Free Judgment for Revocation - District Court of Colorado - Colorado


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Case 1:04-cr-00429-MSK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00429-MSK

3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 RAMON MARTINEZ, 7 Defendant. 8 _______________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES JOSHUA STEIN, Assistant U.S. Attorney, 1225 17th Street, Suite 700, Denver, Colorado, 80202, appearing for the plaintiff. MATTHEW GOLLA, Assistant Federal Public Defender, 633 17th Street, 10th Floor, Denver, Colorado, 80202, appearing for the defendant. Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Paul Zuckerman, 901 19th Street, Room A259, Denver, Colorado, 80294, (303) 629-9285 REPORTER'S TRANSCRIPT (Sentencing Hearing: Order) _______________________________________________________________ Proceedings before the HONORABLE MARCIA S. KRIEGER, Judge, United States District Court for the District of Colorado, commencing at 9:58 a.m., on the 1st day of May, 2006, in Courtroom A901, United States Courthouse, Denver, Colorado.

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(The following proceedings were had and entered of record after the Court heard the arguments of counsel and statement of defendant:) THE COURT: Thank you. Then the Court will announce

the sentence it intends to impose, resolving the areas of dispute. Of course, Counsel, you will have the opportunity

after I have made my ruling to make any further legal argument before judgment is imposed. As we all know, sentencing in the federal system is governed by 18 U.S.C. Section 3553(a) and related statutes. Section 3553(a) enunciates Congress' intent with regard to sentencing. It obligates the Court to impose a sentence that

is sufficient but not greater than necessary to reflect the seriousness of the offense, to promote respect for the law and provide just punishment, to deter criminal conduct, to protect the public from further crimes by the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. The presentence investigation report provides valuable information with regard to the factors that the Court considers. And there are a number of them: the nature and

circumstances of the offense, the history and characteristics of the defendant, the kind of sentences that are available, what the Sentencing Guidelines would require, the need to avoid

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unwarranted sentence disparities among defendants with similar records found guilty of similar conduct, and the need for restitution. Here, the parties have not disputed the contents of the presentence investigation report, so the Court then turns to what the Federal Sentencing Guidelines would recommend. MR. GOLLA: I hate to interrupt, your Honor. I did

file objections to the presentence report. THE COURT: MR. GOLLA: I'm sorry. THE COURT: The Court then considers how the Federal Not to the factual contents. Okay. I just want to make sure -- okay.

Sentencing Guidelines would apply. The parties have disagreed as to how the sentencing guidelines apply. We have a number of disputes with regard to

the guidelines; but perhaps since this hearing has taken place over a sustained period of time and parties may want to appeal, it will be helpful for the Court of Appeals to have a cohesive analysis. So I will begin with the charges that were

originally made here, their disposition, and then we'll go through the guidelines. The charges were brought in a four-count superseding indictment filed with the Court on May 17, 2005. Count No. 1

charged the defendant with continuing criminal enterprise in violation of 21 U.S.C. Sections 848, 841(a)(1), 846, 952, 960,

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and 963.

The defendant was found not guilty on this count. In charge -- in Count 2, he was charged with

conspiracy to distribute and possess with the intent to distribute 500 grams or more of a methamphetamine in violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(A), and 846. found him guilty of this charge. In Count 3, the defendant was charged with distribution or possession with the intent to distribute 500 grams or more of methamphetamine and aiding abetting, in violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(A), and 18 U.S.C. Section 2. count. And Count 4, he was charged with distribution or possession with intent to distribute 500 grams or more of methamphetamine and aiding and abetting in violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(A), and 18 U.S.C. Section 2. This count was dismissed on the motion of the Government. As I indicated, a jury trial took place and the jury found the defendant guilty on Counts 2 and 3 and acquitted him on Count 1. We begin with a base offense level calculation for violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(A), 846, and 18 U.S.C. Section 2. Section 2D1.1. The first disagreement that the parties have is in the This is governed by Sentencing Guideline He was found guilty by the jury on this The jury

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calculation of the amount of drugs involved in the offense.

