Free Motion to Reduce Sentence re Crack Cocaine Offense - 18:3582 - 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 Pursuant to 18 U.S.C. § 3582(c), defendant moves to reduce his vs. John Fitzgerald Harris, Defendant. United States of America, Plaintiff, No. CR 03-0421-001-PHX-SMM MOTION TO REDUCE SENTENCE (First Request) FOR THE DISTRICT OF ARIZONA
Phoenix, Arizona 85003 Park Law Office, PLC

18 sentence based upon the retroactive amendments to crack cocaine guideline 19 sentence. After entering a guilty plea to conspiracy to distribute more than 50 20 grams of crack cocaine (Count 2) and more than 5 kilograms of cocaine (Count 1), 21 22 Mr. Harris was sentenced to a term of imprisonment of 151 months.1 Mr. Harris 23 24 25 Defendant also pled guilty to two additional counts of felon in possession of a firearm/ammunition in Counts 11 and 12 of the Second Superseding Indictment. He 27 received a sentence of 120 months on each count to run concurrent to each other and 28 concurrent with Counts 1 and 2. (Dkt# 424). Defendant was also determined to be in Criminal History Category III. (RT 04/22/05 8; PSR ¶ 61). 26
Case 2:03-cr-00421-SMM Document 636 Filed 04/12/2008 Page 1 of 5
1

would request the Court to modify his sentence based upon the amendments to the

1 crack guidelines. 2 Under 18 U.S.C. § 3582(c)(2),2 the Court has jurisdiction to reduce a 3 4 imprisonment sentence of the defendant if the sentencing range has been 5 6
rd 7 994(o). 18 U.S.C. § 3582(c)(2); see United States v. Wise, 515 F.3d 207 (3 Cir.

subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C.

8 2008). Amendments 706 and 711 to the Sentencing Guidelines clearly falls within 9 this description. Through the Amendments, the Sentencing Commission 10 11 essentially lowered the offense levels by 2-levels to avoid unwarranted disparity in 12 sentencing for offense involving crack cocaine and other drug offenders. The 13 amendment also lowered the marijuana equivalency ratio for crack cocaine where 14 15 multiple drugs are involved. Compare U.S.S.G. § 2D1.1 App. Note 10(i)(II) (2007 16 17 18 application of the new guidelines are explicitly encouraged by the Sentencing 19 Commission. See U.S.S.G. § 1B.1.10 (2007 ed.). Under 18 U.S.C. § 3582(c)(2), 20 21 22 23 24 25 26 27 28 2
Case 2:03-cr-00421-SMM Document 636 Filed 04/12/2008 Page 2 of 5
2

ed.) with U.S.S.G. § 2D1.1 App. Note 10 (2004 ed.). Moreover, the retroactive

The relevant excerpts of 18 U.S.C. § 3582(c)(2) states:

in the case of a defendant who has been sentenced to a term of imprison based on a sentencing range that has been subsequently 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 the applicable policy statements issued by the Sentencing Commission.

1 the Court can recalculate the defendant's sentencing range using the newly 2 formulated guidelines. Id. 3 4 5 6 7 acceptance of responsibility. (RT 04/22/05 7-8). Furthermore, Mr. Harris was 8 held accountable for 693.6 grams of marijuana, 3,355.1 grams of cocaine, and 9 315.7 grams of cocaine base. (PSR ¶ 35). Applying the marijuana equivalency 10 11 pursuant to note 10 of the U.S.S.G. § 2D1.1 (2004 ed.), defendant was held 12 accountable for approximately seven thousand kilograms of marijuana with a final 13 offense level of 34. (PSR ¶ 35). See U.S.S.G. § 2D1.1(c)(3) (2004 ed.). After 14 15 adjustments for acceptance of responsibility, Mr. Harris' final offense level was 16 17 18 of 135 to 168 months. The Court imposed a middle of the range sentence of 151 19 months. 20 If the 2007 amended guidelines are utilized, Mr. Harris' base offense level 21 22 would be 32 as a result of change in conversion rates for crack cocaine to 23 24 25 amendment, Mr. Harris' crack cocaine would be equivalent to 2115 kilograms of 26 27 28 3
Case 2:03-cr-00421-SMM Document 636 Filed 04/12/2008 Page 3 of 5

At the time of Mr. Harris sentencing, the Court had determined that Mr. Harris' offense level for Counts 1 and 2 was at offense level 31 after reduction for

reduced to 31 with Criminal History Category III with a guideline sentencing range

marijuana equivalency. See U.S.S.G. § 2D1.1(c)(4) (2007 ed.). Under the new

1 marijuana.3 The cocaine would be equivalent to 671 kilograms of marijuana.4 2 Combining all of the relevant drugs would yield a marijuana equivalency of around 3 4 2800 kilograms. For 2800 kilograms of marijuana, the offense level would be 32. 5 6 7 acceptance of responsibility would be 29 with a guideline sentencing range of 108 8 to 135 months. The middle of the range would be 121 months. Defendant would 9 request the Court to reduce his sentence to 121 months5 based upon the 10 11 amendments to the guidelines. 12 13 14 15 16 17 18 19 20 21 22 24 26 315 grams of crack cocaine x 6.7 kgs of marijuana per gram of crack cocaine. 23 See U.S.S.G. § 2.D1.1(c)(4), App. Note 10(D)(i)(II). 3355.1 grams of cocaine x 200 grams of marijuana per gram of cocaine. See 25 U.S.S.G. § 2.D1.1 App. Note 10(E). The sentence of 121 months would also not violate the terms of the plea 27 agreement. The plea agreement stipulated a sentence of 121 months to 151 months. (Dkt # 419). 28 4
Case 2:03-cr-00421-SMM Document 636 Filed 04/12/2008 Page 4 of 5
5 4 3

U.S.S.G. § 2D1.1(c)(4) (2007 ed.). The final new offense level after reduction for

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.

1 2 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

Respectfully submitted this 12th day of April, 2008.

Park Law Office, PLC

s/ James Sun Park JAMES SUN PARK Attorney for Defendant
The foregoing Motion for Reduction in Sentence filed via ECF this 12th day of April, 2008. Copy of the foregoing Motion scheduled to be mailed on the 14th day of April , 2008 John F. Harris

by J.S. Park James Park

5
Case 2:03-cr-00421-SMM Document 636 Filed 04/12/2008 Page 5 of 5