Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Arizona State Bar No. 013439 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. John Fitzgerald Harris, Defendant. ) ) ) ) ) ) ) ) ) ) NO. CR 03-0421-001-PHX-SMM RESPONSE TO MOTION TO REDUCE SENTENCE

The United States of America, by and through its attorney, hereby respectfully asks this Court to deny the defendant's Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c). In that motion, the defendant asks to be re-sentenced to a lower term of imprisonment based on a recent sentencing guideline amendment adjusting crack cocaine base offense levels. He is not entitled to relief. First, the guideline amendment does not apply to the defendant because he was sentenced in accordance with a stipulated term of imprisonment provided in a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Second, he waived his right to attack his sentence when he pled guilty. Finally, even if this Court were to decide to re-sentence the defendant notwithstanding the plea agreement, a reduction in sentence would not be justified here, for the reasons more fully explained below in the Memorandum of Points and Authorities.

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Memorandum of Points and Authorities I. FACTS On December 7, 2004, a federal grand jury indicted the defendant, JOHN FITZGERALD HARRIS, and 12 co-defendants in a nineteen-count second superseding indictment ("Indictment"). Defendant was indicted for committing the following crimes: Conspiracy to Possess with the Intent to Distribute Cocaine (Count 1), Conspiracy to Possess with the Intent to Distribute Cocaine Base (crack) (Count 2), Conspiracy to Possess with the Intent to Distribute Marijuana (Count 3), Possession With Intent to Distribute Cocaine (Counts 4, 5, 6, and 18), Possession With Intent to Distribute Cocaine Base (Counts 7, 8, and 19), and Felon in Possession of a Firearm and Ammunition (Counts 11, 12, and 13). The term "cocaine base" is synonymous with the term "crack cocaine" in the Indictment. On January 7, 2005, the defendant pled guilty to Conspiracy to Possess with the Intent to Distribute Cocaine (Count 1), Conspiracy to Possess with the Intent to Distribute Cocaine Base (crack) (Count 2), and Felon in Possession of a Firearm and Ammunition (Counts 11 and 12). The parties entered into a plea agreement pursuant to Rule 11(c)(1)(C), in which the defendant agreed to serve 121-151 months in prison, in exchange for the government's dismissal of the remaining nine counts. The defendant agreed to waive "any and all motions .... to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant .... providing the sentence is consistent with this agreement." The defendant further waived "any right to collaterally attack defendant's conviction," and the defendant acknowledged that "this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case." The defendant admitted to the following facts in his plea agreement: On or about February of 2001, and continuing through May 8, 2003, both JOHN HARRIS and Sonya Brown knowingly and intentionally possessed with the intent to distribute 5 kilograms or more of cocaine, and also knowingly and intentionally possessed with the intent to distribute 50 grams or more of cocaine base. On March 13, 2003, Hector Luzanilla and JOHN HARRIS met at 6413 South 21st Street
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in Phoenix, Arizona. JOHN HARRIS paid Hector Luzanilla, aka Flaco, $14,000.00 for one kilogram of cocaine. JOHN HARRIS often talked to his girlfriend, co-defendant Sonya Brown, while Sonya Brown was at her house at 6413 South 21st Street, Phoenix, Arizona. This residence belongs to Sonya Brown's mother, Marilyn Gail Fisher. JOHN HARRIS talked to Sonya Brown on several occasions While Sonya Brown was cooking cocaine into cocaine base, also known as crack cocaine, while at her house. JOHN HARRIS was known to frequently go to the house at 6413 South 21st Street. In fact, Sonya Brown oftentimes requested JOHN HARRIS to come to her house to help cook the powder cocaine into crack cocaine. On March 24, 2003, at 6:52 p.m., police intercepted a call that confirmed that Sonya Brown was actively cooking crack cocaine. On March 24, 2003, a state of Arizona search warrant was executed at 6413 South 21st Street, Phoenix, Arizona, the residence of Marilyn Gail Fisher. Police found 492.2 net grams of cocaine, 180.4 net grams of cocaine base, marijuana, $2600 in United States currency, an SKS assault rifle, a Norinco Mac 90 assault rifle, two thirty round magazines for the assault rifles, a 9mm. handgun, two bullet proof vests and a cache of ammunition as a result of this search warrant. The DEA laboratory analyzed and confirmed that these items were 492.2 net grams of cocaine and 180.4 net grams of cocaine base. JOHN HARRIS and Sonya Brown sold crack cocaine to distributors, including codefendant Patrick Jefferson. Patrick Jefferson called JOHN HARRIS several times during the course of this wire tap investigation. On April 14, 2003, Patrick Jefferson called JOHN HARRIS twice to meet him. On April 14, 2003, Patrick Jefferson and JOHN HARRIS met at 1628 East Southern Avenue in Phoenix, Arizona, at 5:22 p.m. JOHN HARRIS delivered 29.0 grams of cocaine base to Patrick Jefferson. This crack cocaine was analyzed at the DEA laboratory and confirmed to be 29.0 grams of cocaine base. JOHN HARRIS and Sonya Brown sold crack cocaine to distributors, including codefendant Darrell Cade. Darrell Cade and JOHN HARRIS met in Phoenix, Arizona on April 18, 2003. JOHN HARRIS delivered 28.0 grams of cocaine to Darrell Cade. After this meeting, investigators conducted a traffic stop on Darrell Cade. Officers conducted a search of the vehicle
