Opinion
CRIMINAL ACTION 09-184
05-03-2024
UNITED STATES OF AMERICA v. KEVIN LEWIS
SECTION “B”
ORDER AND REASONS
Considering defendant Kevin Lewis's motion to correct presentence report (Rec. Doc. 304) and the government's response (Rec. Doc. 313), IT IS HEREBY ORDERED that defendant's motion (Rec. Doc. 304) is DISMISSED WITHOUT PREJUDICE.
On June 2, 2010, defendant Kevin Lewis was convicted by a jury of conspiracy to distribute 100 grams or more of heroin and of aiding and abetting in the distribution of 100 grams or more of heroin. Rec. Doc. 67-4. At sentencing, Lewis objected to the determination of a prior manslaughter conviction constituting a crime of violence and, thereby, establishing him as a career offender. See Rec. Doc. 81. Lewis's objection was overruled, and he was sentenced to 360 months on each count, to be served concurrently. See id.; Rec. Doc. 82. On appeal, the Fifth Circuit agreed with Lewis, as they “[could] not identify with legal certainty under which portion of the Louisiana manslaughter statute Lewis was convicted.” United States v. Lewis, 442 Fed.Appx. 88, 95 (5th Cir. 2011). The appellate court reversed the career offender enhancement determination, vacated Lewis's sentence, and remanded the case for resentencing. Id. at 99. At resentencing, without consideration of the career offender enhancement, Lewis was sentenced to 360 months on each count, to be served concurrently. Rec. Doc. 114.
In preparation for resentencing, a presentence report (“PSR”) was prepared, indicating that Lewis was no longer considered a career criminal or to have committed a crime of violence. The government includes the PSR addendum as a sealed attachment to its response to the instant motion. Rec. Doc. 313-2. Lewis contends, however, that the Bureau of Prisons (“BOP”) never updated its internal records to reflect his changed status. See Rec. Doc. 304-2 at 2. Lewis avers his record's listing a crime of violence impacts various aspects of his incarceration: “The BOP uses information in an inmate's PSR to: score their criminal history; history of violence; recidivism risk; eligibility for certain jobs or programs; and Halfway House placement.” Id.
In its response, the government agrees with Lewis's contentions. See Rec. Doc. 313 at 2. “On April 24, 2024, in response to Lewis' filing, the undersigned forwarded a copy of the second supplemental PSR to an attorney advisor with the Bureau of Prisons for consideration by his Unit Team and counselor.” Id.; see also Rec. Doc. 313-3. The updated information was entered into the BOP database and resulted in Lewis's status as a “minimum custody inmate.” Rec. Doc. 313 at 2; see also Rec. Doc. 313-3. Accordingly, “Lewis' Case Manager submitted a request to transfer him to a minimum-security facility.” Id. Due to the government's actions, Lewis has been provided the relief he sought. Therefore, the instant motion must be dismissed without prejudice.
IT IS FURTHER ORDERED that defendant's motion for leave to supplement his motion to correct presentence report (Rec. Doc. 310) is DISMISSED AS MOOT, based on the foregoing reasons.