UNITED STATES OF AMERICA v. JENNY ELIE (2024)

ORDER

This cause comes before the Court on Defendant Jenny Elie's Motion to Reduce Sentence to time served pursuant to 18 U.S.C § 3582(c)(1)(A)(i) under the amended policy statement in U.S.S.G. § 1B1.13, effective November 1, 2023. (Doc. 126). The Government responded (Doc. 131), Elie filed an authorized Reply (Doc. 134) and two Supplements listing recent in-circuit decisions supporting his position. (Docs. 136, 137). Elie has also filed multiple letters from family and friends in support of his compassionate release request attesting to his character. (Doc. 126, Attachments). The Motion is ripe for review.

The thrust of the Government's argument against Elie's sentence reduction is a legal one—that the Sentencing Commission exceeded its congressionally delegated authority by amending § 1B1.13 to allow district courts to reduce an “unusually long sentence,” if the defendant has served ten years and a change in the law has produced a “gross disparity” between the defendant's sentence and the one likely to be imposed at the time the motion is filed. The Court finds—as have all of the other district courts in this Circuit who have considered the point recently—that the Sentencing Commission did not exceed its authority in amending Subsection (b)(6) of § 1B1.13; and its application is limited to an extremely narrow set of defendants. Applied here, because Elie's “extraordinary and compelling” circumstances under Subsection (b)(6) merit a reduced sentence; his release would not endanger the community; and the § 3553 factors favor the reduction in sentence. Thus, Elie's Motion will be granted for the reasons explained in detail below.¹

I. BACKGROUND 2

On December 14, 2009, at age 25, Elie was sentenced to 32 years (384 months) and 1 day after pleading guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a) and two counts of use and carrying of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1), (3). (Docs. 1, 35, 37, 58). The charges stemmed from the armed robberies of two banks in a five-month period in late 2008, in which Elie and others stole more than $14,000. (Doc. 35 at 16-18).

At the time Elie was sentenced, § 924(c)(1) required district courts to impose a 25-year mandatory minimum consecutive sentence for any “second or subsequent conviction under [§ 924(c)].” 18 U.S.C. § 924(c)(1)(C) (2002). “The Supreme Court had interpreted the 25-year mandatory minimum as applying to second (and third, and fourth, and so on) § 924(c) convictions within a single prosecution.” United States v. Smith, 967 F.3d 1196, 1210 (11th Cir. 2020) (citing Deal v. United States, 508 U.S. 129, 131–32, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993)). As a result, this Court imposed the minimum 25-year consecutive sentence for the second § 924(c) conviction in addition to seven years for the first § 924(c) violation, consecutive to the 1 day imprisonment for the two bank robbery offenses. (Doc. 58 at 2). Elie's Co-Defendants (Bernard Benjamin and Eli Pierre) were sentenced to 85 months (7 years) for their participation in one of the bank robberies.

Elie is currently incarcerated at Miami FCI Lee in Miami, Florida, he is now 40 years old,³ and is projected to be released on February 12, 2036; he has served more than 15.5 years, or nearly half, of his 32-year sentence.⁴ (See Doc. 108-1).

Sentencing Guidelines, 2018 First Step Act, and Bryant Decision

District courts lack the inherent authority to modify criminal sentences but may do so when authorized by a statute or rule. United States v. Edwards, 997 F.3d 1115, 1118 (11th Cir. 2021). The Eleventh Circuit, in United States v. Bryant, described the rationale and statutory background leading to passage of the First Step Act. 996 F.3d 1243, 1248 (11th Cir. 2021). “For a long time, sentencing judges had nearly unbridled discretion, bound only by statutory minimums or maximums.” Id. at 1248 (citations omitted). “Parole boards also had discretion to release a prisoner after he had served as little as one third of his sentence ․ obscuring at sentencing the actual amount of time that the defendant would serve․ That system spawned drastic disparities and uncertainty in sentencing, which drove Congress to pass the Sentencing Reform Act of 1984” (“SRA”). Id. (citations omitted).

The SRA “sought uniformity and honesty in sentencing,” creating the U.S. Sentencing Commission and “delegate[ing] to it the power to create a comprehensive system of sentencing guidelines.” Id. at 1248-49 (citing Peugh v. United States, 569 U.S. 530, 535 (2013)). The SRA abolished the parole system and prohibited courts from “modify[ing] a term of imprisonment once it ha[d] been imposed,” with three narrow exceptions, including § 3582(c)(1)(A), which allows a court to reduce a term of imprisonment for “extraordinary and compelling reasons.” Id. at 1249 (citing 18 U.S.C. § 3582(c)). However, the SRA “did not put district courts in charge of determining what would qualify as extraordinary and compelling reasons that might justify reducing a prisoner's sentence.” Id. Instead, the SRA directed the Sentencing Commission to define “what should be considered extraordinary and compelling reasons for a sentence reduction, including the criteria to be applied and a list of specific examples” through “general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A).” Id. (citations omitted).

As the Eleventh Circuit described it, “[t]he only boundary the SRA placed on the Commission's definition was that ‘[r]ehabilitation ․ alone shall not be considered an extraordinary and compelling reason,’ ” and “it required district courts to follow that definition.” Id. (citations omitted). “[T]he SRA made clear that a district court cannot grant a motion for reduction if it would be inconsistent with the Commission's policy statement defining ‘extraordinary and compelling reasons.’ ” Id. (citing 18 U.S.C. § 3582(c)(1)(A)).

The Commission published its substantive definition of “extraordinary and compelling reasons” in 2007, listing four reasons: (i) a “terminal illness”; (ii) a “permanent physical or medical condition” or “deteriorating physical or mental health because of the aging process,” which “substantially diminishes the ability of the defendant to provide self-care” in prison; (iii) “death or incapacitation of the defendant's only family member capable of caring for” a minor child; and (iv) “[a]s determined by the Director of the Bureau of Prisons, ․ an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (i), (ii), and (iii)”; the policy statement also required that a defendant not be “a danger to society.” Id.; U.S.S.G. § 1B1.13 & cmt. n.1(A) (U.S. Sent'g Comm'n 2007). Courts were additionally required to consider the § 3553 factors. Id.

As the Eleventh Circuit noted in Bryant, previously only the BOP was allowed to file motions under § 3582(c)(1)(A), which it rarely did, and criticism of the “BOP's reticence” mounted. Id.⁵ In response to the criticism, the Commission conducted an “in-depth review,” held a public hearing, and revised § 1B1.13 in 2016 by expanding, reorganizing, and clarifying the four categories of “extraordinary and compelling” reasons. Id. (citing U.S.S.G. App. C, Amend. 799 at 132-33, 135 (eff. Nov. 1, 2016)). These categories included: the serious “medical condition of the defendant”; deterioration due to the “age of the defendant” of at least 65 years and having served 10 years or 75% of his sentence; certain “family circumstances”; and the catch-all “other reasons” category which remained unchanged. Id. at 1250 (citing U.S.S.G. § 1B1.13 cmt. n.1(A)-(D) (U.S. Sent'g Comm'n 2016).

Two years later, in 2018, Congress passed the First Step Act which “expanded who could file a motion for a reduction of sentence,” allowing a district court to grant a sentence reduction on the motion of the BOP Director or the defendant, after exhausting administrative rights to appeal or a lapse of 30 days. Id. at 1250 (citing First Step Act of 2018, Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (2018) (amending 18 U.S.C. § 3582)). The Commission lost its quorum in January 2019.