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and officers found the 28.0 net grams of cocaine. JOHN HARRIS and Sonya Brown also delivered cocaine to Ohio. As agents listened to telephone calls of JOHN HARRIS, they realized the organization had a load of drugs seized by law enforcement in Oklahoma. Agents found that on February 3, 2003, Oklahoma Highway Patrol Trooper Branson Perry conducted a routine traffic stop of a 1997 maroon Dodge Ram pickup truck, near Vinita, Oklahoma. The driver of the truck was Willie Godine and the passenger was Carl Harris. During this stop, Trooper Perry was given consent to search the vehicle. During the consent search, Trooper Perry discovered 1997 net grams of cocaine secreted in the engine manifold. The DEA laboratory analyzed and confirmed that this was 1997 net grams of cocaine. Both JOHN HARRIS and Sonya Brown knew this cocaine was shipped for delivery. Additionally, JOHN HARRIS and Sonya Brown delivered cocaine to Ohio with Carl Harris and Kemya Japel Matthews. Carl Harris and Kemya Japel Matthews were stopped by Texas DPS on November 29, 2002, at 4:40 p.m. Both JOHN HARRIS and Sonya Brown knew there were two kilograms of cocaine in the truck that was shipped for delivery. On May 8, 2003, a search warrant was served at 1250 West Grove Parkway #1153 in Tempe. Defendant Sonya Brown was arrested there and possessed with the intent to distribute 13.1 net grams of cocaine base. The DEA laboratory analyzed and confirmed that this was 13.1 net grams of cocaine base. On May 8, 2003, a search warrant was served at 4424 East Baseline Rd. #1152 in Phoenix. Defendant JOHN HARRIS was arrested there and possessed with the intent to distribute 250.3 net grams of cocaine and 34.4 net grams of cocaine base. The DEA laboratory analyzed and confirmed that there were 250.3 net grams of cocaine and 34.4 net grams of cocaine base. On May 11, 2002, JOHN HARRIS possessed a Glock 20 10mm. handgun and a Norinco Mac 90, 7.62 x 39 assault rifle. On December 5, 2002, JOHN HARRIS possessed a Glock 21 .45 handgun, and two Sturm-Ruger P95 9mm. handguns. On December 16, 2002, JOHN HARRIS again possessed the Glock 21 .45 handgun. On May 11, 2002, defendant JOHN FITZGERALD HARRIS was stopped on a traffic
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stop. JOHN FITZGERALD HARRIS possessed two firearms, that is, one (1) Glock 20, 10mm. handgun, serial # CZE237, and one (1) Norinco Mac 90, 7.62 x 39 rifle, serial # 9449112, which had been shipped and transported in interstate and foreign commerce. JOHN FITZGERALD HARRIS had purchased the Glock 20, 10mm. handgun, serial # CZE237 from Sportsman's Paradise in the fictitious name of Paul Jackson on August 15, 1999. On December 5, 2002, defendant JOHN FITZGERALD HARRIS purchased three firearms from AZ Firearms and Collectibles in the fictitious name of Kamal Jackson, that is, one (1) Glock 21, .45 caliber handgun, serial # EDD487, one (1) Sturm-Ruger P95 9mm. handgun, serial # 314-41566, and (1) Sturm-Ruger P95 9mm. handgun, serial # 313-88410, which had been shipped and transported in interstate and foreign commerce. All of the above guns had been shipped in interstate commerce. On both May 11, 2002, and December 5, 2002, the defendant was in possession of the above firearms after being convicted of a crime punishable by imprisonment for a term exceeding one year, in Maricopa County Superior Court, Arizona, on June 14, 1999, for Endangerment, cause number CR 99-06411. After the defendant pled guilty, the probation department prepared a Presentence Investigation Report (PSR). The PSR writer calculated the base offense level at 34, including that defendant had conspired to distribute 3355 grams of cocaine, 315 grams of cocaine base, and 693 grams of marijuana. (PSR at p. 9.) Additionally, the probation department added four levels for the defendant's role in the offense because the defendant was an "organizer or leader in an activity involving five or more participants or was otherwise extensive." (PSR at p. 10.) The probation department also noted that the defendant's adjusted offense level was 38, which was reduced 3 levels for acceptance of responsibility, resulting in a total offense level of 35. (PSR at p. 10-11.) Combined with the defendant's Criminal History Category III, this produced a final guideline range of is 210 to 262 months imprisonment. (PSR at p. 21.) On April 22, 2005, the defendant was sentenced to 151 months imprisonment, in accordance with his plea agreement. The defendant did not appeal, or motion to vacate or set aside his plea. However, on April 12, 2008, the defendant filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c).

