Opinion
CRIMINAL NO. 1:96-CR-41-TH-1
2021-12-08
UNITED STATES of America v. Scyrus Dion HEBERT
Lauren C. Barnett, Pro Hac Vice, Munger Tolles & Olson LLP, Los Angeles, CA, Ginger D. Anders, Pro Hac Vice, Jacobus P. van der Ven, Pro Hac Vice, Munger, Tolles & Olson LLP, Washington, DC, for Scyrus Dion Hebert. Scyrus Dion Hebert, Atwater, CA, Pro Se.
Lauren C. Barnett, Pro Hac Vice, Munger Tolles & Olson LLP, Los Angeles, CA, Ginger D. Anders, Pro Hac Vice, Jacobus P. van der Ven, Pro Hac Vice, Munger, Tolles & Olson LLP, Washington, DC, for Scyrus Dion Hebert.
Scyrus Dion Hebert, Atwater, CA, Pro Se.
ORDER GRANTING MOTION FOR SENTENCE REDUCTION
Thad Heartfield, United States District Judge Before the Court is a Motion to Reduce Sentence - First Step Act , [Doc. No. 129], filed by counsel for Scyrus Dion Hebert. On December 8, 2021, the Court held a hearing and heard oral arguments from the parties. The Court has considered the motions, all relevant findings, the applicable law, and oral arguments. The Court is of the opinion that the Motion to Reduce Sentence - First Step Act , [Doc. No. 129], should be granted.
I. BACKGROUND & FINDINGS
From November 1995 to March 1996, Mr. Hebert, at 24 years old, had robbed multiple fast food restaurants, banks, and liquor stores in Beaumont, Texas, while carrying a firearm. [Doc. No. 105 at 6-7]. On August 1, 1996, a jury convicted Mr. Hebert of four counts of bank robbery in violation of 18 U.S.C. § 2113 ; eleven counts of use of a firearm during the course of a violent crime in violation of 18 U.S.C. § 924(c)(1), and seven counts of interference with commerce by committing robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. [Doc. Nos. 105, 145]. In total, Mr. Hebert had stolen $36,475.00. [Doc. No. 118 at 35]. Throughout the eleven robberies, no victims were reportedly injured. [Id. ]. The firearm that Mr. Hebert used in connection with the robberies was inoperable and never discharged. [Doc. Nos. 129-7 at 4-5; 145 at 1].
While awaiting sentencing, Mr. Hebert devised a plan of escape with two other inmates on October 5, 1996. [Doc. No. 118 at 7]. During the attempt, Mr. Hebert struck a guard in the throat and then a struggle ensued. [Id. ]. A search of Mr. Hebert's person and cell revealed two homemade weapons. [Id. ]. The guard assaulted by Mr. Hebert had difficulty breathing but suffered no serious injury. [Id. at 8]. This altercation was considered in Mr. Hebert's sentence as an adjustment of obstruction of justice. [Id. at 9].
On December 12, 1996, the Court sentenced Mr. Hebert to 121 months for the bank robbery and Hobbs Act counts to run concurrently; 60 months for the use of a firearm count relating to the first robbery to run consecutively to any other term of imprisonment; and 240 months for each of the subsequent ten convictions for use of a firearm, each to run consecutively to any other term of imprisonment. [Doc. No. 105]. Mr. Hebert was sentenced to a total of 2,581 months in federal prison, of which 2,400 months is attributed to ten subsequent convictions for use of a firearm in violation of 18 U.S.C. § 924(c). [Id. ]. He was also sentenced to pay $36,475.00 in restitution. [Id. ].
At the time of sentencing, Mr. Hebert had no juvenile adjudications, and his only adult criminal conviction was for writing an insufficient funds check for $38.96 to Walmart. [Id. at 17]. To date, Mr. Hebert is 50 years old and has served 25 years of his sentence in federal prison. [Doc. No. 145 at 2]. Based on information provided by the Government, he has paid approximately $5,627.57 in restitution owed. [Doc. Nos. 125 at 1-2].
