Opinion
ACTION NO. 4:00-CR-54-Y
2024-03-08
UNITED STATES of America v. Thomas REEDY
Ronald C. H. Eddins, U.S. Attorney's Office, Fort Worth, TX, Terri M. Moore, Law Office of Terri Moore, Fort Worth, TX, for United States of America. Christopher A. Curtis, Federal Public Defender, Fort Worth, TX, for Thomas Reedy.
Ronald C. H. Eddins, U.S. Attorney's Office, Fort Worth, TX, Terri M. Moore, Law Office of Terri Moore, Fort Worth, TX, for United States of America. Christopher A. Curtis, Federal Public Defender, Fort Worth, TX, for Thomas Reedy. ORDER GRANTING MOTION FOR SENTENCE REDUCTION TERRY R. MEANS, UNITED STATES DISTRICT JUDGE
Before the Court is defendant Thomas Reedy's renewed motion for a sentence reduction under 18 U.S.C. § 3582 (doc. 421). In it, Defendant contends that extraordinary and compelling reasons exist which warrant relief. (Doc. 421, at 8.) For the reasons below, the Court will grant the motion and reduce Defendant's term of imprisonment to time served.
BACKGROUND
During the late 1990s, Reedy operated an online age verification business called Landslide. (Doc. 421, at 9-10.) Landslide served as a middleman connecting websites offering online pornography to subscribers. (Id.) For the websites, Landslide processed subscription fees and directed users to the content, and for subscribers, Landslide advertised itself as a discreet and safe tool for accessing pornography online. (Id.)
A detective in Dallas, Texas, received a tip concerning the presence of child pornography on websites available through Landslide's age-verification services. (Id.) He enrolled in a Landslide account and was then able to access multiple websites advertising child pornography. (Id.) The ultimate investigation showed that seven "webmasters" were using Landslide to process subscriptions to websites containing child pornography. (Id.)
Reedy was charged and convicted on an eighty-nine-count indictment alleging conspiracy to make child pornography available over the internet and distribution-related offenses based on the same conduct. (Id., at 10-11.) The United States Sentencing Commission Guidelines ("the Guidelines"), which were mandatory at the time of Reedy's sentencing, required a sentence of life imprisonment due primarily to the applicability of certain specific offense characteristics that boosted Reedy's total offense level to the maximum possible, level 43. (Id.) This, despite his having the lowest possible criminal history category of I. (Id.) The Guidelines required that the Court impose a series of consecutive statutory maximum sentences "to the extent necessary to produce a combined sentence equal to the total [required] punishment"—here, a life sentence. (Id. (citing U.S.S.G. § 5G1.2(d)).)
Reedy successfully appealed twice, and neither appeal had any functional effect on his sentence. (Id., at 16-17.) He then moved the Court for compassionate release in 2021, contending that the Supreme Court's decision in United States v. Booker constituted an extraordinary and compelling reason warranting relief. (Doc. 327.) The Court denied the motion. (Id.)
Reedy now renews his motion in light of the amendments to the Guidelines enacted last year, contending that Booker and the Guidelines' recognition in its policy statement on § 3582 motions that an "unusually long sentence" may constitute a extraordinary and compelling reasons warranting relief. (See Doc. 421.)
LEGAL STANDARD
Relevant here, 18 U.S.C. § 3582 allows a court to reduce a defendant's term of imprisonment "if it finds that [that] extraordinary and compelling reasons warrant such a reduction . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A), (A)(i)-(ii). Although not binding, the Guidelines' applicable policy statements inform the Court's analysis as to what reasons may be extraordinary and compelling. See U.S.S.G. § 1B1.13; United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021); United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021). Ultimately, even when the Court concludes that extraordinary and compelling reasons warrant a reduction, the Court must weigh those reasons against the backdrop of sentencing factors enumerated in 18 U.S.C. § 3553(a). Thompson, 984 F.3d at 433; Shkambi, 993 F.3d at 393; 18 U.S.C. § 3582(a).
But before a court may reduce a term of imprisonment under § 3582(c)(1)(A), it must have before it a motion to reduce from the Director of the Bureau of Prisons ("the BOP") or from the defendant himself. And the court may not entertain such a motion from the defendant until after the defendant has either: (1) fully exhausted his administrative rights to appeal a failure by the BOP to bring such a motion; or (2) the warden of the defendant's facility has received a request from the defendant that the BOP bring such a motion and thirty days have elapsed without the BOP's having done so. 18 U.S.C. § 3582(c)(1)(A).
ANALYSIS
I. Reedy's motion is timely.
Reedy submitted a request to the warden of his facility for a motion for sentence reduction on January 31, 2024. (Docs. 420-2, at 1; 420-3.) Thirty-four days later, on March 5, he filed his motion directly with the Court. (Docs. 420, 421). The Court has not in the meantime received a motion from the BOP for a reduction in Reedy's sentence, so his own motion is properly before the Court. See 18 U.S.C. § 3582(c)(1)(A).