The First Step Act in 2018 also amended § 924(c)(1)(C) so that the 25-year mandatory consecutive minimum would no longer apply to multiple § 924(c) convictions resulting from a single prosecution. See United States v. Luster, No. 22-12062, 2024 WL 954469, at *2 (11th Cir. Jan. 9, 2024)⁶ (citing First Step Act of 2018 § 403(a), Pub. L. No. 115-391, 132 Stat. 5194, 5221–22); United States v. Smith, 967 F.3d 1196, 1210 (11th Cir. 2020)). Rather, the 25-year minimum would only apply when a defendant violated § 924(c) “after a prior conviction under this subsection ha[d] become final.” Luster, 2024 WL 954469, at *1 (citing 18 U.S.C. § 924(c)(1)(C)(i)). However, Congress did not make this amendment to § 924(c)’s stacking provision retroactive. Id. (citing First Step Act, § 403(b); Smith, 967 F.3d at 1210–13 (holding that § 403 does not apply retroactively)). Notwithstanding the lack of an explicitly retroactive change in the stacking under § 924(c), a significant number of district courts granted compassionate release under § 3582(c)(1)(A) to defendants who were sentenced to “excessively” long sentences under the catch-all “other reasons” category in the commentary to § 1B1.13 cmt. 1(D).⁷ See, e.g, United States v. Ogun, 657 F. Supp. 3d 798 (E.D. Va. Feb. 24, 2023) (reducing a sentence of 412 months to 205 months, finding defendant's “stacked” 924(c) offenses and substantial rehabilitation to be extraordinary and compelling).

While other circuit courts had held that 1B1.13's policy statement did not bind judicial discretion as to defendant-filed motions, the Eleventh Circuit decided in Bryant that district courts reviewing defendant-filed motions under § 3582(c)(1)(A) were “bound by the Sentencing Commission's policy statement.” 996 F.3d at 1247. “[A] court can reduce an otherwise final sentence for ‘extraordinary and compelling reasons,’ ” under Section 3582(c)(1)(A), “as long as the reduction is ‘consistent with applicable policy statements issued by the Sentencing Commission.’ ” Id. Bryant held that the “statute's procedural change”—allowing defendants instead of exclusively the BOP to file motions—did not change the “statute's or 1B1.13's substantive standards, specifically the definition of ‘extraordinary and compelling reasons’ and the ‘Commission's standards [were] still capable of being applied and relevant to all Section 3582(c)(1)(A) motions, whether filed by the BOP or a defendant.’ ” Id.

Under “the structure of the Guidelines, our [Circuit's] caselaw's interpretation of ‘applicable policy statement,’ and general canons of statutory interpretation all confirm that 1B1.13 is still an applicable policy statement for a Section 3582(c)(1)(A) motion, no matter who files it.” Id. The Eleventh Circuit then set forth “how district courts should apply that statement to motions filed under Section 3582(c)(1)(A)” while avoiding the suggested alteration from defendant that—as the Bryant court defined it—“would give [district] courts effectively unlimited discretion to grant or deny motions” under the “other reasons” catch-all provision.⁸ Id. at 1248. Instead, the court found that “1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A) motions” and the catch-all provision “d[id] not grant discretion to courts to develop ‘other reasons’ that might justify a reduction in a defendant's sentence.” Id.

Unlike in other Circuits, the Eleventh Circuit specifically held in Bryant that, as to those compassionate release motions filed prior to the November 1, 2023 Amendment to the policy statement (described in detail below), district courts were not authorized to consider the disparity in sentences based on the nonretroactive change in § 924(c) or any “other reasons” which were not outlined in the § 1B1.13 list of medical, age, and family circumstances ⁹ which qualified as sufficiently “extraordinary and compelling.” See, e.g., Luster, 2024 WL 954469, at *2 (affirming rejection of defendant's argument made in his April 2022 motion that “he would not be subject to a 25-year mandatory minimum if he were sentenced today” because the district court could not grant a reduction for reasons other than the medical, age, or family circumstances outlined in the commentary in § 1B1.13 at the time) (citing U.S.S.G. § 1B1.13, cmt. n.1(A)–(C) (Nov. 2021)). Cf. United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022) (holding district courts could consider a nonretroactive change in the law as an “extraordinary and compelling” reason for a sentence reduction although not specifically enumerated); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020) (same); United States v. Chen, 48 F.4th 1092 (9th Cir. 2022) (same); and United States v. Maumau, 993 F.3d 821 (10th Cir. 2021) (same); but see United States v. Andrews, 12 F.4th 255 (3d Cir. 2021) (holding non-retroactive change in law could not be a reason for sentence reduction); United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (same); United States v. King, 40 F.4th 594 (7th Cir. 2022) (same); United States v. Crandall, 25 F.4th 582 (8th Cir. 2022) (same); and United States v. Jenkins, 50 F.4th 1185 (D.C. Cir. 2022) (same).

Elie's 2020 Motion for Compassionate Release

Elie previously filed a Motion for Compassionate Release, which was fully briefed (Docs. 104, 106), requesting on December 30, 2020 that the Court reduce his sentence for “extraordinary and compelling” reasons pursuant to 18 U.S.C. § 3582(c)(1)(A), and arguing that his sentence based on the § 924(c) penalties was too harsh for a first-time offender. The Government opposed the relief in 2021, arguing that the First Step Act's 2018 amendment to the mandatory penalties for offenses under 18 U.S.C. § 924(c) did not constitute an “extraordinary and compelling” reason for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A); the relief sought was inconsistent with the Sentencing Reform Act's goals; and Elie would pose a danger to the community based on his conduct during the armed robberies. (Doc. 108).

The Court denied Elie's 2020 Motion based on the Eleventh Circuit's Bryant decision, but noted that if Elie presented an “extraordinary and compelling” reason consistent with (then-existing) Eleventh Circuit caselaw, he would be eligible to be resentenced to the currently prevailing minimum mandatory sentence of fourteen years:

Based on the Eleventh Circuit's ruling in Bryant, the Court has no independent authority to consider “extraordinary and compelling circumstances” that do not fall within the four circumstances delineated in the commentary to § 1B1.13. Defendant's Motion represents that he has had no major disciplinary infractions while incarcerated for more than 12 years in prison. (Doc. 108 at 15; Doc. 110). Defendant's commitment to vocational courses and employment while in prison (Doc. 110) is commendable. However, the Court cannot determine that any of Defendant's circumstances constitute an extraordinary and compelling reason for relief because the circumstances Defendant cites do not comply with the reasons set forth in the applicable policy statement. See Bryant, 996 F.3d at 1265 (“Because Bryant's motion does not fall within any of the reasons that 1B1.13 identifies as ‘extraordinary and compelling,’ the district court correctly denied his motion for a reduction of his sentence.”); United States v. Griffin, No. 20-12215, _ F. App'x _, 2021 WL 2179331 (11th Cir. May 28, 2021) (citing Bryant, 996 F.3d 1243) (finding that the defendant's argument, “anything can be considered as extraordinary and compelling reasons to justify a sentence reduction[,] ․ is foreclosed by [Eleventh Circuit] precedent.” (internal quotation marks omitted))․

The Court must also consider the applicable § 3553(a) factors. As explained above, the Court recognizes Defendant's rehabilitation efforts since his incarceration. At sentencing, the Court expressed concern about the severity of the mandatory minimum sentences for the “stacked” § 924(c) offenses in the case of a first-time offender like Defendant Elie:

After considering the advisory sentencing guidelines, the mandatory consecutive sentence required by statute and all the factors identified in Title 18, United States Code, Sections 3553(a)1 through 7, the Court finds – well, the Court can't find this the sentence is sufficient and not greater than necessary. But a mandatory consecutive sentence, my personal feeling is that it's a serious crime and that you should be punished harshly. But I think this is a little harsh under the circumstances for a first offender, even considering the victims in this case. But it's a mandatory consecutive sentence and Congress and the United States Attorney have determined that this is the sentence that you're going to get.