In sum, Mr. Hebert now seeks compassionate release based on recent sentencing reforms and his history of rehabilitation. Specifically, Mr. Hebert maintains that "extraordinary and compelling circumstances" warrant a sentence reduction because of "(1) [Mr.] Hebert's remarkable record of demonstrated rehabilitation, contrition, and positive contribution to the inmate community combined with (2) the severity of [Mr.] Hebert's sentence—which represents the type of sentence Congress deemed unjust in the First Step Act (FSA)—relative to those sentences imposed for both similar and more severe crimes." [Doc. No 129 at 14 (citing McCoy v. United States , No. 2:03-cr-197, 2020 WL 2738225, at *6 (E.D. Va. May 26, 2020), aff'd , 981 F.3d 271 (4th Cir. 2020) )]. The sentencing severity to which Mr. Hebert refers to is "sentence stacking," which was a compounded sentence of consecutive 20-year mandatory minimums while using a firearm in the commission of a violent offense. See 18 U.S.C. § 924(c) (1996) ; United States v. McCoy , 981 F.3d 271, 275 (4th Cir. 2020). In 2018, Congress ended this sentencing practice under the FSA. The First Step Act, Pub L. No. 115-391, § 403(a), 132 Stat. 5194, 5222 (2018). In Mr. Hebert's case, 2,400 months of his total conviction are a result of sentence stacking.
In response, the Government claims that statutory changes to § 924(c) and his record of rehabilitation do not qualify as extraordinary and compelling reasons for a sentence reduction under compassionate release. [Doc. No. 135 at 3-4]. In particular, the Government contends that the sentencing changes to § 924(c) are not retroactive, and therefore, do not qualify as an extraordinary and compelling reason. [Id. at 5-7]. As a fallback, the Government argues that even if extraordinary and compelling reasons exist for a sentence reduction, Mr. Hebert has failed to show that he is entitled to a sentence reduction under 18 U.S.C. § 3553(a). [Id. at 7].
II. LEGAL BACKGROUND – FIRST STEP ACT SENTENCE REDUCTION
"A judgment of conviction that includes a sentence of imprisonment constitutes a final judgment and may not be modified by a district court except in limited circumstances." Dillon v. United States , 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). One such exception commonly known as "compassionate release" contravenes the general rule regarding the finality of a criminal sentence. 18 U.S.C. § 3582(c)(1)(A). Congress enacted the FSA which modified 18 U.S.C. § 3582(c)(1) to allow a defendant to bring a motion to modify his or her sentence where "extraordinary and compelling reasons warrant such a reduction." Id. § 3582(c)(1)(a)(i).
Under § 3582(c)(1)(A), a district court may grant a sentence reduction if it finds: (1) a defendant "fully exhausted all administrative rights"; (2) "extraordinary and compelling reasons warrant such a reduction"; (3) "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission"; and (4) such a reduction is appropriate "after considering the factors set forth in § 3553(a) to the extent that they are applicable." Id. § 3582(c)(1)(A). The FSA "grants broad discretion to the district courts in providing relief[.]" Jones v. United States , 431 F. Supp. 3d 740, 746 (E.D. Va. 2020).
III. ANALYSIS
A. Exhaustion Requirement
Mr. Hebert satisfied the exhaustion requirements in 18 U.S.C. § 3582(c)(1)(A).
A motion for compassionate release may be considered only if it first meets § 3582(c)(1)(A) ’s exhaustion requirement. Courts may not consider a modification to a defendant's sentence under § 3582(c)(1)(A)(i) unless a motion for such a modification is properly made by the Director of the BOP or by a defendant who has fully exhausted their administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Fully exhausting administrative remedies requires either a denial by the warden of a defendant's facility or a defendant waiting thirty days without receiving a response to a request. Id.
