UNITED STATES v. WARE (2024)

ORDER

This matter appears before the Court on Defendant's Motion for Reduction of Sentence under 18 U.S.C. § 3582(c)(1)(A), also known as a Motion for Compassionate Release.¹ Doc. No. [77]. The Government responded in opposition to Defendant's Motion, on solely legal grounds. Doc. No. [81]. For the following reasons, the Court GRANTS Defendant's Motion and reduces his sentence of imprisonment as further specified in this Order.

I. BACKGROUND

The Court first recounts the facts relevant to Defendant's compassionate release motion. It then briefly overviews the legal and procedural developments that have occurred since Defendant's sentencing.

A. Defendant's Criminal and Prison History

In 1996, Defendant, who was 28-years old at the time, robbed three Atlanta banks. PSR ¶ 11.² At each robbery he used a fake bomb and a handgun to threaten the teller and demanded money. Id. ¶¶ 11–23. The police were alerted to the third bank robbery and a high-speed chase ensued. Id. ¶¶ 11, 24–27. Eventually the chase came to an end, and Defendant was arrested. Id. ¶¶ 11, 28.

Each of the three armed bank robberies resulted in the Government charging Defendant under 18 U.S.C. §§ 2113(a), (d) (for bank robbery) and under 18 U.S.C. § 924(c) (for use of a firearm), for a total of six counts. PSR ¶¶ 1–7. Defendant pleaded guilty to the armed bank robbery and corresponding use of a firearm offenses for the third incident but proceeded to trial with regards to the other two incidents. Id. ¶¶ 8–9. Ultimately, a jury found him guilty on all four remaining counts. Id. ¶ 9.

At sentencing, the sentencing judge ³ imposed a sentence of 125 months incarceration for the three armed bank robbery charges, and a mandatory 45 year term (or 540 months) of incarceration for the three firearm charges. See SOR. Defendant's total prison sentence was just over 55 years (or 665 months). Id. Defendant has been in continuous custody since December 11, 1996. See PSR at 2. His current projected release date is September 6, 2044. Doc. No. [77-1], 7.

At the time of sentencing, Defendant's prior and pending criminal history involved a number of non-violent crimes (i.e., theft by taking, possession of stolen property, second-degree theft) between December 1993 and December 1995. PSR ¶¶ 66–72. In the first decade of his incarceration, Defendant also committed several disciplinary violations, including refusal to obey an order, attempt to engage in sexual acts, disruptive conduct, possession of unauthorized items, lying to an officer, and phone abuse. Doc. No. [77-3].

The Bureau of Prisons currently classifies Defendant as a low risk inmate. Doc. Nos. [77-10]; [77-4]. Defendant has a Bachelor of Science degree in Education from Georgia State University, which he received prior to committing his federal crimes. PSR ¶ 85. Since being in prison he has completed a number of additional educational programs, has become a well-regarded employee in the UNICOR program as a factory production and purchasing clerk, and even aided another inmate who was choking by giving him the Heimlich maneuver. Doc. Nos. [77-4]; [77-5]; [77-6]; [77-7]. A number of people who have known Defendant during his time in prison attest to his personal and spiritual growth. Doc. Nos. [77-7]; [77-8]; [77-9] Defendant corroborates these sentiments with a letter to the Court regarding his repentance over his prior crimes and his change of heart since being incarcerated. Doc. No. [77-11]. He is currently 55-years old.