(Doc. 98 at 23). The Court offset the lengthy sentences for the firearm counts by reducing Defendant's sentences for the bank robbery counts to 1 day[.] Defendant seeks to have his sentence reduced to seven years each consistent with the current version of § 924(c) penalties, for a total of fourteen years, and leave the sentences for the bank robberies unchanged․ If Defendant had presented an “extraordinary and compelling” reason for relief consistent with the Eleventh Circuit's Bryant analysis, and the Court were to re-sentence Defendant today, he would be eligible to be resentenced to the minimum mandatory sentence of 14 years for the two stacked § 924(c) counts.

(Doc. 113 at 7-9, entered August 26, 2021 (emphasis added)).

Sentencing Commission's 2023 Modifications to Compassionate Release

The Sentencing Commission regained its quorum in August 2022, and on May 3, 2023, the Sentencing Commission submitted to Congress amendments to the Sentencing Guidelines, policy statements, and official commentary with an effective date of November 1, 2023. See 88 Fed. Reg. 28254, May 3, 2023 (Doc. 126-1). One amendment specifically updated § 1B1.13 in response to the First Step Act by revising § 1B1.13(a) to reflect that a defendant is now authorized to file a motion under 18 U.S.C. § 3582(c)(1)(A), making the policy statement applicable to both defendant-filed and BOP-filed motions. 88 Fed. Reg. 28256-57. The amended version of § 1B1.13 also expressly added new grounds for relief under 18 U.S.C. § 3582(c)(1)(A)(i) in response to the First Step Act. See U.S. Sentencing Commission, Adopted Amendments (eff. November 1, 2023) (Doc. 126-1). The amendments added a new category in the guideline text for “Unusually Long Sentence[s],” which may qualify as extraordinary and compelling where, among other things,¹⁰ “a change in the law ․ would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.” U.S.S.G. § 1B1.13(b)(6) (Nov. 2023).

Elie's Post-Amendment Compassionate Release Motion

Immediately following the effective date of the Amendment to § 1B1.13, Elie filed his Motion to Reduce Sentence to time served pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) based on “extraordinary and compelling reasons.” (Doc. 126). The Government filed a Response in Opposition (Doc. 131) on December 18, 2023. On January 5, 2024, Elie filed a Reply (Doc. 134) and, in the following weeks, Supplements to the Reply identifying recent district court cases on point (Docs. 136, 137).

II. LEGAL STANDARD

The compassionate release statute outlines the procedure and factors to be considered before a court may grant compassionate release:

The court may not modify a term of imprisonment once it has been imposed except that—

(1) in any case—

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment ․

18 U.S.C. § 3582(c).

Before the Court may modify a defendant's sentence, it must: (1) determine that the defendant has fully exhausted all administrative rights; (2) find that extraordinary and compelling reasons—as defined in the Sentencing Commission's policy statement—warrant the reduction; and (3) consider the § 3553(a) factors. Id.; see Bryant, 996 F.3d at 1248; United States v. Johnson, 849 F. App'x 908 (11th Cir. 2021) (citing Bryant, 996 F.3d at 1262–64). The defendant “bears the burden of proving entitlement to relief” under § 3582(c)(1)(A). United States v. Kannell, 834 F. App'x 566, 567 (11th Cir. 2021) (citation omitted).

The Sentencing Commission's policy statement for 18 U.S.C. § 3582(c)(1)(A) is found in U.S.S.G. § 1B1.13. See Bryant, 996 F.3d at 1248. The Commission's policy statement in § 1B1.13 defining “extraordinary and compelling reasons” binds district courts. Id. at 1249-50. To apply U.S.S.G. § 1B1.13, “a court simply considers a defendant's specific circumstances, decides if he is dangerous,¹¹ and determines if his circumstances meet any of the reasons that could make him eligible for a reduction.” Id. at 1254. If the court determines that the defendant is not dangerous and his circumstances fit into an approved category, then the defendant “is eligible, and the court moves on to consider the [§] 3553(a) factors in evaluating whether a reduction should be granted.” Id.

The policy statement identifies the circumstances that could make a defendant eligible for a reduction as categories of “extraordinary and compelling” reasons, “one of which the defendant must fit to be eligible for relief.” Id. This three-step analysis has not materially changed with the revisions in November 2023 Amendments to § 1B1.13, except that the categories of “extraordinary and compelling” reasons for relief have been modified and expanded. See, e.g., United States v. Ware, _ F. Supp. 3d _, 2024 WL 1007427, at *3 (N.D. Ga March 6, 2024).

The Sentencing Commission's 2023 Amendment moved the description of the “permissible bases for a reduction” from the commentary to the policy statement of U.S.S.G. § 1B1.13. See Amendment to the Sentencing Guidelines at 2 (Doc. 126-1). The amended policy statement retains the text of the original four “extraordinary and compelling reasons,” with some modification, and includes two new sections:

(b) Extraordinary And Compelling Reasons.—Extraordinary and compelling reasons exist under any of the following circumstances or a combination thereof:

(1) Medical Circumstances of the Defendant.

(A) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end-of-life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(B) The defendant is—

(i) suffering from a serious physical or medical condition,

(ii) suffering from a serious functional or cognitive impairment, or

(iii) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

(C) The defendant is suffering from a medical condition that requires long-term or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death.

(D) The defendant presents the following circumstances—

(i) the defendant is housed at a correctional facility affected or at imminent risk of being affected by (I) an ongoing outbreak of infectious disease, or (II) an ongoing public health emergency declared by the appropriate federal, state, or local authority;

(ii) due to personal health risk factors and custodial status, the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or the ongoing public health emergency described in clause (i); and

(iii) such risk cannot be adequately mitigated in a timely manner.

(2) Age of the Defendant.—The defendant (A) is at least 65 years old; (B) is experiencing a serious deterioration in physical or mental health because of the aging process; and (C) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

(3) Family Circumstances of the Defendant.—

(A) The death or incapacitation of the caregiver of the defendant's minor child or the defendant's child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition.

(B) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.

(C) The incapacitation of the defendant's parent when the defendant would be the only available caregiver for the parent.

(D) The defendant establishes that circumstances similar to those listed in paragraphs (3)(A) through (3)(C) exist involving any other immediate family member or an individual whose relationship with the defendant is similar in kind to that of an immediate family member, when the defendant would be the only available caregiver for such family member or individual. For purposes of this provision, “immediate family member” refers to any of the individuals listed in paragraphs (3)(A) through (3)(C) as well as a grandchild, grandparent, or sibling of the defendant.

(4) Victim of Abuse.—The defendant, while in custody serving the term of imprisonment sought to be reduced, was a victim of:

(A) sexual abuse involving a “sexual act,” as defined in 18 U.S.C. § 2246(2) (including the conduct described in 18 U.S.C. § 2246(2)(D) regardless of the age of the victim); or

(B) physical abuse resulting in “serious bodily injury,” as defined in the Commentary to § 1B1.1 (Application Instructions);

that was committed by, or at the direction of, a correctional officer, an employee or contractor of the Bureau of Prisons, or any other individual who had custody or control over the defendant.

For purposes of this provision, the misconduct must be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding, unless such proceedings are unduly delayed or the defendant is in imminent danger.

(5) Other Reasons.—The defendant presents any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1) through (4), are similar in gravity to those described in paragraphs (1) through (4).

(6) Unusually Long Sentence.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances.

U.S.S.G. § 1B1.13(b)(5)-(6).

Subsection (b)(6) expressly provides the only circumstance for which a nonretroactive change in law can be considered as part of an “extraordinary and compelling” reason for compassionate release. See id. § 1B1.13(c). A defendant's rehabilitation is not, by itself, an extraordinary and compelling reason that may justify a sentence reduction. 28 U.S.C. § 994(t); USSG § 1B1.13(d). A court may, however, consider a defendant's rehabilitation while serving his sentence in combination with other circumstances in determining whether and to what extent a reduction is warranted. Id. § 1B1.13(d).

