Free Reply to Response - District Court of Arizona - Arizona

1 JAMES SUN PARK, #015232 2 111 W. Monroe St., Suite 716 3 Telephone (602) 462-5700 Facsimile (602) 253-7276 4 [email protected] 5 Attorney for Defendant J. F. Harris 6 IN THE UNITED STATES DISTRICT COURT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A. The plea agreement does not bar the defendant from seeking relief under 18 U.S.C. § 3582. Defendant submits the following reply to the government's response (Dkt# 645) to defendant's motion to reduce sentence. vs. John Fitzgerald Harris, Defendant. United States of America, Plaintiff, No. CR 03-0421-001-PHX-SMM REPLY TO GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO REDUCE SENTENCE (First Request) FOR THE DISTRICT OF ARIZONA
Phoenix, Arizona 85003 Park Law Office, PLC

Although the government is correct that the parties had stipulated to a range

23 of 121 to 151 months, there was no stipulation regarding a specific guideline 24 calculation. The Sixth and Tenth Circuit cases cited by the government to support 25 26 its contention is inapplicable to cases such as Mr. Harris. In United States v. 27 28 Trujeque, 100 F.3d 869 (10th Cir. 1996), the defendant was sentenced to a

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1 stipulated term of imprisonment of 84 months. Id. The plea agreement did not 2 specify a guideline calculation nor did the guideline calculation come into play in 3 4 imposing the stipulated sentence of 84 months. Id. at 871. The Tenth Circuit 5 6 7 reduction in sentence because the "facts establish that Mr. Trujeque's sentence was 8 not `based on a sentencing range that has been subsequently lowered by the 9 Sentencing Commission,' . . . Instead, his sentence was based on a valid Rule 10 11 11(e)(1)(C) plea agreement." Id. at 871. In the second case cited by the 12 government, defendant had entered a plea of guilty to a superseding Information 13 under a plea agreement that set a specific guideline offense level at 30. United 14 15 States v. Peveler, 359 F.3d 369, 370 (6th Cir. 2004). The defendant's request for 16 17 18 specific agreement between the parties regarding the offense level under Rule 11. 19 Id. at 378-79. 20 Both of the cases cited by the government are clearly distinguishable from 21 22 Mr. Harris' case. The defendant's sentence, although within the stipulated range, 23 24 25 level. Moreover, there was no stipulation to one particular sentence. The only 26 stipulation was to a range of imprisonment and the Court was free to sentence the 27 28 2
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rejected the defendant's appeal of the district court's denial of his request for

reduction was denied on the ground that the sentence was reached based upon a

was arrived at after the Court, not the parties, calculated the guideline offense

1 defendant within the range. Defendant was sentenced to 151 months after the 2 Court calculated the defendant's final offense level to be 33. (RT 4/22/05 p. 7). 3 4 The Court then departed downwards and determined that Mr. Harris' offense level 5 6 7 Unlike in Peveler, it was the Court that ultimately made the final determination 8 regarding the offense level using the guidelines in effect at the time of sentencing. 9 Also, unlike in Trujeque, the Court in this case was not bound to impose a 10 11 particular sentence that was set in stone. Consequently, the stipulated range in the 12 plea agreement does not bar the Court from reducing the defendant's sentence 13 under 18 U.S.C. § 3582(c)(2). 14 15 16 17 18 lacks merit. The government's response does not cite any authority to support it's 19 position. In fact, the government responsibly cited to a Tenth Circuit decision 20 undermining its contention. Response at 7. In United States v. Chavez-Salais, 337 21 22 F.3d 1170, 1172 (10th Cir. 2003), the plea agreement contained a similar waiver 23 24 25 not encompass waiver of the right to seek a sentencing reduction under 18 U.S.C. § 26 3582. Id. at 1173; cf. United States v. Phillips, 174 F.3d 1074, 1076 (9th Cir. 1999) 27 28 3
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was 31 with a guideline sentencing range of 135 to 168 months. (RT 4/22/05 p.8).