B. Legal and Procedural Developments

At the time the sentencing judge sentenced Defendant, the three firearm convictions under carried a mandatory, consecutive sentence of 5 years, 20 years, and 20 years, respectively. 18 U.S.C. § 924(c)(1) (1996). Since then, Congress amended Section 924(c), and presently Defendant's convictions would carry a 21 year total term for the firearm offenses.⁴ Id. §§ 924(c)(1)(A)(ii) (2022) (imposing a 7 year mandatory minimum when a firearm is brandished), 924(c)(1)(C) (2022) (imposing a 25 year minimum for subsequent violations only if they occur “after a prior conviction ․ has become final”); 924(c)(4) (defining “brandish” as “to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.”). Congress expressly deemed the First Step Act's amendment to Section 924(c) nonretroactive. See First Step Act § 403(b), Pub. L. No. 115-391, 132 Stat. 5194, 5222; see also United States v. Nesbitt, No. 21-10109, 2021 WL 4947105, at *1 (11th Cir. Oct. 25, 2021) (“[T]he First Step Act amendment to § 924(c) was not made retroactively applicable[.]”).

While Defendant does not argue that the sentencing range for his armed bank robbery offenses has been amended since the time of his sentence, he does argue that the sentencing guidelines are no longer binding, but advisory. See generally United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Doc. No. [77], 3. Accordingly, the Court could vary its sentence of incarceration downward as low as 21 years, if it were sentencing Defendant today.

More recently, there have been significant legal developments for seeking modification of a sentence, namely under 18 U.S.C. § 3582(c)(1)(A) for compassionate release. This provision provides one of the limited exceptions to the finality of sentences imposed by allowing a court to reduce a prior sentence for “extraordinary and compelling reasons” (when other necessary showings have also been made, see Section (III)(B) supra). Id. § 3582(c)(1)(A)(i). Congress tasked the Federal Sentencing Commission with issuing “general policy statements” for the “appropriate use of” certain criminal provisions, such as Section 3582(c). 28 U.S.C. § 994(a)(2)(C). Thus, per congressional delegation, these general policy statements define what constitutes an “extraordinary and compelling reason[ ]” for compassionate release. See U.S.S.G. § 1B1.13(b).

In 2023, the Sentencing Commission's most recent amendments took effect. These amendments expanded the scope of “extraordinary and compelling reasons” to grant compassionate release to include “unusually long sentences,” when the defendant has already served 10 years of his or her sentence. As part this category, the Court can consider instances where a statutory amendment has changed a sentencing range to produce a “gross disparity.” U.S.S.G. § 1B1.13(b)(6). In fact, this subsection expressly provides the only circumstance where a nonretroactive change in law can be considered as part of an “extraordinary and compelling reason” for compassionate release. Id. § 1B1.13(c).

With these legal and procedural changes in effect, Defendant files his motion for compassionate release, asking the Court to reduce his sentence to time served and allow him to begin his supervised release term. See Doc. No. [77], 20.

II. LEGAL STANDARD

The First Step Act permits a defendant to directly file a motion for compassionate release with the Court that sentenced him if he has “fully exhausted all administrative rights to appeal a failure of the ․ BOP ․ to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of [his] facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). The Court can consider modifying a term of imprisonment under the First Step Act “after considering the factors set forth in section 3553(a), to the extent they are applicable,” if the court determines that “extraordinary and compelling reasons warrant the reduction ․ and such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id.

The Federal Sentencing Guidelines allow the Court to grant a reduction in sentence if (1) “[e]xtraordinary and compelling reasons warrant the reduction,” (2) “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),” and (3) “[t]he reduction is consistent with this policy statement.” U.S.S.G. §§ 1B1.13(1)(A), (2)–(3). The Court must also consider the factors in 18 U.S.C. § 3553(a), as they are ordinarily considered by a court when imposing a criminal sentence.

Effective November 1, 2023, the U.S. Sentencing Commission amended the guidelines to expand what qualifies as an “extraordinary and compelling reason[ ]” to warrant a reduction under 18 U.S.C. § 3582(c)(1)(A). These amendments now specify that a defendant may move for compassionate release based on his or her (1) medical circumstances (as specified), (2) age, (3) family circumstances (as specified), (4) victimization and abuse while in prison, (5) “[o]ther [r]easons” that “when considered ․ are similar in gravity” to the more specific reasons in subparts (1)–(4), and (6) unusually long sentence. U.S.S.G. § 1B1.13(b)(1)–(6). The Sentencing Commission is clear that compassionate release cannot be granted based on a defendant's rehabilitation alone. Id. § 1B1.13(d).