If the court finds that the defendant's release would not be a danger to the community and that “extraordinary and compelling” reasons exist, the court must consider whether the § 3553(a) factors weigh in favor of release. Specifically, the court must consider: “the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendant.” United States v. Laureti, No. 20-10994, 859 F. App'x 490, 2021 WL 2396205, at *1 (11th Cir. June 11, 2021) (citing 18 U.S.C. § 3553(a)(1)-(2)).

III. APPLICATION

Exhaustion of Administrative Rights

It is undisputed that Elie has exhausted his administrative rights. He sought a sentence reduction on August 29, 2023 (Doc. 126 at 6). More than thirty days passed since the BOP's receipt of his application before Elie filed his Motion, and the BOP declined to file a motion on Elie's behalf. (Id.). The Government does not dispute (Doc. 131 at 3) that the Court may consider Elie's Motion on the merits. 18 U.S.C. § 3582(c)(1)(A); see United States v. Harris, 989 F.3d 908, 910-11 (11th Cir. 2021).

Not A Danger to the Community and § 3553 Factors

The court must determine that the “defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2)(2). These factors in § 3142(g) include: (1) the nature and circumstances of the offense, (2) the weight of the evidence, (3) the history and characteristics of the person, and (4) the nature and seriousness of the danger posed by Defendant's release. 18 U.S.C. § 3142(g)(1)–(4); see also United States v. Vigil, 3:09-cr-322-J-32PDB, 2020 WL 6044561, at *6–7 (M.D. Fla. Oct. 13, 2020) (granting compassionate release to “repeat bank robber” based on lack of danger to community in assessing the defendant's older age, rehabilitation, remorsefulness, educational coursework, decade of sobriety, and lack of discipline record); cf. Pepper v. United States, 562 U.S. 476, 492 (2011) (court may consider evidence of the defendant's post sentencing rehabilitation at resentencing if his sentence is set aside on appeal and such evidence is highly relevant to several § 3553(a) factors).

The Court finds that Elie, now 40 years old and having served 15 years of his sentence, is not a “danger to the community.” As it did in response to Elie's 2021 Motion, the Government again argues that Elie is a danger to the community based solely on his conduct during the robberies—in spite of the Court's clear rejection of the same arguments the Government asserted three years ago regarding Elie's 2008 offenses. The Government again points to Elie's conduct during the 2008 bank robberies, when he showed a handgun the teller as he demanded money and forced a bank employee to the ground at gunpoint, in the course of stealing $14,938 during the two robberies. (Presentence Investigation Report (“PSR”)¹² at ¶¶ 8, 10-11). Elie's offenses involved a firearm which presented a serious danger to the community (although he contended that it was unloaded at the robbery), and the evidence against him was compelling, leading to his guilty plea. (PSR ¶¶ 5, 9, 14).

Despite the facts surrounding Elie's offenses, however, the Court determines that Elie's lack of a prior criminal history, his current age (40 years old), the BOP's scoring of his low recidivism risk, and his commendable prison record since 2009 support a conclusion that he no longer presents a danger to society.

The Court previously considered the applicable § 3553(a) factors in deciding Elie's 2020 Motion and found, based on Elie's rehabilitation efforts since his incarceration, and the § 3553(a) factors, that “[i]f Defendant had presented an ‘extraordinary and compelling’ reason for relief consistent with the Eleventh Circuit's Bryant analysis ․ he would be eligible to be resentenced to the minimum mandatory sentence of 14 years for the two stacked § 924(c) counts.” (Doc. 113 at 10).

As explained in the excerpt of the sentencing transcript above, the Court has expressed significant misgivings since Elie's original 2009 sentencing about the severity of the mandatory consecutive sentence for the “stacked” § 924(c) offenses in a case like his involving a first-time offender, and declined to find his sentence to be “sufficient and not greater than necessary,” but acknowledged at the time that “Congress and the United States Attorney have determined that this is the sentence” that Elie was “going to get.” (Doc. 98 at 23). The Court offset the mandatory consecutive firearm sentences by reducing Elie's sentences for the bank robbery counts to 1 day. (Id.).

At the time of Elie's sentencing in 2009, the undersigned had been a federal judge for nearly twenty years and had sentenced hundreds of defendants for a variety of offenses; this experience is more extensive fifteen years later. As this Court acknowledged at the original sentencing, the armed robberies committed by Elie were “serious crime[s]” and Elie therefore deserved to be “punished harshly.” However, the undersigned specifically expressed deep concern in 2009 that imposing the 25-year consecutive mandatory sentence for Elie's second “stacked” firearm offense was “harsh under the circumstances for a first offender, even [when] considering the victims in this case.” (See Doc. 113 at 9 (emphasis added)). The Court's opinion on the matter has not changed. By 2018, Congress also recognized the harshness of the mandatory consecutive “stacked” sentences in § 924(c), which led it to significantly change the statute as part of the First Step Act, albeit without retroactive effect.

As Elie points out, prior to the bank robberies in May 2008, he had no history of violence or interactions with law enforcement, and following his arrest, he has shown remorse and accepted responsibility. (PSR ¶¶ 5, 20-21, 45-46 (accepted responsibility and expressed remorse)). As the Court noted previously (in 2021), Elie has had no major disciplinary “infractions while incarcerated” for (now) more than 15 years in prison and “his commitment to vocational courses and employment while in prison is commendable.” (Doc. 113 at 8 (citations omitted)). Prior to committing the bank robberies, Elie had graduated from high school and attended some college before dropping out due to being ineligible for financial aid. (PSR ¶ 55). He has spent time in prison preparing to earn his commercial driver's license, and, if released, he plans to become a commercial truck driver. (Doc. 126 at 6).

The Government's only relevant argument regarding whether Elie might currently present a danger to the community on release is that he received a disciplinary citation ¹³ in August 2022 for “assault without serious injury.” (Doc. 131 at 4). Elie explains in his Reply that the incident “involved [him] standing up to a notoriously troublesome inmate in his unit who was repeatedly antagonizing other inmates. They were both disciplined and are now on good terms, housed in the same unit” and the incident is not reflective of “the man he has grown into.” (Doc. 134 at 21). The Court is not persuaded that this single incident reflects Elie's otherwise non-violent record and significant efforts at rehabilitation.

Moreover, according to the BOP assessment, Elie's recidivism risk is low. (See Doc. 126-14, FSA Recidivism Risk Assessment). He has helped counsel other inmates at risk during his incarceration. (Doc. 126-15, Letter from Correctional Counselor Saiah-Quan Martin (“While incarcerated, Mr. Elie helped me counsel other inmates who were at risk ․ I know Mr. Elie to be dependable, responsible, honest, and courteous.”)). Other letters in support from long-time friends and family members reflect their opinions that Elie has served as a father figure to his younger brother and cousins who attribute their “success today” to his early influence and his mentorship. (Docs. 126-3 to 126-7; 126-11 to 126-13). They describe Elie as “possessing an admirable level of personal integrity” and “[d]espite facing challenges in the past, he has always maintained his sobriety.” (Id.).

The letters also describe Elie as having made a “grave” and “reckless” mistake, and having now “changed,” growing in faith and compassion, and making a positive impact on those around him. (Id.). Elie argues that this strong system of friends and family are in place to support him if he is released; his plan is to reside with his mother or his brother, who is a Lee County Sheriff's Deputy and sponsors a “Give Back Academy” to help kids stay on the “right path.” (Doc. 126-11).

These opinions have support in the record based on his lack of serious incidents during the fifteen-year period he has been incarcerated.

Parties’ Arguments Regarding “Extraordinary and Compelling” Relief

Elie seeks to have the Court reduce his sentence to time served pursuant to 18 U.S.C. § 3582(c)(1)(A) based on the “extraordinary and compelling reason” in § 1B1.13(b)(6) for “Unusually Long Sentences,” which became effective in November 2023.¹⁴ The Commission explained at length its reasoning for adding Subsection (b)(6):

[N]ew subsection (b)(6) ․ permits non-retroactive changes in law (other than non-retroactive amendments to the Guidelines Manual) to be considered extraordinary and compelling reasons warranting a sentence reduction, but only in narrowly circumscribed circumstances. Specifically, where (a) the defendant is serving an unusually long sentence; (b) the defendant has served at least ten years of the sentence; and (c) an intervening change in the law has produced a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, the change in law can qualify as an extraordinary and compelling reason after the court has fully considered the defendant's individualized circumstances.

