Free Order on Motion to Reduce Sentence - District Court of California - California

Case 4:08-cr-00175-CW

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 8 No. CR 08-00175 CW 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Derrick Dwane Pride moves for correction of sentence pursuant to Federal Rule of Criminal Procedure 35(b) on the ground that his sentence for violating two counts of the same criminal statute should run concurrently rather than consecutively. Having v. DERRICK DWANE PRIDE, Defendant. / UNITED STATES OF AMERICA, Plaintiff, ORDER DENYING MOTION TO CORRECT SENTENCE PURSUANT TO RULE 35(b) FOR THE NORTHERN DISTRICT OF CALIFORNIA

read all the papers submitted by Defendant, the Court DENIES his motion. BACKGROUND On March 19, 2008, Defendant was indicted on two counts of violating 21 U.S.C. § 843(b), use of a communications facility, a telephone, to commit narcotics trafficking, one count of violating 21 U.S.C. § 841(a)(1),(b)(1)(B)(iii), distribution of crack cocaine, and one count of violating 21 U.S.C. § 860, possession with intent to distribute crack cocaine within 1,000 feet of a playground. On May 14, 2008, Defendant entered into a plea bargain

Case 4:08-cr-00175-CW

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in which he plead guilty to the two counts of use of a telephone to commit narcotics trafficking. were dismissed. The two other counts against him

In the plea agreement, Defendant agreed that he

understood "that, because I am pleading guilty to more than one count, the Court may order the sentences on those counts to run consecutively." Plea Agreement at 2. Defendant also agreed that

"a reasonable and appropriate disposition of this case is as follows: a sentence of 96 months of imprisonment, one year of supervised release . . . $0 fine, $200 special assessment, and $0 restitution." Plea Agreement at 4.

On May 19, 2008, judgment was entered against Defendant and he was sentenced to prison for a term of forty-eight months on Count 1 and forty-eight months on Count 2 to run consecutively. The other

terms of Defendant's sentence were in accordance with the sentence agreed to in the Plea Agreement. On June 25, 2008, Defendant filed this motion for reduction of sentence. LEGAL STANDARD Rule 35 of the Federal Rules of Criminal Procedure governs correcting or reducing a criminal sentence. Subsection (a)

provides that a court may correct a sentence that resulted from arithmetical, technical, or other clear error within seven days after sentence. Subsection (b) provides:

(1) Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. Fed. R. Crim. Pro. 35(b)(1).

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: 7/8/08 IT IS SO ORDERED.

DISCUSSION Neither Rule of Criminal Procedure 35(a) nor Rule of Criminal Procedure 35(b) applies to this motion. Rule 35(a) does not apply

because Defendant filed his motion more than seven days after sentencing, and the type of error he alleges is not the type addressed in that subsection. Rule 35(b) does not apply because

this is not a motion by the government based upon Defendant's substantial assistance in investigating or prosecuting another person. Furthermore, Defendant received the exact sentence to which he agreed in his Plea Agreement and, thus, he cannot claim that the sentence is inappropriate or that he is surprised that he received a consecutive sentence. He also waived his right to appeal or He cites no authority for the

collaterally attack his sentence.

proposition that the consecutive sentence here was improper pursuant to the law or the sentencing guidelines. Therefore, Defendant's motion for reduction of sentence pursuant to Rule of Criminal Procedure 35 must be DENIED. CONCLUSION Based on the foregoing, Defendant's motion for reduction of sentence is DENIED.

CLAUDIA WILKEN United States District Judge

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1 2 3 USA, 4 Plaintiff, 5 v. 6 Derrick Dwane Pride, 7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CR08-00175 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 8, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Garth Hire United States Attorney's Office 1301 Clay Street, Suite 340S Oakland, CA 94612-5217 Rebecca Sullivan Silbert Federal Public Defender's Office 555 - 12th Street, Ste. 650 Oakland, CA 94607-3627 Derrick Dwane Pride Reg. #91002-111 Federal Detention Center Dublin, CA 94568-3106 Dated: July 8, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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