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II. A.

THE DEFENDANT IS NOT ENTITLED TO RELIEF The Defendant Entered Into A Rule 11(c)(1)(C) Plea Agreement That Provided For A Stipulated Sentence of 121 to 151 Months. The defendant's motion should be denied because his sentence did not rest on the

applicable guideline range, but rather, on a stipulated sentence in his plea agreement under Rule 11(c)(1)(C). A motion for reduction of sentence under Section 3582(c)(2), based on a retroactive guideline amendment, is inapplicable where the defendant has been sentenced pursuant to a Rule 11(c)(1)(C) plea agreement. As courts have held in this context, "the district court should have dismissed [the defendant's] motion without considering its merits." United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996). The fact that the parties in this case specified a sentencing range pursuant to Rule 11(c)(1)(C) rather than a fixed period of imprisonment like the parties in Trujeque is a "distinction without a difference in terms of the court lacking the power to amend the plea agreement." United States v. Peveler, 359 F.3d 369, 378 (6th Cir. 2004). The court in Peveler held, "absent an agreement of the parties, the plain language of the current version of Rule 11(e)(1)(C), now Rule 11(c)(1)(C), generally precludes the district court from altering the parties' agreed sentence under 18 U.S.C. § 3582(C). This conclusion applies despite the retroactivity of a subsequent amendment to a relevant guideline utilized to determine the defendant's sentence." United States v. Peveler, 359 F.3d 369, 379 (6th Cir. 2004). Here, the defendant and government stipulated to a term of 121 to 151 months imprisonment, which was a substantial deviation from the guideline range of 210-262 months. Because the parties entered into this Rule 11(c)(1)(C) stipulated plea agreement, the defendant's motion for reduction of sentence should be dismissed. B. In His Plea Agreement, The Defendant Agreed Not To Collaterally Attack His Sentence, So This Motion To Reduce Sentence Should Be Denied. In the written plea agreement, the defendant agreed to waive "any and all motions .... to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant .... providing the sentence is consistent with this agreement." The defendant further waived "any right to collaterally attack defendant's conviction," and the defendant acknowledged