It

is Section2D1.1(c), which sets forth the chart for calculation of the amount of drugs involved here. to the amount. The Government argues that the Court should tally the amount of drugs based upon the testimony of Ms. Meza that she sold 5 to 10 pounds of methamphetamine per week at the direction of the defendant and that she did this during the time period of June, 2003, through June, 2004. The Government The parties disagree as

asks that the Court consider certain corroborative evidence: that the defendant was arrested with 438 net grams of methamphetamine and $1,464 in cash; that the defendant had a number of telephone calls discussing transportation of large amounts of methamphetamine and a desire to set up a large deal for the distribution of methamphetamine; that Ms. Meza was arrested with 575 net grams of methamphetamine; that she had a drug ledger showing detailed information about drug transactions; that she led authorities to a storage shed where there were -- where authorities found 5 kilograms of methamphetamine and $41,000, and that varying amounts of methamphetamine were seized from other individuals. The defendant argues that the Court should limit the calculation to the amount of methamphetamine that actually was seized, 5 kilograms in the storage locker, 2 kilograms that were seized from Hugo Sotelo, and the 580 grams seized from

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Ms. Meza.

This totals 7.5 kilograms.

The verdict form in this case on Count 2 shows that the jury found that on both Count 2 and Count 3 that more than 500 grams of methamphetamine was involved in the transaction. If the Court were to adopted the Government's interpretation, the base offense level would be 38. With the

defense's interpretation, the base offense level would be 36. The Court finds, having considered the evidence at trial, the evidence presented at sentencing, and the facts that are stipulated as true in the presentence report, that for sentencing purposes the amount calculable under Section 2D1.1(c)(1) is more than 5 kilograms but less than 15 kilograms, resulting in a base offense level of 36. The Court declines to draw the inferences requested by the Government, most particularly that Ms. Meza worked for as compared to with the defendant. The Government has contended

throughout this case that Ms. Meza was a subordinate of the defendant, but the evidence is far from clear. Indeed, it is

only her statement that she was a subordinate that supports that contention. Her testimony that she worked for the The Court carefully

defendant is essentially uncorroborated.

observed her demeanor while testifying as well as the consistency within her testimony. Her testimony was undisputed

that she and the defendant were lovers; and therefore, her testimony both on a personal level and also on a legal level

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clearly was self-serving.

Her contention that she was directed

by the defendant was inconsistent with her apparent independence, her own sources of drugs, her own clients, her own discretion in making drug transactions, and her unfettered access to the storage locker holding the methamphetamine and $41,000 in cash. Historically, Ms. Meza and the defendant had

had independent connections with a drug organization in Arizona and New Mexico. Ms. Meza had property apparently acquired with

drug proceeds in New Mexico unrelated to this defendant; and, indeed, no assets were attributable to this defendant as proceeds from drug transactions. Thus, as to the drugs

Ms. Meza sold, the Court declines to attribute this to the defendant. As to the $41,000 in the storage locker, the Court cannot readily translate that sum into a specific quantity of drugs. There was no direct evidence as to the -- as to a

translation of that sum into a particularized quantity; and therefore, the Court concludes that the appropriate base offense level under Section 2D1.1(c) is 36. We next turn to the specific offense characteristic found at 2D1.1(b)(1). This provides for a two-level increase The

in the offense level if a dangerous weapon was possessed. Government argues that this adjustment should apply. defense opposes the application of the adjustment. The

Under Section 2D1.1(b), the two-level increase in the

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offense level applies, quote, "if a dangerous weapon, including a firearm, was possessed." Application Note 3 to this

guideline provides, quote, "The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the

enhancement would not be applied if the defendant arrested at his residence had an unloaded hunting rifle in the closet," unquote. The application note further provides, quote, "The

initial burden is on the Government to prove possession of the weapon by a preponderance of the evidence, which may be satisfied by showing mere proximity to the offense," unquote. And the Tenth Circuit case for that proposition is U.S. vs. Humphrey, 208 F.3d 1190, a Tenth Circuit, 2000 decision. After the Government has met this burden in accordance with Humphrey, a defendant can avoid the enhancement if he can prove that it is clearly improbable that the weapon was connected to the offense. In a drug conspiracy conviction, the

adjustment is applied unless it is clearly improbable that the weapon was connected with the conspiracy offense. According to the jury instructions, the dates of the conspiracy here were from on or about June, 2003, through on or about September 29, 2004. Here, we have several weapons Christine Alvarado had a loaded

connected with the conspiracy.

pistol and full magazine in her purse in a car driven by the defendant when they were stopped in February of 2004, the

