Free Motion for Extension of Time to File Response/Reply - District Court of Connecticut - Connecticut

Case 3:00-cr-00058-AHN

Document 89

Filed 01/03/2008

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. DAMON IVANHOE GRAHAM : : : : : :

CRIMINAL NO. 3:00CR58 (AHN) JANUARY 3, 2007

GOVERNMENT'S REQUEST FOR ADDITIONAL TIME TO RESPOND TO "DEFENDANT'S REJOINDER" AND FOR A COPY OF THE COURT'S STATEMENT OF REASONS By pro se motion filed November 8, 2007, Damon Ivanhoe Graham moved for a modification of his sentence pursuant to 18 U.S.C. § 3582(c). In particular, Graham sought to be re-

sentenced based upon a change to the crack cocaine guidelines which had become effective on November 1, 2007. The Government

responded to that motion on or about November 9, 2007, requesting that the motion be denied as moot since the Commission had not yet then acted on the proposal to make the change to the crack guidelines retroactive. On December 11, 2007, however, by

Amendment 706, the Commission made the crack guidelines retroactive and, thereafter, the defendant filed a "rejoinder" or about December 17, 2007, asking the Court to "effect the retroactive application of Amendment 706 and modify Defendant's sentence accordingly." The Government requests that the Court authorize the Probation Office to provide the Government with a copy of the Court's Statement of Reasons and that it be permitted to file a

Case 3:00-cr-00058-AHN

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response on the merits to the defendant's motion for a sentence modification on or before February 4, 2008. In this regard, Government counsel has asked Senior U.S. Probation Officer Ray Lopez provide the Government with a copy of Court's Statement of Reasons which will assist the Government in responding to the defendant's motion. The Government understands

that the Probation Office is obtaining its file on this case. In addition, the Government is requesting additional time to respond to the motion so that, after reviewing its file and the Statement of Reasons, it can advise the Court as to the effect of retroactively applying the guidelines to Graham's sentence and formulate a position as to whether, even if Graham would qualify for reduction in sentence under Section 3582(c)(2) and the applicable policy statements of the Commission, a reduction of sentence is appropriate since a reduction is not automatic but is within the Court's discretion. See 18 U.S.C. §3582(c)(2)("the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.")(emphasis added); United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). The Government notes that Amendment 706 implementing the retroactive application of the amended guidelines states that the

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Case 3:00-cr-00058-AHN

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amended guideline may be applied retroactively effective on March 3, 2008 and, accordingly, the Government respectfully submits, may not be acted on before that date in any event. Further,

according the Bureau of Prisons website, Graham's projected release date is July 1, 2010. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY BY: ________________ RICHARD J. SCHECTER ASSISTANT UNITED STATES ATTORNEY Federal Bar No. ct24238 FOR: ANTHONY E. KAPLAN ASSISTANT UNITED STATES ATTORNEY Federal Bar No. ct08083 23d Floor 157 Church Street New Haven, Connecticut 06510 (203) 821-3700

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Case 3:00-cr-00058-AHN

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CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of January, 2008, I caused a copy of the foregoing Motion to be sent by first-class mail, postage prepaid, to the following: Damon I. Graham Prisoner No. 13787-014 FMC Devens, Unit H-A P.O. Box 879 Ayer, MA. 01432 Ray Lopez Senior United States Probation Office United States Probation Office Room 211 915 Lafayette Blvd. Bridgeport, Ct. 06604

RICHARD J. SCHECTER ASSISTANT UNITED STATES ATTORNEY

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