UNOPPOSED MOTION TO RECONSIDER SUBSTANTIAL ASSISTANCE,

IF REMANDED. AND MEMORANDUM OF LAW

The Defendant. * *. bv and through his undersigned attorney, moves this Honorable Court to enter its Order, pursuant to 18 U.S.C. § 3582(c)(2) certifying that it agrees that a remand for resentencing is required in this case. For the reasons set forth below, the Defendant submits that the sentence should be re-examined by this Honorable Court before the appeal to the Eleventh Circuit Court of Appeals is heard. Accordingly, this motion is filed pursuant to United States v. Ellsworth, 814 F.2d 613 (llth Cir. 1987)(copy attached). As grounds in support thereof, the undersigned would state the following:

1. That the Defendant pled guilty to charges contained in the above-styled case and was sentenced on April 19, 1995 to thirty (30) months in the Bureau of Prisons.

2. That prior to the Defendant's sentencing in the instant case, the government filed a motion asking the Court to impose a downward departure, pursuant to §5Kl.l, based on the Defendant's substantial assistance.

3. That at the sentencing in the instant case, this Court refused to grant any downward departure based upon substantial assistance since the Defendant had not yet testified against any individuals.

4. That on May 4, 1995, this Honorable Court. pursuant to the Defendant's motion. allowed the Defendant additional time to voluntarily surrender to federal prison so that the Defendant could testify against co-defendants in the instant case. On May 11, 1995, the Defendant did in fact give extensive testimony to the Grand Jury regarding the criminal activity of others. Based on said testimony, the Grand Jury has indicted at least one other person and has charged said person with serious firearm offenses.

5. Since the Defendant has now testified before the Grand Jury, both the government and the Defendant do not oppose this Honorable Court's reconsidering the government's Motion tor Substantial Assistance. pursuant to U.S.S.G. § 5K1.1. Both parties are requesting that the Court grant a three level downward departure' placing the Defendant's Base Offense Level at 14, Criminal History III, for a Sentencing Range of 21 to 27 months. Both parties would request the Court to sentence the Defendant to twenty-one month term of imprisonment.

6. That, because this case is on appeal to the Eleventh Circuit, the appellate court must relinquish jurisdiction. Attached hereto is a proposed sentencing order which reflects the twenty-one month sentence. If this Court were to certify that it intends to resentence the Defendant to twenty-one months. then said Order could be forwarded to the Court of Appeals with a request to relinquish jurisdiction so that this court could then resentence the Defendant taking into his account his total substantial assistance.

7. That because this is the only issue on appeal in the instant case, if the Defendant is resentenced by this Honorable Court, the appeal could then be dismissed. Therefore, the Defendant, * *, moves this Honorable Court to enter its Order certifying that it is likely to grant Defendant's Motion for Substantial Assistance thereafter reducing the Defendant's sentence to twenty-one months incarceration. based on a Base Offense Level 17, and Criminal History Category of III.

MEMORANDUM OF LAW

1. In United States v. Ellsworrh, 814 F.2d 613 (llth Cir. 1987), the Court held that the proper method for filing a motion with the district court. after a Notice of Appeal had been filed, was to file said motion requesting the district court to certify that the motion should be granted. Once said certification is made by the district court. the appellate court would then have jurisdiction to entertain a Motion to Remand. Id. at 614. United States v. Reeh, 725 F.2d 633 (llthCir. 1984).

2. Based on the Eleventh Circuit's holding in Ellsworth, supra, the Defendant requests this Honorable Court to enter its Order certifying that this motion should be granted so that the Defendant can request the Eleventh Circuit Court of Appeals to relinquish jurisdiction in the above case.

3. That the Appellant has served nearly one year (when credit for time served is calculated) incarceration in the instant case.

WHEREFORE, the Defendant, * *, moves this Court to enter its Order certifying that the government's substantial assistance motion should be granted.

DATED this ___day of September, 1995.

ORDER

Upon consideration of the Motion to Correct Sentence if Remanded filed by the Defendant pursuant to 18 U.S.C. 3582(c)(2). United States Sentencing Guidelines, this Court certifies that it is inclined to grant the Government's Motion for Substantial Assistance, in light of the Defendant's subsequent Grand Jury testimony.

DONE AND ORDERED in Chambers in the United States Courthouse at Orlando,

Florida, this ___day of September, 1995.

______________________

United States District Judge

copies to:

X:\APPS\MOTIONS\ALASKA\Sentenc\RECONSUB.WPD