One of the expressed purposes of section 3582(c)(1)(A) when it was enacted in 1984 was to provide a narrow avenue for judicial relief from unusually long sentences. S. REP. NO. 98–225 (1983). Having abolished parole in the interest of certainty in sentencing, Congress recognized the need for such judicial authority. In effect, it replaced opaque Parole Commission review of every federal sentence with a transparent, judicial authority to consider reducing only a narrow subset of sentences—those presenting “extraordinary and compelling” reasons for a reduction.

Subsections (b)(6) and (c) operate together to respond to a circuit split concerning when, if ever, non-retroactive changes in law may be considered as extraordinary and compelling reasons within the meaning of section 3582(c)(1)(A)․

The Commission considered whether the foregoing split among the circuit courts of appeals was properly addressed by the Commission, which typically resolves such disagreements when they relate to its guidelines or policy statements, see Braxton v. United States, 500 U.S. 344 (1991), or by the Supreme Court. In making that determination, the Commission was influenced by the fact that on several occasions the Department of Justice successfully opposed Supreme Court review of the issue on the ground that it should be addressed first by the Commission. See, e.g., Brief For the United States in Opposition to Grant of Certiorari, Jarvis v. United States, No. 21-568, 2021 WL 5864543 (U.S. Dec. 8, 2021); Memorandum For the United States in Opposition to Grant of Certiorari, Watford v. United States, No. 21-551, 2021 WL 5983234 (U.S. Dec. 15, 2021); Memorandum For the United States in Opposition to Grant of Certiorari, Williams v. United States, No. 21-767, 2022 WL 217947 (U.S. Jan. 24, 2022); Memorandum For the United States in Opposition to Grant of Certiorari, Thacker v. United States, No. 21-877, 2022 WL 467984 (U.S. Feb. 14, 2022).

The amendment agrees with the circuits that authorize a district court to consider nonretroactive changes in the law as extraordinary and compelling circumstances warranting a sentence reduction but adopts a tailored approach that narrowly limits that principle in multiple ways. First, it permits the consideration of such changes only in cases involving “unusually long sentences,” which the legislative history to the SRA expressly identified as a context in which sentence reduction authority is needed. See S. REP. NO. 98–225, at 55 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3238–39. (“The Committee believes that there may be unusual cases in which the eventual reduction in the length of a term of imprisonment is justified by changed circumstances. These would include cases of severe illness, cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence, and some cases in which the sentencing guidelines for the offense of which the defender [sic] was convicted have been later amended to prove a shorter term of imprisonment.”)). Second, the change in law itself may be considered an extraordinary and compelling reason only where it would produce a gross disparity between the length of the sentence being served and the sentence likely to be imposed at the time the motion is filed. Finally, to address administrative concerns raised by some commenters, the amendment limits the application of this provision to individuals who have served at least 10 years of the sentence the motion seeks to reduce. Commission data show that between fiscal year 2013 and fiscal year 2022, fewer than 12 percent (11.5%) of all offenders were sentenced to a term of imprisonment of ten years or longer.

Subsection (b)(6) excludes from consideration as extraordinary and compelling reasons warranting a reduction in sentence changes to the Guidelines Manual that the Commission has not made retroactive. Public comment requested that the Commission clarify the interaction between § 1B1.13 and § 1B1.10, and the Commission determined that excluding non-retroactive changes to the guidelines from consideration as extraordinary and compelling reasons was consistent with § 1B1.10 and the Supreme Court's decision in Dillon v. United States, 560 U.S. 817 (2010).

(Doc. 126-1 at 8-10 (Amendments to the Sentencing Guidelines, at 5-6 (April 27, 2023) (citations omitted)).

Parties’ Arguments Regarding the Validity of § 1B1.13(b)(6)

Elie argues that the Court should reduce his sentence to time served based on the “extraordinary and compelling” reason that he is serving an “usually long sentence”; he has served more than ten years of the sentence; and the intervening change in the law with the 2018 First Step Act has produced a “gross disparity” between his 32-year sentence for two § 924(c) firearms offenses and the fourteen-year sentence that would be imposed today. (Doc. 126). He argues that a sentence reduced to time served would diminish the injustice that resulted from his stacked § 924(c) convictions, as numerous other district courts have recognized (pre-Amendment). (See Doc. 126-2 (listing District Courts That Have Granted Relief to Defendants with Excessively Long Sentences)).

Elie argues that his 32-year sentence is “unusually long” on its face because it is nearly four times longer than the length of the average sentence for robbery and nearly eight times the length of the average sentence for firearms offenses. (Doc. 126 at 10 (citing U.S. Sent'g Comm'n, 2022 Annual Report and Sourcebook of Federal Sentencing Statistics 64 (2022)). He cites to statistics from the Sentencing Commission reporting that, between 2013 and 2022, “fewer than 12 percent (11.5%) of all offenders were sentenced to a term of imprisonment of ten years or longer,” making Elie's sentence more than two decades longer than the sentences of more than 88% of all defendants sentenced in the last decade. (Doc. 125 at 15 (citing Doc. 126-1 at 10 (excerpted supra)). In his Reply, Elie points out that only 2.6% of sentences in the 2021 Fiscal Year were over 20 years, and (presumably) fewer were over 30 years, although the Commission does not break out sentences over 20 years.¹⁵

Although the Government disputes the validity of Subsection (b)(6), it does not dispute that Elie's fifteen years of incarceration qualifies under Subsection (b)(6)—because he meets the minimum time served of ten years—and if sentenced today for the firearm offenses, he would receive a sentence of fourteen years rather than his the 32-year sentence he received, an eighteen-year difference.

Elie persuasively argues that the eighteen-year difference reflects a “gross disparity,” and other district courts have held similar differences fit the description. See, e.g., United States v. Vanholten, No. 3:12-cr-96-RBD-MCR, 2023 WL 8357739, at *3 (M.D. Fla. Dec. 1, 2023) (holding twenty years is “[a] difference of a generation between the actual sentence and the sentence Mr. Vanholten would likely receive today [which] no doubt makes for a gross disparity.”); Ware, 2024 WL 1007427, at *3 (holding reduction in sentence for armed bank robbery offenses of 14 years if sentenced today was a gross disparity); United States v. Rahim, 535 F. Supp. 3d 1309, 1319 (N.D. Ga. 2021) (an eighteen-year difference was a gross disparity).

The Government focuses its entire argument regarding “extraordinary and compelling” on the validity of Subsection (b)(6). The Government argues, as it has in multiple other district court cases within the Eleventh Circuit, that the Sentencing Commission exceeded its authority to define “extraordinary and compelling” reasons for compassionate release in promulgating Subsection (b)(6). (Doc. 131 at 5 (“Although Congress has delegated broad authority to the Sentencing Commission, subsection (b)(6) is contrary to the text, structure, and purpose of 18 U.S.C. § 3582(c)(1)(A) and 28 U.S.C. § 994(a), and is invalid.”)). It argues that “[n]o reasonable interpretation” of extraordinary and compelling “can encompass nonretroactive or intervening changes in law,” and “[t]he majority of the circuits to have considered the issue” concluded that “an intervening change in the law is neither extraordinary nor compelling.” (Id. at 6 (citing cases)).