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that "this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case." Waiver of Defenses and Appeal Rights The defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the indictment or information or to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant (including any constitutional claims pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004) and the procedures that must be applied to determine a sentence under the Sentencing Guidelines that are waived pursuant to paragraph 2 above), providing the sentence is consistent with this agreement. The defendant further waives: (1) any right to appeal the Court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case. The defendant has not argued that he was not sentenced consistently with his plea agreement, nor could he make such a claim. A motion to reduce his sentence pursuant to 18 U.S.C. § 3582(C) constitutes a motion to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant, as well as a "collateral attack" on his sentence, and that motion should be summarily denied based on the plea agreement waiver. But see United States v. Chavez-Salais, 337 F.3d 1170, 1172-73 (10th Cir. 2003). C. Even If This Court Were To Entertain The Defendant's Motion, It Should Decline To Reduce The Defendant's Sentence. Title 18, Section 3582(c)(2) provides: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or 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 that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. The United States Sentencing Commission recently changed its policy applying the guidelines to cases involving crack cocaine. In Section 1B1.10, the Sentencing Commission identified the amendments which may be applied retroactively pursuant to § 3582(c), and articulated the proper
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procedure for implementing the amendment in a concluded case.1 On December 11, 2007, the Commission issued a revised version of Section 1B1.10, which emphasizes the limited nature of relief available under 18 U.S.C. § 3582 (c).2 This revised section, effective on March 3, 2008, provides, in relevant part: (1) In General.--In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (C) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement. (2) Exclusions.--A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if-- (A) none of the amendments listed in subsection (C) is applicable to the defendant; or (B) an amendment listed in subsection (C) does not have the effect of lowering the defendant's applicable guideline range. (3) Limitation.--Consistent with subsection (b), proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant. The amendment upon which defendant relies is Amendment 706, effective November 1, Section 1B1.10 is based on 18 U.S.C. § 3582(c)(2), and also implements 28 U.S.C. § 994(u), which provides: "If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." A guideline amendment may be applied retroactively only when expressly listed in Section 1B1.10(c). See, e.g., United States v. Perez, 129 F.3d 255, 259 (2d Cir. 1997); United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995); United States v. McHan, 386 F.3d 620, 622 (4th Cir. 2004); United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996); United States v. Dullen, 15 F.3d 68, 70-71 (6th Cir. 1994); United States v. Wyatt, 115 F.3d 606, 608-09 (8th Cir. 1997); United States v. Cueto, 9 F.3d 1438, 1441 (9th Cir. 1993); United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993); United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003). The government has attached a copy of the "unofficial text of the two amendments to policy statement § 1B1.10," effective March 3, 2008.
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2007, which reduced the base offense level two levels for most crack offenses.3 On December 11, 2007, the Commission added Amendment 706 to the list of amendments stated in Section 1B1.10(C) that may be applied retroactively, effective March 3, 2008. When reducing the crack cocaine base offense levels, the Commission reasoned that it could respect statutory mandatory minimum drug penalties while still reducing the offense levels for crack offenses, notwithstanding its stated criticism of the 100:1 ratio applied by Congress to powder cocaine and crack cocaine offenses when setting those minimum penalties. See U.S.S.G., Supplement to App. C, Amend. 706.4 Previously, the Commission had set the crack offense levels in Section 2D1.1 above the range which included the mandatory minimum sentence. Under the amendment, the Commission has set the offense levels so that the resulting guideline range includes the mandatory minimum penalty triggered by that amount, and then set corresponding offense levels for quantities which fall below, between, or above quantities that trigger statutory mandatory minimum penalties. For example, a trafficking offense involving five grams of crack cocaine requires a statutory mandatory minimum sentence of five years imprisonment. See 21 U.S.C. § 841(b)(1)(B). Therefore, the revised guideline applies an offense level of 24 to a quantity of crack of at least five grams but fewer than 20 grams; at criminal history category I, this level produces a guideline range of 51-63 months (encompassing the 60-month mandatory minimum). The final result of the amendment is a reduction of two levels for each of the guideline ranges for crack offenses. At the high end, the guideline previously applied offense level 38 to any quantity of crack of 1.5 kilograms or more. That offense level 38 now applies to a quantity of 4.5 kilograms or more. A quantity of at least 1.5 kilograms but fewer than 4.5 kilograms falls Amendment 706 was further amended in the technical and conforming amendments set forth in Amendment 711, also effective November 1, 2007. In Kimbrough v. United States, ____ U.S. ____, 2007 WL 4292040 (2007), the Court held that district courts "may consider the Guidelines' treatment of crack and powder cocaine offenses" in deciding whether to vary from the advisory Guidelines range for crack offenders. However, that issue is not pertinent here, because this case involves only a requested § 3582(c)(2) reduction based on a specific guideline amendment.
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in offense level 36. At the low end, the guideline previously assigned level 12 to a quantity of less than 250 milligrams. That offense level 12 now applies to a quantity of less than 500 milligrams. Amendment 711 also made conforming amendments to the drug conversion chart, which is employed where the offenses of conviction involved crack as well as other controlled substances. If this Court were to find that, notwithstanding the defendant's plea agreement, it possesses discretion to consider the substance of the defendant's motion to reduce his sentence and is inclined to apply Amendment 706, it should still deny the defendant's motion. Although a defendant might qualify for a sentence reduction under Section 3582(c)(2) and the applicable Commission policy statements, a sentence reduction is not automatic. A district court's discretion to apply a sentence reduction is set forth in Section 3582(c)(2), which provides: "the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Thus, "[t]he grant of authority to the district court to reduce a term of imprisonment is unambiguously discretionary," even when the guideline range is actually reduced. United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). Similarly, Section 1B1.10 directs that "the court shall consider the factors set forth in 18 U.S.C. § 3553(a) in determining . . . whether a reduction in the defendant's term of imprisonment is warranted." Id. app. note 1(B)(I); see also U.S.S.G. § 1B1.10 background ("The authorization of such a discretionary reduction does not otherwise affect the lawfulness of a previously imposed sentence, does not authorize a reduction in any other component of the sentence, and does not entitle a defendant to a reduced term of imprisonment as a matter of right."). Courts have routinely upheld district courts' discretion in declining to reduce sentences. United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995) (district court permissibly declined to reduce sentence); United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997); United States v. Coohey, 11 F.3d 97, 101 (8th Cir. 1993); United States v. Wales, 77 F.2d 1323, 1327-28 (9th Cir. 1992); United States v. Mueller, 27 F.3d 494, 497 n.5 (10th Cir. 1994).