Section 3582(c)(1)(A) ’s exhaustion requirement is not waivable. See United States v. Rivas , 833 F. App'x 556, 558 (5th Cir. 2020) ("Because the statutory language is mandatory—that a prisoner must exhaust their BOP remedy before filing in district court—we must enforce this procedural rule ..."). If a defendant has not sought relief from the BOP, or has not waited thirty days since seeking relief, the Court may not consider that motion. 18 U.S.C. § 3582(c)(1)(A).
Mr. Hebert has provided sufficient documentation to show that he has properly exhausted his appeal, making his pending motion ripe before this Court for review. In sum, on August 6, 2020, Warden McConnell of FCI Pollock (the "Warden") received Mr. Hebert's written request for compassionate release. [Doc. No. 129-1 at 1]. Upon denial, Mr. Hebert appealed the Warden's decision on September 17, 2020, which was again denied by the Warden. [Id. at 4, 5, 8]. On October 26, 2020, Mr. Hebert appealed to the BOP's South Central Regional Office, which was also denied. [Id. at 10-12]. On January 26, 2021, Mr. Hebert appealed to the BOP's Administrative Remedy Section located in Washington D.C., and it was promptly denied. [Id. at 13-16]. Upon receiving the denied appeal from the BOP Administrative Remedy Section, the Warden's decision denying Mr. Hebert's initial request for compassionate release on August 6, 2020, became final. After navigating the administrative headwinds, counsel for Mr. Hebert filed a motion for compassionate release more than 30 days after the Warden's receipt of Mr. Hebert's request for compassionate release. See 18 U.S.C. § 3582(c)(1)(A) ; [Doc. No. 129]. The Court concludes that Mr. Hebert exhausted all mandatory administrative requirements.
Although mandatory, the Court notes that the parties agree, "[Mr.] H ebert exhausted his administrative remedies within the meaning of 18 U.S.C. § 3582(c)(1)(A) before filing a motion for sentencing reduction in the Court." The Government does not place Mr. Hebert's administrative appeal into issue, so the Court need not further elaborate on this point.
B. Extraordinary and Compelling Circumstances
Under § 3582(c)(1)(A)(i), a court may reduce a defendant's term of imprisonment if, "after considering the factors set forth in section 3553(a) to the extent that they are applicable," the court 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." 18 U.S.C. § 3582(c). The Sentencing Commission issued U.S.S.G. § 1B1.13, a policy statement that governs motions under § 3582(c)(1)(A). At the time that § 1B1.13 was issued, however, the Bureau of Prisons (BOP) had the sole authority to bring motions for release under § 3582(c)(1)(A). Section 1B1.13 has not been updated to reflect that, as a result of the FSA, defendants now have the ability to bring compassionate-release motions.
Congress never defined what constitutes "extraordinary and compelling," but rather delegated this determination to the Sentencing Commission. By the text of § 3582(c)(1)(A), any sentence reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." Since the passage of the FSA, however, the Sentencing Commission has not updated its guidelines on compassionate release. The United States Court of Appeals for the Fifth Circuit recently concluded that the Sentencing Commission's policy statement, § 1B1.13, is no longer binding on a district court. See United States v. Shkambi , 993 F.3d 388, 393 (5th Cir. 2021) (explaining that "[t]he district court on remand is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a). In reaching this conclusion, we align with every circuit court to have addressed the issue.").
Under this new framework, § 1B1.13 still binds district courts on motions made by the BOP; however, for motions made directly by an inmate, district courts are free to consider any relevant facts in determining if extraordinary and compelling reasons exist. See United States v. Brooker , 976 F.3d 228, 235-36 (2d Cir. 2020) (because the FSA allows both inmates and the BOP to file compassionate-release motions under § 3582(c)(1)(A), § 1B1.13 now applies only when such motions are made by the BOP and is inapplicable when a compassionate-release motion is made by a defendant).
