UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal No. xx-3089
(Cr. No. xx-532-01)
UNITED STATES OF AMERICA, :
:
Appellee, :
:
v. : No. xx-3089
:
xxxxxxxxxxxxxxxx, :
:
Appellant. :
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MOTION FOR APPOINTMENT OF COUNSEL
The undersigned, on behalf of appellant xxxxxxxxxxxx, hereby moves the Court to appoint the Office of the Federal Public Defender as counsel in the instant case, and as grounds, shows the court:
1. On April 23, 1997, undersigned counsel filed for Mr. xxxxxxx a Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255. On June 26, 1997, the district court issued a Memorandum opinion denying the Motion.
2. On July 9, 1997, undersigned counsel filed a Notice of Appeal from the denial of the Motion. On July 22, 1997, this Court issued an Order that a request for appointment of counsel be filed.
3. Appellant is incarcerated at the Federal Correctional Institute in Petersburg, Virginia. He is without funds to hire an attorney in this case. He has previously been determined to be indigent, and counsel was appointed to represent him, for trial in United States v. Thomas xxxxxxx, Criminal Number 90-532, and to prosecute his appeal in United States v. Thomas xxxxxxx, Appeal Number 91-3150. He has been continuously incarcerated since these findings of indigency were made and has not had any means of earning income.
4. The issue raised by appellant in the § 2255 Motion was not frivolous. He claimed that he was erroneously sentenced for distributing crack cocaine, under the sentencing enhancement provisions of 21 U.S.C. § 841, without any proof that the substances he distributed were actually crack rather than some other form of cocaine base which would not trigger the enhancement. He relied upon the authority of United States v. James, 78 F.3d 851 (3d Cir. 1996) and United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994). In James, the Third Circuit held that unless the government proves by a preponderance of the evidence that the form of cocaine base involved in an offense was "actually crack," as defined in the guidelines, a sentencing court may not impose the enhanced cocaine base penalties. United States v. James, 78 F.3d at 848. In Munoz-Realpe, the Eleventh Circuit held that the statutory definition of "cocaine base" in 21 U.S.C. § 952(a), imposing a mandatory minimum sentence for importation, is limited to crack cocaine as defined in the guidelines, reasoning that when Congress allowed the amendment to United States Sentencing Guideline § 2D1.1(c) to take effect, it gave its approval to the amendment's definition of cocaine base. United States v. Munoz-Realpe, 21 F.3d at 377-78.
5. Mr. xxxxxxx is unable to adequately represent himself to appeal the district court's denial of the Motion uner 28 U.S.C. § 2255.
Wherefore, for these reasons, and any other reasons appearing to the Court, Mr. xxxxxxx respectfully requests the appointment of counsel to represent him on this appeal.
Respectfully submitted, A.J. KRAMER
FEDERAL PUBLIC DEFENDER
______________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500