January 8, 2001, LAMBROS' LETTER TO JUDGE DAVID S. DOTY. Lambros' letter to Judge Doty offers an overview as to the June 26, 2000, United States Supreme Court decision in APPRENDI vs NEW JERSEY, 120 S.Ct 2348 and its effects as to LAMBROS' unconstitutional sentence. The facts and law within this letter supports the worst case scenario of LAMBROS receiving a sentence of 46 to 57 months of incarceration.
CERTIFICATE OF SERVICE
FAULKNER, et al., CIVIL CASE NO. 98-1621(DSD/JMM)
I hereby state under the penalty of perjury that a true and correct copy of the following:
a. JANUARY 08, 2001,
LAMBROS' LETTER TO JUDGE DAVID S. DOTY.
was served on the following this 10th day of January, 2001, via U.S. Mail through the U.S.P. Leavenworth mailroom, to:
1. The Honorable Judge David S. Doty, U.S. District Court, 300 South Fourth Street, Minneapolis, Minnesota 55415. U.S. Certified Mail No. 7000-0520-00263237-5790, RETURN RECEIPT REQUESTED.
2. Clerk of the Court,
District of Minnesota, 316 North Robert Street, St.
Paul, Minnesota 55101. PLEASE FILE.
3. Magistrate Judge John
M. Mason, Warren E. Burger Federal Building, 316
North Robert Street, St. Paul, Minnesota 55101.
4. Attorney Gregory J.
Stenmoe, BRIGGS & MORGAN, 2400 IDS CENTER. 80 South
Eighth Street, Minneapolis, Minnesota 55402. U.S. CERTIFIED MAIL NO. 7000-0520
5. Attorney Donna Rae Johnson and Attorney Deborah Ellis, 700 St. Paul Bldg., 6 West Fifth Street, St. Paul, Minnesota 55102.
6. Internet release to
BOYCOTT BRAZIL SUPPORTERS and HUMAN RIGHTS GROUPS
7. LAMBROS family members.
End of page 1
January 8, 2001
John Gregory Lambros
Reg. No. 00436-124
U.S. Penitentiary Leavenworth
P.O. Box 1000
Leavenworth, Kansas 66048-1000 USA
Web site: www.brazilboycott.org
THE HONORABLE JUDGE DAVID S. DOTY United States District Court 300 South Fourth Street Minneapolis, Minnesota 55415 U.S. Certified Mail No. 7000-0520-0026-3237-5790 RETURN RECEIPT REQUESTED
et al., Civil Case
Dear Judge Doty:
On October 31, 2000, Magistrate Judge John M. Mason stated within his REPORT AND RECOMMENDATION that LAMBROS' malpractice claims lacked genuine issues of material fact as to the cause of his inability to obtain a more favorable sentence. Due to the development of the June 26, 2000 United States Supreme Court decision in APPRENDI vs. NEW JERSEY, 120 S.Ct. 2348, LAMBROS would like to update this court as to current legal opinions rendered that effect this courts decision making in this above-entitled action.
United States District Court Judge Jose A. Gonzales, Jr., District Court for the Southern District of Florida, on NOVEMBER 9, 2000, in U.S. vs. DEORIO, et al, 99-6182-CR-WDF, stated within the Sentencing Hearing:
"[T]he objections to those portions of the presentence report of Mr. Deorio, Mr. Ventrice, and Mr. Grosso which object to the portion of the presentence report which finds that the BASE OFFENSE LEVEL in this case is 32 will be sustained.
The Court finds that the BASE OFFENSE LEVEL in this case, in light of APPRENDI and it's progeny, all of which have been cited here today is 12. Because the Court finds that applying APPRENDI to the facts of this case, the Court finds that these defendants have a right to a jury trial as to any material fact that is an element involving the crime itself which may effect the punishment to be imposed upon conviction, which fact must be proved beyond a reasonable doubt.
The Court finds that a quantity of drugs that increases the maximum sentence to which a defendant would otherwise be exposed for a
End of page 2
conviction under 841(a), is a fact to be found by the jury beyond a reasonable doubt, and the Court cannot ignore the impact of the SENTENCING GUIDELINES upon the ultimate sentence that must be imposed in any case.
The Sentencing Reform Act mandates that the Court consider the Sentencing Guidelines in arriving at an appropriate sentence in each case. Therefore, since the Sentencing Guidelines consider the quantity of drugs involved in arriving at the appropriate sentence, we simply can't ignore the issue of quantity and withdraw that issue from the jury's consideration.
Once quantity becomes a factor in the sentencing calculus, then that is an issue of FACT that must be considered by a jury and proved beyond a reasonable doubt.
So the Court finds that the applicable guideline range I
mean that the BASE OFFENSE LEVEL in these cases is TWELVE (12);
and that, of course, will effect the calculus with regard to
the remaining factors as contained in the presentence reports.
LAMBROS presents to this
Court that his current United States SENTENCING GUIDELINE
sentence of 324-405 is
UNCONSTITUTIONAL, as it is in excess of the
sentence based on the jury's verdict. APPRENDI, stated that the
"FACT" must be proven beyond a REASONABLE DOUBT by a JURY and not by
a PREPONDERANCE OF EVIDENCE STANDARD by the court, so sentencing on
any quantity over the "MEASURABLE AMOUNT" of the controlled
substance as set forth in the jury instructions would be improper.
