Fox

MEMORANDUM **

Pursuant to an agreement, defendant-appellant John Michael Fox pled guilty to one count of aiding and abetting possession of a controlled substance with intent to distribute. He was sentenced to a 360 month term of imprisonment. He subsequently moved in federal district court pursuant to 28 U.S.C. § 2255 to correct his sentence in order to avail himself of a downward departure under the sentencing guidelines after the government refused to file a substantial assistance motion. Fox claims that because he provided full cooperation, the government breached the agreement by refusing to move for a departure. The government claims to have decided against filing a downward departure motion because it concluded that the information Fox provided, while provided in good faith, was merely cumulative of other information it had from two other similarly situated informants, and that the collective weight of the testimony of all three witnesses, given their character as convicted felons providing information in return for benefits, could not lead to a grand jury indictment and subsequent conviction of any of the persons described by the three witnesses.

Fox’s § 2255 motion also…