Opinion
4:08-CR-40-CDL-MSH
06-15-2023
UNITED STATES OF AMERICA, v. TERRELL MAURICE MARS, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant's motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) (ECF No. 217). For the reasons stated below, the Court recommends the motion be denied.
BACKGROUND
On February 5, 2010, Defendant pleaded guilty under a superseding indictment to one count of bank robbery in violation of 18 U.S.C. § 2113(a). Plea Sheet, ECF No. 110; Superseding Indictment 2-3, ECF No. 87. Before sentencing, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) (ECF No. 203). After various adjustments, USPO assigned a total offense level of 30. PSR ¶ 32, ECF No. 203. In computing his criminal history, USPO assigned three points each for a 1997 sale of cocaine conviction, a 1999 conviction for armed robbery and attempted armed robbery, a 1999 conviction for theft by taking of a motor vehicle, and a 1999 conviction for armed bank robbery. PSR ¶¶ 61, 63, 69, 71. This resulted in a total of twelve criminal history points, which on its own would have placed Defendant in criminal history category V. Id. ¶ 75; see U.S.S.G. ch. 5, pt. A. However, USPO added two points under U.S.S.G. § 4A1.1(d) because Defendant was on parole and a term of supervised release at the time he committed the offense. PSR ¶ 75. USPO also added an additional point under then-applicable U.S.S.G. § 4A1.1(e) because Defendant committed the offense within two years of his release from incarceration. Id. This resulted in a total of fifteen criminal history points, which placed him in criminal history category VI. Id. Furthermore, the PSR noted Defendant was also a career offender because he had two or more felony convictions for a crime of violence or controlled substance offense. Id. ¶¶ 28, 75. This also placed him in criminal history category VI. Id. ¶ 75; U.S.S.G. § 4B1.1(b).
Thirteen or more criminal history points places an offender in criminal history category VI. U.S.S.G. ch. 5, pt. A.
Based on a total offense level of 30 and a criminal history category of VI, USPO calculated a Guidelines sentencing range of 168 to 210 months. PSR ¶ 99. On May 27, 2010, the Court sentenced Defendant to 210 months' imprisonment followed by 3 years of supervised release. Judgment 2-3, ECF No. 138. On the same day, the Court revoked Defendant's supervised release on a prior bank robbery conviction and sentenced him to 30 months imprisonment consecutive to his sentence in this case. Judgment 1-2, United States v. Terrell Maurice Mars, No. 4:99-CR-12-CDL (M.D. Ga. May 27, 2010), ECF No. 120.
DISCUSSION
Defendant filed his current motion under 18 U.S.C. § 3582(c)(2). Def.'s Mot. to Reduce Sent. 1, ECF No. 217. This provision allows a sentence reduction 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 . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
Defendant contends § 3582(c)(2) is applicable due to amendments adopted on April 27, 2023, by the Sentencing Commission, which will go into effect November 1, 2023, unless disapproved or modified by Congress. Def.'s Mot. to Reduce Sent. 1-2; see Amendments to the Sentencing Guidelines (“Amendments”), U.S. SENT'G COMM'N, https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/202305RF.pdf (April 27, 2023); see 28 U.S.C. § 994(p). Specifically, Defendant relies on amendments to “status points” applied to offenders who commit an offense while on probation or parole. Def.'s Mot. to Reduce Sent. 1-2. Under the amendments to U.S.S.G. § 4A1.1, an offender who commits an offense while on probation or parole will now receive only one additional criminal history point, but only if the offender has seven or more criminal history points for prior sentences. Amendments 77, 81-82. Defendant also relies on Amendment 742-effective November 1, 2010-which eliminated the recency provision of former § 4A1.1(e). U.S.S.G. app. C, Amendment 742 (2010); Def.'s Mot. to Reduce Sent. 3.
Defendant argues that when these amendments are applied, his criminal history category is reduced to category V, resulting in a guideline range of 151-188 months-not including the thirty-month revocation of his supervised release. Id. As a result, he contends, he would be immediately released. Id.
Defendant's argument fails for several reasons. First, the amendments to § 4A1.1 have not yet gone into effect, and, depending on what Congress does, they may never go into effect.
Second, as Defendant acknowledges, it is still an open question whether the amendments will be made retroactive. See Issue for Comment: Retroactivity, U.S. SENT'G COMM'N, https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20230405prelim-IFC.pdf (last visited June 15, 2023).
Third, even if the amendments were applicable to Defendant, he would still receive one criminal history point for having been on parole or supervised release when he committed the offense, and again be placed in criminal history category VI.
Fourth, Amendment 742 is not retroactive, so he would also still receive a point for having committed the offense within two years of release from incarceration. See United States v. Bailey, 453 Fed.Appx. 901, 904 (11th Cir. 2011) (per curiam) (“The Sentencing Commission did not make Amendment 742 retroactive.”).
Fifth, even if the amendments were applied, Defendant would still be placed in criminal history category VI because of his career offender status.
And sixth, even if Defendant was otherwise eligible for a sentence reduction, the Court would still be required to consider the factors set forth in § 3553(a). The Court recently considered these factors in relation to Defendant's motion for compassionate release and found they weighed against his release. United States v. Mars, No. 21-13909, 2022 WL 1124804, at *2 (11th Cir. Apr. 15, 2022) (finding the Court did not abuse its discretion in weighing § 3553(a) to conclude they did not support Defendant's release).
The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.United States v. Macli, 842 Fed.Appx. 549, 552 n.1 (11th Cir. 2021) (per curiam).
CONCLUSION For the foregoing reasons, it is recommended that Defendant's motion to reduce sentence (ECF No. 217) 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.