Opinion
4:20-cr-23-CDL-MSH
07-06-2022
UNITED STATES OF AMERICA v. DANIEL LLOYD, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is Defendant Daniel Lloyd's motion for sentence reduction (ECF No. 41) and motion for return of property (ECF No. 43). For the reasons stated below, the Court recommends that Defendant's motions be denied.
BACKGROUND
On December 21, 2020, Defendant pleaded guilty under a superseding information to possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). Superseding Info. 1, ECF No. 22; Plea Sheet 1, ECF No. 25. Following Defendant's guilty plea, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) (ECF No. 35) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). Because the Defendant possessed a firearm after two felony convictions involving a controlled substance, USPO calculated a base level offense of 24. PSR ¶ 22, ECF No. 35; U.S.S.G. § 2K2.1(a)(2). Then, because the firearm Defendant possessed was believed to be stolen, Defendant's offense level was raised two levels to 26. PSR ¶ 23; U.S.S.G. § 2K2.1(b)(4)(A). He subsequently received a three-level reduction for acceptance of responsibility and entering a guilty plea in a timely manner, reducing his total offence level to 23. PSR ¶¶ 29-31; U.S.S.G. § 3E1.1(a), (b).
Defendant's criminal history score was 22. PSR ¶ 51. Because he committed the underlying offense while serving a Muscogee County Superior Court sentence, two points were added, resulting in a criminal history score of 24. Id. ¶¶ 52-53. As a result, his criminal history category was VI. Id. ¶ 53. The USPO therefore calculated a Guidelines sentencing range of 92 to 115 months. PSR ¶ 75. On July 16, 2021, the Court sentenced Defendant to 115 months' imprisonment followed by three years of supervised release. Judgment 2-3, ECF No. 38.
The Court received Defendant's motion to reduce his sentence on February 7, 2022 (ECF No. 41), and his motion for return of property on March 1, 2022 (ECF No. 43). The Government responded to the motion to reduce sentence on March 30, 2022 (ECF No. 44). Defendant's motions are ripe for review.
DISCUSSION
I. Motion to Reduce Sentence
Defendant asserts three grounds in support of a sentence reduction. First, he requests credit for time served from February 23, 2020, to June 14, 2021. Mot. to Reduce Sentence 1, ECF No. 41. Second, Defendant argues family circumstances and his rehabilitative efforts warrant reducing his sentence to 92 months. Id. at 1. Third, he contends he is entitled to a sentence reduction under the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, 132 Stat. 5194 (2018). Id. at 2. All of Defendant's grounds are meritless.
A. Time Served
Under 18 U.S.C. § 3585(b), “[a] defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences” either “as a result of the offense for which the sentence was imposed; or as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;” and “that has not been credited against another sentence.” 18 U.S.C. § 3585(b)(1), (2). However, “[a]uthority to calculate credit for time served under section 3585(b) is vested in the Attorney General, not the sentencing court.” United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010). Thus, the Court lacks jurisdiction to entertain Defendant's request of credit for time served.
Moreover, such claims challenge the execution rather than the validity of the sentence. Therefore, they must be brought as a habeas petition under 28 U.S.C. § 2241 in the district court for the district in which the inmate is incarcerated. See United States v. Kinsey, 393 Fed.Appx. 663, 664 (11th Cir. 2010) (per curiam) (noting that § 2241 “is the appropriate means by which an inmate may challenge the Bureau of Prison's [(‘BOP's')] calculation and execution of his sentence”) (citing Bishop v. Reno, 210 F.3d 1295, 1304 n.14 (11th Cir. 2000)). As Defendant is housed at FCI Williamsburg in Salters, South Carolina, he must raise his § 2241 habeas petition in the United States District Court for the District of South Carolina-not the Middle District of Georgia. 28 U.S.C. § 121(3).
B. Extraordinary and Compelling Reasons
A district court “‘may not modify a term of imprisonment once it has been imposed except' under certain circumstances. United States v. Harris, 989 F.3d 908, 909 (11th Cir. 2021) (quoting 18 U.S.C. § 3582(c)). One circumstance is listed in 18 U.S.C. § 3582(c)(1)(A). A second circumstance is where a sentence reduction is “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). A third circumstance allows a sentence reduction where a defendant has been “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. § 3582(c)(2).
