Opinion
4:05-CR-30-CDL-MSH
03-29-2021
UNITED STATES OF AMERICA, v. CLARENCE MARTIN, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is a letter Defendant wrote to the Court that has been docketed as a motion to reduce sentence (ECF No. 300). For the reasons stated below, the Court recommends that Defendant's motion be denied.
BACKGROUND
On August 17, 2005, a federal grand jury returned an indictment in case number 4:05-CR-30 (“Martin I”) against Defendant and three co-defendants, charging Defendant with the following four counts: (1) conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and in connection with 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii), (2) distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), (3) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii), and (4) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Indictment 1-6, Martin I, ECF No. 1. Pursuant to a written plea agreement, Defendant pleaded guilty on September 14, 2006, to a single count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). Change of Plea, Martin I, ECF No. 135. As part of the plea agreement, the Government stipulated “that the total quantity of controlled substances attributable to the defendant is approximately 437 grams of mixture or substance containing detectable amount of methamphetamine.” Plea Agreement 10, Martin I, ECF No. 134.
Following Petitioner's guilty plea, the United States Probation Office (“USPO”) prepared a pre-sentence report (“Conviction PSR”) (ECF No. 302) using the United States Sentencing Guidelines (“U.S.S.G.” or “Sentencing Guidelines”). Because the amount of methamphetamine attributable to Defendant was at least 350 grams but less than 500 grams, USPO calculated a base offense level of 30 based on the drug quantity table, U.S.S.G. 2D1.1(c), in effect at the time. Conviction PSR ¶ 29, Martin I, ECF No. 302. After various adjustments-including a two-level upward adjustment for a leadership role in the offense-USPO calculated a total offense level of 31. Id. ¶¶ 32, 38. At the sentencing hearing conducted on February 15, 2007, the Court sustained Defendant's objection to the two-level upward departure for a leadership role. Sent'g Min. Sheet, Martin I, ECF No. 166. Based on a criminal history category of three and a total offense level of 29, Defendant's final guideline sentencing range was 108-135 months. Id. The Court sentenced Defendant to 135 months imprisonment followed by 4 years of supervised release. Id.; Judgment 2-3, Martin I, ECF No. 169. Defendant did not appeal his sentence.
Defendant was released from federal custody in January 2015. Revocation PSR ¶ 51, Martin I, ECF No. 255. On April 21, 2015, however, he was arrested in Muscogee County, Georgia on state charges of trafficking methamphetamine, possession of a firearm by a convicted felon, and possession of Schedule II drugs. Id. ¶¶ 4, 10. On August 11, 2015, he was indicted by a federal grand jury on one count each of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Indictment, United States v. Martin, No. 4:15-cr-43-CDL-MSH (“Martin II”) (M.D. Ga. Aug. 11, 2015), ECF No. 1. On September 2, 2015, he was arrested on both his new charges in Martin II and for violation of his supervised release in Martin I. Arrest Warrant, Martin I, ECF No. 250; Arrest Warrant, Martin II, ECF No. 9. On December 14, 2015, Defendant pleaded guilty in Martin II to the methamphetamine count, and the firearm charge was dismissed. Change of Plea, Martin II, ECF No. 21; Judgment 1, Martin II, ECF No. 27. Defendant appeared before the Court on June 2, 2016, on both his supervised release violation and sentencing in Martin II. The Court sentenced him to 120 months imprisonment in Martin II, consecutive to any parole revocation he may receive on an unrelated Alabama conviction, and 5 years of supervised release. Judgment 2-3, Martin II. Defendant admitted violating the conditions of his supervised release in Martin I, and the Court sentenced him to 24 months imprisonment, consecutive to the Alabama case and his term of imprisonment in Martin II. Revocation Min. Sheet 1, Martin I, ECF No. 256; Revocation J. 1-2, Martin I, ECF No. 257.
On June 5, 2019, the Court received a letter from Defendant, which was construed as a motion to reduce sentence. 1st Mot. to Reduce Sentence, Martin II, ECF No. 32. Although docketed only in Martin II, the motion also challenged his revocation sentence in Martin I. Citing Amendment 782 to the Sentencing Guidelines, which became effective on November 1, 2014, and Sections 101(a) and 102(b)(1) of the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, 132 Stat. 5194 (2018), Defendant asked the Court to alter his sentence so that his 24-month revocation sentence in Martin I would run concurrent to his 120-month sentence in Martin II. Id. The Court denied the motion on August 2, 2019. Order, Martin II, ECF No. 37.