Prior to these amendments, the Eleventh Circuit had held that the only reasons available for compassionate release were those specified by the Sentencing Commission.⁵ United States v. Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021). Generally, the defendant bears the burden of establishing a sufficient basis for compassionate release. United States v. Aguilar, No. 4:12-CR-9-MLB, 2022 WL 1125385, at *2 (N.D. Ga. Apr. 15, 2022) (citing United States v. Jenkins, No. 1:08-CR-0209, 2021 WL 1311044, at *4 (N.D. Ga. Apr. 8, 2021)).

III. ANALYSIS

Defendant, through counsel, has moved for compassionate release in the light of the Sentencing Commission's November 2023 amendments, and specifically seeks release based on an “unusually long sentence” under U.S.S.G. § 1B1.13(b)(6). Doc. No. [77]. The Government opposes Defendant's motion on exclusively legal grounds. Doc. No. [81]. Specifically, the Government argues that the Sentencing Commission exceeded their delegated authority to define extraordinary and compelling reasons for compassionate release. Id. at 3. In the Government's view, the Sentencing Commission's amendment to U.S.S.G. § 1B1.13(b)—and specifically subsection (b)(6)—improperly overrides a congressional determination by allowing otherwise nonretroactive changes in criminal penalty statutes to be a basis for a modified sentence (i.e., through a compassionate release motion under 18 U.S.C. § 3582(c)(1)(A)). See generally Doc. No. [81]. Defendant counters that the Government's position contradicts its pre-amendment position on the Sentencing Commission's authority and that substantively the Commission has not exceeded its authority. Doc. No. [83]. This motion is ripe for the Court's review, and the Court proceeds (A) first by resolving the legal question presented by the Government's opposition response and (B) by determining if Defendant meets all the criteria for compassionate release.

A. The Sentencing Commission's Authority to Define Extraordinary and Compelling Reasons as Contained in Section 1B1.13(b)(6)

Under Section 1B1.13(b)(6), a defendant potentially qualifies for compassionate release if he or she “received an unusually long sentence” and “has served at least 10 years of the term of imprisonment.” As part of the consideration for an “unusually long sentence” the Court may consider “a change in the law [that has] produce[d] 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). Individualized circumstances of the defendant must also be considered. Id. This specific subsection provides the only circumstance in which a “change in the law” may be considered in a compassionate release filing. U.S.S.G. § 1B1.13(c).

Defendant moves for compassionate release under this subsection. Doc. No. [77], 1. The Government contends Defendant's motion must be denied because the Sentencing Commission exceeded its authority in promulgating the policy statement regarding unusually long sentences—arguing Section 1B1.13(b)(6) conflicts with the compassionate release statute, undermines the purpose of Congress's sentencing reforms that gave way to the compassionate release statute itself, and breaches separation-of-powers principles. See generally Doc. No. [81].

The question, at bottom, is one of authority. In passing 18 U.S.C. § 3582, Congress limited the circumstances in which a court could modify a criminal sentence previously imposed. As is relevant for the Court's current consideration, Congress only allowed modifications in “extraordinary and compelling” circumstances or when a retroactive amendment to a penalty provision had been ratified.⁶ 18 U.S.C. §§ 3582(c)(1)(A)(i), (c)(2).

Thereafter, Congress specifically delegated to the Sentencing Commission the authority to “promulgate ․ general policy statements” to assist courts in applying sentencing provisions” 28 U.S.C. § 994(a)(2)(C). This delegation included defining “the appropriate use of ․ the sentence modification provisions [in Section] 3582(c).” Id. More specifically in reference to the compassionate release provision, Congress directed the Sentencing Commission to “describe what should be considered extraordinary and compelling reasons for a sentence reduction, including the criteria to be applied and a list of specific examples.” Id. § 944(t). Congress was clear, however, that rehabilitation of the defendant alone is not to be considered an extraordinary and compelling reason to modify a sentence. Id.