Free from the restrictions of § 1B1.13, the policy statement remains an invaluable starting point and provides that extraordinary and compelling reasons exist when: (1) a terminal illness or other medical condition "substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility"; (2) a defendant, who is at least 65 years old, "is experiencing a serious deterioration in physical or mental health because of the aging process" and "has served at least 10 years or 75 percent of his or her term of imprisonment"; and (3) a defendant has minor children without a caregiver or with an incapacitated spouse or partner who needs the defendant to be the caregiver. U.S.S.G. § 1B1.13, n.1(A)-(C). Finally, the BOP Program Statement 5050.50, amended after passage of the FSA, describes the factors the BOP considers as grounds for compassionate release. See BOP Program Statement 5050.50 at 4-12 (2018). These grounds are similar to the reasons identified by the Sentencing Commission but also include a list of factors such as rehabilitation and circumstances of the offense. Id.
In accordance with this guidance, courts have identified additional situations in which extraordinary and compelling reasons exist. While rehabilitation alone is not an extraordinary and compelling reason justifying compassionate release, it can be a factor warranting a reduction when an inmate has an otherwise qualifying condition. See United States v. Rodriguez , 451 F. Supp. 3d 392, 405 (E.D. Pa. 2020) (noting that the Sentencing Commission itself interpreted § 3582(c)(1)(A) as allowing consideration of an inmate's rehabilitation). If an inmate demonstrates a long, comprehensive record of rehabilitation, the question becomes whether injustice would occur if the person remains incarcerated. See Brooker , 976 F.3d at 238 (identifying "the injustice of [a] lengthy sentence" as a factor that may weigh in favor of a sentence reduction).
Additionally, courts examine any changes in law and the sentencing guidelines when determining whether a sentence is extraordinary. Specifically, for example, courts grant compassionate release at a remarkable rate for inmates subject to the now-abolished § 924(c) sentencing-stacking. See, e.g., McCoy , 981 F.3d at 285 ("As the court observed in [United States v. ]Bryant [2020 WL 2085471 (D.Md. Apr. 30, 2020)], multiple district courts have concluded that the severity of a § 924(c) sentence, combined with the enormous disparity between that sentence and the sentence of a defendant would receive today, can constitute an ‘extraordinary and compelling’ reason for relief under § 3582(c)(1)(A)."). Courts also consider the disparity between the defendant's sentence and the sentence imposed on average for similar offenses. United States v. Redd , 444 F. Supp. 3d 717, 723 (E.D. Va. 2020).
When Mr. Hebert was sentenced, the Court was subjected to a different sentencing regime. Substantively, the FSA modified sentencing calculations, United States v. Zullo , 976 F.3d 228, 230 (2d Cir. 2020), under 18 U.S.C. § 942(c). Section 924(c) imposes a five- to ten- year mandatory minimum on a person who uses or carries a firearm in furtherance of a crime of violence for a first offense. For a "second or subsequent conviction," § 942(c) imposes a 25-year mandatory minimum sentence. Prior to the FSA, the Supreme Court interpreted "second or subsequent conviction" to mean that all subsequent convictions obtained, even where the first conviction was in the same case, triggered a 25-year mandatory minimum. Deal v. United States , 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). Therefore, defendants, like Mr. Hebert, were sentenced to serve enhancements of 25-year mandatory minimums on each additional § 924(c) charge in the same indictment. In 2018, Congress ended sentence stacking but did not make the change retroactive. The First Step Act, Pub L. No. 115-391, § 403(a), 132 Stat. 5194, 5222 (2018).
Id. at 134 n.2, 113 S.Ct. 1993. At the time Mr. Hebert was sentenced, he received sentencing enhancements of 20-year mandatory minimums on each § 924(c) charge. See 18 U.S.C. § 924(c) (1996).
