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finding a defendant's "900-month" disparity as a result of nine § 924(c) convictions extraordinary and compelling
Summary of this case from United States v. GuessOpinion
Criminal No. 4:06cr146
2021-11-05
UNITED STATES of America, v. Robert Ronald GIBSON, Defendant.
Eric M. Hurt, Scott W. Putney, Rachel E. Timm, US Attorneys, United States Attorney's Office, Newport News, VA, Gregory David Stefan, US Attorney, United States Attorney's Office, Norfolk, VA, for United States of America.
Eric M. Hurt, Scott W. Putney, Rachel E. Timm, US Attorneys, United States Attorney's Office, Newport News, VA, Gregory David Stefan, US Attorney, United States Attorney's Office, Norfolk, VA, for United States of America.
ORDER
ROBERT G. DOUMAR, UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Robert Ronald Gibson's ("Defendant") "Defendant's Pro Se Motion for Sentence Reduction Pursuant to Section 404 of the First Step Act and Request for Relief per § 3582(c)(1)(A)" ("Motion for Sentence Reduction" or "Motion"), ECF No. 222. For the reasons set forth below, the Court GRANTS Defendant's Motion for Sentence Reduction. Id.
I. PROCEDURAL BACKGROUND
On October 11, 2007, a federal grand jury returned a third superseding indictment against Defendant and four co-defendants. ECF No. 53. Defendant was charged with one count of conspiracy in violation of 21 U.S.C. § 846 (Count 1), nine counts of using or carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c) ("Counts 6, 7, 9, 11, 13, 17, 19, 20 and 22"), five counts of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) ("Counts 8, 10, 12, 16 and 18"), one count of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) ("Count 21"), and one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) ("Count 23"). ECF No. 53. Before Defendant's trial, his four co-defendants pled guilty.
On February 27, 2008, a federal jury in this Court found Defendant guilty of Counts 1, 8, 10–13, 16–19, and Counts 21–23. ECF No. 86. The evidence showed that Defendant was a member of a major conspiracy to distribute cocaine in the Eastern District of Virginia. In furtherance of the conspiracy, Defendant possessed a firearm, which he discharged three separate times and places at three separate people, injuring only one slightly. Defendant also communicated threats to others and was also found to be in possession of drugs himself.
On June 9, 2008, the Court sentenced Defendant to seven concurrent Life terms on the drug offenses plus 1,260 months consecutive on the firearm offenses. ECF No. 102. On June 24, 2008, Defendant filed a notice of appeal. ECF No. 103. On May 14, 2009, the Fourth Circuit Court of Appeals, in an unpublished per curiam opinion, rejected Gibson's arguments and affirmed his conviction. See United States v. Robert Ronald Gibson, 327 F. App'x. 391 (4th Cir. 2009) (unpublished). Gibson's petition for writ of certiorari was denied on October 5, 2009. On September 17, 2010, Defendant filed a motion pursuant to 28 U.S.C. § 2255 asking that his sentence be vacated, set aside, or corrected. ECF No. 145. Following a hearing, the Court denied the motion on April 12, 2012. ECF No. 160. This dismissal was appealed, with the Fourth Circuit denying the appeal on June 20, 2012. ECF Nos. 169, 170.
Defendant filed a second Motion to Vacate pursuant to § 2255 on April 29, 2014. ECF No. 171. The Court denied the motion on November 11, 2014. ECF No. 173. Shortly thereafter the defendant filed a Motion to Alter Judgement on December 19, 2014. ECF No. 182. The Court again denied his motion on January 28, 2015, with Defendant appealing both denials to the Fourth Circuit. ECF Nos. 184, 185. The Fourth Circuit dismissed his appeals on June 23, 2015. ECF No. 190.
A letter motion was filed by Defendant on February 8, 2017, which the Court denied the next day. ECF Nos. 206, 207. This denial was upheld on appeal on May 16, 2017. ECF No. 215. Defendant also sought a sentence modification pursuant to 18 U.S.C. 3582(c)(2) on November 6, 2018. ECF No. 217. The Court denied the motion on July 31, 2019 finding Defendant's sentencing range was not impacted by the change in the Sentencing Guidelines. ECF No. 220.