Pursuant to the drug quantity Sentencing Table, Title 18 USCA Federal
Sentencing Guidelines § 2D1.1, LEVEL 12
is the proper BASE OFFENSE LEVEL
for any quantity of cocaine less than 25 grams.
It is LAMBROS' contention and argument that the drug quantity should be determined by the jury, such as in this case a LEVEL 12, and then the applicable upward or downward departure or other factors regarding the exercise of the sentencing courts discretion would transpire from that point.
The quantity of alleged cocaine in LAMBROS' case for the GUIDELINE SENTENCE OF 324-405 MONTHS is based on the PREPONDERANCE OF EVIDENCE STANDARD, instead of the "MEASURABLE AMOUNT" submitted to the jury and proven beyond a REASONABLE DOUBT. Therefore, the proper level, under the jury verdict should be a BASE OFFENSE LEVEL OF 12, NOT 32, with the "MEASURABLE AMOUNT" of alleged cocaine at less than 25 grams.
End of page 3
4. Drug quantity is a
factor that must be charged and proven under Title 21 U.S.C. §
841. U.S. vs. MURPHY, 109 F.Supp-2d 1059 (D.Minn. 2000). See,
U.S. vs. SHEPPARD, 219 F.3d 766, 769 (8th Cir.
2000) (At the instruction conference, SHEPPARD argued
that JONES required the court to submit the issue of drug quantity to
the jury as an element of the offense. The Court declined to do so
but, at the
governments request, did submit a "SPECIAL FINDING" dealing with DRUG TYPE and QUANTITY. Answering this finding in the affirmative, the jury unanimously found beyond a REASONABLE DOUBT that more than 500 grams of methamphetamine were involved in SHEPPARD'S offense. Because the INDICTMENT had alleged this drug type and quantity, and because the district court made a DRUG QUANTITY FINDING AT SENTENCING THAT WAS CONSISTENT WITH THE JURY'S "SPECIAL FINDING," SHEPPARD received
all the Fifth and Sixth Amendment protections that JONES and APPRENDI required.)
5. LAMBROS was charged
and convicted of conspiracy to distribute cocaine in
violation of Title 21 U.S.C. § 841(b)(1)(A) and three (3) counts of possession
with intent to distribute cocaine in violation of Title 21 U.S.C. §
LAMBROS was sentenced to same. The only constitutionally valid sentence that
LAMBROS could have been sentenced was under I 841(b)(1)(C) because the jury
DID NOT make a "SPECIAL FINDING" as to the DRUG AMOUNT or TYPE. Section
841(b)(1)(C), provides for a MAXIMUM SENTENCE of 20 years imprisonment, or 30 years
imprisonment if the defendant has a prior felony conviction, with NO MINIMUM SENTENCE.
See, U.S. vs. MURPHY, 109 F.Supp.2d 1059, 1064 (D.Minn. 2000)(Judge Doty) ("[After APPRENDI, to the extent that the government seeks to subject a drug offender to the
higher penalties under 841(b)(1)(A) or (b)(1)(B), IT MUST submit DRUG TYPE
and QUANTITY to the jury, and the jury must find those FACTS beyond a reasonable
6. LAMBROS' sentence is
APPRENDI and the SENTENCING
GUIDELINES enacted by CONGRESS. See, Title 18 U.S.C. § 3553(b). That Statute provides that "[the court shall impose a sentence . . . within the RANGE"
established for the category of offense as set forth in the GUIDELINES, "unless
the court finds that there exists an aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a sentence different
from that described " Quoting, U.S. vs. R.L.C., 117 L.Ed2d 559, 571 (1992)
End of page 4
7. LAMBROS' current PSI BASE OFFENSE LEVEL IS 32, with adjustments for his alleged role in the offense, plus 2 points, and alleged obstruction of justice, 2 points. Therefore, a TOTAL OFFENSE LEVEL OF 36. See attached PSI, page seven (7), paragraphs 33, 36, and 37.
8. LAMBROS' current PSI
CR IMI NAL HISTORY COMPUTATIONS IS 8
POINTS. However because LAMBROS is considered a career offender under the provisions of §4BI-1, the criminal history category is VI. See attached PSI, page ten (10), paragraphs 46, 47, and 48.
9. The attached
SENTENCING TABLE (In months of
Imprisonment) indicates LAMBROS
should be incarcerated for 324-405 MONTHS at an offense level of 36 and criminal history category of VI.
10. Due to the fact the
jury DID NOT make a DRUG TYPE and QUANTITY
"SPECIAL FINDING" and the
FACT LAMBROS should of been sentenced under
I 841(b)(1)(C), that has NO
MINIMUM SENTENCE, LAMBROS' BASE
OFFENSE LEVEL IS 12 PLUS 4
POINTS. Therefore, a TOTAL OFFENSE LEVEL OF SIXTEEN (16). LAMBROS' criminal
history category would stay at six (VI). The attached SENTENCING TABLE indicates LAMBROS should be incarcerated for 46-57 MONTHS.
Thanking you in advance for allowing me to assist you in the research as to the genuine issues of material fact that exist within this action.
John Gregory Lambros
UNSWORN DECLARATION UNDER PENALTY OF PERJURY
I JOHN GREGORY LAMBROS declare under penalty of perjury that the foregoing is true and correct. Title 28 U.S.C.A. §1746.
EXECUTED January 8, 2001
Signed: John Gregory Lambros
End of document
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:
JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.