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"Thus, reading § 3582(c)(2) and the Sentencing Guidelines together, the district court must make two distinct determinations before deciding whether to reduce a defendant's sentence under § 3582(c)(2)." Vautier, 144 F.3d at 760. First, Section 1B1.10(b) directs: In determining whether, and to what extent, a reduction in the term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced . . .. In other words, "the court must substitute the amended guideline range for the originally applied guideline range and determine what sentence it would have imposed. In undertaking this first step, only the amended guideline range is changed. All other guideline application decisions made during the original sentencing remain intact." Vautier, 144 F.3d at 760. Then, in the second step, "in light of the conclusion reached in the first step, the court must consider the factors listed in § 3553(a) and determine whether or not to reduce the defendant's original sentence." Id. Thus, even if this Court were to re-visit the sentencing, then subject to the limits set forth in Section 1B1.10(b), it may consider all pertinent information in applying the Section 3553(a) factors and determine whether to reduce the defendant's sentence. In particular, it must consider public safety considerations, and may consider information regarding the post-sentencing conduct or situation of the defendant, whether positive or negative. Pursuant to 18 U.S.C.§ 3553(a)(1) and (2), the court must consider "the nature and circumstances of the offense and the history and characteristics of the defendant," in addition to "the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Additionally, the court must consider the need for the sentence to "afford adequate deterrence for the criminal conduct," and "to protect the public from further crimes of the defendant." 18 U.S.C. § 3553 (a)(2)(B) and (C). In addition, revised application note 1(B)(ii) to U.S.S.G. § 1B1.10 directs that "[t]he court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment." Revised application note 1(B)(iii) to U.S.S.G. §1B1.10 further directs that
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"[t]he court may consider post-sentencing conduct of the defendant that occurred after the imposition of the original term of imprisonment." The application note explains that these factors are relevant in determining whether (and by how much) to reduce a sentence, but only within the limits set forth in Section 1B1.10(b). The extent of any reduction in sentence is strictly limited. Congress delegated to the Sentencing Commission the authority to determine the extent a sentence may be reduced. See 18 U.S.C. § 582(c)(2); 28 U.S.C. § 994(u). The Commission, in turn, directed in Section 1B1.10(b) that, with one exception (where the defendant originally received a below-guideline sentence, which is not the case here), "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1)." U.S.S.G. § 1B1.10(b)(2)(A).5 Thus, this Court could not reduce the sentence below the range provided by the amended guideline, and "in no case ... shall the term of imprisonment be reduced below time served." U.S.S.G. § 1B1.10 app. note 3. This Court should not reduce the defendant's sentence even if it were to find it possesses the discretion to do so (notwithstanding his plea agreement). First, the defendant received a very generous Rule 11(c)(1)(c) plea agreement in 2005. His guideline range was 210-262 months, yet he received a sentence in the stipulated range of 151 months. Even if the court were to reduce his offense level 34 by two levels to reflect the reductions contained in Amendment 706 for crack cocaine, his total offense level would be 31, resulting in a guideline range of 135 - 168 months under Criminal History III. Thus, even if the amendment were applied to the defendant's case, his advisory guideline range is still within the sentence that he negotiated and received.
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An application note adds: "Under subsection (b)(2), the amended guideline range determined under subsection (b)(1) and the term of imprisonment already served by the defendant limit the extent to which the court may reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement. Specifically, if the original term of imprisonment imposed was within the guideline range applicable to the defendant at the time of sentencing, the court shall not reduce the defendant's term of imprisonment to a term that is less than the minimum term of imprisonment provided by the amended guideline range determined under subsection (b)(1)." U.S.S.G. § 1B1.10 app. note 3.
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There are significant public safety concerns with this defendant, which also support why his sentence should not be reduced. The defendant had a significant, leadership role in this extensive conspiracy to sell and distribute cocaine and crack cocaine in Arizona and other states. This defendant was arrested many times with weapons in his possession that he had obtained with false identification. Thus, the facts show that the defendant's conduct concerned the dangerous and threatening combination of high-level drug activity and possession of loaded weapons. His base offense level was specifically increased based on his leadership role and he also pled guilty to two counts of felon in possession of a firearm. His conduct paints a picture of someone who is a danger to the community and needs to be incarcerated to protect the public. Giving due weight to the "nature and circumstances of the offense and the history and characteristics of the defendant," "the need for the sentence imposed to reflect the seriousness of the offense," "the need for the sentence imposed to afford adequate deterrence to criminal conduct," "the need for the sentence imposed to protect the public from further crimes of the defendant, and "the need for the sentence imposed to provide just punishment for the offense," as well as the guideline range, a reduction in sentence would be unjustified here. 18 U.S.C. § 3553(a)(1) and (2). In United States v. Hicks, 472 F.3d 1167, 1169, 1173 (9th Cir. 2007), the Ninth Circuit held that, when applying a retroactive guideline amendment in a Section 3582(c)(2) proceeding, the newly calculated range must be treated as advisory and not mandatory, citing United States v. Booker, 543 U.S. 220 (2005). Hicks answered two questions: (1) "whether § 3582(c)(2) proceedings fall within the scope of Booker's ambit," and (2) "whether policy statements by the Sentencing Commission nonetheless preclude the application of Booker to § 3582(c)(2)." Id. at 1169. The court held that "Booker abolished the mandatory application of the Sentencing Guidelines in all contexts," that treating the recalculated guideline range in a Section 3582(c)(2) proceeding as advisory "is not inconsistent with any applicable policy statement," and that "to the extent that the policy statements are inconsistent with Booker by requiring that the Guidelines be treated as mandatory, the policy statements must give way." Id. at 1169, 1173.6