The Eleventh Circuit interpreted this delegation to significantly “curtail judicial discretion” by “not only giv[ing] the Commission authority to issue policy statements governing sentence reductions, [but] actually requir[ing] the Commission to issue them.” Bryant, 996 F.3d at 1255 (quoting United States v. Colon, 707 F.3d 1255, 1259 (11th Cir. 2013) (second quote)). More specifically, defining extraordinary and compelling circumstances for sentencing modifications “is not a task that the statute allocates to courts.” Id. Congress allows for court discretion in determining if a sentence should be reduced, but “tasked [the Sentence Commission] with defining the universe of ‘extraordinary and compelling circumstances’ that can justify a reduction.”⁷ ,⁸ Id.

Of course, such a delegation is not boundless. Indeed, as part of the delegation itself, the general policy statements promulgated must be “consistent with all pertinent provisions of any Federal statute ․” 28 U.S.C. § 994(a). This qualifier means that in issuing these policy statements defining extraordinary and compelling circumstances, the Sentencing Commission “must bow to the specific directives of Congress.” United States v. Evanouskas, 386 F. App'x 882, 884 (11th Cir. 2010) (quoting United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997)).

Having established the statutory authority at issue and the delegation made to the Sentencing Commission, the Court must now look at what the Sentencing Commission did in reference to this delegation. In the November 2023 amendments, the Sentencing Commission defined a specific extraordinary and compelling circumstance to be an “unusually long sentence” when the defendant has completed at least 10 years of the imprisonment term imposed. U.S.S.G. § 1B1.13(b)(6). As part of determining if the sentence is “unusually long” the Sentencing Commission indicated that a court can consider any changes in law creating a “gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed[.]” Id. Again, this circumstance is expressly the only time a court can consider changes in law when looking at whether to modify a sentence. Id. § 1B1.13(c).

The Government now begs the question: do the Sentencing Commission's amendments to U.S.S.G. § 1B1.13(b)(6) overreach the delegated authority the Commission had from Congress? The Government primarily argues that the Sentencing Commission exceeded its authority based on: (1) case law finding that changes in law were not extraordinary or compelling, (2) a textual interpretation of the terms “extraordinary” or “compelling,” and (3) Congress's intent. The Court now addresses each of these contentions.

1. Eleventh Circuit Case Law

As far as the case law is concerned, for this specific question the Court finds little by way of binding authority. 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).

Across the country, other courts have disagreed. For example, a district court in the Northern District of Illinois held to the contrary because of prior Seventh Circuit law which “emphatic[ally]” held that nonretroactive changes in penalties were “ordinary, not extraordinary.” United States v. Black, No. 05 CR 70-4, 2024 WL 449940, at *9 (N.D. Ill. Feb. 6, 2024). In the Black court's view, per the pre-amendment precedent on the issue, the Sentencing Commission's definition of unusually long sentences was an unreasonable interpretation of extraordinary and compelling reasons for compassionate release, and hence the promulgation overreached its congressional delegation. Id.

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.

2. “Extraordinary” and “Compelling” Reasons

The Government also contends that as a textual matter, nonretroactive changes in law are neither extraordinary nor compelling, and thus cannot be a basis for compassionate release. Doc. No. [81], 11–13. The Government operates from the standpoint that “extraordinary” means “most unusual, far from common, and having little or no precedent,” and that a “compelling” reason necessarily is one that is “forcing, impelling, or driving.” Id. (internal quotations omitted) (alteration adopted) (quoting United States v. McCall, 56 F.4th 1048, 1055 (6th Cir. 2022)).

