Opinion
4:12-cr-12-CDL-MSH
06-15-2022
UNITED STATES OF AMERICA v. TRAVIS LOKEY, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Travis Lokey's motion for compassionate release or, in the alternative, sentence reduction (ECF No. 67). For the reasons stated below, the Court recommends that Lokey's motion be denied.
BACKGROUND
On December 4, 2012, Lokey pleaded guilty under a superseding information to distribution of crack cocaine (count one) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) and possession of a firearm by a convicted felon (count two) in violation of 18 U.SC. §§ 922(g)(1) and 924(e)(1). Superseding Info. 1-2, ECF No. 18; Change of Plea, ECF No. 21. Following Petitioner's guilty plea, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) (ECF No. 30) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). Because the amount of crack cocaine attributable to Lokey was at least 28 grams but less than 112 grams, USPO calculated a base offense level of 26 for count one based on the drug quantity table, U.S.S.G. § 2D1.1(c), in effect at the time. PSR ¶ 21. On count two, because Lokey possessed the firearm after two felony convictions involving a controlled substance, USPO calculated a base offense level of 24. PSR ¶ 27; U.S.S.G. § 2K2.1(a)(2). Then, based on a multiple count adjustment, Lokey's offense level was raised two levels to 28. PSR ¶¶ 33-38; U.S.S.G. § 3D1.4.
Lokey's controlled substance conviction under count one, however, qualified him as a career offender because of two prior felony convictions for a controlled substance offense. PSR ¶ 39; U.S.S.G. §4B1.1(a). Lokey's prior convictions included: (1) a 1998 Muscogee County, Georgia conviction for sale of cocaine, (2) a 1998 Muscogee County, Georgia conviction for possession of cocaine with intent to distribute, and (3) a 2002 Muscogee County, Georgia conviction for sale of cocaine. PSR ¶¶ 40, 48, 62, 88; Superseding Info. 2. As a result of his career offender status, Lokey's criminal history category was automatically category VI. PSR ¶ 39; U.S.S.G. §4B1.1(b). Because the career offender offense level was higher than the offense level otherwise applicable, Lokey's offense level was enhanced to 34. PSR ¶ 40; U.S.S.G. §4B1.1(b)(2) (providing an offense level of 34 where the statutory maximum sentence is twenty-five years or more).
Lokey's conviction under count two also qualified him as an armed career criminal. PSR ¶ 41; U.S.S.G. §4B1.4(a). However, because the offense level for a career offender was greater than that of the armed career criminal enhancement, Lokey's offense level remained at 34. PSR ¶ 41; U.S.S.G. §4B1.4(b)(2). He was then given a three-level reduction for acceptance of responsibility and entering a guilty plea in a timely manner, reducing his total offense level to 31. PSR ¶¶ 42-44. Lokey's criminal history score was 8, and had he not been a career offender, this would have placed him in criminal history category IV. Id. ¶ 110. As a career offender, however, his criminal history category was automatically VI, resulting in a Guideline sentencing range of 188 to 235 months. Id. ¶¶ 110, 143. On May 30, 2013, the Court sentenced Lokey to 210 months' concurrent imprisonment on counts one and two followed by 5 years supervised release. Judgment 2-3, ECF No. 33. Lokey moved to vacate his conviction in 2016, but his motion was dismissed as untimely (ECF Nos. 44, 57, 58).
The Court received Lokey's motion for compassionate release or, in the alternative, sentence reduction on April 6, 2022 (ECF No. 67). The motion included a request for appointed counsel, which the Court denied on April 7, 2022. Order, ECF No. 69. The Government responded on May 5, 2022 (ECF No. 70). The Court received Lokey's reply on May 17, 2022 (ECF No. 71). The motion is ripe for review. The Court will first address his motion for sentence reduction and then consider the request for compassionate release.
In his reply brief, Lokey renews his motion for appointed counsel. Reply Br. 1, ECF No. 71. That motion is DENIED.
DISCUSSION
I. Motion to Reduce Sentence
Lokey seeks a sentence reduction on three grounds. First, he contends he is entitled to a sentence reduction under Amendment 782 to the Sentencing Guidelines. Mot. to Reduce Sentence 2, ECF No. 67. Second, he argues he is entitled to a sentence reduction under Section 401(a) of the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, §401(a), 132 Stat. 5194 (2018). Id. at 2-3. Third, he asserts his drug convictions do not qualify as controlled substance offenses for purposes of career offender enhancement. Id. at 3. All of these grounds are without merit.
