Opinion
Criminal Action No 4:16-CR-346-03
2023-11-04
UNITED STATES of America v. Kentray MOSELY, Defendant.
Heather Rae Winter, Financial Litigation, U.S. Attorney's Office, Houston, TX, U.S. Marshal, U.S. Pretrial Svcs, U.S. Probation, for United States of America.
Heather Rae Winter, Financial Litigation, U.S. Attorney's Office, Houston, TX, U.S. Marshal, U.S. Pretrial Svcs, U.S. Probation, for United States of America.
ORDER
Charles Eskridge, United States District Judge.
The motion by Defendant Kentray Mosely for compassionate release is denied. See Dkt 187; see also Dkt 189 (related letter).
1. Background
Mosely pleaded guilty to violation of 21 USC §§ 841(a)(1) and 841(b)(1)(B) for "knowingly and intentionally possessing with intent to distribute a controlled substance, that is at least 50 grams of mixture or substance containing methamphetamine, a Schedule II controlled substance." Dkt 108 at 1. He was sentenced to 120 months on September 5, 2017. Dkt 166. He was twenty-two years old at the time of indictment in 2016. Dkt 187 at 3.
This action was before Judge Lynn Hughes through sentencing and judgment. Dkt 166. Mosely filed a motion in December 2022 seeking compassionate release. Dkt 187; see also Dkt 189 (related letter). It was eventually reassigned to this Court. Dkt 188.
2. Legal standard
A district court "generally may not reduce or modify a defendant's sentence of imprisonment after it has been imposed." United States v Khan, 2022 WL 2047373, *3 (SD Tex), citing 18 USC § 3582 and Dillon v United States, 560 U.S. 817, 130 S Ct 2683, 2690, 177 L.Ed.2d 271 (2010). Even so, a district court may modify a term of imprisonment due to compassionate reasons under 18 USC § 3582(c)(1)(A), as amended by the First Step Act of 2018, Pub L 115-391, Title VI, § 603(b), 132 Stat 5194, 5239-41 (Dec. 21, 2018).
The "burden falls on the defendant to convince the district judge to exercise discretion to grant the motion for compassionate release." United States v Perez-Barocela, 2022 WL 2651965, *3 (SD Tex), quoting Ward v United States, 11 F.4th 354, 359-60 (5th Cir 2021). The defendant must show "an 'extraordinary and
compelling' reason for a sentence reduction and that a reduction is consistent with the section 3553(a) factors." United States v McFadden, 2022 WL 715489, *2 (5th Cir 2022).
Extraordinary and compelling reasons meriting compassionate release include more than rehabilitation alone. 28 USC § 994(t). The court "is not authorized to grant a [sentence] reduction based upon post-sentencing rehabilitation alone." United States v Hudec, 2020 WL 4925675, *5 (SD Tex). On the other hand, reasons like serious health conditions, the defendant's age, extenuating family circumstances, or changes in law and sentencing guidelines may potentially be found to be extraordinary and compelling. United States v Mc-Lean, 2022 WL 2306765, *4 (ED Tex).
Release for an extraordinary and compelling reason must also be consistent with the factors set out by 18 USC § 3553(a), which include the following:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ...;
(5) any pertinent policy statement ... issued by the Sentencing Commission...;
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
The Fifth Circuit requires that if "a district court denies a motion for compassionate release, it must give 'specific factual reasons' for its decision" that are "articulated in the denial order itself or incorporated by reference to something else in the record." United States v Stanford, 79 F.4th 461, 462-63 (5th Cir 2023).
3. Analysis
Defendant seeks release in consideration of (i) his youth at the time of the offense, (ii) his post-sentence rehabilitation, (iii) the amount of time he has already served, and (iv) the failure of his ability to enroll in "the recommended programs by the court, such as RDAP." Dkt 187 at 1.
First, Defendant notes that he was twenty-two years old at the time of his offense. Dkt 187 at 3. This isn't compelling. He was thus an adult at the time. Second, Defendant points to his efforts at rehabilitation, and the record indicates his various rehabilitative programs while imprisoned. See Dkt 193-1. This is laudable. But it isn't compelling. The record also discloses that he has been disciplined three times since his sentencing for use of drugs/alcohol, refusing to obey an order and interfering with staff, and possessing a cell phone. Dkt 193-2. Regardless, rehabilitation alone isn't an extraordinary and compelling circumstance warranting compassionate release.
Third, Defendant notes that he has already served more than half of his sentence.
Dkt 187 at 3. No citation is provided that supports the idea that service of sentence is itself an extraordinary and compelling reason for compassionate release.
Fourth, Defendant asserts that he hasn't been enrolled in programs recommended by the Court at sentencing. Dkt 187 at 4. No explanation is provided. Even if assumed true, compassionate release isn't the proper remedy. Defendant should instead bring any appropriate motion regarding the terms and conditions of his confinement.
The Section 3553(a) factors likewise weigh against compassionate release. Defendant was convicted for possessing and selling methamphetamine. Dkt 108 at 1. He has a criminal history prior to this offense (including felony charges for possessing methamphetamine) and was on probation at the time he committed this offense. Dkt 193 at 7-8. Defendant himself recognizes both the seriousness of the offense and the extent of his prior criminal history. Dkt 187 at 3-4.
Given the seriousness of the offense, Defendant's criminal history, and his disciplinary history while in prison, the sentence provides adequate deterrence and protection for the public, and it can't be said to otherwise contravene the Section 3553(a) factors.
A reduction isn't warranted on these facts. The motion will be denied.
4. Conclusion
The motion by Defendant Kentray Mosely for compassionate release is DENIED. Dkt 187; see also Dkt 189 (related letter).
SO ORDERED.