The Eleventh Circuit has not adopted the definitions of “extraordinary” and “compelling” that the Governments cites from the Sixth Circuit. Cf. Section (III)(A)(1) supra. Prior to the November 2023 amendments, moreover, other circuits and district courts have disagreed with the Sixth Circuit's reading of these terms.⁹ See, e.g., United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022); United States v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020); United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022); United States v. McGee, 992 F.3d 1035, 1047-48 (10th Cir. 2021). Thus the Court agrees with Defendant that 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.

This ambiguity in the light of the Eleventh Circuit's strong statements regarding Congress's deferential delegation to the Sentencing Commission's interpretation of Section 3582 compel the Court to reject the Government's argument. Changes in law are not precluded from being extraordinary and compelling reasons for compassionate release. It may be that the Government has a better interpretation of the terms “extraordinary” and “compelling” than the Sentencing Commission, but that is not the analysis the Court must do. Instead, the Court finds that these terms are ambiguous and thus strong deference ought to be afforded the Sentencing Commission reasonable interpretation.

3. Intent of Congress

The Court finally addresses the Government's arguments that the Sentencing Commission allowing modifications of sentences for nonretroactive changes in criminal penalties contravenes the congressional intent. Doc. No. [81], 13, 15–16. There are two subparts to the congressional intent arguments: first, that Congress determines whether a change in law is to be retroactive, and second, that Congress foreclosed nonretroactive changes in law in the compassionate release statute itself, 18 U.S.C. § 3582(c)(2). The Court disagrees with both.

To begin, the Sentencing Commission's promulgation here does not override Congress's determination that the First Step Act's amendment to Section 924(c) is nonretroactive. 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. Specifically, to meet the criteria for compassionate release under this provision, the defendant's sentence must be unusually long, and he or she must have completed 10 years of it. U.S.S.G. § 1B1.13(b)(6). 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. Id.

Thereby the Sentencing Commission did not declare that all changes in criminal penalty provisions create unusually long sentences under U.S.S.G § 1B1.13(b)(6) for compassionate release. Instead, the 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—it does not per se make a defendant eligible for compassionate release. Based on individualized circumstances and when other prerequisites have been satisfied, the 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.

Nor is Section 3582(c) itself adversely implicated by the Sentencing Commission's interpretation. Compassionate release's sister provision, 18 U.S.C. § 3582(c)(2), allows a retroactive change in law to reduce a sentence, as long as the individualized circumstances of a case support the reduction. The Government reads this alternative basis for modifying a sentence (i.e., based on a retroactive change in law) to be the exclusive manner in which a change in law can lead to a modified sentence. Doc. No. [81], 15–16. The Court, however, does not read the text of Section 3582(c)(2) to impose such an exclusive means of modifying a sentence based on a change in law. Congress clearly creates two separate exceptions for modifying sentences imposed: compassionate release and retroactive changes in law. 18 U.S.C. §§ 3582(c)(1)(i), 3582(c)(2). But Congress did not put any express limitation on these provisions to render them mutually exclusive. In fact, the only clearly imposed limit by Congress is that the contents of Section 3582 provide the only ways in which a Court can modify a sentence. Id. § 3582(c). Without further direction from Congress, the Court cannot say that Sentencing Commission acted in violation of congressional intent as found in the text of Section 3582(c).

4. Conclusion

In the light of the foregoing, the Court concludes that the Sentencing Commission lawfully exercised its authority in defining extraordinary and compelling reasons for compassionate release in Section 1B1.13(b)(6)’s amendment for unusually long sentences. Congress's delegation to the Sentencing Commission included ambiguous terms—i.e., extraordinary and compelling—and it reasonably interpreted these terms to include unusually long sentences which can be assessed in the light of nonretroactive changes in law. This interpretation did not violate Congress's intent. Nor has the Eleventh Circuit interpreted these terms otherwise. To the contrary, the Eleventh Circuit directs that district courts defer to the Sentencing Commission's interpretations. See Bryant, 996 F.3d at 1255. The Court heeds the Eleventh Circuit and now considers whether Defendant has carried his burden to show he meets the criteria for compassionate release under the applicable November 2023 amendments.

