Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cr-00357-LTB

Document 157

Filed 07/02/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 01-cr-00357-LTB UNITED STATES OF AMERICA, Plaintiff, v. 1. BOBBY FRANK MATA, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR RETROACTIVE APPLICATION OF SENTENCING GUIDELINES TO CRACK COCAINE OFFENSE 18 U.S.C. § 3582 (Docket No. 150)

COMES NOW, the United States of America, by United States Attorney Troy A. Eid, through Stephen M. Tokarz, Assistant United States Attorney, and hereby responds to defendant's Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense 18 U.S.C. § 3582 (Docket No. 150). Defendant Bobby Frank Mata has filed a motion for reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on a recent amendment to the Sentencing Guidelines which lowered the base offense levels applicable to cocaine base ("crack") offenses ("Amendment 706"). This amendment is not applicable to the defendant's case, however, because the defendant's case did not involve cocaine base. A review of the record reveals that on May 16, 2002, the defendant was sentenced to 157 months in custody after pleading guilty to possession with intent to distribute 500 grams or more of methamphetamine.

Case 1:01-cr-00357-LTB

Document 157

Filed 07/02/2008

Page 2 of 4

The defendant's motion should be denied for the simple reason that his case did not involve cocaine base ("crack"), and he was not sentenced pursuant to the portions of Section 2D1.1 altered by Amendment 706. As stated above, the defendant's offense involved methamphetamine, and there has been no change to the guidelines applicable in this case. Pursuant to 18 U.S.C. § 3582(c)(2), a defendant's sentence may only be reduced when "such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." The Sentencing Commission's policy statements and its "exclusions" are clear and must be respected: "A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if (A) none of the amendments listed in subsection (c) is applicable to the defendant." U.S.S.G. § 1B1.10(a)(2). See also id. app. note 1(A) ("Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guidelines range."). Because Amendment 706 and all other listed amendments are inapplicable to the defendant, the defendant's motion should be summarily denied. See, e.g., United States v. Trevino, 2008 WL 910063 (S.D. Tex. Apr. 3, 2008); United States v. Vasquez, 2008 WL 921043 (E.D.N.Y. Apr. 2, 2008); United States v. Kindle, 2008 WL 906826 (E.D. Ark. Apr. 1, 2008); United States v. Thomas, 2008 WL 919522 (S.D.N.Y. Mar. 31, 2008); United States v. McMillon, 2008 WL 833069 (E.D. Wis. Mar. 27, 2008); United States v. Underwood, 2008 WL 828296 (S.D. W. Va. Mar. 21, 2008); United States v. Gamble, 2008 WL 719209 (E.D. Ark. Mar. 14, 2008); United States v. Herrera-Gamboa, 2008 WL 624100 (S.D. Tex. Mar. 5, 2008); United States v. De Garcia, 2008 WL 465352 (S.D. Tex. Feb. 19, 2008).

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Case 1:01-cr-00357-LTB

Document 157

Filed 07/02/2008

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To the extent that the defendant seeks through this motion to obtain relief which is not authorized by Section 3582(c)(2), such as reconsideration of other sentencing issues, his motion must be denied. In its recently revised policy statements, the Sentencing Commission made clear that proceedings under Section 1B1.10 and Section 3582(c)(2) "do not constitute a full resentencing of the defendant." As such, the Government submits that no reduction is appropriate in this case. Respectfully submitted this 2nd day of July, 2008. TROY A. EID United States Attorney

By: s/Stephen M. Tokarz STEPHEN M. TOKARZ Assistant United States Attorney United States Attorney's Office 1225 Seventeenth St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0308 Fax: (303) 454-0409 e-mail: [email protected] Attorney for the Government

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Case 1:01-cr-00357-LTB

Document 157

Filed 07/02/2008

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of July, 2008, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR RETROACTIVE APPLICATION OF SENTENCING GUIDELINES TO CRACK COCAINE OFFENSE 18 U.S.C. § 3582 (Docket No. 150) using the CM/ECF system and placed in the U.S. mail a copy to: Bobby Frank Mata Springfield Medical Center/Federal Prisoners Inmate Mail/Parcels P.O. BOX 4000 Springfield, MO 65801

s/Maggie E. Grenvik Maggie E. Grenvik Legal Assistant U.S. Attorney's Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0401 E-mail: [email protected]

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