Opinion
CRIMINAL 14-20191
02-04-2022
UNITED STATES OF AMERICA, Plaintiff, v. ERVIN ALLEN, Defendant.
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR REDUCTION IN SENTENCE (ECF NO. 101)
LINDA V. PARKER U.S. DISTRICT JUDGE
On May 5, 2015, Defendant Ervin Allen pleaded guilty pursuant to a Rule 11 plea agreement to use of a firearm in the commission of a crime of violence in violation of 18 U.S.C. § 924(c) and Hobbs Act robbery in violation of 18 U.S.C. § 1951. This Court sentenced Defendant to a term of imprisonment of 228 months on October 27, 2015. The matter is presently before the Court on Defendant's July 14, 2021 motion seeking a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (ECF No. 101.) Defendant argues in the motion that changes in the law with respect to sentencing, which he claims would result in a shorter sentence if he was sentenced today, provide “extraordinary and compelling circumstances” warranting a reduction in his sentence. 1
A defendant may move for compassionate release under 18 U.S.C. § 3582(c)(1)(A) only after “fully exhaust[ing] all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf” or “the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A).
Under the statute, a court may reduce a defendant's term of imprisonment (i) if it finds that extraordinary and compelling reasons warrant such a reduction; (ii) if it finds that a reduction is consistent with applicable statements issued by the Sentencing Commission; and (iii) after considering the factors set forth in 18 U.S.C. Section 3553(a) to the extent they are applicable. 18 U.S.C. § 3582(c)(1)(A)(i); see also United States v. Jones, 980 F.3d 1098 (6th Cir. 2020). The second requirement is omitted where an incarcerated individual, as opposed to the BOP, files a compassionate-release motion. Jones, 980 F.3d at 1108, 1111; see also United States v. Owens, 996 F.3d 755, 759 n.2 (6th Cir. 2021). The defendant bears the burden of proving that “extraordinary and compelling reasons” exist to justify release under the statute. See United States v. Rodriguez, 896 F.2d 1031, 1033 (6th Cir. 1990).
Defendant previously filed a motion for compassionate release under § 3582, which the Court denied almost a year ago today. (ECF No. 96.) In that decision, the Court presumed that Defendant demonstrated extraordinary and compelling 2 reasons for release, that being Covid-19 and the increased risk of a serious outcome if he contracted the virus due to his chronic kidney disease. (Id. at Pg ID 814-15.) Nevertheless, the Court concluded that the factors in § 3553(a) did not support his release. (Id. at Pg ID 815-16.) Nothing has changed in the last year to warrant a different conclusion except that Defendant has served a greater percentage of his sentence.
Defendant had served less than half of his 19-year sentence when the Court issued its January 28, 2021 decision. (See ECF No. 96 at Pg ID 815.) The additional year served does not alter the Court's assessment of the § 3553(a) factors.
Therefore, even if changes in the law would result in a shorter sentence if Defendant was sentenced today, the Court continues to conclude that the § 3553(a) factors do not support his release.
Accordingly, IT IS ORDERED that Defendant's Motion for Reduction in Sentence (ECF No. 101) is DENIED.
IT IS SO ORDERED. 3