B. The Criteria for Compassionate Release in Defendant's Case

By way of reminder, for Defendant to be eligible under this subsection, the Court must determine that (1) there is an extraordinary and compelling reason to modify his sentence, (2) he is not a danger to the community, and (3) the Section 3553(a) factors counsel in favor of the modification.¹⁰ U.S.S.G. § 1B1.13(a); 18 U.S.C. § 3582(a)(1)(A)(i). The Court considers each and concludes Defendant meets all three criteria for compassionate release.

1. Defendant's Extraordinary and Compelling Reason

As far as an extraordinary and compelling reason for the reduction, Defendant moves the Court for compassionate release solely under U.S.S.G. § 1B1.13(b)(6) for an unusually long sentence. See generally Doc. No. [77]. As discussed, to qualify for a modified sentence, Defendant's sentence must be unusually long, and he must have served 10 years of it. The latter requirement is undisputedly met. Defendant has been imprisoned under the judgment and conviction in this case for over 30 years. See PSR at 2; Doc. No. [77-1], 3.

The former requirement is also met: Defendant's original sentence was unusually long. Defendant received a 55 year sentence for three armed bank robberies. See SOR. These crimes are significant in nature and are not to be treated casually. However, the penalty imposed largely reflected the fact that Defendant used a firearm in each offense. Indeed, of the 55 year sentence, over 80% of his sentence arose from the Section 924(c) mandatory penalties (i.e., 540 of 665 months). The subsequent amendments to Section 924(c) highlight the unusually lengthy nature of Defendant's imposed sentence. If Defendant was sentenced for the same crimes now, he would receive only 21 years for the firearm offenses. 18 U.S.C. § 924(c)(1)(A)(ii) (2022). Assuming (as Defendant himself does) that his armed bank robbery offenses would still result in a 10 year (125 month) sentence, his overall imprisonment term would be a little over 31 years (377 months). Thus, today the firearm offenses would constitute only around two-thirds of Defendant's sentence and his overall time served would decrease by 14 years (i.e., 168 months, or approximately 25%). This is a gross disparity.

Based on the foregoing, the Court concludes that Defendant is currently subject to an unusually long sentence. Defendant thereby meets the first criteria for compassionate release in that he has shown an extraordinary and compelling reason to modify his term of imprisonment.

2. Danger to the Community

Defendant must also show that he is not a danger to the community. Doc. No. [77], 11–20. Defendant emphasized that a present-tense assessment of his dangerousness is appropriate. Doc. No. [83], 17. He argues that “[h]e has lived a peaceful, entirely non-violent life in the federal prisons” and that “his disciplinary history includes not a single violation involving weapons, assaults, threats, or any similar conduct.” Doc. No. [77], 12. The Government does not contest Defendant's argument that he no longer presents a danger to the community. Doc. No. [81].

In considering whether Defendant presents a danger, the Court looks at the factors in 18 U.S.C. § 3142(g). See U.S.S.G. § 1B1.13(a)(2). These factors 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). Here, there is no question that Defendant's offenses involved a firearm and presented an enormous danger to many individuals in the public. See generally PSR ¶¶ 11–28. The evidence against him was compelling: Defendant pleaded guilty to one of the incidents and was found guilty beyond a reasonable doubt on the other two. Id. ¶¶ 8–9. Despite these facts, however, the Court determines that Defendant's age (55-years old) and his prison record since 2007 support a conclusion that he no longer presents a danger to society. Defendant's age puts him in a category of prior offenders with low recidivism rates. Doc. No. [77], 15 (citing The Effects of Aging on Recidivism Among Federal Offenders at 22, U.S. Sent. Commission (2017), available at https://www.ussc.gov/research/researchreports/effects-aging-recidivism-among-federal-offenders). This conclusion is not merely empirical or theoretical in Defendant's case, however, because the BOP likewise classifies Defendant as a low-risk inmate. Doc. Nos. [77-10]; [77-4]. In the first decade of Defendant's incarceration, he incurred several disciplinary infractions. Doc. No. [77-3]. However, Defendant has not committed a single violation since 2007. Id. at 2 (indicating his most recent offense was in 2007). Moreover, one of the letters in Defendant's favor actually shows that Defendant assisted another inmate who was choking, suggesting to the Court that Defendant's understanding of the value of life has grown in the prior two decades. Doc. No. [77-7]. Based on these factors, if he were to have his sentence modified, the Court concludes that Defendant does not pose a danger under U.S.S.G § 1B1.13(a)(2) and 18 U.S.C. § 3142(g).