Defendant's argument involving his family circumstances and rehabilitative efforts implicates the first circumstance listed in 18 U.S.C. § 3582(c)(1)(A), commonly known as compassionate release. Under that section, a prisoner may obtain a reduction in his sentence if, “after considering the factors set forth in [18 U.S.C. § 3553(a)],” the district court finds that “extraordinary and compelling reasons warrant such reduction . . . and that such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The Sentencing Commission's policy statement for reduction in the term of imprisonment is found at U.S.S.G. § 1B1.13. Under that policy statement, a defendant must show that he “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2). A defendant bears the burden of proving entitlement to a sentence reduction. See United States v. Mantack, 833 Fed.Appx. 819, 819-20 (11th Cir. 2021) (per curiam) (citing United States v. Green, 764 F.3d 1352, 1356 (11th Cir. 2014)).
In addition to extraordinary and compelling reasons warranting a reduction, modification of a sentence may also be granted to a defendant who is over 70 years old and has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c). 18 U.S.C. 3582(c)(1)(A)(ii). This provision is inapplicable to Defendant.
Prior to enactment of the First Step Act, a sentence reduction was available only upon a motion from the Director of the BOP. The First Step Act authorized prisoners to move directly for a sentence reduction in district court after exhausting all available administrative remedies. Pub. L. No. 115-391, § 603(b)(1), 132 Stat. 5194, 5239. Defendant does not address whether he exhausted his administrative remedies, but the Government states the Federal BOP electronic system reveals no such request for sentence reduction. Gov't Resp. 4-5, ECF No. 44. As the Court recommends denying Defendant's motion on the merits, it need not resolve the factual dispute over exhaustion.
Defendant fails to show extraordinary and compelling reasons warranting reduction of his sentence. The Sentencing Commission policy statement provides four circumstances that constitute extraordinary and compelling reasons for a sentence reduction. U.S.S.G. § 1B1.13 cmt. n.1. The first is a qualifying medical condition. U.S.S.G. § 1B1.13 cmt. n.1(A). A medical condition qualifies if “[t]he defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory).” U.S.S.G. § 1B1.13 cmt. n.1(A)(i). A defendant need not show a “probability of death within a specific time period,” and “[e]xamples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.” Id. In the alternative, a defendant's medical condition qualifies if he or she is:
(I) suffering from a serious physical or medical condition, (II) suffering from a serious functional or cognitive impairment, or (III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.U.S.S.G. § 1B1.13 cmt. n.1(A)(ii). Defendant, however, does not rely on a medical condition, so this circumstance is inapplicable to him.
The second circumstance qualifying as extraordinary and compelling reasons is the defendant's age. U.S.S.G. § 1B1.13 cmt. n.1(B). Defendant is not over the age of sixty-five, so this circumstance is also inapplicable to him.
The third circumstance is family circumstances. U.S.S.G. § 1B1.13 cmt. n.1(C). In order for family circumstances to constitute extraordinary and compelling reasons for reducing a sentence, a defendant must show the “death or incapacitation of the caregiver of the defendant's minor child or minor children” or the “incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.” U.S.S.G. § 1B1.13 cmt. n.1(C). Defendant asserts he is needed to financially assist both his sister's family due to the death of their grandfather and his autistic son due to his fiance's recent stroke. Mot. to Reduce Sent. 2. Defendant's desire to assist his sister and her two children clearly does not satisfy the family circumstances criteria. See U.S.S.G. § 1B1.13 cmt. n.1(C). Neither does his desire to support his son as Defendant admits his fiance's parents and their daughter have “step[ped] up” to provide financial assistance following his fiance's stroke. Mot. to Reduce Sent. 2. Thus, Defendant has not shown either of the family circumstances to be present, and so, he does not qualify under this provision.