The government's second contention that defendant has waived his right to seek reduction under 18 U.S.C. § 3582 pursuant to the terms of the plea agreement

language as in this case. The Tenth Circuit found that such a similar waiver did

1 (despite a general waiver provision, defendant could challenge the restitution 2 order). Additionally, any ambiguity in the plea agreements should be held against 3 4 the government. See United States v. Herrera, 928 F.2d 769, 772 (6th Cir. 1991) 5 6 7 reduction in sentence under 18 U.S.C. § 3582. Consequently, defendant should be 8 free to pursue a sentence reduction under 18 U.S.C. § 3582. See Chavez-Salais, 9 337 F.3d at 1172; Herrera, 928 F.2d at 777. 10 11 12 13 14 15 16 entitled to the reduction and any reduction is at the discretion of the Court. See 17 United States v. Hicks, 472 F.3d 1167, 1172 (9th Cir. 2007). However, based 18 upon the amendments to the crack guidelines and his conduct while in prison, 19 20 defendant would request the Court to exercise its discretion and reduce his 21 22 23 25 26 27 28 4
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(citations omitted). The plea agreement has no reference to any bar for seeking a

B.

The Court should exercise its discretion and reduce Mr. Harris' sentence to 121 months.

Mr. Harris understands that the Court has the discretion whether to grant the defendant's request for reduction in sentence. He has never contended that he is

sentence to 121 months.1 After the Court considers the factors stated in 18 U.S.C. § 3553(a) and the defendant's post sentencing conduct, a reduction in Mr. Harris'

24 sentence is warranted.

Defendant does not wish to undo the original plea agreement.

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There is no doubt that defendant received a substantially favorable disposition, like most defendants who enter into a non-trial disposition, as a result

4 of entering into a plea agreement with the government. Without the plea agreement, defendant would have faced a substantially greater sentence if he was

7 convicted after trial. On the other hand, receiving a favorable outcome as a result 8 of accepting responsibility for his own conduct should not bar the defendant from 9 receiving benefits after the amendment to the guidelines. The government also 10 11 received benefits as a result of non-trial disposition. The Court noted that the case 12 would have been a protracted and complex, which the government did not have to 13 undergo as a result of the plea agreement. (RT 04/22/05 p. 8). The benefit of the 14 15 plea bargain itself does not preclude the defendant from receiving a reduction 16 17 18 reduction in sentence after plea agreement and trial); e.g., United States v. Aguilar19 Ayala, 120 F.3d 176 (9th Cir. 1997). 20 The government's other contentions that the amendments did not affect Mr. 21 22 Harris' guideline calculation2 and that defendant received a non-guideline sentence 23 It appears that you can only arrive at the government's conclusion that the amendment would not affect Mr. Harris' offense level if you ignore what actually 25 occurred at the original sentencing and if you ignore the Court's original findings. 26 Even the probation office's addendum to the presentence report acknowledges that the 27 amendments to the guidelines affects Mr. Harris' guideline calculation. Under the amendments, Mr. Harris' base offense level for the drug quantities would drop by 28 5 24
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under 18 U.S.C. § 3582. See U.S.S.G. § 1B1.10 (no distinction between seeking

1 is erroneous. The government argues that Mr. Harris received a non-guideline 2 sentence. Response at 16, ll 1-2. This statement is in direct contradiction to what 3 4 the Court had found and stated at time of Mr. Harris sentencing. When Mr. Harris 5 6 7 I believe that I -- I think that a -- a departure to the level 31 to a criminal history 8 III, as envisioned by the parties, is an adequate sentencing guideline range in this 9 case." (RT 04/22/05 p. 8). The Court's sentence was ultimately achieved after 10
3 11 employing guideline calculations (offense level 35), downwards adjustment of 3-

was sentenced, this Court explicitly stated "given all the other activities in the case,

12 levels for acceptance of responsibility and departing two-levels to final offense 13 level of 31. In essence, Mr. Harris' sentence was a guideline sentence that was 14 15 imposed after the Court's determination that departure was warranted in the case. 16 17 Furthermore, if a defendant received originally received a sentence below

