UNITED STATES v. DIAMOND (2023)

ORDER DENYING MOTION FOR SENTENCE REDUCTION UNDER 18 U.S.C. § 3581(c)(1)(A)

Defendant Christopher Allen Diamond now brings this motion for sentence reduction under 18 U.S.C. § 3582(c)(1)(A). ECF No. 1129. For the reasons that follow, the motion is DENIED.

I. PROCEDURAL HISTORY

The Government charged Diamond with a single count of conspiracy to distribute 50 grams or more of actual methamphetamine and at least 500 grams or more of a mixture or substance containing methamphetamine. ECF No. 288 at 1-6. Diamond pled guilty to this count. ECF No. 489 at 1. Diamond had a total offense level of 31 and a criminal history category of VI, which yielded a guideline range of 188-to-235 months’ imprisonment. ECF No. 842. The Court imposed a below-guidelines sentence of 144 months’ imprisonment followed by five years of supervised release on November 7, 2017. ECF No. 845 at 2-3. Diamond did not appeal.

Diamond filed a pro se motion to reduce sentence under Amendment 782 in 2018. ECF No. 992. The Court denied the motion. ECF No. 1030 at 3. Diamond filed a motion for compassionate release in 2020, arguing that his pre-existing medical conditions put him at risk for severe outcomes from COVID-19. See ECF. No. 1036 at 1-2. The Court denied the motion because the sentencing factors under 18 U.S.C. § 3553(a) counseled against his release. See ECF No. 1062 at 3.

Diamond is now at FCI Englewood in Littleton, Colorado. See Inmate Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited December 18, 2023). His projected release date is February 12, 2025. Id.

II. Discussion

A. Compassionate release standards

Under the First Step Act of 2018, prisoners may bring motions for compassionate release “once they have exhausted their administrative remedies.” See United States v. Vangh, 990 F.3d 1138, 1140 (8th Cir. 2021) (acknowledging amendment to 18 U.S.C. § 3582(c)(1)(A)). Exhaustion occurs “either (1) when the prisoner has ‘fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion’ on his behalf or (2) ‘the lapse of 30 days from the receipt of such a request by the warden of the [prisoner's] facility,’ ” whichever comes first. United States v. Houck, 2 F.4th 1082, 1083 (8th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A)). Exhaustion under the statute is a “mandatory claim-processing rule,” so “it must be enforced so long as the opposing party properly raises it.” Id. at 1084.

Diamond requested a reduction in his sentence from the warden of his facility on September 29, 2023. ECF No. 1129 at 19. Thirty days have lapsed since Diamond filed his request with the Warden. The Court therefore finds that he has satisfied 18 U.S.C. § 3582(c)(1)(A)’s exhaustion requirement.

A district court may grant a defendant's motion for compassionate release if it finds that “extraordinary and compelling reasons” warrant such a sentence reduction and that the reduction is consistent with the applicable advisory policy statements issued by the United States Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A)(i). Even if the Court finds these criteria are met, it must still consider the 18 U.S.C. § 3553(a) sentencing factors before granting a reduction under 18 U.S.C. § 3582(c)(1)(A).

B. Extraordinary and compelling reasons

Diamond moves for a sentencing reduction under § 3582(c)(1)(A), which authorizes a district court “to reduce a sentence of imprisonment if it finds that ․ ‘extraordinary and compelling reasons warrant such a reduction ․ and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ ” United States v. Rodriguez-Mendez, 65 F.4th 1000, 1002 (8th Cir. 2023). Congress directed the Commission through 28 U.S.C. § 994(t) to define “extraordinary and compelling reasons” through a policy statement. Id. The Commission later defined those reasons in a policy statement codified in USSG § 1B1.13. Id.

USSG § 1B1.13 was not amended until November 1, 2023 because the Sentencing Commission lacked a quorum since the First Step Act was enacted in 2018. Id. This led some circuits to hold “that § 1B1.13 is no longer an ‘applicable policy statement,’ leaving courts free to determine what circumstances constitute ‘extraordinary and compelling reasons.’ ” Id. While the Eighth Circuit was not among these circuits, it has now determined that the “recently published proposed amendment to § 1B1.13 ․ should resolve any doubt it continues to be an ‘applicable policy statement.’ ” Rodriguez-Mendez, 65 F.4th at 1002. Therefore, under § 3582(c)(1)(A)’s plain language, any reduction in sentence under this section must be “consistent” with the Commission's policy statement in USSG § 1B1.13.

