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Diabate v. United States

May 22, 2009

YSSOUF DIABATE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Honorable Larryalanburns United States District Judge

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR U.S.C. § 2255 CORRECT SENTENCE UNDER 28

On February 9, 2007, Movant Yssouf Diabate was convicted of one count of attempting to export defense articles without a license, in violation of 22 U.S.C. § 2778(b)(2) and (c), and of one count of smuggling goods from the United States, in violation of 18 U.S.C. § 554. On May 7, 2007, he was sentenced. Specifically, Movant was found to have attempted to export 38 firearms and ten 17-round ammunition magazines from the U.S. to Côte d'Ivoire on or about September 26, 2006.

Movant filed an appeal with the Ninth Circuit Court of Appeals, which was denied. United States v. Diabate, 2008 WL 4962956 (9th Cir. Nov. 21, 2008). On December 18, 2008, his motion to vacate, set aside, or correct his sentence ("Motion") pursuant to 28 U.S.C. § 2255 was accepted for filing nunc pro tunc to December 15, 2008.

I. Discussion

Movant advances several arguments for granting the writ. Initially, Movant identifies four reasons for granting the writ:

1. Ineffective assistance of counsel for failure to raise questions regarding desperation of sentencing [sic]

2. Sentencing entrapment

3. Manufacturing of evidence by the United States Government

4. Failure to file motion to dismiss case on grounds of entrapment. (Motion at 1.) The body of the Motion, however, restates the fourth reason as a claim that this Court "erred when it failed to dismiss this case on grounds of ou[t]rageous governmental misconduct." (Id. at 5.)*fn1 In its conclusion, the Motion also adds an unenumerated argument that exporting defense articles to Côte d'Ivoire was not prohibited at the time Movant was arrested. (Motion at 10.) The Court considers each in turn.

A. "Desperation of Sentence"

Movant does not explain what he means by "desperation of sentence," but the section of the Motion addressing this point simply argues the Court failed to consider the factors listed in 18 U.S.C. § 3553(a). This claim is frivolous because the Court expressly did consider the § 3553 factors at sentencing. (Tr. May 7, 2007, 27:17--29:13 (Docket no. 78).)

B. Entrapment

The Motion addresses two aspects of entrapment, sentencing entrapment and denial of the motion to dismiss on the basis of outrageous governmental conduct. In this case, the alleged outrageous conduct consisted of entrapping Movant. Movant argues the Court "made no specific finding with respect to [Movant's] contention of outrageous governme[nt]al conduct." (Motion at 5.)

"Sentencing entrapment or 'sentence factor manipulation' occurs when 'a defendant, although predisposed to commit a minor or lesser offense, is entrapped into committing a greater offense subject to greater punishment.' " United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). Here, Movant argues, this occurred when the undercover agent sold him 38 firearms instead of the 10 he had originally asked for. In support of this, he offers an affidavit stating he had only ordered ten firearms and accessories. (Motion, Ex. A (Affidavit), ΒΆΒΆ 57, ...


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