Free Reply to Response - District Court of Connecticut - Connecticut

Case 3:00-cr-00115-JCH

Document 105

Filed 11/23/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA : : : : : : : CRIMINAL NO. 3:00CR115(JCH) CIVIL NO. 3:03CV159(JCH) NOVEMBER 22, 2005

v. VINCENT WHITELEY

GOVERNMENT'S RESPONSE TO DEFENDANT'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION TO VACATE SENTENCE On approximately October 13, 2005, the Court held a telephone conference during which it questioned defense counsel about the defendant's claimed sentence modification. On

approximately November 14, 2005, defense counsel filed documents concerning the sentencing modification, including a Motion for Modification dated December 15, 1997 and a related Stipulation dated February 13, 1998. In an earlier pleading, the defendant claimed that the court erroneously relied on a July 14, 1994 conviction for promoting prostitution in Docket No. 7M-CR93-0084829-T to increase his criminal history score by three points and as a basis from which to depart upward. As reflected by the defendant's pleading, the A review of the documents filed

defendant's claim is erroneous.

with the Court reflects that the state court "suspend[ed] execution of the unexecuted portion of the jail sentence." (emphasis added). 1998. The Stipulation was executed on February 13,

The Stipulation noted that the defendant was sentenced on

July 14, 1994 and that he was incarcerated as of February 13,

Case 3:00-cr-00115-JCH

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1998.

The defendant thus served approximately three years. Motion for Modification dated

Indeed, even the defendant's

December 15, 1997 requests a sentence modification of ninety-days to a sentence of two years and nine months. The defendant's

sentence modification thus neither affects the calculation of his criminal history nor undermines the Court's reliance on that conviction as a baseline from which to measure an upward departure. Second, contrary the suggestion in the defendant's supplemental memorandum at page 2 that the Stipulation also deleted the five-year term of probation imposed on the original sentence, the Stipulation addressed only the length of the term of incarceration, not the term of probation. Third, at page 3 of the memorandum, the defendant questions whether the Court's upward departure was "unduly harsh." Second Circuit already has answered that question. was not. In conclusion, the Government respectfully requests that the Court deny the defendant's petition without a hearing. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY JAMES J. FINNERTY ASSISTANT UNITED STATES ATTORNEY United States Attorney's Office United States Courthouse 915 Lafayette Boulevard Bridgeport, CT 06604 Tel: (203) 696-3000 Federal Bar No. CT15203 The

It held it

Case 3:00-cr-00115-JCH

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CERTIFICATION OF SERVICE This is to certify that a copy of the foregoing has been forwarded via facsimile and First Class Mail, postage prepaid, on November 22, 2005 to: Peter L. Truebner, Esq. Suite 206 111 Prospect Street Stamford, Connecticut 06901

JAMES J. FINNERTY ASSISTANT UNITED STATES ATTORNEY