18 the guideline calculation, "a reduction comparably less than the amended guideline 19 range determined under subdivision (1) of this subsection may be appropriate." 20 U.S.S.G. § 1B1.10(b)(2)(B). Even the sentencing commission appears to 21 22 23 two-levels from 34 to 32. With acceptance of responsibility, upward adjustment for role, and downward departure, the final offense level would be 29 with a guideline 24 range of 121 to 151 months (the addendum reflects a final offense level of 28 based 25 upon mistaken conclusion that there was 3-level downward departure in the original sentence proceeding). 26 3 The base offense level for the drugs was 34 and the Court increased the offense 27 level by 2 levels for Mr. Harris' role in the offense. (RT 04/22/05 p. 7, 20). 28 6
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1 encourage the Court to apply a comparable departure that was granted in the 2 original sentencing to post-amendment sentencing. U.S.S.G. § 1.B1.10 n. 3. 3 4 5 6
4 7 stipulated to in the plea agreement. Defendant's original guideline calculation

In this case, if the policy statements are applied to Mr. Harris' situation, the resulting sentencing after a comparable departure would be around the low range

8 prior to departure was to offense level 33 with a sentencing range of 168 to 210 9 months. The Court's imposition of 151 months represented a ten percent departure 10 11 from the low-end guideline range of 168 months. Under the amended guideline 12 range, Mr. Harris' offense level would 31 with a sentencing range of 135 to 168 13 months. A comparable departure of ten percent from the low end sentence of 135 14 15 months would result in a sentence of 121.3 months and would also be within the 16 17 18 well as the statutory minimum sentence of 120 months. See U.S.S.G. § 1B1.10 n. 19 3. Therefore, if the Court agrees to exercise its discretion, defendant should be 20 resentenced to 121 months imprisonment. 21 22 23 24 25 26 Defendant has made it abundantly clear that he is not seeking a sentence below 27 the low-end of the stipulated range, but is requesting the low end sentence of 121 months. 28 7
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stipulation contained in plea agreement which was a range of 121 to 151 months as

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C.

18 U.S.C. § 3553 factors favor a reduction in defendant's sentence.

The government goes into great lengths to paint the defendant in the most

4 negative way. Defendant's prior conduct and his past immaturity as well as his bad decision making has been already accounted by the Criminal History

7 calculation. Defendant has also already acknowledged his past wrong doing. Of 8 course, the government neglects to point out the positive things that Mr. Harris has 9 achieved after he was arrested for this offense and sentenced. 10 Mr. Harris, as the probation office stated in the addendum, has used his time 11 12 "wisely." He has taken drug education courses, earned his GED, took anger 13 management classes, criminal thinking, parenting, legal research, and non-profit 14 15 business. Mr. Harris also has managed to stay trouble-free while incarcerated. Mr. 16 17 18 made after he was incarcerated. In effect, Mr. Harris has taken the Court's 19 comments and advice to heart and has stepped-up.5 It is inconceivable that the 20 anyone would oppose rewarding someone who takes positive steps in his life and 21 22 23 24 25 26 27 28 8
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Harris' actions while incarcerated speaks volumes about the changes that he has

The Court gave the following advice to Mr. Harris.

I mean, you know, you -- you always wish that -- for all of us in our life when we make a mistake we could turn back the clock, but we can't do that. All I can tell you is I hope that in your lifetime that you'll make the most advantage of education and substance abuse treatment programs so that when you get out, you create a new body of -- of friends that don't get you into trouble and -- and chart a different course in your life. (RT 04/22/05 p. 23).

1 who make amends for his past mistakes. Wouldn't positive feedback serve the 2 goals of sentencing and rehabilitation? 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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The foregoing Reply to Government's Response to Defendant's Motion for Reduction in Sentence filed via ECF this 6th day of June, 2008. Copy of the foregoing Motion scheduled to be mailed on the 6th day of June, 2008 John F. Harris

It is not expected that excludable delay under Title 18 U.S.C. § 3161 (h) may occur as a result of this motion or from an order based thereon. Respectfully submitted this 6th day of June, 2008.

Park Law Office, PLC

s/ James Sun Park JAMES SUN PARK Attorney for Defendant

by J.S. Park James Park