Defendant filed the instant Motion for Sentence Reduction on March 5, 2021. ECF No. 222. The Court ordered a briefing schedule on March 12, 2021. ECF No. 223. On March 15, 2021, the Probation Office entered its First Step Act Presentence Investigation Report. ECF No. 224. Probation also issued a Compassionate Release Recommendation and a First Step Act Work Sheet on April 2, 2021. ECF Nos. 226, 227. Defendant filed a Motion to Appoint Counsel on April 26, 2021. ECF No. 228. On May 3, 2021, the Government filed its Response in Opposition to Defendant's Motion for Sentence Reduction ("Response"). ECF No. 229. Defendant filed his pro se reply to the Government's Response ("Reply") on May 20, 2021. ECF No. 230.
On June 23, 2021, upon review of the filings, the Court granted Defendant's Motion to Appoint Counsel. ECF No. 231. The Court issued a supplemental briefing schedule in the order and Defendant filed a supplement with the Court on August 9, 2021. ECF No. 232. The Court held a hearing on the Motion for Sentence Reduction on September 14, 2021 and heard arguments. ECF No. 233. The Court stated it would take the Motion under advisement to consider the arguments of the parties. Id.
The Motion for Sentence Reduction is now ripe for consideration.
II. APPLICABLE LAW
"Generally, a court may not modify a term of imprisonment once it has been imposed except" in narrow circumstances. United States v. Wirsing, 943 F.3d 175, 179, 183 (4th Cir. 2019) (citing 18 U.S.C. § 3582(c) ). Congress may enact statutory exceptions to this general rule, and Defendant brings his Motion for Sentence Reduction under two exceptions provided by 18 U.S.C. § 3582(c).
A. SECTION 404( B ) OF THE FIRST STEP ACT
In 2018, Congress passed the First Step Act ("FSA"). First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Relevant here is § 404, which states:
(a) DEFINITION OF COVERED OFFENSE .—In this section, the term ‘‘covered offense’’ means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372), that was committed before August 3, 2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED .—A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) were in effect at the time the covered offense was committed.
(c) LIMITATIONS .—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.
Pub. L. 115-391 Stat. 015, § 404 (2018). As such, the FSA "allows district courts to apply the Fair Sentencing Act of 2010 retroactively to sentences for certain crimes committed before August 3, 2010." United States v. Charles, 932 F.3d 153, 162 (4th Cir. 2019) ; see Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372, §§ 2, 3. Once courts determines whether a sentence is a "covered offense" under § 404(a), they then have discretion to determine whether a reduction in sentence is warranted. § 404(c); Wirsing, 943 F.3d at 186. When exercising its discretion to reduce a sentence, courts must apply the § 3553(a) factors. United States v. Chambers, 956 F.3d 667, 674 (4th Cir. 2020). Courts "must also recalculate the Guidelines range" and have the authority, though not a mandate, to vary from the recalculated Guidelines. Id. at 672. Courts also can consider post-sentencing conduct in its § 3553(a) analysis. Id. at 674.
B. COMPASSIONATE RELEASE
In 2018, Congress passed the FSA. First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Relevant here, the FSA amended the procedures by which defendants can seek reductions in their sentences through compassionate release. Previously, a defendant could only petition the Bureau of Prisons ("BOP") Director for compassionate release, who could then move the district court for compassionate release. See U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.4 (U.S. Sentencing Comm'n 2018) ("U.S.S.G."). Now, the FSA allows defendants, for the first time, to petition district courts directly for compassionate release. 18 U.S.C. § 3582(c)(1)(A)(i).
The BOP uses the terms "compassionate release" and "reduction in sentence" interchangeably, see https://www.bop.gov/policy/progstat/5050_050_EN.pdf at 1, and the Court will do the same.
To request compassionate release, a defendant must comply with the requirements set forth in 18 U.S.C. § 3582(c). First, as a threshold matter, the statute requires the defendant adhere to certain procedural requirements. § 3582(c)(1)(A). Specifically, a defendant must either have exhausted all administrative rights to appeal a failure of the BOP to bring a motion on his behalf, or the warden must have failed to act on the defendant's request for thirty (30) days after receipt, whichever is earlier.
If an inmate's request for compassionate release is denied by the warden, the inmate may appeal the denial through the Administrative Remedy Procedure ("ARP"). See 28 C.F.R. § 571.63(a) (2018). "The ARP provides for an appeal by the inmate within 20 days to the appropriate Regional Director, and from there within 30 days to the General Counsel of the Bureau of Prisons. Id. at § 542.15(a). A denial by the General Counsel constitutes a final administrative decision." United States of America v. Leon William Carr, No. 1:13CR00034-001, 2020 WL 2847633, at *3 (W.D. Va. June 2, 2020) (citing 28 C.F.R. § 571.63(b) ).
