Free Reply to Response - District Court of Colorado - Colorado

Case 1:01-cr-00304-WYD

Document 64

Filed 01/30/2008

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

Criminal Action No. 01-cr-00304-WYD UNITED STATES OF AMERICA, Plaintiff, vs. 1. ROBERT EARL CHARLTON,

Defendant. ______________________________________________________________________________ REPLY IN SUPPORT OF MOTION TO CORRECT SENTENCE PURSUANT TO FED.R.CRIM.P. 35(a) [#60] ______________________________________________________________________________ Defendant, Robert Earl Charlton, by counsel, submits the following reply to the Government's Response to Defendant's Motion to Correct Sentence Pursuant to Fed.R.Crim.P. 35(a) [Docket No. 60] and in support of his Motion to Correct Sentence Pursuant to Fed.R.Crim.P. 35(a) [#60]: 1. The government asserts that the Probation Office opposes Mr. Charlton's motion to

correct the judgment order [#59] because the Court simply reimposed a fine in the amount of $100 that was imposed when the defendant was initially sentenced in 2002. 2. The record reveals that the Court imposed only a special assessment pursuant to 18

U.S.C. § 3013 in 2002 when the defendant was initially sentenced. The record contains no reference to the additional imposition of any monetary penalty. 3. The government further asserts that Mr. Charlton has paid the special assessment in

the amount of $100 but still owes a fine in the amount of $100.

Case 1:01-cr-00304-WYD

Document 64

Filed 01/30/2008

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4.

The government misreads the records and misconstrues the defendant's motion.

The issue is not payment. The issue is clarification of the sentence imposed. As stated above, the court imposed a special assessment in the amount of $100. A special assessment is not a fine. Compare 18 U.S.C. § 3013 with 18 U.S.C. § 3571. Contrary to the government's assertion, the court did not impose a fine. 5. Consequently, the judgment [#59] incorrectly reflects the imposition of a fine of

$100 rather than the imposition of the mandatory assessment (also known as the mandatory crime victim fund fee) of $100. 6. Further, the government's response [#63] seeks to now impose an additional

monetary sentence upon Mr. Charlton by asserting that Mr. Charlton has paid $100 and still owes $100. There is simply no support anywhere in the record for this proposition. 7. For these reasons, the Court should grant the Motion to Correct Sentence Pursuant

to Fed.R.Crim.P. 35(a) [#60] and correct the judgment order to delete the imposition of the $100.00 fine on violations (misstated as "counts" in the judgment order") 1 through 7 and reflect the imposition of the $100.00 special assessment (or mandatory crime victim fund fee). Dated: January 30, 2008 MARTHA H. ESKESEN, P.C. s/Martha H. Eskesen Martha H. Eskesen 1720 South Bellaire Street, Suite 804 Denver, Colorado 80222 Telephone: (303) 874-5160 Facsimile: (303) 573-4921 Email: [email protected] Attorney for Robert Earl Charlton

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Case 1:01-cr-00304-WYD

Document 64

Filed 01/30/2008

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on January 30, 2008, I electronically filed the foregoing REPLY IN SUPPORT OF MOTION TO CORRECT SENTENCE PURSUANT TO FED.R.CRIM.P. 35(a) [#60], with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Gary R. Kruck, U.S. Probation Officer [email protected] Phil Brimmer, AUSA Linda McMahan, AUSA [email protected] s/ Martha H. Eskesen Martha H. Eskesen 1720 South Bellaire Street, Suite 804 Denver, Colorado 80222 Telephone: (303) 874-5160 Facsimile: (303) 573-4921 Email: [email protected] Attorney for Robert Earl Charlton

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