To this point, the Government contends that because the FSA sentencing changes to § 924(c) are not retroactive, the elimination of sentence stacking may not be used as an extraordinary and compelling reason to support a sentence reduction. [Doc. No. 135 at 4-5]. The Court agrees with the Government's position to the extent that sentencing changes to § 924(c) are not retroactive. The First Step Act, Pub L. No. 115-391, § 403(b), 132 Stat. 5194, 5222 (2018) ("This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment."). Supporting the Government's argument, the United States Court of Appeals for the Sixth Circuit concluded that the sentencing changes to § 924(c) are not extraordinary and compelling reasons. United States v. Tomes , 990 F.3d 500, 505 (6th Cir. 2021) ("[W]e will not render § 401(c) useless by using § 3582(c)(1)(A) as an end run around Congress's careful effort to limit the retroactivity of the First Step Act's reforms."). However, this Court is bound by precedent from the Fifth Circuit. As such, the Court looks to recent case law where the Fifth Circuit left to the district court's discretion to decide "whether the nonretroactive sentencing changes to [the defendant's] § 924(c) convictions, either alone or in conjunction with any other applicable considerations, constitute extraordinary and compelling reasons for a reduction in sentence." United States v. Cooper , 996 F.3d 283, 288 (5th Cir. 2021). Because the Fifth Circuit has clearly laid out the discretion afforded to district courts under § 3582(c)(1)(A), this Court need not venture into an analysis of the belabored circuit split as to whether sentencing changes to § 924(c) may be considered as an extraordinary and compelling reason under § 3582(c)(1)(A). Mr. Hebert is sentenced to 2,581 months (215 years) in federal prison. [Doc. No. 105]. His sentence includes 121 months for the series of robberies he committed and 60 months for one count of using a firearm in connection to the first robbery. [Id. ]. The overwhelming majority of his sentence is comprised of 2,400 months, which is attributed to 10 subsequent counts due to sentence stacking of firearm related charges under § 924(c)(1)(C). The "sheer and unusual length of [a] sentence[ ]" is a "distinct" factor in considering whether extraordinary and compelling circumstances exist. McCoy , 981 F.3d at 285.
See Tomes , 990 F.3d at 500 ; see also United States v. Thacker , 4 F.4th 569, 574 (7th Cir. 2021) (explaining that a district court's discretion under § 3582(c)(1)(A) ) is limited and cannot conflict with the amendment to § 924(c) that applies prospectively; but see also McCoy , 981 F.3d 271 (concluding that the severity of § 924(c) sentence stacking can constitute an extraordinary and compelling reason for relief under § 3582(c)(1)(A) ); cf. United States v. McGee , 992 F.3d 1035, 1046-48 (10th Cir. 2021) (analyzing the conflict concerning retroactivity between Tomes and McCoy and concluding that the elimination of sentence stacking in combination with a unique circumstance may constitute extraordinary and compelling reasons for relief under § 3582(c)(1)(A) ).
The Supreme Court outlined the incredibly broad discretion afforded to prosecutors in charging offenses: The discretion in deciding how many § 924(c) offenses to charge "pertains to the prosecutor's universally available and unvoidable power to charge or not to charge an offense." Deal , 508 U.S. at 133 n.2, 113 S.Ct. 1993 (emphasis in original). However, prosecutors’ "universally available and unvoidable" discretion does not insulate them from admonishment as to the use of that discretion. The Fifth Circuit's dissenting reproach is incontrovertible: "I have to register my fundamental disagreement with the strategy adopted by the Department of Justice and the federal prosecutors which has produced this conviction." United States v. Hebert , 131 F.3d 514, 525 (5th Cir. 1997) (DeMoss, J., dissenting). This Court need not expound any further.
The inconceivable magnitude of Mr. Hebert's sentence is difficult to comprehend. His sentence is more than two centuries. Based on information provided by https://www.bop.gov/inmateloc, last checked on December 8, 2021, Mr. Hebert's expected release date is October 14, 2179. If Mr. Hebert were to defy the bounds of the human condition, he would be 239 years old after serving his entire sentence. Realistically, Mr. Hebert's sentence is more akin to serving at least three life sentences. For an extreme comparison, consider that the United States of America was founded in 1776, making it 245 years old as of today. His 215-year sentence is merely 30 years shy of the entire span of U.S. history. Facing eternity without any chance of release is a bleak future for anyone to confront. Efforts made toward rehabilitation would seem futile. In fact, the Court is inclined to agree with Mr. Hebert—"His sentence is unforgiving by any measure: ‘[L]ife without parole is "the second most severe penalty permitted by law." ’ " [Doc. No. 129 at 26 (citing Graham v. Florida , 560 U.S. 48, 69, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ) (citation omitted) (Kennedy, J., concurring)].