A. Amendment 782
Amendment 782 went into effect on November 1, 2014, and lowered the base offense levels in the drug quantity table by two levels across all drug types. U.S.S.G. app. C, Amendment 782 (2014); see United States v. Maiello, 805 F.3d 992, 994-95 (11th Cir. 2015) (discussing the adoption of Amendment 782). It applies retroactively. U.S.S.G. app C, Amendment 788 (2014); see Maiello, 805 F.3d at 995 (noting retroactive applicability of Amendment 782). Thus, under Amendment 782, Defendant's offense level on count one would be 24 instead of 26. See U.S.S.G. 2D1.1(c)(8) (2022). His combined adjusted offense level would be 26.
A district court may reduce a sentence 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.” 18 U.S.C. § 3582(c)(2). The Sentencing Commission policy statement governing sentence reductions under 18 U.S.C. § 3582(c)(2) is found at U.S.S.G. § 1B1.10. Under the commentary to this policy statement, a reduction in sentence under Amendment 782 is not authorized if “the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10, cmt. n.1(A). “In a section 3582(c) proceeding, the Commission's policy statements are binding, along with their commentary[.]” See United States v. Harrison, 741 Fed.Appx. 765, 767 (11th Cir. 2018) (per curiam) (internal citations and quotation marks omitted).
Here, reduction of Lokey's sentence is not authorized because Amendment 782 would not have the effect of lowering the applicable guideline range. Lokey's guideline range was determined by the career offender provision of U.S.S.G. §4B1.1(a), not by the drug quantity table of U.S.S.G. § 2D1.1(c). Even with an offense level of 24 on count one and a combined adjusted offense level of 26, Lokey would still be subject to the career offender enhancement resulting in an offense level of 34. Therefore, Lokey is not eligible for relief under Amendment 782. See United States v. Joseph, No. 21-14095, 2022 WL 1719063, at *1 (11th Cir. May 27, 2022) (per curiam) (affirming denial of sentence reduction under Amendment 782 where the offense level was determined by the career offender enhancement of U.S.S.G. §4B1.1 and not by the drug quantity table of § 2D1.1).
In his reply brief, Defendant alleges that he was not given notice that his sentence would be enhanced under the career offender provision of U.S.S.G. §4B1.1(a) as opposed to another provision. Reply Br. 2. This is belied by the PSR, which specifically states his enhancement was pursuant to U.S.S.G. §4B1.1. PSR ¶¶ 39-41.
B. First Step Act
Lokey also asserts he is entitled to a sentence reduction under Section 401(a) of the First Step Act. Mot. to Reduce Sentence 2. This provision amended the types of prior drug convictions that could trigger a statutory minimum sentence under the Controlled Substances Act. Instead of “a prior conviction for a felony drug offense” triggering a statutory minimum, only a conviction for a “serious drug felony” now qualifies. First Step Act, § 401(2)(B), 132 Stat. 5194, 5220. A “serious drug felony” is defined as one for which “the offender served a term of imprisonment of more than twelve months” and was released “from any term of imprisonment within fifteen years of the commencement of the instant offense.” Id. at § 401(a)(1).
Lokey states he did not serve more than twelve months on his drug convictions, and, therefore, he is entitled to a sentence reduction under the First Step Act. Mot. to Reduce Sentence 2-3. His argument fails for two reasons. For one, § 401 is not retroactively applicable to Lokey because he was sentenced prior to its enactment. First Step Act, § 401(c), 132 Stat. 5194, 5221. Second, the provision only applies to defendants subject to an increased statutory minimum sentence for a Controlled Substances Act conviction. The Government, however, did not seek an increased sentence pursuant to 21 U.S.C. § 851, and the PSR did not reflect an increased statutory minimum sentence for Lokey's conviction under 21 U.S.C. § 841(b)(1)(B)(iii). If it had, then the PSR would have shown Lokey's statutory sentencing range as ten years to life. 21 U.S.C. § 841(b)(1)(B). As it was, the PSR reflected Lokey's sentencing range under count one as five to forty years, which is the applicable range without an enhancement. Id.; PSR ¶ 141.
Furthermore, the First Step Act did not alter the definition of a controlled substance offence under U.S.S.G.§ 4B1.2(b) for career offender purposes. Therefore, his status as a career offender was unaffected. See United States v. Jackson, No. CR 113-008, 2020 WL 7379088, at *1 n.1 (S.D. Ga. Dec. 15, 2020) (rejecting defendant's claim that he no longer qualified as a career offender under U.S.S.G.§ 4B1.1 due to First Step Act amendment to the definition of a serious drug offense under the Controlled Substances Act).
