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

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MICHAEL S. REEVES, ESQ. State Bar Number: 010420 1212 East Osborn Phoenix, Arizona 85014 Tel: [602] 604-7577 Fax: [602] 604-7555 E-Mail: [email protected] Attorney for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) Vs. ) ) ALEX NIEBLA, ) Defendant. ) ____________________________________) UNITED STATES OF AMERICA, NO. CR03-00882-001 -PHX-SMM MOTION TO REDUCE SENTENCE

ALEX NIEBLA, by and through undersigned counsel, hereby requests that the Court,

pursuant to 18 U.S.C. §3582(c), issue an order reducing the term of imprisonment from 70 months to a sentence of time served on the grounds that the retroactive amendment to the crack cocaine guideline changes the base offense level in Mr. Niebla's presentence report from 26 to 24. Mr. Niebla is currently scheduled to be released to a halfway house in August, 2008. The new sentence should be time served based on the prior computation of specific offense characteristics, adjustments, and departures, as well as the location of the original sentence within the guideline range. This motion is supported by the attached memorandum. RESPECTFULLY SUBMITTED this date: March 18, 2008. /s/ Michael S. Reeves Michael S. Reeves Attorney for Defendant This Court has jurisdiction to modify the Defendant's sentence now under the plain language of 18 U.S.C. §3582(c) which provides: In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been
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lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant, the director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. §3582(c). Each of the predicate conditions conferring jurisdiction are met in this case: Mr. Niebla was sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission on November 1, 2007. The last phrase of § 3582(c)(2) ­ "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission" supports the grant of this motion. The Sentencing Commission determined that the amendments to the Sentencing Guidelines ameliorating the disparity between crack and powder cocaine sentence should be made retroactive. This motion is entirely consistent with that policy statement and accordingly, should be granted. This motion is filed after the date that the Sentencing Commission suggested that §3582(c) motions should be filed, being March 3, 2007. The Sentencing Reform Act as interpreted in United States v. Booker, 543 U.S. 220 (2005), applies to every component of the Act including Section 3582(c). Although Booker was presented as a constitutional case, the remedial portion of the opinion is one of statutory construction. As a matter of statutory construction, the Sentencing Reform Act only requires respectful consideration of the United States Sentencing Guidelines, but does not mandate adherence to the sentencing ranges or to policy statements. 543 U.S. at 261; see also Kimbrough v. United States, 2007 U.S. 4292040, at *10 (Dec. 10, 2007); Gall v. United States, 2007 WL 4292116, at *6 (Dec. 10, 2007). The advisory nature of

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the Guidelines applies to all aspects of the sentencing process including an initial sentencing, appellate review of a sentence, and re-sentencing upon remand. As stated in Clark v. Martinez, 543 U.S. 371, 378 (2005), "[t]he operative language of [a statute] applies without differentiation to all three categories that are its subject" (discussing 8 U.S.C. §1231). Here, the role of the Sentencing Guidelines in the Sentencing Reform Act must be consistent. Accordingly, the final phrase of §3582(c) ­ "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission" ­ must be read consistently with Booker as advisory only, and not as limiting the discretion of the sentencing court. RESPECTFULLY SUBMITTED this date: March 18, 2008. /s/ Michael S. Reeves Michael S. Reeves Attorney for Defendant
CERTIFICATE OF SERVICE I hereby certify that on this date, March 18, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECT registrants: Lisa Roberts, Assistant U.S. Attorney by: /s/ Michael S. Reeves

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