Elie counters that the Government mischaracterizes the holdings of Circuits outside the Eleventh – “[a]ll other circuits that addressed the issue concluded that the then-existing policy statement was not applicable to inmate-filed motions, but they split on whether courts could consider unusually long sentences when intervening changes in the law would produce much lower sentences today. Five circuits held that they could, while six disagreed, reasoning that, in the absence of an applicable policy statement from the Commission governing inmate-filed motions, sentence length and non-retroactive changes to sentencing law were not valid bases for relief.” (Doc. 134 at 7 (citing cases)). The Government, Elie contends, overstates the holdings of those cases as finding as a matter of law that the Commission could not provide the guidance in § 1B.1(b)(6), when all of those decisions were made to fill a gap until the Commission could regain its quorum and amend § 1B.1.13. (Id. at 5 n.4 (citing, e.g., United States v. Andrews, 12 F.4th 255, 259 n.4 (3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022) (“[T]he Commission has not yet promulgated a post–First Step Act policy statement describing what should be extraordinary and compelling in the context of prisoner-initiated motions ․ that temporary anomaly does not authorize this Court to effectively update the Commission's extant policy statement”)).

Elie responds that the Government's position now contradicts its pre-Amendment position ¹⁶ on the Sentencing Commission's authority before the Supreme Court, and that substantively the Commission has not exceeded the authority delegated to it by Congress. (Doc. 134 at 8-9). He contends that Subsection (b)(6) is “the product of a reasoned and carefully explained decision by the Commission to ‘describe what should be considered extraordinary and compelling reasons” for a sentence reduction under (c)(1)(A) and to set forth “the criteria to be applied and a list of specific examples.’ ” (Id. at 9 (citing 28 U.S.C. § 944(t)). Elie also contends that the recent amendments to Subsection (b)(6), like all amendments to all of the Commission's policy statements, were submitted to Congress for its approval, and the lack of congressional action to amend or override Subsection (b)(6) indicates “implicit approval” by Congress.

The Government argues that Congress made the deliberate choice not to apply the § 924(c) amendment to defendants who were sentenced before the First Step Act's enactment, adhering to the “ordinary practice” in “federal sentencing” of “apply[ing] new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.” (Doc. 131 at 8 (quoting Dorsey v. United States, 567 U.S. 260, 280 (2012)). Therefore, the Government argues, there was nothing extraordinary or compelling about the fact that defendant's sentence reflects the statutory penalty that existed at the time he was sentenced and “[a]ny disparity between defendant's sentence and the sentence he would receive today is the product of deliberate congressional design.” (Id.).

The Government also contends that to recognize intervening changes in law as “extraordinary or compelling” would undermine the SRA because § 3582(c)(1)(A) was enacted as a narrow “safety valve” for “unusual cases in which an eventual reduction in the length of a term of imprisonment is justified by changed circumstances.” (Id. at 13 (citing Senate Report at 55, 121)). The Government argues that Congress anticipated such “justification[s] for reducing a term of imprisonment” would arise in a “relatively small number” of cases, and specifically identified severe or terminal illness as the archetype of “extraordinary and compelling circumstances” that would justify reducing a sentence. (Id. (citing Senate Report at 55-56, 121)). Allowing sentence reductions now, the Government contends, for “an unusually long sentence” would “effectively reproduce the indeterminate system the [SRA] sought to eliminate” because judges will implement “divergent views concerning the fairness” compared to the new sentencing scheme or the “gross disparity” comparison to the old scheme. (Id.). It argues that Congress's failure to reject the Commission's Amendment does not demonstrate congressional “acquiescence” in Subsection (b)(6). Finally, the Government argues that Subsection (b)(6) is in tension with general separation-of-powers principles because it contravenes Congress's decision declining to allow retroactive application of changes in the law.

Elie argues that Congress's decision not to make the amendment to § 924(c) categorically retroactive did not foreclose relief under generally available provisions, like § 3582(c)(1)(A), to a narrower range of defendants serving “stacked” § 924(c) sentences. (Doc. 134 at 12 (quoting McCoy, 981 F.3d at 286–87) (“As multiple district courts have explained, there is a significant difference between automatic vacatur and resentencing of an entire class of sentences—with its “avalanche of applications and inevitable re-sentencings,” ․ and allowing for the provision of individual relief in the most grievous cases.”)).

Elie points to the Sentencing Commission's statement that Congress in enacting § 3582(c)(1)(A) specifically intended the sentence reduction authority to extend to “unusually long sentences,” and Subsection (b)(6) is explicitly directed only at that already narrow slice of cases—limited to defendants who have served 10 years where the change in law has produced a “gross disparity”—a rare combination that will not apply to a significant number of inmates. (Id. at 14 (citing Doc. 126-1 at 9)). Moreover, Elie argues, his “excessive sentence was the government's design, not Congress's” and “[t]he draconian 25-year sentences for stacked 924(c) counts were never automatic” but applied only when the Government “chose to invoke them.” (Id. at 16-17 & n.13).

In his Reply, Elie points to data collected by the Sentencing Commission in a series of Reports ¹⁷ showing that the Government charged Black defendants with multiple § 924(c) counts more often, resulting in a disparate impact among those who received “stacked” § 924(c) sentences. (Doc. 134 at 15-16). Elie cites the Sentencing Commission's 2004 report considering fifteen years of guidelines sentencing, in which the Commission stated that Black defendants had disproportionately received such sentences for decades, and these “racial differences created an impression of unfairness and unwarranted disparity.” (Id. at 17 (citing Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, U.S. Sent. Comm'n at 90 (2004)¹⁸ ). Elie also points to the Sentencing Commission's subsequent 2011 Report to Congress in which the Commission observed that § 924(c) stacking continued to be applied disproportionately against Black offenders and recommended that Congress amend § 924(c) to remedy those “excessively severe” sentences that stacking produces. (Id. at 17-18 (citing 2011 Report To The Congress: Mandatory Minimum Penalties in The Federal Criminal Justice System, U.S. Sent. Comm'n at 363 (2011)¹⁹ ). Elie cites Sentencing Commission's Report in 2018—the same year Congress enacted the First Step Act—showing that Black men remained overrepresented in the § 924(c) caseload generally (at 52.6%) and represented 70.5% of defendants who received “stacked” sentences under the statute. (Id. at 18 (citing Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System, U.S. Sent. Comm'n at 24 (2018)²⁰ ). In the First Step Act, Congress amended § 924(c) so that that the 25-year mandatory minimum did not apply to multiple § 924(c) convictions resulting from a single prosecution. Luster, 2024 WL 95469 at *1; Smith, 967 F.3d at 1210.

Validity of § 1B1.13(b)(6)—“Unusually Long Sentences”

Congress did not define in § 3582(c)(1)(A) “what should be considered extraordinary and compelling reasons for sentence reduction,” instead leaving the Commission to fill in the gap with “the criteria to be applied and a list of specific examples.” Sentencing Reform Act of 1984, Pub. L. 98-473, § 217(a), 98 Stat. 1987, 2023 (1984) (codified at 28 U.S.C. §§ 994(a)(2)(C), (t)). The SRA's delegation section calls for a policy statement “that in the view of the Commission would further the purposes [of sentencing] set forth in [§] 3553(a)(2), including the appropriate use of ․ [§] 3582(c).” 28 U.S.C. § 994(a)(2)(C).

Congress “gave the Commission a ‘substantial role’ in sentence-modification proceedings by directing it to define the circumstances that justify a reduced sentence.” Bryant, 996 F.3d at 1257 (citation omitted). The plain language highlights Congress's desire for the Commission to have significant discretion in determining “the appropriate use of” § 3582(c)(1)(A). See United States v. Colon, 707 F.3d 1255, 1259 (11th Cir. 2013) (interpreting § 994(a)(2)(C)). “The only boundary the SRA placed on the Commission's definition was that ‘[r]ehabilitation ․ alone shall not be considered an extraordinary and compelling reason.’ ” Bryant, 996 F.3d at 1249 (quoting 28 U.S.C. § 994(t)). “And it required district courts to follow that definition.” Id. (citing 18 U.S.C. § 3582(c)(1)(A); Dillon v. United States, 560 U.S. 817, 826–27, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010)).