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defendant had a pistol grip shotgun in his home, Ms. Meza had a pistol in her apartment which she had accepted in trade for methamphetamine, and Jose Loya had a gun in the right front pocket of his shirt when he was arrested. Only if it is

clearly improbable that every one of these weapons were not involved with a conspiracy can the defendant avoid this enhancement. Put another way, if any one of these guns is

connected with the conspiracy, the enhancement applies. Based upon the record before the Court, the Court cannot find that it is clearly improbable that every one of these guns were unrelated to this offense. Put another way,

all four of these guns were involved with various people in the conspiracy, and the defense has not shown improbability as to every single one. Therefore, the Court concludes that the specific offense characteristic under 2D1.1(b)(1) applies. We turn then to the specific offense characteristic under 2D1.1(b)(4). Under this section, the guidelines provide

for a two-level increase in the offense level if the offense involved importation of methamphetamine or the manufacture of methamphetamine from listed chemicals that the defendant knew were imported unlawfully and the defendant is not subject to an adjustment under Section 3B1.2, a mitigating role. The

Government argues that this offense characteristic should apply. The defense opposes it. Neither party argues that a

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mitigating role is appropriate. In turning to 2D1.1(b)(4), the Court turns to the specific language of the section: quote, "if (a) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully and (b) the defendant is not subject to an adjustment under Section 3B1.2." As I noted, no one has argued the application of Section 3B1.2 here, so the question is whether the defendant knew that the methamphetamine was imported or manufactured from -- from chemicals that were imported. In making this

determination, a court can take into consideration the strength of the evidence in support of sentencing enhancements. The

Court has carefully considered the evidence presented by the agent in translating unsworn statements, particularly in telephone conversations by the defendant. That agent has

testified that there were numerous transactions described, many of which were in code. Even discounting the agent's

translation of the encoded portions of the conversations and the accuracy of the translations, the Court can conclude that these were (1) business calls; (2) they described transactions in Mexico or transactions related to people in Mexico, in particular El SeƱor in Mexico sending loads to the United States, and (3) there was no other apparent source of drugs

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other than of Mexican origin.

Therefore, the Court concludes

that this enhancement applies as well. There are no victim-related adjustments; and we turn, then, to adjustments for role in the offense. Adjustments for

role in the offense are governed by guideline Section 3B1.1(a). This section provides for a four-level increase in the offense level if the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. Now, this section actually provides

either for a four-level increase or a possible two-level increase. Under (a), the four-level increase applies where a

the defendant was an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive. Under subsection (c), there is a two-level increase

if the defendant was an organizer, leader, manager or supervisor in any criminal activity. Either enhancement must

be proved by the Government by a preponderance of the evidence, and the Court may take into account the strength of the evidence in such analysis. In assessing whether an organization is otherwise extensive, all persons involved during the course of the entire offense are to be considered in accordance with Application Note 3. An organization can be otherwise extensive if there

are fewer than five participants; for instance, if the participants used the unknowing services of many outsiders.

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The Court notes that Mr. Martinez was acquitted of being part of a continuing criminal enterprise. The elements

of this offense as set forth in the jury instructions were that Mr. Martinez engaged in a continuing series of related violations of federal narcotics law in association or concert with five or more persons; in this series of violations of federal narcotics law Mr. Martinez organized, managed, or supervised five or more persons, and from this series of violations of federal narcotics law Mr. Martinez obtained substantial income or resources from the continuing series of narcotics violations. Although the jury acquitted him of this

offense, the standard of proof at sentencing is different. It's a preponderance of the evidence. And therefore, the

acquittal does not necessarily direct the outcome of the Court's analysis. The Government contends that there was evidence that the defendant directed the activities of Meza, another person in Colorado, Beto, Sotelo, two other people who delivered methamphetamine to New Mexico, and two female drivers. Alternatively, it contends that if the Court were to discount the connection or supervision of Meza and the two delivery people that had been -- had been directed as part of Detective Flores' transaction that nevertheless there would be four people involved and that the two-level increase under Section 3B1.1(c) would be applicable.

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The Court, in reviewing the record here, found no specific testimony that the defendant organized, led, managed or supervised Sotelo; however Detective Flores testified that the defendant was a middleman in the organization. As noted

earlier, the Court does not find that Ms. Meza was the defendant's subordinate. It also does not attribute the

direction of two drivers to the defendant when these drivers were arranged in the transactions set up and directed by Detective Flores. That leaves two female drivers described by

Ms. Meza and Beto, perhaps Sotelo, that were supervised, managed, or led by the defendant. The definition of supervision has been explored by the Tenth Circuit in the case of United States vs. Backas, found at 901 F.2d 1528. It's a 1990 decision. And in this decision,

the Tenth Circuit applies the following definition for this subsection: "Properly applied, we conclude that Section

3B1.1(c) and the term 'supervisor' are satisfied upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme." Therefore, it is not appropriate for this court to measure the degree of control, for any degree of control constitutes supervision for purposes of this application. At least as to

the drivers who supplied this defendant, there was demonstrable direction and control; and therefore, the Court finds that two -- a two-level increase pursuant to Section 3B1.1(c) is

