Free Motion to Reduce Sentence re Crack Cocaine Offense - 18:3582 - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

CASE NO. 04-cr-00050-MSK UNITED STATES OF AMERICA, Plaintiff, v. KHALIF SHEPARD, Defendant. __________________________________________________________________ MOTION FOR SENTENCING RELIEF PURSUANT TO 18 U.S.C. § 3582(c)(2) __________________________________________________________________ Comes now the Defendant, Khalif Shepard, by and through his former court appointed attorney, Edward A. Pluss, Assistant Federal Public Defender, and moves for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). In support of this request, Mr. Shepard states that: 1. On June 28, 2004, Defendant plead guilty to a two count indictment

charging him in count one with Possession with Intent to Distribute 50 Grams or More of a Mixture or Substance Containing a Detectable Amount of Cocaine Base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). In count

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two, the Defendant was charged with Felon in Possession of a Firearm in violation of Title 18, U.S.C. § 922(g)(1). The Defendant was sentenced to a term of imprisonment of 151 months on count one and a 120 month term of imprisonment on count two, with the two sentences to be served concurrently. Undersigned counsel represented Mr. Shepard throughout those district court proceedings.1 2. Recently, the United Sentencing Commission lowered the sentencing

guidelines for possession with intent to distribute crack cocaine. See U.S.S.G. § 1B1.O and 2D1.1. This change has been made retroactive effective March 3, 2008, thereby allowing some inmates convicted of crack cocaine offenses to seek a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2). To qualify, the Defendant must currently be incarcerated, the Defendant's applicable guideline range was subsequently lowered by an amendment that United States Sentencing Commission declared retroactive (which does include the crack cocaine amendments) and the Defendant's guideline range was in fact reduced by the amendment.

The Defendant requests that the Court appoint the Office of the Federal Public Defender to represent Mr. Shepard on this motion for sentencing reduction.
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3.

Based upon undersigned counsel's review of Mr. Shepard's case, it

appears that Mr. Shepard is eligible for the sentencing reduction. A. First, Mr. Shepard is currently in the Bureau of Prisons custody

at FCI Allenwood Medium, the Bureau of Prison projects his release date as August 15, 2015. B. Second, Mr. Shepard's applicable guideline range is

subsequently lowered by an amendment of the Sentencing Commission has declared retroactive. The 2003 edition of the guidelines manual had been used in calculating his base offense level. The Court applied U.S.S.G. § 2D1.1, with a base offense level of 32, because, the offense involved at least 50 grams but less than 150 grams of cocaine base. The amendment to the crack cocaine guideline is one of the amendments the Sentencing Commission made retroactive. C. As set forth in more detail below, Mr. Shepard's guideline

range is actually reduced by the amendment. 4. Originally, based upon U.S.S.G. § 2D1.1, with regards to Count One,

Mr. Shepard had a base offense level of 32. This level was increase by two because a firearm was possessed. After receiving a three level reduction for acceptance of responsibility, Mr. Shepard's total offense level was 31. Mr.

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Shepard had a criminal history category of IV, resulting in a guideline range of 151 to 188 months. On Count Two, Felon in Possession of a Firearm, the Defendant was sentence to 120 months, the statutory maximum concurrent with count one. The sentencing on Count Two is not affected by the retroactive amendment to the crack cocaine guideline. 5. Following the crack cocaine amendment, Mr. Shepard's base offense

level would be 30. This level is increased by two because a firearm was possessed. After applying the three level reduction for acceptance of responsibility, Mr. Shepard's total offense level is 29. With a total offense level of 29 and criminal history category IV, this results in a guideline range of 121 to 151 months. Applying a similar analysis and bottom of the guideline range sentence, this will result in imprisonment of 121 months on Count One. 6. Mr. Shepard respectfully request that this Court, pursuant to 18

U.S.C. § 3582(c)(2), reduce his term of imprisonment on Count One, from 151 months to 121 months concurrent with the 120 months sentence in Count Two. WHEREFORE, Mr. Shepard respectfully request that this motion be granted and the Court (1) reappoint the undersigned to this case; (2) and resentence Mr. Shepard to 121 months incarceration on Count One, concurrent with the 120

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month sentence on Count Two pursuant to the amended advisory guidelines and 18 U.S.C. § 3582(c)(2). Respectfully submitted, RAYMOND P. MOORE Federal Public Defender s/ Edward A. Pluss Edward A. Pluss Assistant Federal Public Defender 633 17th Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 [email protected] Attorney for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on March 11, 2008, I electronically filed the foregoing 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 e-mail addresses: David Conner, Assistant U.S. Attorney [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Khalif Shepard (Via Mail) Reg. No. 32402-013 c/o FCI Allenwood Medium PO Box 2000 White Deer, PA 17887

s/ Edward A. Pluss Edward A. Pluss Assistant Federal Public Defender 633 17th Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 [email protected] Attorney for Defendant

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