3. Section 3553(a) Factors

Finally, the Court considers the individualized circumstances of Defendant's motion in the light of the factors in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A). These well-known factors include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed ․; (3) the kinds of sentences available; ․ (5) any pertinent policy statement[;] ․ (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.

Id. § 3553(a).

Defendant argues that while the nature and circumstances of his crimes are serious, the time he has served sufficiently punishes his past criminal activity. Doc. No. [77], 12–14. He also emphasizes, with compelling documentary evidence in support, his true rehabilitation while in prison. Id. at 14–20. Again, the Government does not respond to Defendant's arguments or offer any counterevidence. Doc. No. [81].

The Court begins again by emphasizing that Defendant's convictions involve extremely serious criminal behavior. His armed bank robberies and the high-speed police chase that followed the third robbery endangered a number of individuals and law enforcement. See PSR ¶¶ 11–28. This is significant. Moreover, Defendant does not have a spotless prison record—he incurred several disciplinary infractions that indicate he continued to disregard the rules and authority for the first decade he was in prison. Doc. Nos. [77], 19; [77-3].

Nevertheless, Defendant has not had any additional disciplinary report since 2007. Doc. No. [77-3]. Moreover, the other factors to be considered in the Section 3553(a) analysis do not weigh so forcefully against Defendant, and in fact many lean in his favor. The time Defendant has currently served for his offenses reflects their seriousness, adequately deters, and has had an obviously positive impact on Defendant's moral, emotional, and spiritual well-being. The disparity between Defendant's sentence for his crimes and any person who would commit the same crimes today, as well as the Sentencing Commission's latest amendments to the compassionate release statute, also favor Defendant's request for a modification per the Section 3553(a) factors.¹¹ Thus, on the whole, and without any intention of minimizing the significantly dangerous and wrong acts Defendant committed, the Court concludes that the Section 3553(a) factors support the Court modifying Defendant's sentence in this case.

Accordingly, Defendant has met his burden to show all the requirements for a modification of his sentence under 18 U.S.C. § 3582(c)(1)(A) and U.S.S.G. § 1B1.13. He has shown an extraordinary and compelling reason for modification, he has adequately proven to the Court that he is not a danger to the community, and he has convincingly argued that the Section 3553(a) factors favor modifying his sentence. U.S.S.G. § 1B1.13(a).

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant's Motion for a Reduction of Sentence Under 18 U.S.C. § 3582(c)(1)(A). Doc. No. [77]. The Defendant's previously imposed sentence of imprisonment of 665 months is reduced to 377 months. Per the Court's calculation, Defendant has served less than this amount of time and thus will remain incarcerated for the pendency of his remaining sentence, as to be calculated by the Bureau of Prisons.¹² Defendant's previously imposed term and conditions of supervised release are unchanged.

The Court STAYS this Order for 60-days.¹³ This stay enables the Bureau of Prisons ample time to calculate Defendant's remaining sentence precisely and establish any necessary release plan and travel arrangements. Furthermore, as there are significant legal issues resolved in this Order, this stay ensures the Government has ample opportunity to appeal the Court's order and seek any emergency relief from the Eleventh Circuit that it may wish to request.