On July 7, 2020, the Court received another letter from Defendant that was construed as both a motion to reduce sentence and a motion for compassionate release and docketed in both Martin I and Martin II. 1st Mot. to Reduce Sentence, Martin I, ECF No. 297; 2d Mot. to Reduce Sentence, Martin II, ECF No. 38. The Court denied the compassionate release aspect of Defendant's motion, but it did not address his motion to reduce sentence. Order 2, Martin I, Aug. 14, 2020, ECF No. 298; Order 2, Martin II, Aug. 14, 2020, ECF No. 39. On October 22, 2020, the Court received correspondence from the Defendant that was docketed only in Martin II, asking the Court to consider his arguments under Amendment 782 and the First Step Act. Mot. to Reconsider 1, Martin II, ECF No. 40. This motion was denied on October 23, 2020. Text-Only Order, Martin II, Oct. 23, 2020, ECF No. 41. Defendant wrote the Court again in early December, asking the Court to reconsider its denial of compassionate release in light of the dangers posed by Covid-19. Letter, Martin I, ECF No. 299; Letter, Martin II, ECF No. 43.
By “motion for compassionate release, ” the Court refers specifically to a motion brought under 18 U.S.C. § 3582(c)(1)(A). As it pertains to Defendant, this provision allows a court to reduce a sentence if “extraordinary and compelling reasons warrant such a reduction” and “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). This is in contrast to a sentence reduction “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure, ” as provided in § 3582(c)(1)(B) or one resulting from a subsequent lowering of a sentencing range by the Sentencing Commission as provided in § 3582(c)(2).
The Court received Defendant's most recent letter (ECF No. 300) on March 8, 2021. It was construed as a motion to reduce sentence, docketed in Martin I only, and referred to the undersigned (ECF No. 301). In this most recent motion, Defendant again asks the Court to reduce his sentence in light of Amendment 782. 2d Mot. to Reduce Sentence 1, ECF No. 300. He also asks the Court to reconsider its denial of compassionate release. Id. at 3. Defendant's motion is ripe for review.
I. Motion to Reduce Sentence
In considering Defendant's motion to reduce his sentence, the Court will consider Defendant's filings in both Martin I and Martin II because they all seek the same result: the vacation of his 24-month sentence in Martin I or amendment of his sentence such that it runs concurrent with his 120-month sentence in Martin II. Defendant's motion relies on three provisions. The first is Amendment 782 to the Sentencing Guidelines. This amendment 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 total offense level would be 27. With a criminal history score of 3, this would have reduced his sentencing range to 87-108 months. See U.S.S.G. ch. 5, pt. A.
The second provision Defendant relies upon is Section 102(b)(1) of the First Step Act. This section of the First Step Act amended 18 U.S.C. § 3624(b)(1) to specify that a prisoner could earn up to 54 days of good conduct time “for each year of the prisoner's sentence imposed by the court” instead of “up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term.” Pub. L. No. 115-391, § 102(b)(1), 132 Stat. 5194, 5210. The Bureau of Prisons (“BOP”) had interpreted the prior version so as to effectively give inmates only 47 days credit each year. See Bottinelli v. Salazar, 929 F.3d 1196, 1197 (9th Cir. 2019) (discussing prior version of § 3624(b)(1) (citing Barber v. Thomas, 560 U.S. 474, 476-79 (2010))). The amendments to § 3624 “shall apply with respect to offenses committed before, on, or after the date of enactment of this Act.” Pub. L. No. 115-391, § 102(b)(3), 132 Stat. 5210, 5213.
The third provision Defendant cites is Section 101(a) of the First Step Act which allows a prisoner to “earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” Pub. L. No. 115-391, § 101(a), 132 Stat. 5194, 5198. This provision is codified at 18 U.S.C. § 3632(d)(4)(A)(i).
As noted above, Defendant's original term of imprisonment under Martin I ended in January 2015, and he does not commence serving his prison sentence for the supervised release revocation until completion of his sentence in Martin II. Nevertheless, Defendant contends the above-listed provisions entitle him to vacation of his 24-month revocation sentence or an order that it run concurrent with his sentence in Martin II. Mot. to Reconsider 1, Martin II. He argues:
The issue concerning [Martin I] was I never received my 2 [point] reduction which was passed in Nov. 2014.... My sentence on that case was 135 month[s]-with 4 years supervised release. My guidelines for this case was 108-135 (the mandatory minimum was 5 years)[.] Therefore[, ] said reduction would have been 27 to 48 months. This reduction could have ended my supervised release and thus prevented my receiving a supervised release revocation of 24 months. This could be accomplished either by vacating said sentence or running it concurrent to my sentence using [the] First Step Act.