Second, a district court may grant compassionate release if "extraordinary and compelling reasons warrant such a reduction." In United States v. McCoy, the Fourth Circuit held that U.S.S.G. § 1B1.13 is not directly applicable to prisoner-filed compassionate release motions and "district courts are empowered to consider any extraordinary and compelling reason for release that a defendant might raise." 981 F.3d 271, 284 (4th Cir. 2020). While not directly applicable, § 1B1.13 does provide helpful guidance for district courts to assess which medical conditions might be considered extraordinary and compelling, including "a terminal illness" or "a serious physical or medical condition." U.S.S.G. § 1B1.13 cmt. 1(A)(i), (ii). The Court need not consider every argument advanced by a defendant, but must "adequately explain the chosen sentence to allow for meaningful appellate review," which is determined on a case by case basis. United States v. High, 997 F.3d 181, 188 (4th Cir. 2021).
Apart from "extraordinary and compelling reasons," a defendant may qualify for compassionate release if the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g) ....18 U.S.C. § 3582(c)(1)(A)(ii). The same is not mentioned above, as Defendant is ineligible for compassionate release pursuant to this subsection.
Third, even if the district court determines extraordinary and compelling reasons exist for compassionate release, it must also consider "the factors set forth in section 3553(a) to the extent that they are applicable." 18 U.S.C. § 3582(c)(1)(A). While no one factor is dispositive in the analysis, district courts can give significance to certain relevant factors, including the seriousness of the underlying offense and the amount of time served. United States v. Kibble, 992 F.3d 326, 331 (4th Cir. 2021). A "mountain of new mitigating evidence" may require a "more complete explanation" of the district court's decision. High, 997 F.3d at 190 (quoting Chavez-Meza v. United States, ––– U.S. ––––, 138 S. Ct. 1959, 1965, 201 L.Ed.2d 359 (2018) ).
III. DEFENDANT'S MOTION FOR SENTENCE REDUCTION
Defendant requests a sentence reduction through two separate aspects 18 U.S.C. § 3582(c). First, Defendant requests relief under § 404(b) of the FSA, arguing the FSA empowers the Court to reconsider Defendant's drug convictions under § 3582(c)(1)(B). ECF No. 222 at 7–11. He additionally requests relief under the compassionate release provision, arguing that McCoy, 981 F.3d at 284, allows the Court to consider Defendant's "stacked" gun charges an extraordinary and compelling reason to warrant a reduction. ECF No. 222 at 5–7. Defendant finally argues the § 3553(a) factors also support a reduction, emphasizing his post-sentencing conduct while imprisoned. Id. at 11–16.
The Government counters that Defendant failed to fully exhaust his administrative remedies and review by the Court would therefore be improper. ECF No. 229 at 4–7. The Government also argues that Defendant does not establish an extraordinary and compelling reason for a reduction, stating that McCoy did not change the threshold for extraordinary and compelling reasons for relief and that the § 3553(a) factors warrant against a reduction. Id. at 11–22. Finally, the Government argues the Court should deny relief under § 404(b) of the FSA because Defendant's Guidelines range would remain unchanged even if the Court were to choose to grant relief. Id. at 32–33.
Defendant's Reply reiterates his post-sentencing conduct while imprisoned and asserts, for the first time, that he filed his compassionate release motion with the prison before filing with the Court. ECF No. 230 at 3–6.
IV. DISCUSSION
A. Threshold Issues
The Court first encounters three threshold issues: (1) whether Defendant can invoke both § 404(b) of the First Step Act and the compassionate release provisions of 18 U.S.C. § 3582(c) in the same motion. If so, the Court must also consider (2) whether Defendant's convictions count as "covered offenses" under § 404(b) of the FSA; and (3) whether Defendant properly exhausted his administrative remedies for his compassionate release request. The Court considers each in turn.
1. Exclusivity of Section 404(b) of the First Step Act and 18 U.S.C. § 3582(c)(1)(A)(i)
The Government argued during the September 14, 2021 hearing that Defendant was unable to rely on both § 404(b) of the FSA and the compassionate release provisions in 18 U.S.C. § 3582(c), arguing that the Court was required to pick one over the other. The Court sees no such prohibition. There are two general categories of motions defendants can file to ask a court to reduce its sentence. First, through a defendant's own motion after exhausting his administrative remedies, a defendant can ask for a reduction if "extraordinary and compelling reasons warrant such a reduction" or if the defendant meets certain specific criteria including age, a time served requirement, and a specific determination by the Director of the BOP. 18 U.S.C. § 3582(c)(1)(A). Second, a defendant can invoke any other method of reduction "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." Id. at § 3582(c)(1)(B).
