Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00227-EWN

Document 70

Filed 04/24/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 00-cr-00227-EWN UNITED STATES OF AMERICA, Plaintiff, v. 1. STEVEN WYRICK, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S SUPPLEMENT TO MOTION FOR RETROACTIVE APPLICATION OF SENTENCING GUIDELINES TO CRACK COCAINE OFFENSE BASED UPON 18 U.S.C. SECTION 3582(c)(2) (DOC 63)

The United States of America, by District of Colorado United States Attorney Troy A. Eid, through Assistant U.S. Attorney (AUSA) Guy Till (Government), hereby respectfully files this response addressing the issue of the defendant's possible relief pursuant to Title 18 U.S.C. § 3582(c)(2), as directed by the Minute Order dated February 29, 2008. (DOC 62). 1. The Government respectfully asks the Court to take judicial notice of the contents of its own files in relation to this case. Defendant has requested a reduction of sentence, pursuant to Section 3582(c)(2), based on Amendment 706 to the Sentencing Guidelines, which generally lowered the base offense levels applicable to cocaine base ("crack") offenses. 2. The Evidence in this case is substantial: 46.1925 grams of crack cocaine were recovered from the vehicle the defendant was using the day of his arrest, as well at $2,285.00, a

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small amount of PCP and 71 grams of marijuana. The confidential informant working with investigators purchased approximately 28 grams of crack cocaine from the defendant for $900.00 before the car stop on the day of the defendant's arrest. 3. The U.S.S.G. Section 2D1.1 offense level in 2001 for distribution or possession with intent to distribute more than 50 grams of crack cocaine, but less than 150 grams of crack cocaine, was level 32. 4. According to the Judgement of Sentence and Conviction, the applicable offense level was adjusted for acceptance of responsibility. The Court used the adjusted offense level of 29 to determine the Guidelines sentence. The Court did not use the Guidelines criminal history calculations pursuant to a stipulated agreement between the Government and the defendant, and sentenced the defendant as if his criminal history category were V instead of VI. The Court sentenced the defendant to 140 months imprisonment. 5. The defendant is correct that Amendment 706 reduced the guideline range applicable in his case; therefore, the court may consider whether to reduce his sentence. Specifically, the base offense level in this case is now 30, pursuant to amended Section 2D1.1(c)(5). When combined with other guideline applications, the adjusted final offense level in this case is now 27. At the defendant's established criminal history category of V, this would result in a new sentencing range of 120-150 months. This range is a reduction from the previously applied range of 140-175 months. 6. Although a defendant may qualify for a reduction in sentence under Section 3582(c)(2) and the applicable policy statements of the Sentencing Commission, a reduction of sentence is not automatic. The court's discretion is set forth in Section 3582(c)(2) itself, which provides that 2

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"the court may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 7. If the Court decides to reduce the defendant's sentence, the extent of the reduction should be limited to no less than the new minimum guideline range, which here is 120 months. The Sentencing Commission directed that, with one exception (where the defendant earlier received a below-guideline sentence, which is not the case here), "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range." U.S.S.G. § 1B1.10(b)(2)(A). 8. Accordingly, the Government here respectfully indicates that the Court may

determine that the sentence to 140 months of imprisonment is appropriate and no further adjustment is called for --- or the Court may reduce the defendant's sentence to not less than 120

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months imprisonment pursuant to Title 18 U.S.C. 3582(c)(2). Respectfully submitted this 24th day of April 2008. TROY A. END UNITED STATES ATTORNEY

BY: s/ Guy Till GUY TILL Assistant United States Attorney United States Attorney's Office District of Colorado 1225 17th Street, Suite 700 Denver, CO 80202 (303) 454-0100 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 24th day of April, 2008, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S SUPPLEMENT TO MOTION FOR RETROACTIVE APPLICATION OF SENTENCING GUIDELINES TO CRACK COCAINE OFFENSE BASED UPON 18 U.S.C. SECTION 3582(c)(2) (DOC 63) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John Mosby, Esq. [email protected]

and I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner indicated: None

s/ Debbie Azua-Dillehay DEBBIE AZUA-DILLEHAY Legal Assistant Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 FAX: (303) 454-0409 E-mail: [email protected]

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