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appropriate as an adjustment for role in the offense. Tallying these up, the Court finds that the offense level here is 41, the criminal history category is II. Now,

everyone is doing the math, so we'll give everyone a chance to do their tally, too, and see if my math is correct. MR. STEIN: Your Honor, I come up with 42 for the

offense level: 36 for the base offense level, plus 2 for the gun is 38, plus 2 for importation is 40, plus 2 for role in the offense would be 42, your Honor. THE COURT: MR. GOLLA: Honor, yes. THE COURT: reasoning. I'm not asking whether you agree with the Is everyone in agreement? I agree that's how it would add up, your

Only the math. That's the math. All right. And we'll ask our probation

MR. GOLLA: THE COURT:

officer to double-check as well. THE PROBATION OFFICER: correct. THE COURT: As we all know, lawyers are not Yes, your Honor. That's

mathematicians, nor are judges. The criminal history category here is II; and at an offense level of 42, the presumption of months of imprisonment under the guidelines is 360 to life. same one as for 41. Interestingly, that's the

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As to supervised release, the guidelines anticipate five years as to each count, concurrent. Probation is not

available, and the presumptive fine is $25,000 to $8 million. There is a special assessment as to each count of $100. Now, the defendant argues alternatively that a non-guideline sentence should be imposed here under Section 3553(a). And this court has for some time operated in

accordance with the U.S.A. vs. Wilson case out of Utah in first calculating the presumptive sentence under the guidelines and then considering a non-guideline sentence if there are aggravating or mitigating circumstances of a kind or a degree not adequately taken into consideration in the guidelines. That approach was affirmed in the recent decision of United States of America vs. Richard Terrell, a decision of the Tenth Circuit Court of Appeals on April 20 of this year. I use the

same approach here as I did in Terrell and have in prior cases. Having determined what the guidelines would mandate as far as a sentence, I turn to the question of whether a non-guideline sentence should be imposed. The defense has argued that a non-guideline sentence should be imposed because Ms. Meza, the cooperating witness, has avoided any significant legal consequence for her involvement in this conspiracy. She has not been prosecuted in

federal court, and she received a ten-year probationary sentence in the state court on charges brought there of which

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this court has no details. The defense argues that under Section 3553(a), the Court is obligated to consider the need to avoid unwarranted sentence disparities among defendants with similar records found guilty of similar conduct. The Government opposes a

non-guideline sentence, arguing for life imprisonment. Candidly, it is troubling to this court that Ms. Meza was not charged in this or another case here in federal court. The argument that she was a subordinate or a victim of this defendant was belied by her demeanor, her facility in testifying, the inconsistencies in her testimony, and her successful leverage of the legal system to her benefit. This, however, is not a problem that results in disparity of sentencing. charging. This problem is a disparity in

Why the Government felt that it was appropriate to

charge Mr. Martinez and not Ms. Meza is beyond me, but it is the Government in its discretion that is answerable to the people with regard to that decision. It does not justify a

change in the sentence either for policy reasons or under the specific provisions of 3553(a). Let me begin with the specific provisions of 3553(a). 3553(a) directs the Court to avoid unwarranted sentence disparities among defendants with similar records found guilty of similar conduct. I do not have a record before me that

demonstrates that Ms. Meza was found guilty of similar conduct

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nor that she has a similar record as to Mr. Martinez; so from a technical perspective, I do not have sufficient facts to make this portion of 3553(a) applicable. Secondly, I have no authority that suggests that the Court is obligated or should try to correlate different charges and different sentencing schemes in different jurisdictions. In other words, the Court is without the benefit of knowing what the charge, facts, negotiations, and ultimate sentence determination was in the state court and cannot compare it to what goes on under the federal statutes and sentencing scheme. It may be that Congress intended the Court to be able to do just that. I've not found case authority for that proposition,

and Mr. Golla has not, either; but even if the Court were authorized to do it, I don't have the tools with which I can do it because I don't have sufficient facts before me. Now, from a policy perspective, it also is inappropriate to decrease Mr. Martinez's sentence because Ms. Meza was successful in leveraging her interaction with the state and federal authorities. probably applicable here: There is an old saying that is

Two wrongs don't make a right.

