Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:00-cr-00058-AHN

Document 87

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA v. DAMON IVANHOE GRAHAM

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CRIMINAL NO. 3:00CR58 (AHN) NOVEMBER 9, 2007

GOVERNMENT'S RESPONSE TO DEFENDANT'S PRO SE MOTION FOR MODIFICATION OF SENTENCE By pro se motion filed November 8, 2007, Damon Ivanhoe Graham moves for a modification of his sentence pursuant to 18 U.S.C. § 3582(c). In particular, Graham seeks to be re-sentenced

based upon a change to the crack cocaine guidelines which became effective on November 1, 2007. without prejudice. 18 U.S.C. § 3582(c)(2) provides that, in the case of a defendant "who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant," the sentencing 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. The motion should be denied

Case 3:00-cr-00058-AHN

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In turn, Section 1B1.10(a) of the Sentencing Guidelines provides that: Where a defendant is serving a term of imprisonment and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction of the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c) is not consistent with this policy statement and thus is not authorized. The Amendment to the Guidelines which reduces by two levels the offense level for crack cocaine under the Drug Quantity Table, Section 2D1.1(c), is Amendment 706. Supplement at 226-227 (Nov. 1, 2007). See U.S.S.G.

Amendment 706 is not one Accordingly, a

of the Amendments listed in Section 1B1.10(c).

reduction in Graham's sentence based on the November 1, 2007 revision to the crack guidelines is not authorized.

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Accordingly, the Government respectfully requests that the Court deny Graham's motion without prejudice.1 Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

BY:

________________ JAMES R. SMART ASSISTANT UNITED STATES ATTORNEY Federal Bar No. ct20982

FOR: ANTHONY E. KAPLAN ASSISTANT UNITED STATES ATTORNEY Federal Bar No. ct08083 23d Floor 157 Church Street New Haven, Connecticut 06510 (203) 821-3700

The United States Sentencing Commission has requested public comment as to whether Amendment 706 should be listed in U.S.S.G. § 1B1.10(c), that is, applied retroactively. See 72 Fed. Reg. 41794-02, 2007 WL 2175807 (Jul. 31, 2007). Without conceding its applicability here , should the Commission decide to authorize the retroactive application of Amendment 706, the defendant could seek to avail himself of relief at that time pursuant to Section 3582(c)(2). 3

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of November 2007, I caused a copy of the foregoing Motion to be sent by first-class mail, postage prepaid, to the following: Damon I. Graham No. 13787-014 FMC Devens, Unit H-A P.O. Box 879 Ayer, MA. 01432 JAMES R. SMART ASSISTANT UNITED STATES ATTORNEY

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