C. Qualifying Controlled Substance Offenses
Lokey asserts that in the years since his sentencing, “the Courts have all determined” that “conspiracy offenses” do not qualify as controlled substance offenses under U.S.S.G.§ 4B1.1. Mot. to Reduce Sentence 3 (citing United States v. Norman, 935 F.3d 232 (4th Cir. 2019) and United States v. Havis, 927 F.3d 382 (6th Cir. 2019)). Therefore, he argues, he no longer qualifies as a career offender. Id. Lokey's argument fails for a couple of reasons. For one, it is inconsistent with Eleventh Circuit precedent. See United States v. Bass, 838 Fed.Appx. 477, 480 (11th Cir. 2020) (per curiam) (finding the same argument foreclosed by United States v. Smith, 54 F.3d 690 (11th Cir. 1995)). More pertinently, Lokey was not convicted of conspiracy or attempt crimes but of the actual sale of-and possession with intent to distribute-cocaine. PSR ¶¶ 48, 62, 88.
II. Motion for Compassionate Release
In the alternative to a sentence reduction, Lokey seeks compassionate release pursuant to 18 U.S.C. § 3582(c)(1). Mot. to Reduce Sentence 3. 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 the compassionate release exception provided in 18 U.S.C. § 3582(c)(1)(A). Id. at 909-10. Under that section, a prisoner may obtain compassionate release 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[.]” 18 U.S.C. § 3582(c)(1)(A)(i). The Sentencing Commission's policy statement for compassionate release is found at U.S.S.G. § 1B1.13. Under the 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). Further, a defendant must show that “extraordinary and compelling reasons warrant the reduction.” U.S.S.G. § 1B1.13(1)(A). A defendant bears the burden of proving entitlement to compassionate release. 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, compassionate release may also be granted to a defendant who is at least 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 Lokey.
Lokey fails to show extraordinary and compelling reasons warranting compassionate release. 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). Lokey, however, does not rely on a medical condition, so this circumstance is inapplicable to him.
The second and third circumstances qualifying as extraordinary and compelling reasons are the defendant's age and family circumstances. U.S.S.G. § 1B1.13 cmt. n.1(B), (C). Here, Lokey is neither over the age of sixty-five, nor does he rely on family circumstances, so these circumstances are also inapplicable to him.
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 that the BOP has determined that Lokey presents an extraordinary and compelling reason for compassionate release. Thus, the “other reasons” circumstance under U.S.S.G. § 1B1.13 cmt. n.1(D) does not apply to Lokey.
Lokey argues that the Court is not bound by the Sentencing Commission's policy statement. Mot. to Reduce Sentence 3-4. He cites an out-of-circuit case which, like others, has held that U.S.S.G. § 1B1.13 is not “applicable” to prisoner-filed motions for compassionate release because the Sentencing Commission failed to update the policy statement following enactment of the First Step Act. United States v. Trenkler, 537 F.Supp.3d 91, 98-100 (D. Mass. 2021). In the view of those courts, a district court is now free to determine for itself whether an inmate has presented extraordinary and compelling reasons for compassionate release in response to inmate-filed motions. Id. at 100. The Eleventh Circuit, however, has rejected this approach and concluded that U.S.S.G. § 1B1.13 applies to defendant-filed motions for compassionate release despite the Sentencing Commission not updating the policy. Bryant, 996 F.3d at 1248, 1262.Therefore, binding circuit precedent forecloses Lokey's argument.
Prior to enactment of the First Step Act, compassionate release 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 administrative remedies. First Step Act, § 603(b)(1), 132 Stat. 5194, 5239.
Lokey attempts to distinguish Bryant by arguing that that his motion for compassionate release is based a retroactive change to the Guidelines sentencing range under Amendment 782. Mot. to Reduce Sentence 4. A sentence reduction based on a change in the Guidelines, however, is governed by 18 U.S.C. § 3582(c)(2), not § 3582(c)(1)(A). Moreover, as discussed above, Lokey does not qualify for a sentence reduction under Amendment 782.
In summary, Lokey fails to satisfy any of the four circumstances constituting extraordinary and compelling reasons for compassionate release. Therefore, the Court recommends that his motion be denied.
As Lokey fails to show extraordinary and compelling reasons for compassionate release, 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).
CONCLUSION
For the foregoing reasons, it is recommended that Lokey's motion for compassionate release or, in the alternative, sentence reduction (ECF No. 67) 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.”
SO ORDERED and RECOMMENDED