Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:03-cr-00275-EWN

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Filed 06/16/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 03-cr-00275-08-EWN UNITED STATES OF AMERICA, Plaintiff, v. DARRELL RAY, Defendant.

DEFENDANT RAY'S SUPPLEMENT TO MOTION FOR SENTENCING RELIEF PURSUANT TO 18 U.S.C. § 3582(c)(2) and MOTION FOR LEAVE TO FILE SUPPLEMENT 3 DAYS LATE

THE DEFENDANT, DARREL RAY, by and through his attorney, Clifford J. Barnard, hereby requests leave to file this supplement 3 days late, hereby submits the following supplement to Mr. Ray's pro se motion for a reduction of sentence, and counsel hereby states that it is his opinion that Mr. Ray is not eligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). MOTION FOR LEAVE TO FILE SUPPLEMENT 3 DAYS LATE

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1.

Mr. Ray's supplement to his motion for sentencing relief pursuant to 18

U.S.C. § 3582(c)(2) was due on Friday, June 13, 2008. 2. Counsel had completed the supplement and was prepared to file in on

June 13, 2008. 3. However, counsel was in Baltimore, Maryland on June 13, 2008 and was

unable to get onto the internet and was therefore unable to file the supplement on that date. 4. Defense counsel has not discussed this motion with A.U.S.A. Gregory

Rhodes because counsel did not determine that he would be unable to file the supplement on June 13, 2008 until after business hours on Friday, June 13, 2008 and is now filing this request before business hours on Monday, June 16, 2008; thus, counsel is unable to state whether the government objects or does not object to this requested extension. SUPPLEMENT TO MOTION FACTS 5. On December 11, 2003, Mr. Ray plead guilty to conspiracy to distribute

and possess a detectable amount of cocaine (Count 1 of the Superseding Indictment). 6. At sentencing on May 20, 2004, this Court found that Mr. Ray had a total -2-

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offense level of 25 (a Drug Table level of 36 reduced to a base offense level of 30 due to a mitigating role, reduced by 2 levels for adjustment for minor role and reduced by 3 levels for acceptance of responsibility) and that Mr. Ray had a criminal history level VI, resulting in a Sentencing Guideline range of 110 to 137 months. 7. The Court then sentenced Mr. Ray to a term of imprisonment of 72

months based on the government's motion for a downward departure (as recommended in the parties' Plea Agreement, this was a 34% reduction from 110 months). 8. According to the B.O.P. Inmate Locator information sheet, Mr. Ray is

in custody of the United States Bureau of Prisons and Mr. Ray's presently projected release date is September 21, 2008. 9. On November 1, 2007, the U.S.S.G. § 2D1.1 Drug Table was amended

so that "[a]t least 500 grams but less than 1.5 kilograms of cocaine base" became a base offense level of 34. 10. On December 11, 2007, the United States Sentencing Commission made

its November 1, 2007 amendment of U.S.S.G. § 2D1.1 retroactive as of March 3, 2008. ELIGIBILITY -3-

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11.

Mr. Ray is presently serving his sentence on home detention through the

Denver Community Corrections Office (CCM-Denver). 12. It is undersigned counsel's belief that Mr. Ray does not qualify for a

sentencing reduction under the amended crack cocaine guideline because the amendment does not change Mr. Ray's sentencing guideline range. 13. because: a. his base offense level would have been a 36 based on 500 to 1.5 Mr. Ray's total offense level at the May 20, 2004 sentencing was 25

kilogram of crack cocaine; b. but due to the mitigating role played by Mr. Ray, his base offense

level was reduced to level 30;1 c. this level 30 was then reduced by 2 levels for his minor role and

reduced by 3 levels for acceptance of responsibility; and d. 14.
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thus, Mr. Ray's total offense level was 25.

After considering and applying the crack cocaine amendment, Mr. Ray's

U.S.S.G. § 2D1.1(a)((3) (2003 Edition) states that the base offense level will be: "the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if the defendant receives an adjustment under § 3B1.2 (Mitigating Role), the base offense level under the subsection shall not be more than level 30." -4-

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total offense level remains at a level of 25 because: a. his new base offense level under the amendment would be a 34

based on 500 to 1.5 kilogram of crack cocaine; b. but due to the mitigating role played by Mr. Ray, his base offense

level would then still be reduced only to a level 30; c. this level 30 would then be reduced by 2 levels for his minor role

and reduced by 3 levels for acceptance of responsibility; and d. 15. thus, Mr. Ray's total offense level would remain a level 25.

Because the amendment of U.S.S.G. § 2D1.1 did not have the effect of

lowering Mr. Ray's applicable guideline range, undersigned counsel believes that Mr. Ray is not eligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) at this time. WHEREFORE, the Defendant, Darrell Ray, hereby requests leave to file this supplement 3 days late and undersigned counsel hereby states that it is his opinion that Mr. Ray is not eligible for a sentence reduction pursuant to the amended advisory guidelines and 18 U.S.C. § 3582(c)(2). DATED this 16th day of June, 2008. Respectfully submitted, -5-

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s/Clifford J. Barnard Clifford J. Barnard Attorney for Defendant Ray 1790 30th Street, Suite 280 Boulder, Colorado 80301-1033 Telephone: (303) 449-2543 Facsimile: (303) 444-6981 Email: [email protected] CERTIFICATE OF SERVICE I hereby certify that on this 16th day of June, 2008, I electronically filed the foregoing Defendant Ray's Supplement to Motion for Sentencing Relief 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 address(es): A.U.S.A. Gregory H. Rhodes [email protected] s/Clifford J. Barnard Clifford J. Barnard Attorney at Law

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