The fourth circumstance is “other reasons,” which is where “[a]s determined by the Director of the [BOP], there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).” U.S.S.G. § 1B1.13 cmt. n.1(D). The Eleventh Circuit has rejected the approach taken by other circuits and concluded that “‘other reasons' are limited to those determined by the [BOP], not by courts.” United States v. Lee, 857 Fed.Appx. 556, 558 (11th Cir. 2021) (per curiam) (citing United States v. Bryant, 996 F.3d 1243, 1246-49 (11th Cir. 2021)). Therefore, a district court lacks the authority to determine if a defendant's circumstances qualify as an “other reason” under U.S.S.G. § 1B1.13 cmt. n.1(D). Bryant, 996 F.3d at 1247-48, 1263. There is no evidence the BOP has determined Defendant presents an extraordinary and compelling reasons for a sentence reduction. Thus, the “other reasons” circumstance under U.S.S.G. § 1B1.13 cmt. n.1(D) does not apply to Defendant.
Accordingly, Defendant fails to satisfy any of the four circumstances constituting extraordinary and compelling reasons for a reduced sentence. Therefore, the Court recommends that his motion be denied on this ground.
As Defendant fails to show extraordinary and compelling reasons for a reduction in his sentence, the Court need not consider the factors set forth in 18 U.S.C. § 3553(a). United States v. Giron, 15 F.4th 1343, 1350 (11th Cir. 2021).
C. First Step Act
Lastly, Defendant argues he is entitled to a sentence reduction under the First Step Act. Mot. to Reduce Sent. 2. Specifically, he contends because he was convicted under 18 U.S.C. § 924(a)(2), rather than § 924(c), he is eligible for a sentence reduction under the First Step Act. Id. It appears Defendant seeks reduction of his sentence under Section 101, Subsection 3632(d)(4) of the First Step Act. This provision allows “[a] prisoner . . ., who successfully completes evidence-based recidivism reduction programing or productive activities,” to earn certain time credits. Pub. L. No. 115-391, § 101(3632)(d)(4)(A), 132 Stat. 5194, 5198. Just like the imposition of credit for time served, however, this determination rests with BOP and challenges the execution rather than the validity of Defendant's sentence. Id. § 101(3631); see also Kinsey, 393 Fed.Appx. at 664 (noting that § 2241 “is the appropriate means by which an inmate may challenge the [BOP's] calculation and execution of his sentence”) (citing Bishop, 210 F.3d at 1304 n.14); United States v. Spaulding, Nos. 6:12-cr-17, 6:13-cr-1, 6:15-cv-107, 2020 WL 907873, at *1 (S.D. Ga. Feb. 25, 2020) (“Spaulding must bring her claim for sentencing credits pursuant to 28 U.S.C. § 2241, and she must file such a petition in the district of her confinement . . .”). As such, the Court lacks jurisdiction to entertain Defendant's request for time credits.
To the extent Defendant instead argues the First Step Act amended § 924(a)(2) as opposed to § 924(c), this is plainly incorrect. See Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221-22.
II. Motion for Return of Property
Defendant seeks the return of $2,034.00 that was seized during his arrest. Mot. for Ret. of Prop. 1, ECF No. 43. He argues he is entitled to this cash because his superseding information lacked a forfeiture notice. Id. Defendant's motion is unavailing.
Pursuant to Rule 41 of the Federal Rules of Civil Procedure, “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return.” The motion must be filed in the district where the property was seized.” Fed.R.Civ.P. 41(g). Although the Government has not responded to Defendant's motion, there is evidence in the record demonstrating that the Columbus Police Department-not the federal government-retains the cash Defendant seeks. See Plea Agreement ¶ 7, ECF No. 26; PSR ¶¶ 9-11. The Court “cannot order the federal government to return something that it does not possess.” United States v. Cobb, 703 Fed.Appx. 879, 882 (11th Cir. 2017) (per curiam). Accordingly, Defendant's motion for return of property should be denied.
CONCLUSION
For the foregoing reasons, the Court recommends that Defendant's motion for sentence reduction (ECF No. 41) and motion for return of property (ECF No. 43) be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”