Opinion
Case No. CR-2-04-197.
April 18, 2006
ORDER
The government moves for a reduction of Defendant Kevin Neal's sentence pursuant to Federal Rule of Criminal Procedure 35(b). Rule 35(b) authorizes a court to reduce a previously imposed sentence to reflect a defendant's subsequent substantial assistance in the investigation and/or prosecution of others who have committed criminal offenses. Rule 35(b) of the Federal Rules of Criminal Procedure provides:
Upon the government's motion made within one year of sentencing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person; and
(B) reducing the sentence accords with the Sentencing Commission's guidelines and policy statements.
On November 9, 2005, the Defendant was sentenced to a term of imprisonment of 168 months, after pleading guilty to one count of conspiracy to distribute more than one kilogram of heroin.
This sentence was the result of a motion for downward departure, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), filed by the United States based on the Defendant's cooperation with authorities. The Defendant's advisory guideline range at the time of sentencing was an offense level 30 and criminal history category VI, which resulted in a sentencing range of 168 to 210 months. The Court sentenced Defendant to 168 months on Count 1 to be served consecutive to a 71 month sentence the Defendant received in the Eastern District of Missouri for being a convicted felon in possession of a firearm.
Subsequent to the Defendant's sentencing hearing, several of his co-conspirators were scheduled to proceed to trial. The Defendant was willing and prepared to testify at all of those trials. The trial of the Defendant's last co-conspirator, currently in custody, was scheduled to begin Monday, January 9, 2006, before the Honorable Gregory L. Frost (United States v. Dalemar Nicholson, CR-2-05-97). The Defendant met with government authorities several times prior to the trial and was prepared to testify at the trial. As a result of the Defendant's agreement to testify, combined with the cooperation of several other co-conspirators, Dalemar Nicholson pled guilty on Tuesday, January 3, 2006, to a conspiracy to distribute more than a kilogram of heroin.
The Government believes that the Defendant has been extremely cooperative and has provided substantial assistance since his sentencing hearing and therefore recommends a reduction in Defendant's sentence pursuant to Rule 35(b). The United States respectfully requests an additional two-level reduction in the Defendant's offense level. If the Government's Motion is granted, the Defendant's offense level would be a 28 and criminal history category VI, with the advisory guideline range of 140 to 175 months. Based on this advisory range, the Government recommends a sentence at the low end of the guideline range based on the Defendant's substantial assistance. The Government notes that if granted, the Defendant would be receiving more than a 50% reduction from his original sentencing range. The Government also notes that the Defendant still has an obligation to cooperate and testify truthfully at any future proceedings and that the Defendant's testimony at future proceedings has been considered in filing this Motion.
Based on this information, the Court finds that a reduction of the Defendant's sentence is appropriate under Rule 35(b) of the Federal Rules of Criminal Procedure. Therefore, the Court GRANTS the Government's Rule 35(b) Motion for a reduction of sentence and hereby sentences the Defendant to 140 months imprisonment consecutive to his sentence received in the Eastern District of Missouri. All other conditions of release set forth in the Judgment and Commitment filed November 9, 2005 shall remain the same.
IT IS SO ORDERED.