Here, I am concerned under Section 3553(a) with the objectives that Congress has set forth: deterring criminal conduct, protecting the public from further crimes by this defendant, and imposing a sentence that reflects the seriousness of the offense, promotes respect for the law, and

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provides just punishment. Mr. Martinez is held accountable for what he did. doesn't get a reduction because Ms. Meza was not held accountable or sufficiently accountable. I can assure you that He

had Ms. Meza been charged and convicted of the same offenses as this defendant with the same criminal record that this court would assuredly equalize the sentences. But I am not presented

with that circumstance and I find no justification for a non-guideline sentence based thereon. It is therefore this

court's intention to sentence in accordance with the guidelines. The Court further finds that the defendant has no ability to pay a fine and therefore does not intend to pay a fine -- does not intend to impose a fine. Having found that the total offense level here is 42 and the defendant's criminal history category is II, this would result in a guideline term of 360 months to life. The Court

intends to impose a sentence of 360 months, bottom of the range. The Court does not intend to impose a fine. The Court

intends to impose a supervised release period of five years on each count to run concurrently, subject to all statutory obligations and subject to a special condition that if the defendant is deported he not thereafter reenter the United States illegally. If he reenters the United States legally, he

will report to the nearest United States probation office

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within 72 hours of his return. The Court is required to impose a special assessment of $200, which is due immediately. Is there any further argument? MR. STEIN: No further argument, your Honor.

I would just note that I heard the Court's concerns as far as the charging decisions of the Government in this case loud and clear. I was not privy to them. I came into the case

later; but I will discuss it with my chain of command and make sure that they understand the Court's concerns, your Honor. THE COURT: MR. STEIN: MR. GOLLA: Thank you. Yes, ma'am. Your Honor, just a couple things. The

first thing I want to address to the Court is -- This is just my recollection of Ms. Meza's testimony, but I believe the Government did go through her previous criminal history during the course of the trial in some depth, so that there was some -- there was information about her criminal history and her background. I think the Court would have as far as one of

those factors the Court was considering whether or not subsection (a)(6) would be an appropriate means of sentencing below the advisory range. The other thing I wanted to say to the Court is this: I realize U.S. vs. Terrell -- I've read the case. My objection

to that case is I think it is inappropriate to just look at the

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actual guideline range as a mandatory step in sentencing. think the Court can look -- without looking at that 360 to life, I think the Court can look below that right away, considering all the factors of 3553. That's all I have. THE COURT: Thank you.

I

That one, you'll have to take

up with the Tenth Circuit. To the extent that any further elaboration is required, the Court does recall some information regarding Ms. Meza's history. However, such information is -- is not

complete, is not in the same kind of format or using the same considerations that we would use in federal sentencing. And

even if the Court had it all before me, I would still decline to depart -- or I should say decline to impose a non-guideline sentence based on a disparity in charging, not a disparity in sentencing. For the reasons previously articulated and having considered all of counsel's arguments in the many briefs that have been filed and the arguments made in this hearing, pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Ramon Martinez, be committed to the custody of the Bureau of Prisons to be imprisoned for a term of 360 months on each count, to be served concurrently. Upon release from imprisonment, he will be placed on

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supervised release for a term of five years.

This term

consists of terms of five years on each count, such terms to run concurrently. Within 72 hours of release from the custody

of the Bureau of Prisons, he will report in person to the probation office in the district in which he's released. While

on supervised release, he will not commit another federal, state, or local crime, shall not possess a firearm as defined in 18 U.S.C. Section 921, and shall comply with the standard conditions that have been adopted by this court. He will

comply with the mandatory drug testing provisions of 18 U.S.C. Section 3583(d) unless he is deported. He will cooperate in

the collection of DNA as directed by the probation officer. In addition, he will comply with the following special conditions: If he is deported, he will not thereafter enter If he reenters the United States

the United States illegally.

legally, he will report to the nearest United States probation office within 72 hours of his return. No fine is imposed;

however, he is obligated to pay a special assessment of $200, which is due immediately. Mr. Martinez, I advise you of your right to appeal your conviction and your sentence. If you desire to appeal, a

notice of appeal must be filed with the Clerk of the Court within 10 days after entry of judgment or you lose your right to appeal. Ordinarily, Mr. Golla would file that notice of

appeal for you; but if he is unable or unwilling to and you so

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request, I will direct the Clerk of the Court to prepare and file a notice of appeal on your behalf. Is there anything further to bring before the Court? MR. STEIN: MR. GOLLA: THE COURT: No, your Honor. No, your Honor. Then the defendant is remanded to the We'll stand in recess. Thank you.

custody of the United States Marshal. (Recess at 10:39 a.m.) * * * * *

REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. at Denver, Colorado, this 2d day of May, 2006. Dated

______________________________ Paul A. Zuckerman