It is crucial that subsections (A) and (B) of § 3582(c)(1) are linked by the article "and" rather than "or." "Or" is generally used to link alternatives that sometimes are mutually exclusive, such as the phrase "peanut butter or jelly." "And" is generally used to link things that are to be taken together, such as "peanut butter and jelly." The statute's use of the conjunction "and" rather than "or" does not imply an implication by Congress that a defendant must choose between subsections (A) or (B). It is true that § 404(c) of the FSA bars a second motion under § 404, but § 404 did nothing to change the substantive law behind the "extraordinary and compelling" motions of § 3582(c)(1)(A). Therefore, if different parts of Defendant's sentence qualifies for both § 404(b) of the FSA and the compassionate release provisions under § 3582(c)(1)(A)(i), the Court holds it has the ability to exercise authority under both.
2. "Covered Offense" under Section 404(b) of the First Step Act
As mentioned, Defendant was convicted of drug offenses involving 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. See ECF No. 102. Since Section 2 of the Fair Sentencing Act modified penalties for violations of 21 U.S.C. 841(a) & 846, Counts 1, 8, 10, 12, 16, 18, and 21 are all "covered offenses" per the FSA. See Fair Sentencing Act, Pub. L. 111–220 ; 124 Stat. 2372 (2010). The Government contends that Defendant is not eligible for relief under § 404(b) of the FSA because the quantity of drugs Defendant was found accountable for exceeds the quantity, 280 grams, that contains the same statutory sentencing range before and after the Fair Sentencing Act. ECF No. 229 at 32–33. The Fourth Circuit rejected this interpretation over a year ago in Wirsing, holding that it is the statute that governs eligibility, not the "conduct attributable" to Defendant. Wirsing, 943 F.3d at 186. Thus, because Defendant was convicted of a violation of a statute the Fair Sentencing Act clearly modified the penalties for and the conduct in question occurred before 2010, Counts 1, 8, 10, 12, 16, 18, and 21 are "covered offenses" per the FSA.
3. Compassionate Release Exhaustion
Now that the Court has determined Defendant's eligibility under § 404(b) of the FSA, it must address whether Defendant properly exhausted his administrative remedies for his compassionate release claim. The Government argues Defendant never exhausted his administrative remedies. ECF No. 229 at 4–6. Defendant counters by claiming he has "filed not once but repeatedly to the Warden of his institution in the year 2020 ... without any answer or acknowledgement." ECF No. 230 at 5–6. In his supplemental filing, appointed counsel for Defendant states he did properly exhaust his administrative remedies but failed to attach any proof of exhaustion. ECF No. 232 at 1. The Court has been hesitant in the past to find exhaustion satisfied when inmates do not provide proof that their claims have been properly exhausted. However, in certain limited circumstances, the Court is empowered to waive exhaustion requirements. Notably, one such area is when "pursuing an administrative remedy would be futile." United States v. Evans, 504 F.Supp.3d 519, 525 (E.D. Va. 2020) (quoting Poulios v. United States, No. 2:09-cr-109, 2020 WL 1922775, at *1 (E.D. Va. Apr. 21, 2020) ). The Court finds an administrative remedy would be futile here. The BOP lists several scenarios it considers extraordinary and compelling, but stacked sentences under 21 U.S.C. § 924(c) are not listed. See Bureau of Prisons, Dep't of Just., Program Statement Number 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g) (2019) (listing scenarios). While the Court understands the BOP's hesitation to grant compassionate release in a wide array of circumstances, it would waste judicial resources to require exhaustion when the Court infra subsection B chooses to exercise its discretion under § 404(b) under the Fourth Circuit's McCoy precedent. Thus, the Court finds a waiver of the exhaustion requirement warranted in this specific and narrow circumstance.
With threshold issues complete, the Court will proceed to the merits of Defendant's claims.
B. Section 404(b)
Finding the Defendant eligible for relief, the Court exercises its discretion under § 404(b) of the FSA to impose a reduced sentence on Counts 1, 8, 10, 12, 16, 18, and 21. As the Government correctly acknowledges, Defendant's Guidelines range has not changed, still remaining at a life sentence. See ECF No. 227; ECF No. 229 at 26–27.
