Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00049-WYD

Document 84

Filed 07/18/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00049-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. JORGE LAZARO-BAEZ, Defendant.

RESPONSE TO MOTION TO RE-OPEN CASE AND FOR COUNSEL

COMES NOW, the United States of America, by and through the undersigned Assistant United States Attorney, and files this response in opposition to both of the matters that the defendant requests, as follows: 1. The defendant asks to reopen his case and to appoint him a lawyer so that he may relitigate a single issue: whether he was wrongfully denied by this Court the application of the safety valve reduction to his case. This matter was, of course, fully litigated not only before this Court but to the Tenth Circuit Court of Appeals. In both venues, the denial of his entitlement to the reduction was definitively sustained. United States v. Lazaro-Baez, 176 Fed. Appx. 936, 2006 WL 1030437 *3 (10th Cir., April 20, 2006) (unpublished) (attached).

Case 1:04-cr-00049-WYD

Document 84

Filed 07/18/2008

Page 2 of 3

2. Defendant sets forth no reason, such as newly discovered evidence, why this matter should be reopened and why he should have counsel appointed. The denial of a motion to reopen is committed to the sound discretion of the trial court See, e.g., United States v. Alderete, 614 F.2d 726 (10th Cir. 1980) (when the government inadvertently fails to establish an element of its case at trial and then rests its case, a court may, in its discretion, reopen the evidence) 1 . Therefore, this motion ought to be denied. Respectfully submitted, TROY A. EID United States Attorney BY: s/ Mark J. Barrett MARK J. BARRETT Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80294 Telephone: (303) 454-0301 Fax: (303) 454-0401 E-mail: [email protected] Attorney for the Government

And, of course, the time for moving to correct a sentence has long since passed. Fed.R.Crim.P. 35(a) (motions to correct based on "clear error" are to be filed "[w]ithin 7 days after sentencing.") -2-

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Case 1:04-cr-00049-WYD

Document 84

Filed 07/18/2008

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on this 18th day of July, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Robert Seldis Berger E-mail: [email protected], [email protected] William S. Richardson (Terminated) E-mail: [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 delivery, etc.) indicated by the nonparticipant's name: Jorge Lazaro Baez USM # 32194-013 2001 Rickabaugh Drive Big Spring, Texas 79720 Via U.S. Mail

s/ Cathy Palma CATHY PALMA, Legal Assistant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 FAX: (303) 454-0401 E-mail: [email protected]

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