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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No: 3:97cr78/RV 

3:05cv189/RV/MD

GHASSEN GEORGE MOUREY

REPORT AND RECOMMENDATION

Defendant filed a motion to vacate, set aside, or correct sentence pursuant to

28 U.S.C. § 2255 (doc. 96). The government’s motion to dismiss the motion as

successive was denied (doc. 98, 101, & 102), and it has filed a response (doc. 108)

to which the defendant has replied. (Doc. 113). The matter is referred to the

undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C.

§ 636 and N.D. Fla. Loc. R. 72.2(B).

I. BACKGROUND

Defendant pleaded guilty to conspiracy to possess with intent to distribute

cocaine and methamphetamine and possession with intent to distribute cocaine on

a date certain. (Doc. 39). On November 10, 1997, he was sentenced to a term of life

imprisonment on count one and 262 months on Count 2, to run concurrently. (Doc.

57). He timely appealed, but then filed a notice of voluntary dismissal of the appeal.

(Doc. 59 & 75).

On July 12, 1999, approximately one year after dismissing his appeal,

defendant filed a motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. 78). In the

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motion, through counsel, defendant claimed that the government had not honored

its side of the plea agreement because he had not received sentence credit for the

assistance he had rendered to law enforcement. The government responded (doc.

84) and in response on October 19, 1999, defendant moved to abate his § 2255

motion during the pendency of his cooperation in investigations in the state of

California. (Doc. 87 & 88). The motion was denied on October 27, 1999 with the

notation that the defendant could dismiss the case and refile at a later date. (Doc.

90). No action was taken by the defendant, and on July 11, 2000, the presiding

magistrate judge entered a recommendation that the motion be denied on the merits.

(Doc. 91). This recommendation was adopted without objection on August 7, 2000.

(Doc. 93).

On May 20, 2004, in apparent response to a sealed motion, defendant’s life

sentence was reduced to a term of 198 months imprisonment, and his sentence on

count two was reduced from 262 to 131 months. (Doc. 95). Defendant did not appeal

the order granting the sentence reduction, and the instant motion was docketed on

May 20, 2005. 

In this pending § 2255 motion, defendant again contends that the government

failed to fully inform the court of his cooperative assistance, and maintains that he

provided substantial information and assistance for which he was not “properly

compensated.” He asserts that he is entitled to an “open-ended rule 35 hearing,

where there is no pre-determined sentence.” He specifically contends that he

provided information regarding 17 individuals, but that he has received “credit” only

for the guilty pleas of three of those persons. (Doc. 96, memorandum at 9).

Defendant states in his motion that he seeks specific performance of the “oral

agreements” that were part of his plea and sentencing agreement with the

government (Defendant’s Memorandum of Law at 5, 7).

Defendant’s allegation of “oral agreements” outside the written plea

agreement is directly refuted by both the plea agreement itself and the transcript of

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the rearraignment. The last page of the plea agreement includes the statement that

“There are no other agreements between the United States of America and Ghassan

George Mourey enters this agreement knowingly, voluntarily and upon advice of

counsel.” (Doc. 40 at 6). At the rearraignment proceeding, when asked by the court

whether this was the “complete agreement [he had] with the government,” he

answered under oath “Yes, sir.” (Doc. 85 at 17). The court further inquired: “No one

has made any promises to you, then Mr. Maurey, that have induced you to plead

guilty but which have not been revealed to me? Is that correct?” he again indicated

“Yes, sir.” (Id.). He also denied that anyone had used any kind of force or threats

or pressure or intimidation to make him plead guilty. (Id.). He was given the

opportunity to ask questions about his case, but he indicated he had none. (Id. at

18). In accepting the defendant’s plea, the court found that he was “certainly”

familiar with the criminal justice system, alert and intelligent, that he understood the

nature of the charges and understood and realized the consequences of a guilty

plea. (Id.).

Defendant also claims that he was not given credit for all of the assistance he

provided. It is well established that the decision to file a substantial assistance

motion is a matter of prosecutorial discretion. United States v. Nealy, 232 F.3d 825,

831(11th Cir. 2000), cert. denied, 122 S.Ct. 552, 151 L.Ed.2d 428 (2001); United States

v. Forney, 9 F.3d 1492, 1501 (11th Cir. 1993). The government has a power, not a

duty, to file such a motion when a defendant has substantially assisted. Wade v.

United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992). And,

the filing of such a motion reflects that a defendant’s assistance has yielded actual,

useful results, not merely that the defendant made a substantial good faith effort in

his attempts to assist. See United States v. Gonsalves, 121 F.3d 1416, 1419 (11th Cir.

1997) (citation omitted). “The substantial assistance regime is not a spoils system

designed simply to reward a cooperative defendant; it is designed to benefit the

government in its prosecution efforts.” United States v. Orozco, 160 F.3d 1309, 1315

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(11th Cir. 1998), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). A

defendant’s disappointment that his cooperation did not rise to the level of

substantial assistance, or that the sentence reduction he received was not greater,

does not alone warrant a finding that relief should be granted. Judicial review of a

decision regarding substantial assistance motions is appropriate only where there

is an allegation and substantial showing that the prosecution refused to file a

substantial assistance motion because of a constitutionally impermissible

motivation, such as race or religion. Wade, 504 U.S. at 185-86, 112 S.Ct. at 1843-44,

118 L.Ed.2d 524; Nealy, 232 F.3d at 831. No such allegation is made here, and

defendant has not shown he is entitled to relief. 

 

Based on the foregoing, it is respectfully RECOMMENDED:

The defendant’s motion to vacate his sentence (doc. 96) be DENIED.

At Pensacola, Florida, this 3rd day of January, 2006.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten

days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; Local Rule 27(B); United States v. Roberts,

858 F.2d 698, 701 (11th Cir. 1988).

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