Opinion
CRIMINAL 7-14-CR-1-001 (HL)
08-31-2021
UNITED STATES OF AMERICA v. LEO MCTEAR, JR.
ORDER ON MOTION FOR COMPASSIONATE RELEASE - 18 U.S.C. § 3582(c)(1)(A)
HUGH LAWSON, SENIOR U.S. DISTRICT JUDGE
Federal prisoner Leo McTear, Jr., proceeding pro se, has moved the Court for “compassionate release” pursuant to 18 U.S.C. § 3582(c)(1). The Court has considered the applicable factors set forth in 18 U.S.C. § 3553(a). The First Step Act of 2018 authorized prisoners to move directly for a sentence reduction in district court. Before the Act, “compassionate release” was available only upon a motion from the Director of the Bureau of Prisons. The amended statute provides that once a movant has established that he has fully exhausted his administrative rights, a court may reduce a term of imprisonment if, after considering the § 3553(a) factors, it finds that compelling and extraordinary reasons warrant a reduction and that a reduction is consistent with the “applicable” policy statements. 18 U.S.C. § 3582(c)(1). The policy statements and accompanying application notes provide guidance on the grounds for compassionate release. U.S.S.G. § 1B1.13. However, the policy statements were not amended after the amendment allowing prisoners to file direct motions for compassionate release. Thus, when adopted, the policy statements applied only to motions filed by the Director of the Bureau of Prisons. This has led several circuits to hold that the policy statements are not “applicable” to prisoner-filed motions for compassionate release. United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021); United States v. Brooker, 976 F.3d 228, 234 (2d Cir. 2020). On May 7, 2021, the 11 Circuit addressed the issue in its ruling in United States v. Bryant (11
Cir. No. 19-14267 May 7, 2021) and ruled that USSG § 1B1.13 is still an “applicable policy statement for a 18 U.S.C. § 3582(c)(1)(A) motion.” This defendant's motion does not fall within any of the categories enumerated at USSG § 1B1.13.
IT IS ORDERED that the motion is:
[] GRANTED
[] The defendant's previously imposed sentence of imprisonment of______ is reduced to___________ . If this sentence is less than the amount of time the defendant already served, the sentence is reduced to a time served; or
[] Time served:
If the defendant's sentence is reduced to time served:
[] This order is stayed for up to fourteen days, for the verification of the defendant's residence and/or establishment of a release plan, to make appropriate travel arrangements, and to ensure the defendant's safe release. The defendant shall be released as soon as a residence is verified, a release plan is established, appropriate travel arrangements are made, and it is safe for the defendant to travel. There shall be no delay in ensuring travel arrangements are made. If more than fourteen days are needed to make appropriate travel arrangements and ensure the defendant's safe release, the parties shall immediately notify the court and show cause why the stay should be extended; or
[] There being a verified residence and an appropriate release plan in place, this order is stayed for up to fourteen days to make appropriate travel arrangements and to ensure the defendant's safe release. The defendant shall be released as soon as appropriate travel arrangements are made, and it is safe for the defendant to travel. There shall be no delay in ensuring travel arrangements are made. If more than fourteen days are needed to make appropriate travel arrangements and ensure the defendant's safe release, then the parties shall immediately notify the court and show cause why the stay should be extended.
[] The defendant must provide the complete address where the defendant will reside upon release to the probation office in the district where they will be released because it was not included in the motion for sentence reduction.
[] Under 18 U.S.C. § 3582(c)(1)(A), the defendant is ordered to serve a “special term” of [] probation or [] supervised release of 60 months (not to exceed the unserved portion of the original term of imprisonment).
[] The defendant's previously imposed conditions of supervised release apply to the “special term” of supervision; or
[] The conditions of the “special term” of supervision are as follows:
[] The defendant's previously imposed conditions of supervised release are unchanged.
[] The defendant's previously imposed conditions of supervised release are modified as follows:
[] DEFERRED pending supplemental briefing and/or a hearing. The court DIRECTS the United States Attorney to file a response on or before__________, along with all Bureau of Prisons records [medical, institutional, administrative] relevant to this motion.
[√] DENIED after careful and complete review of the additional information submitted by the defendant, the applicable factors set forth in 18 U.S.C. § 3553(a) and considering policy statements found at USSG § 1B1.13 to the extent they are relevant to whether a reduction is warranted (and, if so, the amount of the reduction).
[√] FACTORS CONSIDERED (Optional)
The Court considered all the concerns in the defendant's motion (CM/ECF Doc. 77); all factors noted in the first paragraph of this order; and the fact the defendant's conviction and sentence have been affirmed by the Eleventh Circuit and a motion pursuant to 28 U.S.C. § 2255 has been dismissed as untimely. The Court finds the defendant has not presented “extraordinary or compelling” reasons that warrant the Court reducing his sentence.
[] DENIED WITHOUT PREJUDICE because the defendant has neither exhausted all administrative remedies as required in 18 U.S.C. § 3582(c)(1)(A); nor have 30 days lapsed since receipt of the defendant's request by the Warden of the defendant's facility.
So ordered.