The Court has the power to vary from the Guidelines range and must consider the § 3553(a) factors in making its determination. Chambers, 956 F.3d at 672. Here, the § 3553(a) factors warrant a reduction in Defendant's drug-related sentence. Defendant has shown a "mountain of new mitigating evidence" and has demonstrated a willingness to grow during his post-sentencing conduct. High, 997 F.3d at 190. Defendant received the President's Volunteer Service Award in 2019 through his dedication to community service while in prison. ECF No. 222-1 at 3. Defendant has assisted other inmates through a suicide watch program. Id. at 9. He has completed numerous certifications and completed the BOP's rigorous Challenge program. See, e.g., id. at 9, 11. Finally, he has the weight of his community behind him, with over 3,000 supporters signing a petition for then President Trump to grant Defendant clemency. Id. at 52–55. Defendant's strides towards self-improvements are commendable considering Defendant's life sentence.
The Court is also concerned about disparity of sentencing. Defendant was one of five total conspirators charged with the crimes in the third Superseding Indictment. See ECF No. 53 (naming Defendant and four other co-conspirators). Defendant's four co-conspirators pled guilty, with the leader of the conspiracy, Mr. Robert Lewis Hoskins, receiving 520 months imprisonment. ECF No. 94. Defendant's sentence represents a striking disparity from Mr. Hoskins, with Defendant receiving a sentence of life imprisonment plus 1,260 months consecutive. ECF No. 102. While the Court understands that the disparity is mainly due to Defendant's refusal to accept any plea as his co-conspirators did, such a striking disparity weighs heavily towards some level of a reduction. No doubt, as the Government rightly points out, Defendant's crimes were serious. Defendant engaged in a serious drug trafficking scheme and used firearms in connection with it. These crimes are some of most serious offenses against society one can commit. However, the seriousness of the crime itself does not justify Defendant being imprisoned for several life sentences while his co-conspirators have a chance at life outside of prison. Additionally, the Government argues no relief should be given as Defendant is still a danger to the community and has a high risk of recidivism. ECF No. 229 at 19–22. This would be undoubtedly true were Defendant released from prison today. Certain statutory minimums mean the Court has no authority to go that far and would elect not to if it had such authority. However, under the Court's chosen reduction infra Section V, Defendant's advanced age upon release minimizes his danger to the community and his risk of recidivism.
C. Compassionate Release
After choosing to waive Defendant's requirement of exhaustion and considering the Court's decision to use its § 404(b) authority, the Court now must decide whether Defendant's stacked § 924(c) convictions are extraordinary and compelling reasons warranting a sentence reduction. The Government argues that the Court does not have the authority to "unstack" Defendant's § 924(c) convictions under § 404(b) of the FSA. ECF No. 229 at 33–36. However, as shown above, Defendant is clearly invoking two separate aspects of § 3582(c) in his Motion for Sentence Reduction: a sentence reduction under § 404(b) of the FAS and a compassionate release request pursuant to § 3582(c)(1)(A)(i). It is true that "unstacking" § 924(c) convictions is unavailable through § 404(b) of the FSA, but after McCoy, it is clearly available through § 3582(c)(1)(A)(i). See McCoy, 981 F.3d at 284. Thus, the Court has the authority to consider Defendant's argument under § 3582(c)(1)(A)(i).
The Court finds Defendant's stacked § 924(c) convictions to be an extraordinary and compelling reason warranting a sentence reduction. Defendant received 60 months on Count 11 and 300 months each on Counts 13, 17, 19, and 22, all to be served consecutively to Defendant's several concurrent life sentences. ECF No. 102. The 300 months each on Counts 13, 17, 19, and 22 were pursuant to previous § 924(c) stacking laws, with those four Counts each containing a minimum statutory sentence of 25 years consecutive to Defendant's drug charges. Now, pursuant to the changes in the FSA, the statutory minimums on Counts 13, 17, and 19 are lowered to 5 years, or 60 months each. See ECF No. 227. Count 22's statutory minimum is lowered to 10 years, or 120 months. Id. Thus, due to changes in the stacking provisions of § 924(c), Defendant goes from facing a minimum of 1,260 months consecutive to his drug convictions to 360 months consecutive if sentenced today. Id. This 900-month difference in consecutive imprisonment is a stark difference that clearly falls within the kind of extraordinary and compelling reasons warranting sentence reduction the Fourth Circuit found persuasive in McCoy.
