Free Supplement - District Court of Colorado - Colorado

Case 1:03-cr-00275-EWN

Document 703

Filed 03/31/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cr-00275BEWN-2 UNITED STATES OF AMERICA, Plaintiff, v. 2. STACY EUGENE WHITAKER,

Defendant, ____________________________________________________________________ SUPPLEMENT TO MOTION UNDER 18 U.S.C. § 3582 (c)(2)

The defendant, by appointed counsel, supplements the motion to modify the sentence [#694] as permitted by the order dated February 26, 2008 [#695]. This supplement was originally misfiled on March 28, 2008 as Document 700 using an incorrect CM/ECF event. Mr. Whitaker seeks modification of his sentence in accordance with the recent rule allowing retroactive application of the crack cocaine guideline provisions. In paragraph 7 of the motion, Mr. Whitaker list a number of mitigating circumstances as examples of the rehabilitation he has achieved while serving the sentence at FCI Texarkana. The BOP case manager has prepared a Progress Report dated March 6, 2008 that supports the listed mitigating circumstances use in this proceeding. This
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Case 1:03-cr-00275-EWN

Document 703

Filed 03/31/2008

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report contains confidential material and will be filed under seal. A copy of the report has been provided to AUSA Greg Rhodes. The documents necessary for the resolution of the motion are the judgment [#666], the memorandum of sentencing [#660] and ¶ 17 (pp 10-11) of the PSR. The mandatory minimum sentence in this case is 10 years (120 months) due to the conviction for conspiracy to distribute over 50 grams of crack cocaine. The defendant was also convicted of five counts of distribution of over 5 grams of crack cocaine and one count of conspiracy to distribute powder cocaine. The guideline sentencing calculation required a determination of the weight of the drugs involved and then conversion of that weight to marijuana equivalent because both crack and powder cocaine were involved. PSR ¶17 calculated that weight as 127.4 grams of crack cocaine and 500 grams of powder cocaine. The conversion rate was 20 kg per gram of crack and 200 g per gram of powder. The total was 2558 kg of marijuana. The court adopted that calculation in the memorandum of sentencing. That weight established an offense level of 32. The criminal history category was II resulting in a range of 135 months to 168 months. The sentence was 135 months. The revised guidelines place the 127.4 grams of crack cocaine (or the 75 gram amount supported by the jury verdicts) in offense level 30. However, to combine the crack weight with the powder cocaine weight again requires the use of the marijuana
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Case 1:03-cr-00275-EWN

Document 703

Filed 03/31/2008

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equivalents. The revised guidelines added a special equivalency table to use when there is another controlled substance to combine with crack. That table is found in §2D1.1, Application note 10(D). This table converts 75 grams and 127.4 grams at the rate of 14 kg of marihuana per gram of crack. The result is 1050 kg or 1783.6 kg respectively. Both results put the weight back in offense level 32 (1000 to 3000 kg of marihuana). The addition of the cocaine powder equivalent weight (10 kg of marijuana) does not change the result. ROBERT S. BERGER, P.C. s/ Robert S. Berger Robert S. Berger 7476 East 29th Ave., Suite 108 Denver, Colorado 80238-2702 Telephone: (303) 436-1596 FAX: 1-866-811-7712 [email protected] Attorney for Defendant Stacy Whitaker

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 31st day of March, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Gregory Hayze Rhodes, AUSA [email protected] and I hereby certify that I have mailed or served the foregoing to the following non CM/ECF participants:
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Case 1:03-cr-00275-EWN

Document 703

Filed 03/31/2008

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STACY EUGENE WHITAKER REG NO 31867-013 FCI TEXARKANA P.O. BOX 7000 TEXARKANA, TX 75505

/s/ Robert S. Berger Robert S. Berger 7476 East 29th Ave., Suite 108 Denver, Colorado 80238-2702 Telephone: (303) 436-1596 FAX: 1-866-811-7712 [email protected]

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