1st Mot. to Reduce Sentence 1, Martin I. He continues:
[The] First Step Act forced the BOP to retroactively refigure our good time to give us 54 days per year sentenced instead of serve[d]-in effect giving us 7 days per year more-basically complying with the spirit of the law as passed in 1994 instead of the draconian view of the BOP. How still today the BOP has not given me my days. [Therefore, ] I would like the courts to order the BOP to credit me 162 days.Id. at 2. Finally, regarding the recidivism-reduction programming provision, Defendant states that “during the time in question I programmed regularly.” 1st Mot. to Reduce Sentence, Martin II.
Defendant's argument appears to be that if the three above-cited provisions were applied to his original prison term in Martin I, then he would have been released from custody sooner and completed his term of supervised release before his arrest on the crimes underlying Martin II. In other words, he would never have received a 24-month consecutive sentence for violating the conditions of his supervised because he would have completed his supervised release before his April 2015 arrest. Defendant's argument is flawed from both a practical and legal standpoint. From a practical standpoint, it requires the Court to assume that an earlier release from prison would not simply have resulted in an earlier violation of supervised release. This is a dubious proposition in light of how quickly Defendant managed to violate his supervised release following his January 2015 release from prison. From a legal standpoint, Defendant's position lacks merit.
Under 18 U.S.C. § 3582(c), a district court “may not modify a term of imprisonment once it has been imposed” except for three exceptions listed therein. One of those exceptions authorizes a district court to reduce a sentence “in the case of a defendant who 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). Amendment 782 lowered sentencing ranges, and if Defendant were still serving his original term of imprisonment under Martin I, the Court would have authority to reduce his sentence. But that is not the case. Defendant is currently serving his June 2016 sentence imposed in Martin II, and the guideline range for that sentence has not been lowered. As for his 24-month consecutive sentence for violating his supervised release in Martin I, Amendment 782 does not authorize reduction because it would not be consistent with the Sentencing Commission policy statement.
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, “[o]nly a term of imprisonment imposed as part of the original sentence is authorized to be reduced under this section. This section does not authorize a reduction in the term of imprisonment imposed upon revocation of supervised release.” U.S.S.G. § 1B1.10, cmt. n.7(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); see also United States v. Holman, 323 Fed.Appx. 845, 846 (11th Cir. 2009) (per 8 curiam) (citing commentary to U.S.S.G. § 1B1.10 to conclude that a district court does not have authority under § 3582(c) to reduce a sentence imposed upon revocation of supervised release); United States v. Brown, Nos. 1:07-CR-13-WLS, 1:12-CR-34-WLS, 2016 WL 3222917, at *2 (M.D. Ga. Jan. 28, 2016) (“Under this binding commentary, Amendment 782 has no effect of lowering Defendant's applicable guideline range because the twenty-four (24) month revocation sentence was not imposed as part of the original sentence.”); United States v. Burke, No. 08-00067-CG, 2016 WL 8914558, at *1 (S.D. Ga. Nov. 15, 2016) (denying motion to reduce supervised release revocation sentence pursuant to Amendment 782).
Additionally, the commentary to U.S.S.G. § 1B1.10 provides that reduction of a defendant's sentence is not authorized where an amendment to the guidelines “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). Here, the guideline range for revocation of Defendant's supervised release was determined by 18 U.S.C. § 3583(e)(3) and U.S.S.G. § 7B1.4(b)(3)(A), not the drug quantity table set forth in U.S.S.G. § 2D1.1(c) that was affected by Amendment 782. See Revocation PSR, Martin I, ¶ 76 (noting that guideline range for revocation of supervised release under § 7B1.4(b)(3)(A) was 18-24 months). Thus, “Amendment 782 would also have no effect on lowering his twenty-four (24) month sentence because Amendment 782 would have ‘no effect on the guideline ranges set out in U.S.S.G. § 7B1.4(a).'” Brown, 2016 WL 3222917, at *2 (quoting United States v. Gaskins, 333 Fed.Appx. 450, 451 (11th Cir. 2009) (per curiam)). Amendment 782, therefore, does not authorize modification of Defendant's revocation sentence.