At least six other district courts within the Eleventh Circuit have carefully considered the Government's verbatim arguments challenging the validity of Subsection (b)(6) reductions of § 924(c) stacked charges and found these same arguments unavailing. See United States v. Cousins, No. 1:92-CR-250-MHC, 2024 WL 1516121, at *4-*5 (N.D. Ga. Apr. 4, 2024) (reducing 74-year “stacked” sentence for armed bank robberies to time served of 32 years, rejecting “the Government's argument that the Commission's adoption of U.S.S.G. § 1B1.13(b)(6) is invalid,” noting “the Eleventh Circuit has made it abundantly clear that this Court is bound to apply U.S.S.G. § 1B1.13 [(b)(6)]” because it “is an applicable policy statement that governs all motions under Section 3582(c)(1)(A)).”); see also United States v. Harper, No. CV 1:04-CR-00218-SDG, 2024 WL 1053547, at *4 (N.D. Ga. Mar. 11, 2024) (reducing 87-year sentence with § 924(c) stacking to time served of 19 years for three bank robberies); United States v. Colley, No. 2:94-cr-7-RWS, 2024 WL 1516128, (N.D. Ga. Mar. 26, 2024) (reducing 60-year sentence for four armed robberies, including 45 years for three “stacked” § 924(c) convictions, to time served of 30 years); United States v. Smith, No. 4:99-CR-66-RH-MAF, 2024 WL 885045, at *2-*3 (N.D. Fla. Feb. 20, 2024) (reducing 92-year sentence with “stacked” § 924(c) offenses to time served of 28 years for four armed robberies); cf. United States v. Allen, No. 1:09-CR-310, _ F. Supp.3d _, 2024 WL 631609, at *5 (N.D. Ga. Feb. 12, 2024) (modifying life sentence based on § 851 sentencing enhancements, which no longer would apply to his previous convictions, for defendant who had already served 12 years for drug-related crimes); United States v. Padgett, No. 5:06-cr-00013-RH-GRJ, 2024 WL 676767, at *1–2, 7 (N.D. Fl. Jan. 30, 2024) (reducing sentence of life plus five years to time served of 18 years where the defendant's prior simple-possession convictions would not qualify as or “violent” or “serious drug offenses” and his sentence would be 15 years under current guidelines, finding “§ 1B1.13(b)(6) is valid” and “[n]othing about the word ‘extraordinary’ suggests it could not apply to an unusually long sentence or an unusual temporal disparity—a disparity caused by an otherwise nonretroactive change in the law.”).

In a seventh case, very similar to Elie's, with the § 924(c) stacking issue that led to a 55-year sentence, Judge Jones of the Northern District of Georgia recently found in considering the same validity arguments: “[a]s far as the case law is concerned, for this specific question” of whether the Commission's addition of Subsection (b)(6) was an “overreach” of Congress's “delegated authority,” the court “finds little by way of binding authority.” United States v. Ware, _F.Supp.3d _, 2024 WL 1007427, at *5 (N.D. Ga. March 6, 2024). He summarized the little persuasive case law that exists in this Circuit:

Since the 2023 amendments, at least one sister district court in the Northern District of Georgia has rejected the Government's arguments. See United States v. Allen, _ F. Supp. 3d _, No. 1:09-CR-320-TCB, 2024 WL 631609, at *5 (N.D. Ga. Feb. 12, 2024). In Allen, the Court specifically relied on the fact that the Eleventh Circuit had not addressed whether a nonretroactive change in law could ever be an extraordinary and compelling reason for compassionate release and that the statute itself does not prohibit the Sentencing Commission's interpretation. Id. Other district courts within the Eleventh Circuit have agreed. See United States v. Padgett, No. 5:06-cr-13-RH (N.D. Fla. Jan. 31, 2024), ECF No. 162 (holding that it was the Sentencing Commission's “primary responsibility” to define extraordinary and compelling in the light of prior Supreme Court and Eleventh Circuit precedents and that Section 1B1.13(b)(6) did so without overreach).

* * *

Allen is correct that the Eleventh Circuit has not outright rejected nonretroactive changes of law as an extraordinary or compelling reasons for release under 18 U.S.C. § 3582(c)(1)(A). This omission is not surprising given that prior to the November 2023 amendments, the Eleventh Circuit's Bryant decision precluded consideration of any reason for compassionate release beyond the reasons articulated in the sentencing guidelines by the Sentencing Commission itself. Accordingly, unlike district courts in circuits with pre amendment case law on the issue, this Court is subject to no binding authority for its consideration of the legal issue instantly presented.

The Court does, however, consider all the Eleventh Circuit's aforementioned admonishments regarding the strong deference to be afforded the Sentencing Commission in issuing its policy statements. See, e.g., Bryant, 996 F.3d at 1255 (holding that defining the circumstances for sentencing modifications “is not a task that the statute allocates to courts” and that while Congress allows a court discretion in determining if a sentence should be reduced, it “tasked [the Sentencing Commission] with defining the universe of ‘extraordinary and compelling circumstances’ that can justify a reduction”). Indeed, the Government itself relied on these statements of deference prior to the Sentencing Commission's amendments. Doc. No. [83], 3–5 (collecting examples). Thus, the Court will proceed by affording strong deference to the Sentencing Commission's statutorily promulgated interpretation of extraordinary and compelling reasons.

Ware, 2024 WL 1007427, at *5-*6. This Court agrees with Judge Jones's rejection of the Government's argument that, “as a textual matter, nonretroactive changes in law are neither ‘extraordinary’ nor ‘compelling’ and thus cannot be a basis for compassionate release, based on the Sixth Circuit's decision in United States v. McCall, 56 F.4th 1048, 1055 (6th Cir. 2022)—the same argument it makes in Elie’s case—that “extraordinary” should be understood “to mean ‘most unusual,’ ‘far from common,’ and ‘having little or no precedent.’ ” (Doc. 131 at 8). To the contrary, “the federal Courts of Appeals’ different interpretations of these terms in the context of nonretroactive changes in law lends to a conclusion that they are ambiguous,” and “in the light of the Eleventh Circuit's strong statements regarding Congress's deferential delegation to the Sentencing Commission's interpretation of Section 3582 ․ strong deference ought to be afforded to the Sentencing Commission's reasonable interpretation.” Ware, 2024 WL 1007427, at *6.

As to the Government's argument that the Sentencing Commission's allowance of modification of sentences for nonretroactive changes in criminal penalties contravenes the intent of Congress, the argument is rejected. Subsection (b)(6) does not override congressional intent. “The Sentencing Commission clearly defines Section 1B1.13(b) (6) not in reference to a nonretroactive change in law, but to ‘an unusually long sentence’ ” for a defendant who has completed 10 years of it. Id. “The Sentencing Commission specified that as a part of this consideration, a court can look to any changes in law that have created a ‘gross’ sentencing disparity,” and did not declare that all changes in criminal penalty provisions create unusually long sentences—rather, a court's consideration of the nonretroactive change in law is a “measuring stick for the Court to use to determine if the sentence defendant is serving is, in fact, unusually long.” Id. The ultimate determination must be based on the defendant's individualized circumstances after other prerequisites have been satisfied. Id. “[T]he Court has the discretion to determine if an unusually long sentence (such as, but not limited to, if a change in law later created a “gross disparity” between the defendant's sentence and a similarly situated defendant in the present day) can be modified. This interpretation of extraordinary and compelling reasons does not contravene Congress's intent.” Id.

In addition, “while the finality of sentences is an important principle, § 3582(c)(1)(A) represents Congress's judgment that the generic interest in finality must give way in certain individual cases” to be determined by the Commission. McCoy, 981 F.3d at 287. It serves the important purpose of providing “a ‘safety valve’ that allows for sentence reductions when there is not a specific statute that already affords relief but ‘extraordinary and compelling reasons’ nevertheless justify a reduction.” Id.