Defendant must also provide a complete address where he will reside upon release to the Probation Office.

Finally, the Court DIRECTS the Clerk to mail a copy of this Order and its corresponding amended judgment and commitment to the United States Marshal Service and the Federal Bureau of Prisons (320 First St., NW Washington, DC 20534).

IT IS SO ORDERED this 6th day of March, 2024.

FOOTNOTES

1.   All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.

2.   In a corresponding order, the Court has ordered that Defendant's Presentence Investigation Report and the Memorandum of Sentencing Hearing and Report of Statement of Reasons be filed on the docket under seal. In this Order, for ease of reference the Court refers these documents by the citations “PSR” and “SOR,” respectively.

3.   This case was reassigned to the undersigned judge on May 22, 2018.

4.   Defendant submits 21 years as the presently proper calculation under Section 924(c), the Government does not contest it, and the Court does not disagree. Doc. Nos. [77], 3; [81].

5.   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 Bryant, 996 F.3d at 1262–65 (limiting the prior “catch-all” category to only the reasons articulated by the Bureau of Prisons, based on the text of the policy statement as then-drafted). This catch-all category constituting an extraordinary and compelling reason is not at issue in Defendant's motion, however.

6.   There are other limited circumstances where a sentence may be modified in Section 3582, but these circumstances are not relevant for Defendant's case. See, e.g., 18 U.S.C. § 3582(c)(1)(A)(ii).

7.   The Eleventh Circuit has unequivocally held that the Sentencing Commission's policy statements are binding under Section 3582(c)(2) for modifications of sentences based on retroactive changes of law. United States v. Maiello, 805 F.3d 992, 998 (11th Cir. 2015) (“In a section 3582(c)(2) proceeding, the Commission's policy statements are binding, and courts lack authority to disregard them.” (citing inter alia Dillon v. United States, 560 U.S. 817, 825–28, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010))).

8.   Albeit in contexts outside of the Sentencing Commission and criminal proceedings, the Supreme Court has indicated that when strong delegations are made to “prescribe standards” then “Congress entrusts to the [delegated party], rather than the courts, the primary responsibility for interpreting the statutory term.” Batterton v. Francis, 432 U.S. 416, 425–26, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977). In exercising this delegated power, the “reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner” but must afford the interpretation “more than mere deference or weight”—such that it can only be rejected if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. (citing 5 U.S.C. § 706). Despite Batterton’s citation to the Administrative Procedures Act, 5 U.S.C. § 706, the Court realizes that the Sentencing Commission is not subject to review under the APA. Maiello, 805 F.3d at 998.

9.   Indeed, even the Sixth Circuit decision itself used extra-textual “background principles of federal sentencing law” (i.e., finality and nonretroactivity) in its interpretation of these terms. McCall, 56 F.4th at 1055.

10.   Defendant has also shown that he exhausted his administrative remedies—he requested that the warden reduce his sentence and was denied. Doc. No. [77-2].

11.   To be clear, in this context, the Court discusses disparities only in reference to the Section 3553(a) analysis which permits consideration of pertinent policy statements by the Sentencing Commission and the need to avoid disparities in sentencings for defendants with similar records. 18 U.S.C. § 3553(a)(5)–(6).

12.   Defendant has been incarcerated since his arrest on December 11, 1996. See PSR at 2. Thus, as of March 2024, Defendant has served just short of 327 months in prison. Defendant submits that he has also incurred a significant amount of good time credits. Doc. No. [77-1], 4 (indicating 644 days, or approximately 21 months, of good time credits), 7 (indicating 702 days, or approximately 23 months, of good time credits). Even if these credits are accounted for, however, Defendant will still remain incarcerated for several months following this Order.

13.   The stay does not prejudice Defendant given that even under his modified sentence of imprisonment, he would still be incarcerated during the stay period. See note 12 supra.

STEVE C. JONES, UNITED STATES DISTRICT JUDGE