Free Document re Reduction of Sentence re: Crack Cocaine Offense 18:3582 - District Court of Connecticut - Connecticut

Case 3:00-cr-00263-JCH

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Filed 09/13/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA V.

No. 3:00-CR-00263 (JCH)

TERRENCE THOMPSON TERRENCE THOMPSON'S SUR-SUR-REPLY BRIEF RE: MOTION FOR REDUCTION OF SENTENCE PURSUANT TO 18 U.S.C. SEC. 3582 (c) In its response to Mr. Thompson's Reply to the Government's Response to the defendant's motion for a reduction of his sentence, the government argues that "[e]ven if the court were to accept this [Thompson's] argument, Mr. Thompson still does not qualify for a sentence reduction because he remains a career offender." The government's argument -- that, despite the language of USSG Section 4B1.1, Mr. Thompson's sentencing range of 188-235 months remains unchanged -- arises from a refusal to recognize that a Section 3582(c) motion affords the district court a basis for de novo review of Mr. Thompson's sentence under 18 USC Section 3553 that is not constrained by the Sentencing Guidelines' policy statements and/or substantive Guideline provisions. The purpose of this sur-sur-reply brief is two-fold: (1) address the government's analysis of Mr. Thompson's argument that he was sentenced "based on" USSG Section 2D1.1; and (2) present the court with a recent United States District Court decision that a motion for a reduction in sentence pursuant to 18 USC Section 3582(c) can form the basis for a de novo review of a defendant's sentence after considering the factors set forth in 18 USC Section 3553. Mr. Thompson's Sentence was "based on" USSG Section 2D1.1. According to USSG Section 4B1.1, if the offense level from the table (offense statutory maximum) is greater than the offense level otherwise applicable, the offense level from the table should be used. In the

Case 3:00-cr-00263-JCH

Document 1956

Filed 09/13/2008

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case at bar, Mr. Thompson's offense level from the table equaled Mr. Thompson's offense level otherwise applicable. As a result, Mr. Thompson's offense level was not greater than the offense level from the table. The offense level otherwise applicable was found in the Drug Quantity Table at USSG Section 2D1.1. Mr. Thompson's original sentence had to be governed by the crack cocaine guidelines because the career offender guidelines could not apply. As support for Mr. Thompson's argument, United States v. Barnett, 2001 WL 883119 (S.D.N.Y.) can be instructive. The Barnett court addressed a motion for reduction of sentence, which was made by Mr. Barnett pursuant to 18 USC Section 3582(c). Mr. Barnett had been convicted of narcotics crimes and sentenced. However, he was sentenced based on a sentencing guideline range, which was subsequently lowered by the Sentencing Commission. While the Court denied Mr. Barnett's motion, it did consider the offense level found in the Drug Quantity Table in USSG Section 2D1.1 as the offense level otherwise applicable under USSG Section 4B1.1. DeNovo Review. On June 30, 2008, District Judge Charles P. Kocoras filed a decision which held that "district courts are necessarily endowed with discretion to employ the Section 3553 factors when issuing new sentences under 18 USC Section 3582." United States v. Shelby, 1:95-cr-00069 (USDC Northern District of Illinois Eastern Division). [See attached decision]. In the case at bar, Mr. Thompson moves this court to issue a new sentence under 18 USC Section 3582. Should this court decide to issue a new sentence, Mr. Thompson moves that the court exercise its discretion to employ Section 3553 factors. If the court does employ Section 3553 factors, then it does not have to necessarily conclude that Mr. Thompson is ineligible for a reduction in his sentence because of the career offender provisions. De novo review can include an examination of changes Mr. Thompson has made in his life since the original sentence. In addition, this court can evaluate critiques of the

reasonableness of career offender provisions of the Guidelines, especially the critique that a defendant's "criminal history score mirrors disparities in state sentencing, and in particular, racial disparities." United States 2

Case 3:00-cr-00263-JCH

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v. Leviner, 31 F.Supp.2d 23 (1998). CONCLUSION For the reasons set forth above and in the opening Memorandum of Law as well as Mr. Thompson's Reply to the Government's Response, the Court should adjust Mr. Thompson's sentence downward to 151 months' imprisonment minus time good time credit and presentence credit pursuant to USSG Section 5G1.3(b) to account for the two-level reduction. The Court should also hold a hearing, at which Mr. Thompson is present, to consider whether to further reduce his sentence. Respectfully Submitted /S/ DAVID J. WENC David Wenc Wenc Law Offices 546 Halfway House Road P.O. Box 306 Windsor Locks, CT 06096 (860) 623-1195 (860) 292-6705 ­ Fax [email protected]

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CERTIFICATE OF SERVICE I, David J. Wenc, hereby certify that I have served a copy of the attached Defendant's Sur-Sur-Reply to Government's Sur-Reply, on September 13, 2008, by first class mail, upon: Chambers of the Honorable Janet C. Hall United States District Court 915 Lafayette Boulevard Bridgeport, CT 06604 Assistant United States Attorney Stephen Reynolds Office of the U.S. Attorney 157 Church Street, 23rd Floor New Haven, CT 06510 Terrance Thompson, Inmate #14264-014 C/o FCI Allenwood Medium Federal Correctional Institution P.O. BOX 2000 White Deer, PA 17887 /S/ DAVID J. WENC David Wenc Wenc Law Offices 546 Halfway House Road P.O. Box 306 Windsor Locks, CT 06096 (860) 623-1195 (860) 292-6705 ­ Fax [email protected]

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