Subsection (b)(6) extends a case-by-case review of sentences to a narrow class of inmates. Prior to the First Step Act, only about 150 offenders annually received stacked § 924(c) mandatory minimum sentences, only about 250 offenders annually received § 851 enhanced mandatory minimum sentences. Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal System, U.S. Sent'g Comm'n at 19 (Mar. 2018); Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Drug Trafficking Offenders, U.S. Sent'g Comm'n at 6 (July 2018).²¹ Together, these groups made up around 0.6% of total offenders until the First Step Act passed. Already a small number, even fewer could petition for sentence reduction under Subsection (b)(6), since offenders must have served at least 10 years of their sentence to be eligible for consideration. Extending the possibility of sentence reduction to fewer than one percent of total offenders does not jeopardize the expectation that prisoners will serve their full sentences. Subsection (b)(6) is therefore reasonable in light of the statute's structure, nature, purpose, and history.

IV. CONCLUSION

In this case, Elie has demonstrated “extraordinary and compelling” circumstances under Subsection (b)(6) which merit a reduction in his “unusually long sentence” to time served. Elie's release would not endanger the community, and the § 3553 factors favor the reduction in sentence. As Judge Hinkle said in reducing a 92-year sentence with four “stacked” armed robberies to time served of 28 years, the defendant “has served a substantial sentence, far longer than most individuals who commit similar offenses. He was age 24 at the time of the offenses. Those of us who impose sentences hope that sometimes they have the desired effect. As the government concedes, [his] behavior in the Bureau of Prisons, especially in recent years, has been commendable.” Smith, 2024 WL 885045, at *2-3. Elie was 25 when he committed the offenses and his rehabilitation—even when he faced incarceration of an additional 18 years until age 58—has been commendable. Elie's Motion to Reduce Sentence to time served will be granted as set forth below.

Based on the foregoing, it is ordered as follows:

1. Defendant's Motion for Compassionate Release (Doc. 126) is GRANTED and his sentence will be reduced to time served, not as of today, but as of 30 days from today.

2. The decision is STAYED for 30 days to allow the Bureau of Prisons and Probation Department time to implement an orderly transition plan and will afford the Government an opportunity, if it wishes, to appeal and seek a stay.

3. The Clerk is DIRECTED to file the Presentence Investigation Report dated December 2, 2009 under seal in the docket simultaneously with entry of this Order.

DONE and ORDERED in Chambers, Orlando, Florida on May 3, 2024.

FOOTNOTES

1.   The Court does not believe oral argument (see Doc. 126-16) would be beneficial.

3.   See http://www.bop.gov/inmateloc (visited April 18, 2024).

4.   Elie argues that the time he has served is the equivalent (considering good time) of an 18-year sentence. (Doc. 126 at 10).

5.   See Bryant, 996 F.3d at 1249 (citing U.S. Dep't of Justice: The Federal Bureau of Prisons’ Compassionate Release Program 11 (Apr. 2013) (“BOP [did] not properly manage the compassionate-release program, resulting in inmates who may be eligible candidates for release not being considered.”)).

6.   Unpublished opinions of the Eleventh Circuit constitute persuasive, and not binding, authority. See 11th Cir. R. 36-2 and I.O.P. 6. The case is cited for its general discussion of the “stacking” in § 924(c) and the 2023 Amendment to § 1B1.13.

7.   Elie cites a long list of district court cases—located in Circuits outside the Eleventh Circuit—granting relief to defendants with excessively long sentences, including based on § 924(c) stacking. (See Doc. 126-2).

8.   The “other reasons” provision was located at that time in Application Note 1(D) of U.S.S.G. § 1B1.13, cmt. n.1. A similar “catch-all” provision is now contained in amended § 1B1.13(b)(5).

9.   These provisions were located at that time in Application Note 1(A)–(C) of U.S.S.G. § 1B1.13, cmt. n.1 and are now contained in the amended version of § 1B1.13(b)(1)-(3).

10.   In addition, the amendment expanded the list of “extraordinary and compelling reasons” in § 1B1.13’s application notes by: (i) revising the “Medical Circumstances of the Defendant” subsection to include “medical circumstances not expressly identified in § 1B1.13 that were most often cited by courts in granting sentence reduction motions during the pandemic”; (ii) adding a new provision for cases in which a defendant's parent is incapacitated to the “Family Circumstances” subsection; (iii) and creating new subsections for defendants who have been victims of “sexual assault perpetrated by BOP personnel.” 88 Fed. Reg. 28257.

11.   The court must determine that the “defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2).

12.   The PSR will be filed under seal in the docket simultaneously with entry of this Order.

13.   The Government has not provided a citation to the records they mention, and they were not attached to its Response. (Doc. 131). However, Elie does not deny the incidents. He explains that the reprimand for “possessing a hazardous tool” in 2022 was for” possessing a phone, which he tried to use in a desperate attempt to speak with his sister while she was experiencing severe complications during the birth of her daughter.” (Doc. 134 at 18). Neither that citation nor “smoking in an unauthorized area” in 2020 could conceivably alter the Court's finding that Elie is not a danger to the community.

14.   To the extent that Elie also seeks relief under § 1B1.13(b)(5) alleging that his individualized circumstances amount to additional “extraordinary and compelling” reasons warranting a reduction of his sentence, the Court finds that it cannot consider such “other reasons” based on the holding in Bryant, 996 F.3d at 1262-65 (limiting the prior “catch-all” category to only the reasons articulated by the BOP based on the text of the policy statement at that time). At this time, Bryant remains binding on the district courts in this Circuit. See United States v. Ware, _ F. Supp.3d _, 2024 WL 1007427, at *3 n.5 (N.D. Ga. March 6, 2024) (“while there has not been much opportunity for case law to develop on the issue, it does appear that the new catch-all ‘Other Reasons’ category stands in contrast to the Eleventh Circuit's Bryant decision by allowing a district court discretion in determining if the circumstances of a motion ‘are similar in gravity to’ the other more specified extraordinary and compelling reasons permitted.”); see also United States v. Allen, 2024 WL 631609 n.2 (noting only the director of the BOP can determine which other circumstances fall within the catch-all provision) (citing Bryant, 996 F.3d at 1263-65).

15.   Fiscal Year 2021 Overview of Federal Criminal Cases, U.S. Sent. Comm'n at 9 (2021), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2022/FY21_Overview_Federal_Criminal_Cases.pdf.

16.   See, e.g., Doc. 134 at 8-9 (citing Br. for the United States in Opp'n at 2, Thacker v. United States (No. 21-877) (“[T]he Sentencing Commission could promulgate a new policy statement that deprives a decision by this Court of any practical significance.”); and other cases cited at nn.5 & 6)).

17.   Counsel for Elie is John Gleeson, Esq., former United States District Judge, who currently serves as a Commissioner on the Sentencing Commission and is acquainted with the Commission's Reports discussing statistical disparities.

18.   http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/15-year-study/15_year_study_full.pdf.

19.   The Commission's analysis of the geographic distribution of cases involving convictions of multiple section 924(c) counts for the fiscal year shortly after Elie was sentenced (October 1, 2009), showed concentrations in certain districts; the Middle District of Florida reported the third-highest number of cases nationally involving multiple convictions of section 924(c). See 2011 Report to Congress at 277. https://www.ussc.gov/research/congressional-reports/2011-report-congress-mandatory-minimum-penalties-federal-criminal-justice-system.

20.   https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publica tions/2018/20180315_Firearms-Mand-Min.pdf.

21.   See https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2018/20180315_Firearms-Mand-Min.pdf; and https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2018/20180712_851-Mand-Min.pdf.

ANNE C. CONWAY United States District Judge