Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cr-00437-LTB

Document 142

Filed 09/10/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 01-cr-00437-LTB UNITED STATES OF AMERICA, Plaintiff, v. 1. BERT SANDERS Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S PRO SE MOTION AND SUPPLEMENTAL MOTION TO MODIFY TERMS OF IMPRISONMENT PURSUANT TO 18 U.S.C. § 3582(C)(2)

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Colleen Covell, Assistant United States Attorney, files this response to Defendant Bert Sanders' Pro Se Motion and Supplemental Motion to Modify Terms of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2). Defendant requests the reduction of his sentence based on the recent amendments to the Sentencing Guidelines which lowered the base offense levels applicable to cocaine base ("crack") offenses. BACKGROUND Defendant was sentenced on December 23, 2002, following his conviction at trial for Possession With Intent to Distribute 500 Grams or More of Cocaine and Possession With Intent to Distribute 50 Grams or More of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii) and (b)(1)(A)(iii)). Defendant had a Final Offense Level of 34 and a Criminal

Case 1:01-cr-00437-LTB

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History Category I. The applicable guideline range at that time provided for 151-188 months. The Court sentenced the Defendant to the bottom end of the range, 151 months imprisonment. GOVERNMENT'S RESPONSE Defendant is correct that he is eligible under Amendment 706 for a lower offense level and therefore, the Court may consider whether to reduce his sentence in accordance with the amended guidelines. Although the defendant may qualify for a reduction in sentence under Section 3582(c)(2) and the applicable policy statements of the Commission, a reduction of sentence is not automatic. This Court's discretion is set forth in Section 3582(c)(2) itself, which provides: "the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Thus, "[t]he grant of authority to the district court to reduce a term of imprisonment is unambiguously discretionary," even when the guideline range is actually reduced. United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998).1 Similarly, Section 1B1.10 directs that "the court shall consider the factors set forth in 18 U.S.C. § 3553(a) in determining . . . whether a reduction in the defendant's term of imprisonment is warranted. Id. app. note 1(B)(I); see also U.S.S.G. § 1B1.10 background ("The authorization of such a discretionary reduction does not otherwise affect the lawfulness of a previously
1

In Vautier, the Eleventh Circuit held that the district court did not abuse its discretion in denying a Section 3582(c)(2) motion for reduction of sentence, upon considering the 3553(a) factors. The district court denied the motion, stating that "in light of this Court's expressed concern of the defendant's demonstrated violence and factoring all of the other considerations that went into the establishment of this defendant's sentence, the same sentence would have been imposed under the current amended guidelines." Vautier, 144 F.3d at 759. 2

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imposed sentence, does not authorize a reduction in any other component of the sentence, and does not entitle a defendant to a reduced term of imprisonment as a matter of right."). All courts are in accord on this point. United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995) (district court permissibly declined to reduce sentence); United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997); United States v. Coohey, 11 F.3d 97, 101 (8th Cir. 1993); United States v. Wales, 977 F.2d 1323, 1327-28 (9th Cir. 1992); United States v. Mueller, 27 F.3d 494, 497 n.5 (10th Cir. 1994). After consideration of the factors enumerated above, the Court may decide to modify the Defendant's sentence. After the amendment to the guidelines, the Defendant is facing a sentencing range of 121-151 months. Accordingly, the Defendant may be sentenced to 121 months, the bottom of the applicable guideline range.2

In his Supplemental Motion at ¶5, Defendant mistakenly states that the bottom of the guideline range is 120 months. 3

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CONCLUSION In sum, Defendant is eligible for a reduction in his sentence and the Court may, in its discretion, re-sentence Defendant to 121 months imprisonment under the amended guidelines.

Respectfully submitted, TROY A. EID United States Attorney By: s/Colleen Covell COLLEEN COVELL Assistant U.S. Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0215 Fax: (303) 454-0409 [email protected] Attorney for Government

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Case 1:01-cr-00437-LTB

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CERTIFICATE OF SERVICE I hereby certify that on this 10th day of September, 2008, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S PRO SE MOTION AND SUPPLEMENTAL MOTION TO MODIFY TERMS OF IMPRISONMENT PURSUANT TO 18 U.S.C. § 3582(C)(2) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Charles W. Elliott, Esq. [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name:

s/Barbara Gardalen BARBARA GARDALEN Legal Assistant United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Phone: (303) 454-0100 Fax: (303) 454-0401 E-mail address: [email protected]