As the Court has found Defendant's stacked sentences constitute extraordinary and compelling reasons for a sentence reduction, it must also consider whether the § 3553(a) factors warrant a reduction. As discussed supra subsection B and adopted again here, the § 3553(a) factors support a reduction. The Court applies that same analysis here to Defendant's compassionate release claim. Additionally, the Court emphasizes that the 360 month statutory minimum on Defendant's firearm convictions runs consecutive to his drug convictions and ensures that if Defendant reaches the end of his sentence, his age will minimize the danger to the community and his likelihood of recidivism.
C. DEFENDANT'S REDUCED SENTENCE
It is now left for the Court to choose an appropriate sentence for Defendant. As discussed, the § 3553(a) factors overall warrant a reduction, but certain factors hedge against the Court reducing Defendant's sentence to be completely in lockstep with his co-conspirators. One factor particularly counsels against this: disparity in sentencing. As mentioned above, Defendant was the only member of his conspiracy not to accept responsibility for his actions before proceeding to trial. Defendant's co-conspirators, in exchange for their acceptance of responsibility, were given plea deals which they then accepted that gave them some level of a chance for life after prison. The leader of the conspiracy, Mr. Robert Lewis Hoskins, received 520 months imprisonment in exchange for his acceptance of responsibility and plea. Defendant's current sentence is grossly disproportionate to his co-conspirators, but in reducing it the Court must be cognizant not to reduce it as to weaken incentives for plea bargaining. The Court emphasizes this consideration is not designed to punish Defendant for going to trial as to ensure Defendant does not receive the benefit of a bargain he did not make.
Considering the various statutory minimums still in play, the minimum the Court could sentence Defendant would be a total sentence of 600 months. See ECF No. 227 (giving statutory minimums for Counts able to be reduced). The Court finds that the seriousness of Defendant's conduct, considerations of sentence disparity, plus deterrence of future conduct warrant against such a minimum. However, considering the gross disparity between Defendant and his co-conspirators and the significant mitigating evidence of post-sentencing conduct, the Court finds a sentence not heavily above such a minimum to be appropriate.
Therefore, the reasons mentioned above, considering the factors in 18 U.S.C. § 3553, the Court accordingly REDUCES Defendant's sentence from life plus 1,260 months consecutive to a total sentence of SEVEN HUNDRED TWENTY (720) months. This sentence consists of THREE HUNDRED SIXTY (360) months each on Counts 1, 8, 10, 12, 16, 18, and 21, to be served concurrently; a term of SIXTY (60) months each on Counts 11, 13, 17, and 19, to be served consecutively to Counts 1, 8, 10, 12, 16, 18, and 21; a term of ONE HUNDRED TWENTY (120) months on Count 22, to be served consecutively to Counts 11, 13, 17, and 19; and a term of ONE HUNDRED TWENTY (120) months on Count 23, to be served concurrently to Counts 1, 8, 10, 12, 16, 18, and 21. This sentence complies with all applicable statutory ranges and is sufficient, but not greater than necessary, in this case. The terms of supervised release announced as part of the judgment on June 9, 2008, see ECF No. 102, shall remain in full force and effect. No new conditions of supervised release are to be imposed. Defendant shall be credited with any time served towards this new sentence.
V. CONCLUSION
For the reasons mentioned above, considering the factors in 18 U.S.C. § 3553, the Court GRANTS Defendant's Motion for Sentence Reduction. As stated, Counts 1, 8, 10, 12, 16, 18, and 21 are eligible to be reduced pursuant to § 404(b) of the FSA and Counts 11, 13, 17, 19, and 22 are eligible to be reduced pursuant to the compassionate release authorities. The Court accordingly REDUCES Defendant's sentence from life plus 1,260 months consecutive to a total sentence of SEVEN HUNDRED TWENTY (720) months. This sentence consists of THREE HUNDRED SIXTY (360) months each on Counts 1, 8, 10, 12, 16, 18, and 21, to be served concurrently; a term of SIXTY (60) months each on Counts 11, 13, 17, and 19, to be served consecutively to Counts 1, 8, 10, 12, 16, 18, and 21; a term of ONE HUNDRED TWENTY (120) months on Count 22, to be served consecutively to Counts 11, 13, 17, and 19; and a term of ONE HUNDRED TWENTY (120) months on Count 23, to be served concurrently to Counts 1, 8, 10, 12, 16, 18, and 21. This sentence complies with all applicable statutory ranges and is sufficient, but not greater than necessary, in this case. The terms of supervised release announced as part of the judgment on June 9, 2008, see ECF No. 102, shall remain in full force and effect. No new conditions of supervised release are to be imposed. Defendant shall be credited with any time served towards this new sentence.
It is so ORDERED .