Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00050-MSK

Document 41

Filed 03/19/2008

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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.

GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR SENTENCING RELIEF 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 Shepard's Motion for Sentencing Relief Pursuant to 18 U.S.C. § 3582(c)(2) in response the government avers as follows: the government acknowledges the applicability of the statute cited by the defendant to his case, statute justifying retroactive re-sentencing of defendants serving a term of imprisonment for possession with intent to distribute cocaine base or crack cocaine. The defense further correctly asserts that the defendant received a sentence of 151 months of imprisonment with respect to Count 1. The sentencing range before the Court was 151 to 188 months imprisonment. By the terms of the Plea Agreement the government agreed to recommend a full reduction for acceptance of responsibility and the parties, pursuant to Rule 11(c)(1)(B), Federal Rules of Criminal Procedure, agreed that the appropriate sentence in this case

Case 1:04-cr-00050-MSK

Document 41

Filed 03/19/2008

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was a sentence within the applicable guideline range as determined by the Court before the Court would consider an upward or downward departure. The defense apparently believes its present motion in no way varies nor breaches from the original Rule 11(c)(1)(B) Plea Agreement as entered. At sentencing, the government agreed with the recommendations made of the Probation Department and the defense to impose a sentence at the bottom of the applicable guideline range 151 months imprisonment. The government believes that the sentence of 151 months was and is still appropriate and within the adjusted guideline range after application of the retroactive legislation in this matter. As a result, the government asks this Court, upon resentencing, to sentence the defendant with respect to Count 1 to a term of imprisonment of 151 months.

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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Case 1:04-cr-00050-MSK

Document 41

Filed 03/19/2008

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CERTIFICATE OF SERVICE I hereby certify that on this 19th day of March, 2008, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR SENTENCING RELIEF PURSUANT TO 18 U.S.C. §3582(c)(2) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email 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]