Free Motion to Reduce Sentence - District Court of Arizona - Arizona

JERRY HERNANDEZ ATTORNEY AT LAW BAR #13021 115 W. HU-ESTA DR. TEMPE, AZ 85282 (480) 231-3053 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATE OF AMERICA, Plaintiff, vs. CALVIN FRANK MORRIS Defendant.

) ) No. CR04-1088 PHX-JAT ) (Assigned to the Honorable ) James A. Teilborg) ) ) MOTION TO SENTENCE BELOW THE ) STATUTORY MANDATORY MINIMUM, ) OR IN THE ALTERNATIVE , TO ) DOWNWARD DEPART FROM THE ) SENTENCING GUIDELINES

Comes now the defendant, Calvin Frank Morris, and respectfully petitions this court to sentence him below the statutory mandatory minimum of 10 years, or in the alternative, to downward depart from the guideline sentencing range. This motion is predicated upon the following memorandum of points and authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

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I.

FACTS AND PROCEDURAL HISTORY The court presided over this trial so the factual recitation in this pleading

will be abbreviated.

On Thursday, October 7, 2004, defendant Morris and co-defendant Jimenez flew from New York to Phoenix. DEA agents monitored Morris and Jimenez as they rented a car at the airport and rented a room in Phoenix. The defendant and codefendant were in Phoenix to purchase cocaine.

Co-defendant Jimenez met with DEA undercover agents at the Havana Café to discuss the purchase of cocaine that same evening. Ultimately the agents and codefendant agreed to the sale of 6 kilograms of cocaine for the price of $11,500 per kilogram. One of the kilograms was to be on credit.

Co-defendant Jimenez entered into a plea agreement. Defendant Morris exercised his right to a trial and was convicted as charged on all counts. Sentencing is currently set for October 3, 2005.

II.

ISSUE PRESENTED BY THIS PLEADING

Did DEA agents engage in sentencing entrapment with co-defendant Jimenez (and defendant Morris as a co-conspirator) by agreeing to sell the cocaine at an artificially low price?

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Sentencing entrapment occurs when "a defendant, although pre-disposed to commit a minor or lesser offense, is entrapped into committing a greater offense subject to greater punishment." United States v. Staufer, 38 F3d 1103, 1106 (quoting United States v. Stuart, 923 F.2d 607, 614 (9th Cir.), Cert denied, 499 U.S. 967 (1991)).

Sentencing entrapment is usually associated with the quantity of drugs bought or sold in which a government agent participates. United States v. RamirezRangel, 103 F.3d 1501 (9th Cir 1997). There are alternative remedies for sentencing entrapment. A sentencing court may decline to apply the statutory penalty for the greater offense that the defendant was indeed to commit, and instead apply the penalty provision for the lesser offense the defendant was predisposed to commit. U.S. v. Parrilla, 114 F.3d 124 (9th Cir 1997).

A sentencing court may also exercise its discretion to downward depart from the guideline range the defendant was entrapped into to the guideline range of the crime the defendant was predisposed to commit. Parrilla at 127.

In the instant case, the following facts are salient to the courts consideration of this issue. First, DEA agents Garcia and Huerta testified that a kilogram of cocaine sells for between $14,000 and $17,000 dollars in Phoenix. Co-defendant Jimenez had a total of $58,800 with which to purchase cocaine.

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Obviously, at even the low end of that price range, the co-defendant would not have been able to purchase 5 kilograms of cocaine or more. The court will recall that special agent Huerta testified that he agreed to sell co-defendant Jimenez cocaine at $11,500 per kilo after hearing that defendant Morris had been apprehended.

The statutory mandatory minimum increases from five years to ten years once the amount of cocaine exceeds five kilograms. § 21 U.S.C. 841 (b). The guideline range increases from level 30 to level 32 at five kilograms.

In the instant case, DEA agents effectively locked defendant Morris into a higher statutory minimum and guideline range by agreeing to sell cocaine at well below its prevailing street value. That's sentencing entrapment.

The defendant asks this court to grant the relief it feels appropriate.

s/ JERRY HERNANDEZ 115 W. Hu-Esta Dr. Tempe, Arizona 85282 BAR #13021

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Copy of the foregoing mailed/ Delivered this 16th day of September, 2005, to: Honorable Teilborg David Pimsner Assistant United States Attorney Copy Mailed to: Calvin Morris Defendant

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