Diamond maintains in his motion that “His case manager submitted his paperwork for Defendant to be released to RRC/HC (Residential ReEntry or Home Confinement) beginning on January 9, 2024” but “The Residential ReEntry Manager denied Defendant's request to be transferred into an RRC or HC because ‘there are no available beds at any halfway house’ and, as such, Defendant is unable to leave prison in a timely manner by utilizing his credits.” ECF No. 1129 at 1. Diamond argues that his inability to “transfer to halfway house or home confinement as a result of the Attorney General's failure to comply with federal law is an extraordinary and compelling reason for the Court to reduce his sentence and impose home confinement as a condition of supervised release.” ECF No. 1129 at 2. The Court disagrees.

A reduction in sentence under § 3582(c)(1)(A) must be “consistent” with the Commission's policy statement in USSG § 1B1.13. The Commission's policy statement does not include BOP's failure to place a defendant in a halfway house or on home confinement as an “extraordinary and compelling circumstance” that would warrant a sentencing reduction, nor anything close to it. Furthermore, other courts have considered and rejected similar arguments prior to the Sentencing Commission promulgating its new policy statement. See United States v. Wolfe, 2020 WL 2615010, at *3 (S.D. Ind. May 22, 2020) (BOP's failure to properly calculate defendant's sentence and place him in a halfway house or on home confinement is not an extraordinary and compelling reason for release); United States v. Phillips, 2021 WL 149675, at *3-4 (D. Haw. Jan. 15, 2021) (a defendant's lack of ability to serve time in a halfway house in the District of Hawaii due to the absence of such a facility or program is not an extraordinary and compelling reason for release); United States v. Koth, 2022 WL 344297, at *3 (D. Haw. Feb. 4, 2022) (holding same). The Court agrees with these decisions and finds that their reasoning applies with equal force to this case.

BOP's failure to place Diamond in a halfway house is not an “extraordinary and compelling circumstance” warranting early release. Prisoners do not have a constitutional right to placement in a particular facility or place of confinement. United States v. Reed, 2023 WL 2308271, at *5 (D. Minn. Mar. 1, 2023) (citing Khdeer v. Paul, 2018 WL 6919637, at *5 (D. Minn. Nov. 29, 2018)) (citations omitted). While it is true that BOP must place a defendant in a transitional facility towards the end of his or her prison sentence, see 18 U.S.C. § 3624(c)(1), (c)(2), BOP must do so only “to the extent practicable.” See id. If the “Residential ReEntry Manager denied Defendant's request to be transferred into an RRC or HC because ‘there are no available beds at any halfway house,’ ” ECF No. 1129 at 1, then placement in a transitional facility is not “practicable” under 18 U.S.C. § 3624(c)(1), (c)(2).

BOP's failure to transfer Diamond to a halfway house is therefore not a “failure to comply with federal law,” ECF No. 1129 at 2, as he maintains. Even if it were, Diamonds cites to no authority holding that BOP's failure to comply with federal law warrants compassionate release. Because the Commission's policy statement does not include BOP's failure to place a defendant in a halfway house or on home confinement as an “extraordinary and compelling circumstance,” Diamond has not shown that there are “extraordinary and compelling circumstances” warranting a sentencing reduction.

C. Consideration of § 3553(a) factors

Diamond fails to identify an “extraordinary and compelling circumstance” to reduce his sentence. Even if he did, the Court would deny his motion because the applicable sentencing factors it has considered under § 3553(a) do not counsel in favor of release. Notable among those factors is 18 U.S.C. § 3553(a)(3), which requires the Court to consider “the kinds of sentences available.” Diamond submitted paperwork to be released to the halfway house on January 9, 2024, ECF No. 1129 at 1—a date that has not come to pass yet. He was reportedly told that “ ‘there are no available beds at any halfway house.’ ” Id. But he was told that before his scheduled release date. The circumstances could well be different come January 9, 2024, so at this point the inability of BOP to place Diamond in a halfway house in 2024 is entirely speculative.

Furthermore, reducing Diamond's sentence to “time served” would not “provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner” under 8 U.S.C. § 3553(a)(2)(D) because it would deprive him of the important transitional benefits of a halfway house, see Dawson v. Scott, 50 F.3d 884, 894 (11th Cir. 1995) (noting that “․ confinement in a halfway house has a transitional or rehabilitative purpose ․” for defendants), once he is placed there. As such, the § 3553(a) factors discourage a sentence reduction.

III. CONCLUSION

The Court has made an individualized inquiry of Defendant's compassionate release motion, see United States v. Sims, No. 22-3430, ––– F.4th ––––, ––––, 2023 WL 8463659, at *2 (8th Cir. Dec. 7, 2023), and after considering the applicable policy statements issued by the United States Sentencing Commission and the applicable sentencing factors provided in 18 U.S.C. § 3553(a), the Court denies Diamond's motion.

IT IS ORDERED that Diamond's motion for sentence reduction, ECF No. 1129, is DENIED.

STEPHANIE M. ROSE, Chief Judge