The government respectfully disagrees with the decision in Hicks and reserves the right to challenge its holding on appeal. See also n. 7, infra.
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Even applying Hicks, this Court should exercise its discretion to deny a further sentencing reduction below the amended guideline range. The defendant's advisory guideline range, even after the amendment is 135-168 months. For this reason, the defendant's 151-month sentence is hardly unreasonable and no departure or variance below that 151-month sentence is warranted here. The Ninth Circuit recognized that a defendant seeking a reduced sentence on account of a retroactive guideline amendment "is not entitled to a sentence reduction as a matter of right," but only as "a matter of discretion," Hicks, 472 F.3d at 1172, and for the reasons explained earlier, this Court should decline to sentence below the amended guideline range as established by the Sentencing Commission. Even in an original sentencing proceeding, the Guidelines remain influential. See Gall v. United States, 2007 WL 4292116, at *7 (2007) ("to secure nationwide consistency, the Guidelines should be the starting point and initial benchmark" for sentencing); United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) ("[The] continuing duty of district courts to consult the Guidelines is statutory."). Likewise, the court must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). Indeed, in 18 U.S.C. § 3582(c)(2), Congress created a "narrow exception to the rule that final judgments are not to be modified." United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003). Section 3582(c)(2) permits a sentencing reduction based on a retroactive guideline only "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." In the Sentencing Reform Act, Congress specifically delegated to the Sentencing Commission the authority to determine when, and to what extent, a sentencing reduction is allowed. Under 28 U.S.C. § 994(u), when the Commission amends the guidelines, the