With the elimination of sentence stacking under § 924(c), Mr. Hebert's sentence would be unquestionably shorter. If he were sentenced today, Mr. Hebert's sentence would serve approximately 65 years—a difference of 150 years. Putting the gross disparity in perspective, the Court takes note of an identical case cited by Mr. Hebert. In United States v. Clausen , the defendant was sentenced to about 213 years in prison for "nine counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951, nine counts of conspiracy to commit Hobbs Act robbery in violation of the same statute, and nine counts of using a firearm in the commission of each count in violation of 18 U.S.C. § 924(c)." No. 2:00-cr-291-GJP-2, 2020 U.S. Dist. LEXIS 131070, 2020 WL 4260795, at *1 (E.D. Pa. July 24, 2020), ECF No. 277. Had the defendant been sentenced at the time the court considered his motion for compassionate release, "he would receive at least [45] years of imprisonment for the § 924(c) counts and likely a total consecutive sentence in excess of sixty years." Id. at *1 n.3. In a subsequent order, the court reduced the defendant's sentence to time served and three years of supervised release. United States v. Clausen , No. 2:00-cr-291-GJP-2, 2020 WL 4601247 (E.D. Pa. Aug. 10, 2020), ECF No. 283. The disparity between Mr. Hebert's 1996 sentence and one that he would receive today is stark. This vast sentencing change is a major factor that courts should consider as an extraordinary and compelling reason under 18 U.S.C. § 3582(c)(1)(A).
In 1996, the average sentence in federal court for murder was 295.7 months; kidnapping was 180.2 months; robbery was 110.9 months; sexual abuse was 67.3 months; and manslaughter was 27.3 months. Mr. Hebert's current sentence greatly exceeds the sentence of other violent crimes. Indeed, he has already served more than the average sentence for all of these crimes. The factors consisting of the changes in sentencing law, the length of Mr. Hebert's sentence, the gross sentencing disparity compared to other violent crimes all weigh in favor of extraordinary and compelling circumstances to warrant a sentence reduction.
See U.S. Sentencing Comm'n , 1996 Sourcebook of Federal Sentencing Statistics 22 (1996), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/1996/TAB-13_0.pdf.
The Court also considers Mr. Hebert's rehabilitation with other extraordinary and compelling reasons. In sum, the record reflects that Mr. Hebert completed two rehabilitation programs in prison, including a program focused on group counseling, targeting criminal thinking and behavior patterns, and a small group therapy program focused on assumption of responsibility for past choices. [Doc. Nos. 129-2 at 2-3; 129-3 at 4; 129-4 at 2-3]. He created and facilitated a group meeting program called "Carry on With a Life Sentence" and served as a Suicide Watch Inmate Companion. [Doc. No. 129-5 at 8-10, 15-19]. He served as a member, board member, and Acting Co-Chairman of Men Teaching Others Responsibility (MEN.T.O.R.), an inmate-led organization dedicated to self-improvement, teaching responsibility, and avoiding recidivism. [Doc. Nos. 129-2 at 12-14, 25; 129-5 at 23-24]. Mr. Hebert has taken over 3,000 hours of educational classes and completed college courses in engineering, business, and accounting, and completed more than 2,000 hours in a Welding Apprenticeship Program. [Doc. Nos. 129-3 at 4-6; 129-6 at 2-3]. He worked as a tutor, teaching subjects such as math, music, and the GED, and a safety department clerk, earning positive reviews of his employment by BOP staff. [Doc. No. 129-3 at 3]. Among the amalgam of high praises, Mr. Hebert has been described by a BOP Drug Treatment Specialist as a "model inmate" who "has taken responsibility for his behaviors during treatment." [Doc. No. 129-2 at 5].
