Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cr-00023-ZLW

Document 192

Filed 05/23/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 01-cr-00023-ZLW UNITED STATES OF AMERICA, Plaintiff, v. 1. FARIS LEE CARTER, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR REDUCTION IN SENTENCE PURSUANT TO 18 U.S.C. 3582(C)(2) (Docket No. 176)

COMES NOW, the United States of America, by United States Attorney Troy A. Eid, through Stephen M. Tokarz, Assistant United States Attorney, and hereby responds to defendant's Motion for Reduction in Sentence Pursuant to 18 U.S.C. 3582(c)(2) (Docket No. 176). Defendant Faris Lee Carter has filed a motion for reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on a recent amendment to the Sentencing Guidelines which lowered the base offense levels applicable to cocaine base ("crack") offenses. This amendment, however, is inapplicable to the defendant, as he was sentenced pursuant to a stipulated term provided in a plea agreement entered under Federal Rule of Criminal Procedure 11(c)(1)(C). A review of the record reveals that defendant was previously sentenced at a base offense level of 26 for possession of 8.25 grams of cocaine base. Pursuant to USSG § 4B1.1, defendant's base offense level was increased to 34 because he qualified as a "Career Offender."

Case 1:01-cr-00023-ZLW

Document 192

Filed 05/23/2008

Page 2 of 4

Defendant's resulting total offense level was 31 after application of a 3-level downward adjustment for acceptance of responsibility. Defendant's sentencing range was 188-235 months based on Criminal History Category VI. However, the parties entered into a plea agreement with a stipulated sentence of 120 months pursuant to Rule 11(e)(1)(C).1 The defendant's motion should be denied because, as stated earlier, his sentence did not rest on the applicable guideline range, but on an express stipulation in his plea agreement, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), as to the final sentence. A motion for reduction of sentence under Section 3582(c)(2), based on a retroactive guideline amendment, is irrelevant where the defendant has entered and been sentenced pursuant to such a "C plea." As the Tenth Circuit correctly stated in a similar context, "the district court should have dismissed [the defendant's] motion without considering its merits." United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996). Accord United States v. Peveler, 359 F.3d 369, 377-79 (6th Cir. 2004); United States v. Hemminger, 114 F.3d 1192, 1997 WL 235838 (7th Cir. May 2, 1997) (unpublished); and United States v. Gordon, 2008 WL 901911 (E.D. Okla. Mar. 31, 2008) (relief based on crack amendments denied on this basis). Therefore, the defendant's motion should be summarily denied.2

The plea agreement refers to Rule 11(e)(1)(C) which was renumbered by amendment in 2002 to Rule 11(c)(1)(C). Alternatively, defendant's motion should also be denied because he was sentenced as a "Career Offender" pursuant to USSG § 4B1.1 and, therefore, the amended guidelines do not change his resulting offense level of 31.
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Case 1:01-cr-00023-ZLW

Document 192

Filed 05/23/2008

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Respectfully submitted this 23rd day of May, 2008. TROY A. EID United States Attorney

By: s/Stephen M. Tokarz STEPHEN M. TOKARZ Assistant United States Attorney United States Attorney's Office 1225 Seventeenth St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0308 Fax: (303) 454-0409 e-mail: [email protected] Attorney for the Government

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Case 1:01-cr-00023-ZLW

Document 192

Filed 05/23/2008

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of May, 2008, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR REDUCTION IN SENTENCE PURSUANT TO 18 U.S.C. 3582(C)(2) (Docket No. 176) using the CM/ECF system which will send notification of such filing to the following e-mail address: Susan L. Fisch Federal Public Defender's Office e-mail: [email protected]

s/Diana Brown Diana Brown Legal Assistant U.S. Attorney's Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0401 e-mail: [email protected]

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