As for Defendant's demand that he be awarded good-time and earned-time credits toward his sentence, the Court lacks jurisdiction. Such claims challenge the execution, rather than the validity of the sentence, and 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 [BOP's] calculation and execution of his sentence” (citing Bishop v. Reno, 210 F.3d 1295, 1304 n.14 (11th Cir.2000))); 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 Defendant is housed at FCI Texarkana, this would be the United States District Court for the Eastern District of Texas, Texarkana Division. 28 U.S.C. § 124(c)(5).
II. Motion for Compassionate Release
Along with his request for a sentence reduction, Defendant also asks the Court to reconsider his motion for compassionate release. 2d Mot. to Reduce Sentence 1-3, Martin I. Defendant previously asked the Court to grant compassionate release due to the risk posed by Covid-19 and his underlying health issues. 1st Mot. to Reduce Sentence, Martin I. After reviewing Defendant's motion and all available records, the Court denied the request. Order 2, Aug. 14, 2020, Martin I. Since that denial, the only additional 10 information provided by Defendant is that he was transferred and is now exposed to Covid-19 risks at a new location. Letter 1-3, ECF No. 299. Thus, to the extent he asks the Court to reconsider its denial of compassionate release on Covid-19 and other health-related grounds, it is recommended that his request be denied.
Along with his request for reconsideration, however, Defendant adds a new ground. He contends that the time he spent in prison without the benefit of the two-level reduction provided by Amendment 782 should in itself constitute “extraordinary and compelling reasons” warranting compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). 2d Mot. to Reduce Sentence 2. The compassionate release provision of § 3582(c)(1)(A) requires that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” The Sentencing Commission's policy statement applicable to § 3582(c)(1)(A) is found at U.S.S.G. § 1B1.13, and the ground for compassionate release advanced by Defendant does not qualify as an “extraordinary and compelling” reason under the application notes to that policy statement. See U.S.S.G. § 1B1.13 cmt. n.1. Despite the explicit language in § 3582(c)(1)(A), however, Defendant contends the Court is not bound by the policy statement found at U.S.S.G. § 1B1.13. 2d Mot. to Reduce Sentence 2, Martin I. In support, he cites the Sixth Circuit case of United States v. Jones, 980 F.3d 1098 (6th Cir. 2020). In that case, the Sixth Circuit concluded that U.S.S.G. § 1B1.13 was not binding because the Sentencing Commission had not updated it following passage of the First Step Act. Jones, 980 F.3d at 1109. The Sixth Circuit held that until such update occurred, “district courts have full discretion in the interim to determine whether an ‘extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion.” Id.
While other circuits have agreed with the Sixth Circuit, the Eleventh Circuit has not addressed the issue. See United States v. Harris, 989 F.3d 908, 912 n.2 (11th Cir. 2021) (“We need not and do not reach the issue of whether the district court was required to consider § 1B1.13 n.1.”). Other district courts in this circuit, however, continue to adhere to U.S.S.G. § 1B1.13. See, e.g., United States v. Stevenson, No. CR 108-061, 2021 WL 1032299, at *1 n.1 (S.D. Ga. Mar. 17, 2021) (“In the Court's estimation, the First Step Act did not render the Sentencing Commission's Policy Statement an inappropriate expression of policy. The fact remains that Congress intended that the Sentencing Commission, not the judiciary, determine what constitutes an appropriate use of the ‘compassionate release' provision.”).
The Court agrees that U.S.S.G. §1B1.13 continues to set the parameters for compassionate release under § 3582(c)(1)(A). Even if it does not, however, the Court does not believe that Defendant's inability to benefit from retroactive application of Amendment 782 constitutes an extraordinary and compelling reason for release. If Defendant's argument were accepted, it would, in effect, allow prisoners to “bank time” to reduce future imprisonment resulting from violation of supervised release or commission of new crimes. See United States v. Shipp, No. 4:96-CR-64-CDL, 2020 WL 3440947, at *3 (M.D. Ga. June 22, 2020) (refusing to apply § 404(b) of the First Step Act to credit “overserved time” to shorten the sentence imposed for violation of supervised release). It would “undermine the purpose of supervised release by impairing the Court's ability to sanction a defendant for violating the terms of supervised release.” Id. Thus, the Court rejects the new ground for compassionate release asserted by Defendant.
CONCLUSION
For the foregoing reasons, it is recommended that Defendant's motion to reduce sentence (ECF No. 300) 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 RECOMMENDED.