Mr. Hebert demonstrates understanding and regret for the inexcusable harm he caused others and holds himself out as apologetic, humble, and contrite. He has shown himself to take conscientious effort toward self-improvement and demonstrates a high level of introspection. His proactive efforts toward rehabilitation, without any foreseeable opportunity of release, show him to be a paragon of reformation. Consequently, Mr. Hebert's rehabilitation weighs in favor of extraordinary and compelling reasons for a sentence reduction. The Court concludes that Mr. Hebert has sufficiently shown extraordinary and compelling reasons to consider a sentence reduction and finds nothing to the contrary to suggest otherwise. The Court now turns to analyze factors under 18 U.S.C. § 3553(a) to determine whether Mr. Hebert's sentence may be adjusted.
C. Title 18 U.S.C. § 3553(a) Factors
Even if extraordinary and compelling reasons exist, the 18 U.S.C. § 3553(a) factors must be considered as to whether a sentence reduction is warranted. See 18 U.S.C. § 3582(c)(1)(A). These factors are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and sentencing range [provided for in the U.S.S.G.] ...
(5) any pertinent [Sentencing Commission] 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).
1. Nature of the Offense and Rehabilitation
Mr. Hebert committed multiple robberies while possessing a firearm and stole $36,475.00. The record reflects that nobody was physically harmed during the robberies. Mr. Hebert maintains that he committed the robberies because he was struggling financially. [Doc. No. 129-2 at 25]. He states that he is in prison "through my own devices." [Doc. No. 129-2 at 25]. He does not "blame anyone else for my failure(s)" and is "truly sorry" for his behavior. [Id. at 25-27]. In class, he has learned to "understand and internalize the impact of crime on victims." [Id. at 25; Doc. No. 129-4 at 4-5]. Mr. Hebert has taught others to accept the same responsibility while promoting "pro-social behavior" and cultivating a "peaceful mindset" to "promote continued growth despite personal challenges." [Doc. No. 129-2 at 26].
Also, contributing to Mr. Hebert's rehabilitation is his plan upon release:
This, too, ensures an effective transition from prison. He will live with his aunt, Mary Cormier, in Houston, Texas. Ms. Cormier has been a constant source of support for Hebert, visiting him throughout the last decades. For over 40 years, Ms. Cormier has owned and operated a beauty salon in Houston, and has agreed to employ [Mr.] Hebert immediately upon his release to take care of her salon: as a maintenance technician, grounds keeper, and custodian. [Mr.] Hebert thus has immediate employment, family support, and a place to live upon his release. Because he is trained as a welder—both in prison, and prior to his incarceration—in the longer term he will
seek such employment in the Houston area.
[Doc. No. 129 at 33-34 (internal citations omitted)].
2. Penological Considerations
"A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense." Graham , 560 U.S. at 71, 130 S.Ct. 2011. "A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." Ewing v. California , 538 U.S. 11, 25, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). The aforementioned justifications directly align with the factors the Court must consider pursuant to 18 U.S.C. §§ 3553(a)(2), (6), and (7), and the Court analyzes the § 3553(a) factors in light of them.
First, under retribution, "a criminal sentence must be directly related to the personal culpability of the criminal offender." Tison v. Arizona , 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Mr. Hebert's robbery and first use of a firearm convictions account for 161 months, or in other words, about six percent of his entire sentence. [Doc. No. 105]. In comparison, the average sentence for robbery in 1996 was 110.9 months. Mr. Hebert's sentence of 161 months, which he has already served, is directly related to his personal culpability. However, that direct relationship is obscured, if not non-existent, when the overwhelming majority of his sentence is due to "[t]he onerous enhancement [as] a result of § 924(c)(1)(c) for ‘second or subsequent conviction[s]’ under § 924(c), [which] masquerades as a recidivism enhancement." Holloway v. United States , No. 01-CV-1017, 2014 U.S. Dist. LEXIS 66868, 2014 WL 1942923, at *2 (E.D.N.Y. May 14, 2014).
