Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00135-WDM

Document 134

Filed 04/17/2008

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 00-cr-00135-WDM-02 UNITED STATES OF AMERICA, Plaintiff, v. 2. ERICH VANARD CRAWFORD, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT CRAWFORD'S MOTION FOR MODIFICATION OF IMPOSED TERM OF IMPRISONMENT PURSUANT TO 18 U.S.C. § 3582(c)(2)

Comes now the United States of America, by and through Assistant United States Attorney David M. Conner, and respectfully responds to defendant Crawford's pro se motion for modification of an imposed term of imprisonment filed with this Honorable Court on December 13, 2007. In this pro se pleading defendant Crawford, in a display of virtually incomprehensible gibberish, seems to complain that his guideline calculations were not correct and that subsequent amendments to the guideline would change his offense level. A review of the defendant's sentence, plea agreement, and pertinent sentencing guidelines demonstrates this position is without merit. The defendant was convicted by guilty plea of armed bank robbery in Count 1 of the Indictment, in Count 2 of discharging a firearm in connection with that crime, and

Case 1:00-cr-00135-WDM

Document 134

Filed 04/17/2008

Page 2 of 6

carjacking in Count 5 of the Indictment, a crime which was second in a series of carjackings participated in by the defendant shortly following the bank robbery. Interestingly, the Indictment also charged him with a 18 U.S.C. § 924(c) count relating to the carjacking charged in Count 5. This was Count 6 of the Indictment and was dismissed as part of the plea agreement. Had the defendant been convicted of both 924(c) counts he would have faced mandatorily consecutive sentence of a total of 35 years over and above any sentence imposed on either the car jacking or the armed bank robbery. A review of the Plea Agreement in this matter shows that, contrary to the defendant's complaints, the guideline adjustments in the robbery guideline, §2B3.1(b)(2) were not applied to the guideline calculations with respect to the armed bank robbery but were applied with respect to the carjacking offense to which there was no concomitant 18 U.S.C. § 924(c) count of conviction. This is precisely what would occur under the present sentencing guidelines. See §2K2.4, Application Note 4. In this case the predicate offense for the 924(c) conviction was armed bank robbery not carjacking. Thus the defendant's assertion that he has been deprived of the benefit of a change in the United States Sentencing Guidelines is totally in error. While stated in a somewhat different fashion, the principle enunciated in Application Note 4 of the present sentencing guidelines was also part of the sentencing guidelines during the pendency of the defendant's case through sentencing. Consultation

-2-

Case 1:00-cr-00135-WDM

Document 134

Filed 04/17/2008

Page 3 of 6

of the United States Sentencing Guidelines affective November 1, 1998 and in effect through November 1, 2000 demonstrates this point. In the United States Sentencing Guidelines effective at the time the defendant's offense was committed §2K2.4, Commentary, Application Note 2 encompasses the same principle in somewhat different language. Application Note 2 states in its entirety: "Where a sentence under this section is imposed in conjunction with the sentence for an underlying offense, any specific offense characteristic for possession, use, or discharge of an explosive or firearm (e.g., §2B3.1(b)(2)(A)-(F) (Robbery)) is no to be applied in respect to the guideline for the underlying offense." Once again this is precisely the principle which was applied in concluding that the guideline range for the bank robbery was an offense level 22 while the range for the carjacking, which did incorporate adjustments pursuant to §2B3.1(b)(2)(C), because the defendant brandished a firearm during the commission of the carjacking but was not convicted of the 924(c) crime accompanying that offense. Following a multiple count adjustment, only a single offense level was added to the combined offense score for both the armed bank robbery and the carjacking offense. Similarly, should the defendant desire to use the sentencing guideline in effect at the time of his sentencing, the United States Sentencing Guidelines effective November 1, 2000, the result would be exactly the same. Indeed, that guideline is perhaps the most specific to the situation complained of by the defendant. In §2K2.4, Commentary, Application Note 2, the same principle which has applied since the guidelines became the

-3-

Case 1:00-cr-00135-WDM

Document 134

Filed 04/17/2008

Page 4 of 6

law of the land is stated specifically: If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline for the underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken criminal activity, possessed a firearm different from the one for which the defendant was convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U.S.C. § 924(c). However, if a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction. Emphasis added. Thus, a review of the Indictment, Plea Agreement, subsequent Presentence Report, as well as all arguably applicable guidelines demonstrate that the defendant's guidelines were properly calculated under all of the pertinent sentencing guidelines in effect at the relevant times and that the sentence resulting from any of the versions of the guidelines would have been the precisely same and in agreement with the sentence the defendant received.

-4-

Case 1:00-cr-00135-WDM

Document 134

Filed 04/17/2008

Page 5 of 6

WHEREFORE, the defendant's motion for relief should be denied.

Respectfully submitted, TROY A. EID United States Attorney

By: s/David M. Conner DAVID M. CONNER Assistant U.S. Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 E-mail: [email protected] Attorney for the Government

-5-

Case 1:00-cr-00135-WDM

Document 134

Filed 04/17/2008

Page 6 of 6

CERTIFICATE OF SERVICE

I hereby certify that on this 17 th day of April, 2008, I electronically filed the foregoing GOVERNMENT'S MOTION REGARDING ACCEPTANCE OF RESPONSIBILITY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand deliver, etc.) indicated by the nonparticipant's name: Erich Vanard Crawford Reg. No. 29578-013 FCI-Englewood 9595 West Quincy Avenue Littleton, Colorado 80123

s/Barbara Gardalen BARBARA GARDALEN Legal Assistant to David M. Conner U.S. Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 [email protected]