The opinion of the court was delivered by: John A. Mendez U. S. District Court Judge
REQUEST FOR ORDER DIRECTING PROVISION TO COUNSEL OF COPIES OF SEALED PLEADING AND PRESENTENCE REPORT ) AND DECLARATION OF COUNSEL
Judge: Hon. Allison Claire
Defendant James Roy Barron is a federal prisoner serving six consecutive life terms imposed after trial in a non-violent crack cocaine case. The undersigned represented Mr. Barron on direct appeal and then most recently in a 28 U.S.C. § 2255 case before this Court, the appeal of which concluded in July 2010. The docket shows that in March 2011 Mr. Barron filed (or attempted to file) a pro per motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), but that document is listed in the docket as sealed and "disregard[ed]" and thus is not accessible to counsel. See Docket No. 369.
Mr. Barron seeks to lay to rest the concerns that he and his family have that he might be eligible for a reduced sentence as a result of the Fair Sentencing Act of 2010 ("FSA"). The FSA reduced the crack to powder cocaine ratio from 100:1 to approximately 18:1. 280 grams of crack cocaine now triggers the ten-year mandatory minimum (and the increased mandatory minimums that may apply if priors are proven), down from 50 grams that was the statutory quantity at the time of Mr. Barron's conviction. 21 U.S.C. § 841(b)(1)(A)(iii). Mr. Barron was sentenced to each life term based on a finding by the district court that the drug quantity attributed to him exceeded the threshold necessary to trigger a ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(iii), combined with the filing of an information charging two prior drug trafficking convictions under 21 U.S.C. § 851.
Despite the apparent non-retroactivity of the FSA to defendants sentenced prior to August 3, 2010, the FSA's effective date, see Dorsey v. United States, 132 S. Ct. 2321; 183 L. Ed. 2d 250 (2012); United States v. Baptist, 646 F.3d 1225 (9th Cir. 2011), cert. denied, 132 S.Ct 1053 (2012), lingering questions haunt Mr. Barron and his family. If the crack cocaine quantity attributed to Mr. Barron at sentencing exceeded 280 grams, then regardless of the question of retroactivity, the FSA could not possibly benefit Mr. Barron, and he and his family would at least know they had exhausted every possible inquiry. If on the other hand the drug quantity was below 280 grams, then it is possible that Mr. Barron will seek a remedy and challenge the Ninth Circuit's holdings that the FSA does not apply retroactively to sentences imposed before the effective date of the FSA.
Unfortunately, the undersigned is unable to locate a copy of the Presentence Report ("PSR") in her files or the files provided to her by trial counsel. Mr. Barron's family members have searched his mother's home and have also been unable to locate a copy of the PSR. The sentencing hearing transcript does not mention the specific drug quantity attributed to Mr. Barron. The parties and the court discussed the fact that the 21 U.S.C. § 851 filing triggered the life mandatory minimum, and Mr. Barron admitted the priors on the record. However, the actual drug quantity was not stated on the record.
Despite diligent efforts to by the undersigned and Mr. Barron's family to locate a copy of the PSR, non has been found. Therefore, Mr. Barron hereby respectfully requests this Court to: (1) direct the District Court clerk to provide to the undersigned a copy of the sealed pro per motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2)
(Docket No. 369); and (2) direct the U.S. Probation Office to provide to the undersigned a copy of James Barron's final presentence report. The undersigned assures the Court that she will not provide the PSR to anyone else, but instead will use the PSR solely to advise Mr. Barron and his family of the drug quantity attributed to him at sentencing.
DATED: February 3, 2013 Respectfully submitted, /S/ Suzanne A. Luban SUZANNE A. LUBAN Attorney for JAMES BARRON DECLARATION OF COUNSEL
I, Suzanne A. Luban, hereby declare:
1. I am an attorney duly licensed to appear before this Court and all courts in the State of California.
2. I was appointed by this Court to represent James Barron most recently in his 28 U.S.C. § 2255 case and then I continued as appointed counsel on the appeal of the denial of that § 2255 motion. I am handling this request for Mr. Barron on a pro bono basis.
3. I have searched for the PSR in my archived files and the files provided to me by Randall Daar, Mr. Barron's trial counsel. I have been unable to locate the PSR. I do not specifically recall whether I had a copy of Mr. Barron's PSR, although that appears likely in light of the fact that I obtained Mr. Daar's entire file and ...