Commission "shall specify in what circumstances and by what amounts the sentences of prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u). As the Supreme Court has explained, under this provision, "Congress has granted the Commission the unusual and explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect." Braxton v. United States, 500 U.S. 344, 348 (1991) (citing § 994(u); emphasis omitted). Pursuant to this authority, the Commission, employing its expertise, has authorized the retroactive application of only a handful of the hundreds of guideline
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amendments adopted since 1987, and its decision is binding ­ if the Commission does not recognize an amendment as retroactive, courts have no authority to rely on it to revisit a final sentence. United States v. Cueto, 9 F.3d 1438, 1441 (9th Cir. 1993). Moreover, consistent with the authority granted in 28 U.S.C. § 994(u), the Commission recently has placed explicit limits on the extent of a sentencing reduction under Section 3582(c)(2) ­ limits which were not addressed in Hicks. U.S.S.G. § 1B1.10(b)(1) directs that "[i]n determining whether, and to what extent, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted, the court . . . shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected." Section 1B1.10(b)(2) sets out specific limits on the extent of sentencing reductions, providing that, with one exception, "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1)." U.S.S.G. § 1B1.10(b)(2)(A). Section 1B1.10(b)(2)(B) further provides that if the defendant's original sentence "constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate." (Emphasis added.) Despite this, the sentencing commission suggests that if defendant's original term of imprisonment was less than guideline range applicable to him at the time, then this court could take that reduction and apply it to the amended guideline range. U.S.S.G. § 1B1.10(b)(2)(B). As discussed in application note three to U.S.S.G. § 1B1.10, if defendant's original sentence represented downward departure of 20% below guideline range, reduction to term that is 20% below the amended guideline range would be a "comparable reduction." Thus, in the Commission's view, the extent of a sentencing reduction under Section 3582(c)(2) should be limited to the amended guideline range or a "comparable" reduction.7 In

