues remain in the case, as is clear from the Coru·t’s colloquy with the defendant and his
attomey at a sentencing hearing on June 24, 2005.
5. On August 22, 2005, the Court of Appeal for the Second Circuit announced its decision
in United States v. Gonzalez, 420 F.3d lll (2d Cir. 2005). In that case, the Court held that drug
quantity is an element of an enhanced-penalty drug charge such as the one to which the defendant
attempted to enter a plea. E g at 129. In addition, under the rationale of Gonzalez, it appears U
likely that drug identity may also be an element of the offense charged in the indictment in this case.
Under these rules, it is not clear that the defendant has entered a valid plea to a pending charge.
WHEREFORE, the Govemment respectfully moves the Court to continue the sentencing in
this case so that a legally sound resolution to this case can be worked out by the parties, as was their g
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· intent at the time ofthe defendant’s plea.
Respectfully Submitted,
KEVIN J. O’CONNOR
UNITED STATES ATTORNEY
H. GORDON HALL
ASSISTANT U.S. ATTORNEY l

By: S. DAVE VATTI
ASSISTANT U.S. ATTORNEY
450 MAIN STREET
HARTFORD, CT 06103
(860) 947-1101
BAR NO. CT11957
SO ORDERED: X
1
RISBERT N. CHATIGNYU I
CHIEF UNITED STATES DISTRICT JUDGE
Dated agjmtfcrd, Cemiecticut,
this 9/; ’day OfNOV€H1b6T, 2005. .
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* i i CERTIFICATION
This is to certify that a copy ofthe foregoing Government’s Motion to Continue Sentencing
was sent this 4th day of November, 2005, via iirst class mail, postage pre-paid to
Thomas Furniss, Esq.
Furniss & Quinn
248 Hudson Street
Hartford, CT 06106
/•° _
H. GORDON HALL
ASSISTANT U.S. ATTORNEY
to
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