Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cr-00214-WYD

Document 3589

Filed 04/30/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 01-cr-00214-WYD-16 UNITED STATES OF AMERICA, Plaintiff, v. 16. GEORGE MURRAY, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S REQUEST FOR SECTION 3582 RELIEF (DOC 3579)

The United States of America, by District of Colorado United States Attorney Troy A. Eid, through Assistant U.S. Attorney (AUSA) Guy Till (Government), hereby respectfully files the following response to the defendant's request for relief pursuant to Title 18 U.S.C. § 3582 (DOC 3579). The Government respectfully asks the court to take judicial notice of the contents of its own files in relation to this matter. The Government states and represents to the Court as follows: 1. Pursuant to the Minute Order (DOC 3580) directing counsel to advise the Court whether or not the defendant is eligible for a sentence reduction pursuant to Title 18 U.S.C. § 3582, the Government respectfully advises the Court that the defendant is not eligible for a sentence reduction pursuant to § 3582.

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Case 1:01-cr-00214-WYD

Document 3589

Filed 04/30/2008

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2. The defendant was sentenced, on or about November 23, 2005, to a term of imprisonment of 120 months following his conviction for a violation of Title 21 U.S.C. § 841(a)(1) and (b)(1)(B). 3. The defendant was sentenced to a mandatory minimum sentence required by statute. See DOC 2266 (Title 21 U.S.C § 851 Information). 4. The Sentencing Commission has not altered and cannot alter a statutory mandatory minimum sentence. See United States v. Novey, 78 F.3d 1483, 1486 (10th Cir.1996) ("[T]he Sentencing Commission does not have the authority to override or amend a statute.") (citing Neal v. United States, 516 U.S. 284 (1996)). See also § 1B1.10 app. note 1(A) (affirming that "a reduction in the defendant's term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent with this policy statement if . . . the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another. . . statutory provision (e.g., a statutory mandatory minimum term of imprisonment)"). Accordingly, as courts have consistently recognized, where a statutory mandatory minimum sentence is applicable the passage of a retroactive guideline amendment is irrelevant. See, e.g., United States v. Smartt, 129 F.3d 539, 542 (10th Cir. 1997); United States v. Hanlin, 48 F.3d 121, 124-25 (3d Cir. 1995); United States v. Eggersdorf, 126 F.3d 1318, 1320 (11th Cir. 1997).

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Case 1:01-cr-00214-WYD

Document 3589

Filed 04/30/2008

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5. Wherefore, the defendant's motion (DOC 3579) should be summarily denied. Respectfully submitted this 30th day of April, 2008. TROY A. END UNITED STATES ATTORNEY

BY: s/ Guy Till GUY TILL Assistant United States Attorney United States Attorney's Office District of Colorado 1225 17th Street, Suite 700 Denver, CO 80202 (303) 454-0100 [email protected]

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Case 1:01-cr-00214-WYD

Document 3589

Filed 04/30/2008

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CERTIFICATE OF SERVICE I hereby certify that on this 30th day of April, 2008, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S REQUEST FOR SECTION 3582 RELIEF (DOC 3579) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Wade Eldridge, ESq. [email protected]

and I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner indicated: None

s/ Debbie Azua-Dillehay DEBBIE AZUA-DILLEHAY Legal Assistant Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 FAX: (303) 454-0409 E-mail: [email protected]

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