Free Motion to Reduce Sentence - District Court of Colorado - Colorado

Case 1:01-cr-00214-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 01-cr-214-WYD-24 UNITED STATES OF AMERICA, Plaintiff, v. 24. DWAYNE VANDYKE, Defendant.

GOVERNMENT'S MOTION FOR FURTHER SENTENCING REDUCTION PURSUANT TO RULE 35(b), FEDERAL RULES OF CRIMINAL PROCEDURE

The United States of America, by and through the undersigned Assistant United States Attorney for the District of Colorado, hereby moves for a further sentencing reduction on behalf of Defendant Dwayne VanDyke, pursuant to the provisions of Fed.R.Crim. P. 35(b). As grounds for this motion, the government states as follows: 1. The defendant pled guilty to Count Nineteen of the Second Superseding

Indictment charging Possession with Intent to Distribute approximately one hundred twenty-six grams of cocaine base on July 29, 2003. He was sentenced to one hundred seventy-five months imprisonment.

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2.

His plea agreement provided for a sentence reduction for cooperation in that

case. The defendant, in fact, testified in the trial of Willie Small and others and cooperated with the Government in pre-trial proceedings. 3. After he was sentenced and had begun serving his federal sentence,

Defendant VanDyke was indicted on November 25, 2004, in criminal case number 04-cr-00463-MK, an unrelated case involving a large HUD conspiracy in which he was a minor participant. Over thirty defendants were indicted. The events for which Mr. VanDyke was indicted occurred prior to the events in the matter before this court. Mr. VanDyke ultimately pled guilty on August 29, 2005, to a misdemeanor, Making a False Report in violation of Title 18 U.S.C. § 1012, and received a one year sentence of imprisonment on July 30, 2007, to be served concurrent with his sentence in the present case. 4. The plea agreement in 04-cr-00463-MSK called for and anticipated the

defendant's cooperation and testimony at trial, and provided that the Government would request a sentence reduction of at least twenty percent in case number 01-cr-214-WYD pursuant to F. R. Crim. P. 35. 5. The undersigned Assistant U.S. Attorney has spoken with the attorneys in

04-cr-00463-MSK, AUSAs Linda McMahan and Patricia Davies, and has determined that Mr. VanDyke did testify in the HUD prosecution and was a valuable witness. In addition to testimony, Mr. VanDyke's cooperation included being debriefed multiple times by

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attorneys and investigators during which defendant provided specific information regarding the conduct of persons charged in the case. He also helped the Government locate another witness who also was valuable to the case and who, without Mr. VanDyke's cooperation, the Government would have been unlikely to locate. His cooperation helped at the trial of the case and may have facilitated guilty pleas from other defendants. 6. Rule 35(b)(2)(C) authorizes a motion for reduction of sentence to be made

more than one year after sentencing if the usefulness of the information which made up the defendant's substantial assistance could not be reasonably anticipated by the defendant until a year after sentencing and if the assistance was promptly provided to the government after its usefulness was reasonably apparent. The information and testimony provided by the Defendant had to do with names, times, places, and identities of individuals involved in the HUD scheme. Since that indictment did not occur until after the sentencing in this case, the usefulness of the information was not readily apparent until then. The Defendant promptly agreed to cooperate when approached. WHEREFORE, for the reasons set forth herein, the government hereby moves the Court to reduce Defendant VanDyke's sentence by an additional 35 months in consideration of his substantial and continuing assistance to the government.

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Respectfully submitted this 5 th day of October, 2007. TROY A. EID UNITED STATES ATTORNEY

By: s/Kathleen M. Tafoya KATHLEEN M. TAFOYA Assistant United States Attorney 1225 17 th St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0401 e-mail: [email protected] Attorney for the Government

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CERTIFICATE OF SERVICE I hereby certify that on this 5 th day of October, 2007, I electronically filed the foregoing GOVERNMENT'S MOTION FOR FURTHER SENTENCING REDUCTION PURSUANT TO RULE 35(b), FEDERAL RULES OF CRIMINAL PROCEDURE using the CM/ECF system which will send notification of such filing to the following e-mail address: Philip A. Cherner, Esq. e-mail: [email protected]

s/Maggie E. Grenvik Maggie E. Grenvik Legal Assistant for AUSA Kathleen M. Tafoya U.S. Attorney's Office 1225 17 th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0401 e-mail: [email protected]

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