Opinion
Criminal Action 5:21-cr-00043-TES-CHW
01-26-2024
UNITED STATES OF AMERICA, v. DEMETRIS HILL, Defendant.
ORDER OF INDICATIVE RULING
TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT.
Before the Court is Defendant Demetris Hill's Motion to Reduce Sentence [Doc. 118]. On September 13, 2022, the Government obtained an indictment charging Defendant with one count of Theft of Government Property in violation of 18 U.S.C. § 641; one count of False Claims Against the Government in violation of 18 U.S.C. § 287; and one count of Wire Fraud in violation of 18 U.S.C. § 1343. [Doc. 44]. On September 28, 2022, Defendant plead not guilty. [Doc. 54]. On October 17 and 18, 2022, the Court held a jury trial. [Doc. 63]; [Doc. 64]. After the jury returned a guilty verdict as to counts one and two and a verdict of not guilty as to count three, the Court sentenced Defendant to 33 months of imprisonment. [Doc. 67]; [Doc. 86]. Subsequently, Defendant filed a Notice of Appeal with the Court of Appeals for the Eleventh Circuit. [Doc. 91].
Later in 2023 following Defendant's conviction and appeal, the United States Sentencing Commission added a “new Chapter Four guideline at § 4C1.1 (Adjustment for Certain Zero-Point Offenders) to provide a decrease of two levels . . . for defendants who did not receive any criminal history points . . . and whose instant offense did not involve specified aggravating factors.” U.S.S.G. § 1B1.10, cmt. n.7. Based on the change and given the fact that Defendant had no criminal history points, Defendant filed the present Motion to Reduce Sentencing from 33 months to 21 months. [Doc. 118, pp. 1, 3].
Because Defendant is a zero-point with a total offense level of 16 under the Amendment, the Court would be inclined to grant a sentence reduction to 27 months- but for the fact that Defendant filed a Notice of Appeal from his judgment and conviction. See [Doc. 91]. This Court has no jurisdiction to grant a motion for relief while an appeal is pending. See United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995). Accordingly, should the case be remanded pursuant to Federal Rule Appellate Procedure 12.1, the Court states that it would grant Defendant's motion in part [Doc. 118], reducing Defendant's sentence from 33 months to 27 months. See Fed. R. Crim. P. 37(a).
SO ORDERED.