Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00448-LTB

Document 389

Filed 02/09/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Lewis T. Babcock

Criminal Case No. 00-cr-00448-LTB UNITED STATES OF AMERICA, Plaintiff, v. 6. ADALBERTO LOPEZ, Defendant. ______________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO ELIMINATE ENHANCEMENTS AND REDUCE SENTENCE ______________________________________________________________________________

The Plaintiff, the United States of America (hereinafter "Government"), by the United States Attorney for the District of Colorado and the undersigned Special Assistant United States Attorney, files this its response to the Motion to Eliminate Enhancements and Reduce Sentence, filed by the Defendant, Adalberto Lopez on January 18, 2006, and says: 1. This Defendant is, in effect, filing an out-of-time motion pursuant to 28 U.S.C. § 2255. As this Court well knows, such a motion is the exclusive remedy for a defendant. See Williams v. United States, 323 F.2d 672 (10th Cir. 1963) (per curiam). The Defendant has not satisfied his failure to comply with the time limits of a 2255. 2. In addition, the Plaintiff appears to rely on the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) regarding jury verdicts and sentencing in arguing 1

Case 1:00-cr-00448-LTB

Document 389

Filed 02/09/2006

Page 2 of 3

his sentence was incorrectly calculated. This hardly is newly-discovered or extraordinary. 3. In addition, Apprendi and its progeny are not retroactive as to the movant. See United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied, 537 U.S. 961 (2002). See also United States v. Johnson, No. 05-1283 (10th Cir. Dec. 14, 2005) (dealing with United States v. Booker, 543 U.S. 220 (2005)). WHEREFORE, the Defendant's motion should be denied with prejudice and without ordering further filings or an evidentiary hearing. Respectfully submitted this 9th day of February, 2006. WILLIAM J. LEONE UNITED STATES ATTORNEY

BY: s/ Joseph T. Urbaniak Jr. JOSEPH T. URBANIAK JR. Special Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0317 FAX: (303) 454-0401 E-mail: [email protected] Attorney for Government

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Case 1:00-cr-00448-LTB

Document 389

Filed 02/09/2006

Page 3 of 3

CERTIFICATE OF SERVICE I certify that on this 17th day of January, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system.

I hereby certify that a copy of the was mailed on the 9th day of February, 2006, postage prepaid, addressed to the following: Adalberto Lopez Reg. No. 29915-013 Federal Correctional Complex - Low P.O. Box 26020 Beaumont, Texas 77720-6020

BY: s/ Joseph T. Urbaniak Jr. JOSEPH T. URBANIAK JR. Special Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0317 FAX: (303) 454-0401 E-mail: [email protected] Attorney for Government

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