Free Motion to Continue - District Court of Colorado - Colorado

Case 1:04-cr-00050-MSK

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Filed 06/17/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00050-MSK UNITED STATES OF AMERICA, Plaintiff, v. 1. KHALIF F. SHEPARD, Defendant.

UNOPPOSED MOTION TO CONTINUE HEARING SET FOR JULY 2, 2008 AT 9:30 a.m.

Comes now the United States of America, by and through Troy A. Eid, United States Attorney and David M. Conner, Assistant United States Attorney, respectfully requests the Court continue the Non-evidentiary Hearing on Law and Motion Calendar presently set for July 2, 2008 at 9:30 a.m. Defense counsel does not object to continuing this hearing. In support of this Motion to Continue the government avers as follows: 1. Defendant Shepard previously tendered a plea of guilty regarding

possession of cocaine base, crack cocaine. The defendant was sentence in accord with the guidelines in effect at a time to a sentence of 151 months. 2. The crack cocaine guidelines have recently been reduced and, for all

intense and purposes, made retroactive.

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3.

Pursuant to this change in law Mr. Shepard has sought a reduction of his

sentence. The government has filed a pleading indicating that it believes that the previously imposed sentence of 151 months is the correct sentence in this case. 4. Following the filings of pleadings by the defense and prosecution the

Court has set this matter for an non-evidentiary hearing on law and motions for July 2, 2008 at 9:30 a.m. The Court has entered an order permitting the parties to appear by telephone, and address three issues. 5. Unfortunately, government counsel is on annual leave from July 2 through

July 6, 2008. This annual leave is a family trip to San Diego, California. Normally, by virtue of the fact that the government may appear by telephone at this hearing this fact would not pose a problem for proceeding with this matter as scheduled; however, government counsel is scheduled to fly from Denver, Colorado to San Diego, California during the morning of July 2, 2008. Likewise, government counsel is uncertain as to whether or not on July 2nd at approximately 9:30 a.m. counsel will have access to telephonic communication whether it be a land line, a cellular phone line, or a cellular phone line available from the aircraft. Indeed, should the latter be the case government counsel is uncertain of his skill and knowledge in terms of actually being able to use that technology to call this Court at that date and time. As a result, government counsel requests that this matter be continued to some other date and time certain. Counsel has spoken with defense attorney, Edward Pluss who has indicated he has no objection to the granting of this Motion to Continue and indicating that defense counsel is unavailable on July 3rd as well as the week before the hearing. As a result, government counsel requests the matter be continued to a date and time certain under the same -2-

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strictures as set forth in this Court's Order and Notice of Hearing on Law and Motion Calendar previously filed. 6. Moreover, for the record the government does not contest that the

defendant meets the statutory and guideline prerequisites for a downward adjustment of his sentence. Thus, the government does not believe the law prohibits the Court from granting the defendant's motion nor resentencing the defendant in accord with the recommendations to the Probation Department. Rather, the government believes that based upon the recalculated sentencing range that the previously imposed sentence is not only within that range but is still appropriate. WHEREFORE, United States of America respectfully requests that the hearing presently set for July 2, 2008 at 9:30 a.m. be vacated and the matter be continued to a date certain consistent with the Court and counsels' calendars.

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

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of June, 2008, I electronically filed the foregoing UNOPPOSED MOTION TO CONTINUE HEARING SET FOR JULY 2, 2008 AT 9:30 a.m. with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Edward A. Pluss, Esq. Federal Public Defender's Office [email protected]

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:

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]