Opinion
No. 2:04-cr-00250 GEB EFB
04-05-2013
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. KERRY DEAN DARLING, Defendant-Movant.
BENJAMIN WAGNER United States Attorney PAUL A. HEMESATH Assistant U.S. Attorney Attorney for Plaintiff-Respondent UNITED STATES OF AMERICA JOSEPH SCHLESINGER Acting Federal Defender ANN C. McCLINTOCK Assistant Federal Defender
JOSEPH SCHLESINGER, CSB No. 87692
Acting Federal Defender
ANN C. McCLINTOCK, CSB No. 141313
Assistant Federal Defender
801 I Street, 3rd Floor
Sacramento, California 95814
Telephone: (916) 498-5700
Attorney for Defendant-Movant
KERRY DEAN DARLING
STIPULATION AND PROPOSED
ORDER TO AMEND JUDGMENT
AND SENTENCE
[28 U.S.C. § 2255]
Defendant-Movant KERRY DEAN DARLING, by and through his attorney, Assistant Federal Defender ANN C. McCLINTOCK, and Plaintiff-respondent UNITED STATES OF AMERICA, by and through its counsel, Assistant U.S. Attorney PAUL A. HEMESATH, hereby stipulate and agree as follows:
1. Pursuant to 28 U.S.C. § 2255, this Court may amend the judgment and sentence of a defendant whose received prejudicial ineffective assistance from his trial-level defense attorney when that attorney's deficient performance violated the guarantees of the Sixth Amendment of the United States Constitution;
2. Trial counsel for Mr. Darling rendered such prejudicial and deficient performance in his representation of Mr. Darling in this matter such that Mr. Darling's sentence of 360 months, imposed by this Court on November 14, 2005, and entered as this Court's judgment and sentence on November 23, 2005, is excessive;
3. The Bureau of Prisons calculates federal prisoners estimated release dates based on the assumption that the prisoner in the future will earn the maximum credit available under the Bureau's regulations;
4. The Bureau of Prisons has determined that Mr. Darling's current estimated release date for completion of the 360 month term imposed by this Court in November 2005 is May 7, 2030;
5. The Bureau of Prisons has determined that Mr. Darling's release date would move from May 7, 2030, to March 28, 2028, if the judgment and sentence was amended to reduce Mr. Darling's sentence by 29 months;
6. Mr. Darling merits a reduction in his sentence based on the prejudicial and deficient performance he received from his trial counsel, as well as based on the factors listed in 18 U.S.C. § 3553(a) and Mr. Darling's positive post-sentencing conduct;
7. In light of the above law and facts, the parties request the Court to enter the accompanying proposed order reducing Mr. Darling's term of imprisonment by 29 months and so impose concurrent 331-month terms as to each of Count 1 and Count 2, for a total term of 331 months;
6. In consideration for this stipulation and the Court's acceptance of the proposed order, Mr. Darling acknowledges this amendment to his sentence, which reduces his term of imprison to 331 months and moves his projected release date to March 28, 2028, resolves all claims he has against this Court's November 2005 judgment and sentence. Respectfully submitted, BENJAMIN WAGNER
United States Attorney
_____________________
PAUL A. HEMESATH
Assistant U.S. Attorney
Attorney for Plaintiff-Respondent
UNITED STATES OF AMERICA
JOSEPH SCHLESINGER
Acting Federal Defender
_____________________
ANN C. McCLINTOCK
Assistant Federal Defender
Attorney for Defendant-Movant
KERRY DEAN DARLING
ORDER
IT IS HEREBY ORDERED that the term of imprisonment originally imposed is reduced by 29 months; that the term of imprisonment as to Count 1 shall be 331 months, to be served concurrently with a term of imprisonment as to Count 2 of 331 months, for a total term of 331 months.
IT IS FURTHER ORDERED that all other terms and provisions of the original judgment remain in effect.
The Clerk is directed to amend the judgment to reflect the new sentence.
_____________________
GARLAND E. BURRELL, JR.
Senior United States District
Judge