This language in the policy statement, refined in the amendment which becomes effective March 3, 2008, casts the Court's error in Hicks in sharp relief. Even more explicitly than before, the amended policy statement makes clear that a sentence reduction is
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this case, no reduction should occur anyway because defendant's original sentence was a nonguideline sentence, but if any reduction is employed, it should be very minimal in light of the Commission's statements. These judgments of the Sentencing Commission deserve respect. It is appropriate to abide by these restrictions, given that the Commission has properly determined that Section 3582(c)(2)'s exception to the general rule of finality in criminal litigation should extend only to application of the newly amended guideline, not to relitigation of other aspects of the sentence. See U.S.S.G. § 1B1.10(a)(3) (proceedings under Section 3582(c)(2) "do not constitute a full resentencing of the defendant"). Adherence to the limits imposed by the Commission will also avoid disparity in sentencing among similarly situated defendants. See 18 U.S.C. § 3553(a)(6). Applying the above principles, no further reduction is warranted. First, defendant was given a non-guideline sentence and therefore "a further reduction would not be appropriate" under U.S.S.G. § 1B1.10(b)(2)(B) The defendant was sentenced to 151 months, more than a 20% reduction from the low-end of the original guideline-recommended sentence of 210-262 months. Defendant's sentence already reflects a "comparable reduction." U.S.S.G. § 1B1.10, application note 3. Additionally, as already explained, the defendant was a leader of a large-scale drug conspiracy who possessed loaded weapons on numerous occasions. No reduction in sentence is warranted here. Additionally, the defendant was a leader and organizer of criminal activity that involved five or more people, and therefore, he should have been held accountable for a four level increase, not two levels, to his adjusted offense level. U.S.S.G. § 3B1.1. The Court also should not have granted the defendant a departure for early disposition in this case since the defendant pled guilty on the morning of trial. U.S.S.G. § 5K3.1.

authorized, with one exception, only to the bottom of the amended guideline range. It is plain that the Sentencing Commission is exercising its power, granted in 28 U.S.C. § 994(u), to regulate the limit of a sentencing reduction, and that this statutory provision and this limitation are unaffected by the remedial opinion in Booker. It is for this reason that the government specifically reserves its right to contest the viability of Hicks, which never addressed the significance of Section 994(u).
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III.

CONCLUSION For all of the reasons stated above, the United States of America respectfully asks this

Court to deny the defendant's motion to modify or reduce his term of imprisonment. His stipulated Rule 11(c)(1)(C) plea agreement prohibits it. Moreover, no sentence reduction is warranted in this case, even if this Court were to entertain the motion, because the sentence was a non-guideline sentence. Further, this court should deny defendant's request for a sentence reduction based on the crimes he committed, his criminal history, his possession of loaded weapons, and other circumstances, including the sentencing guidelines and § 3553(a). Respectfully submitted this 23rd day of May, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona

s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant U.S. Attorney

CERTIFICATE OF SERVICE I hereby certify that on May 23, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: [email protected]

s/Keith Vercauteren Keith E. Vercauteren 28 Assistant United States Attorney
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