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May 20, 2005.


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Defendant Alfred Murray ("Murray") seeks reconsideration of this Court's Order that declined to re-sentence him pursuant to the Second Circuit's remand on March 17, 2005. After consideration of all the materials submitted by both Murray and the Government, discussed in detail below, Murray's motion to reconsider is GRANTED and on June 10, 2005, the Court, with the Defendant present, will vacate the original sentence and re-sentence Mr. Murray.

I. Background

  On November 12, 2004, Murray pled guilty to one count of conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base or "crack" in violation of 21 U.S.C. § 841(a), § 841(b)(1)(A) and § 846. On November 13, 2003, this Court sentenced Murray to 235 months of confinement followed by 5 years of supervised release.

  Murray's Pre-Sentence Report ("PSR") depicted the narcotics conspiracy in which Murray was a manager as a violent and deadly Bronx organization that trafficked in crack. (PSR at 4.) In addition to the PSR, prior to sentencing the Court received letters on behalf of Murray that described his commitment to his mother and younger brother, and to his community. These actually included a ten-year history as a volunteer tutor for children in a local community outreach program. He also helped to start a program for senior citizens where volunteers would escort the frail elderly on essential errands such as trips to the supermarket or the bank.

  At sentencing, Murray did not contest the United States Sentencing Guideline range calculated by the Probation Department, but he did argue that he was entitled to a downward departure on the ground that he had been incarcerated on state charges for a crime he did not commit and for which the charges were ultimately dropped by the Bronx County District Attorney's Office. (Sent. Tr. 2:10-18:16.) Because of this incarceration (eleven months in duration), Murray argued, his life was torn asunder and among other things he was, upon release, unable to find legitimate employment. The Court considered and rejected this argument because there was no "nexus" between Murray's prior incarceration and the criminal conduct for the current charges so as to permit a departure under § 5K2.0. As such, this Court declined to make any downward departure.

  Also at sentencing, the Court inquired as to why Murray had not sought a departure based on his cooperation with the Government. (Sent. Tr. 18:17-20:17.) As it turned out, while Murray had participated in several proffer sessions, the Government opined that he had withheld information about his own illegal activity and concluded against a motion under § 5K1.1, which would have provided a basis for a downward departure.

Prosecutor: Mr. Murray had come in for proffers and was attempting to cooperate, and we entered into such an arrangement. But because of various reasons that we felt that the agreement was not being satisfied and that Mr. Murray was attempting to cooperate, the arrangement was terminated.
The Court: Unable or unwilling?
Prosecutor: In our view, there was [sic] certain omissions that Mr. Murray was making that we were unable to, despite our best efforts, despite counsel's best efforts, we were unable to overcome, and they were large stumbling blocks to entering into such an arrangement. Maybe in the future that could change, and perhaps it will but today Mr. Murray does not satisfy the elements for the government to consider cooperation. We have terminated that relationship. It could again arise if Mr. Murray has a change of heart, but at this stage, no such agreement exists and there is no basis for a departure on that basis.
The Court: Mr. Murray, do you have anything you want to say on your own behalf?
  Defendant: No, sir. (Sent. Tr. 20:01-20:17.) Murray appealed his sentence to the United States Court of Appeals for the Second Circuit in which he argued that this Court was wrong in its belief that it lacked the authority to depart with regard to the prior incarceration. Murray also filed a supplemental brief in the Second Circuit with the argument that his sentence was imposed in violation of his Sixth Amendment right to a jury determination of the facts necessary to enhance his sentence beyond what it would have been absent the additional factual findings. The Second Circuit dismissed Murray's appeal on August 30, 2004, but withheld the mandate in Murray's case, pending the Supreme Court's decision on the constitutionality of the Federal Sentencing Guidelines in United States v. Booker, 125 S. Ct. 738; 160 L. Ed. 2d 621 (2005). United States v. Murray, No. 03-1734, 108 Fed. Appx. 22, 25, 2004 WL 1922207 at *2 (2d Cir. 2004). After Booker, the Second Circuit issued United States v. Crosby, 397 F.3d 103 (S.D.N.Y. Feb. 2, 2005), and remanded Murray for me to consider whether to re-sentence Murray in light of the changes to the Federal Sentencing Guidelines. Thereafter the Government made no attempt to inform the Court of the nature and extent of Murray's cooperation despite the fact that this cooperation proved to be determinative in obtaining several indictments and a conviction. As a consequence, on March 17, 2005 this Court declined to resentence him.

  Murray now seeks reconsideration based on the ground that his assistance to the Government prior to sentencing, while it did not warrant a § 5K1.1 departure, now constitutes a factor that this Court may consider in determining whether to re-sentence Murray to a non-Guidelines sentence.

  II. Discussion

  A. Jurisdiction

  The standard in deciding reconsideration motions in criminal cases is not clearly established. Neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules expressly provide for reconsideration motions. But courts have used our Local Rule 6.3 as a guide. See, e.g., United States v. Delvi, 2004 WL 235211 (S.D.N.Y. Feb. 6, 2004); United States v. Greenfield, 2003 WL 1230538 (S.D.N.Y. Oct. 16, 2001). Pursuant to that Rule, reconsideration is appropriate where a court overlooks "controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court." United States v. Kurtz, 1999 WL 349374 at *6 (S.D.N.Y. May 28, 1999). In this case there exist factual matters that were unknown when I declined to re-sentence Murray, specifically, the nature and extent of the information he provided to the Government. I conclude that reconsideration is proper.

  B. The Decision to Re-Sentence

  In this case, there was at the time of sentencing no permissible departure from the Guidelines and as such, this Court sentenced the Defendant to 235 months, the lowest sentence in the applicable range. Murray had a base offense level of 38 based on the weight of cocaine he was convicted of possessing. The offense level was raised three levels pursuant to § 3B1.1(b) because Murray had a manager's role in the offense, and was lowered by three levels pursuant to § 3E1.1(a) and (b) for acceptance of responsibility because Murray ...

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