Second, the goal of deterrence contemplates that individuals will consider possible punishment when making decisions. Graham , 560 U.S. at 72, 130 S.Ct. 2011. On one hand, a disproportionately high sentence may deter some from committing crimes. On the other hand, deterrence is under-served when the justification for such punishment is greatly attenuated. Here, Mr. Hebert's sentence can hardly be said to deter individuals when his sentence is grossly disproportionate to the average sentence for robbery. Mr. Hebert's sentence is an aberration, and the lack of consistency and gross deviation from the mean lessen any chance of deterrence for others. "[T]o avoid unwarranted sentencing disparities," reducing his sentence to comport with other "defendants with similar records" would rectify this inequity and promote consistency in sentencing. 18 U.S.C. § 3553(a)(6) ; see United States v. Cooper , No. 4:09-cr-132 (S.D. Tex. July 19, 2021), ECF No. 211.
Third, the penological theory of incapacitation seeks to reduce repeat offenders by requiring long sentences. Ewing , 538 U.S. at 51, 123 S.Ct. 1179 (Breyer, J., dissenting). Mr. Hebert's sentence is unquestionably long, and he has served his time for the repeated robberies he committed. Based on his rehabilitation and that he has sufficiently served his sentence, there is no indication that Mr. Hebert needs to be incapacitated any further.
Finally, although definitionally amorphous, rehabilitation serves the purpose of "returning the prisoner to society in a state so that he will henceforth behave in a law-abiding manner ..." Amatel v. Reno , 156 F.3d 192, 209 (D.C. Cir. 1998). There is no way to guarantee that someone is fully rehabilitated. Id. Consequently, the best approach is to analyze the evidence before the Court. The best predictor of future behavior is past behavior. See, e.g., United States v. Paulino , 335 F. Supp. 3d 600, 614 (S.D.N.Y. 2018) (citing United States v. Barnett , No. 5:03-CR-243(NAM), 2003 WL 22143710, at *12 (N.D.N.Y. Sept. 17, 2003) ). Here, the Court relies on its prior summary of Mr. Hebert's rehabilitation and concludes that his rehabilitation efforts are extensive, impressive, and exceptional.
Based on the foregoing, the pertinent § 3553(a) factors weigh in favor of a sentence reduction. The Court sees no reason as to why Mr. Hebert's incarceration should continue. The Court agrees with Mr. Hebert—"Given [Mr.] Hebert's rehabilitation and the extensive prison sentence he has already served, nothing is gained by incarcerating [Mr.] Hebert for the rest of his life, especially in light of Congress's judgment that such sentences are inappropriate." [Doc. No. 129 at 36]. Like the character in the film, Papillon , Mr. Hebert did not sit idly by to await the final moments of his life sentence. He took the metaphorical leap of faith into the expansive ocean and grasped his float. Papillon succeeded and achieved freedom, and Mr. Hebert has accomplished the same feat. Mr. Hebert has rightly attained a new life.
IV. ORDER
IT IS THEREFORE ORDERED that Motion to Reduce Sentence - First Step Act , [Doc. No. 129], is in all things GRANTED . The Court REDUCES Scyrus Dion Hebert's sentence to time served.
IT IS FURTHER ORDERED that the Bureau of Prisons RELEASE Scyrus Dion Hebert from custody within ten (10) days of the entry of the amended judgment of conviction.
IT IS FURTHER ORDERED that the term of supervised release is REDUCED from five (5) years to two (2) years, and the additional conditions of supervised release are set forth in the amended judgment of conviction, which are ADOPTED as part of this order.
The Court will enter the amended judgment of conviction separately in accordance with this order.