Defense attorney Fortunato Perri Jr. said in a post-trial motion in October that there was no evidence that Durham had intended to warn the drug kingpin, Alton "Ace Capone" Coles, and thus the conviction on obstruction should be thrown out.
Durham had called a friend, former NBA star "Pooh" Richardson, just hours before a police raid on Coles' home and, according to Richardson's testimony, told him that authorities planned to take down Coles and Richardson's half-sister, Asya, who was Coles' live-in girlfriend.
A few minutes later, Richardson called Asya and Coles to warn them that the police were coming.
But Assistant U.S. Attorney Mike Bresnick said in response that federal agents had testified at trial that Asya was a subject of the investigation and of the search warrants. (She was found guilty of two counts of money laundering during Coles' trial.)
In a one-page order Friday, Savage rejected Perri's argument to overturn Durham's conviction.
As a result of Savage's ruling, prosecutors said no further delay in sentencing was warranted.
In his letter to Savage on Thursday, Perri cited another reason for seeking the sentencing delay.
He said Durham's advisory sentencing-guideline range could not be established by the probation office because trial evidence proved that Durham was trying to warn only Asya Richardson, not Coles.
And because she has not yet been sentenced, Durham's sentencing should be postponed because his guideline range will depend on Richardson's range, Perri said. (Richardson is awaiting another judge's ruling on a post-trial motion to throw out her conviction.)
But Bresnick said in court papers that Perri's argument was "patently without merit" because jurors had "determined conclusively" that Durham had intended to obstruct the investigations of Richardson and Coles. Thus Durham's offense level was tied directly to Coles, who was sentenced last April to life plus 55 years. Durham has been been free on house arrest since the jury found him guilty last September of two counts of obstruction of justice and one count of lying to FBI agents.