II. Reedy has presented extraordinary and compelling reasons warranting a reduction.
a. Reedy's unusually long sentence is an extraordinary and compelling reason warranting relief.
The judiciary's application of the Guidelines has a storied history. In the Sentencing Reform Act of 1984, Congress abolished federal parole and prohibited courts from modifying a term of imprisonment once imposed. Shkambi, 993 F.3d at 390. But Congress inserted an exception allowing, in very limited circumstances, the compassionate release of certain qualifying prisoners. See Id. (citing 18 U.S.C. § 3582(c)(1)(A)). For the first thirty-four years after the passage of the Sentencing Reform Act, compassionate release could not be granted by sentencing courts absent: (1) a motion by the Bureau of Prisons; (2) satisfaction of one of two conditions, the relevant condition here being a showing of extraordinary and compelling reasons warranting relief; (3) consistency with applicable policy statements; and (4) consistency with the sentencing factors in § 3553(a). Id., at 391. But defendants may now bring their own motion. See 18 U.S.C. § 3582(c); U.S.S.G. § 1B1.13.
Rather than define "extraordinary and compelling" for itself, Congress left that for the Sentencing Commission's policy statements (though it took twenty-two years for the Commission to issue any). Shkambi, 993 F.3d at 390 (citing U.S.S.G. § 1B1.13). But none did anything more than regurgitate the language of § 3582. Id. For years, the only guidance the courts received from the Commission was the inclusion of application notes and commentary to § 1B1.13 that outlined possible categories of compelling reasons: (A) medical conditions of the defendant; (B) the age of the defendant; (C) family circumstances; and (D) other reasons. U.S.S.G. § 1B1.13 cmt. n. 1 (2021).
So until 2023, it fell on judges, guided by these notes and commentaries, to decide when a defendant's proffered reasons were "extraordinary and compelling." See, e.g. United States v. Martinez, 2024 WL 658952, at *1 (5th Cir. 2024) (fear of COVID-19, even with comorbidities, was not extraordinary and compelling); United States v. Gonzalez, 819 Fed.Appx. 283, 284 (5th Cir. 2020) (need for dialysis was not extraordinary and compelling); United States v. Rivas, 833 Fed.Appx. 556, 558-59 (5th Cir. 2020) (chronic medical conditions which are not terminal were insufficiently extraordinary or compelling); United States v. Elam, 2023 WL 6518115, at *2 (5th Cir. 2023) (non-retroactive changes in criminal law are not extraordinary and compelling reasons).
Decisional difficulties remained, though, because the courts could—and did—apply this standard (or lack thereof) inconsistently, especially since the comments to the guidelines fell outside § 3582(a)'s admonition that reductions in sentence "shall" remain consistent with the Commission's policy statements and the sentencing factors in § 3553. See 18 U.S.C. §§ 3582(a); 3582(c)(1)(A), (A)(i)-(ii); U.S.S.G. § 1B1.13; see e.g., Elam, 2023 WL 6518115, at *2 (5th Cir. 2023) (choosing to abide by then-current guidelines foreclosing a defendant's reliance on changes in law despite acknowledging a forthcoming policy statement to the contrary).
But last year, Congress gave substance to the guidance relied upon by the courts in adopting the Commission's recommended amendments to the Guidelines. See U.S. SENT'G COMM'N, Guidelines Manual (Nov. 1, 2023). By tacitly approving the Commission's recommendations, Congress lifted these "extraordinary and compelling reasons" from commentary and incorporated them into the Commission's formal policy statement on motions under § 3582. U.S.S.G. § 1B1.13. And it was at it, Congress added a new compelling reason: an "unusually long sentence." U.S.S.G. § 1B1.13(b)(6). Section 1B1.13 now provides that:
[i]f a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances.Id. (emphasis added).
To grapple with the historic lack of guidance, this Court previously articulated an in-house test to determine whether a defendant's allegedly unusually long sentence constitutes an extraordinary and compelling reason for the purposes of § 3582. See United States v. Tolliver, 529 F.Supp.3d 619, 624 (N.D. Tex. 2021) (Means, J.). But, despite formalizing an "unusually long sentence" as a possible "extraordinary and compelling reason," which allows the Court to consider a "change in the law," the Commission still failed to further define what sentences are "unusually long" or what "changes in law" can be considered (aside from the requirement that the change in law produce a gross disparity in sentences). See U.S.S.G. § 1B1.13(b)(6). Thus, because Defendant presents a similar argument as the one asserted in Tolliver, the Court will supplement with its own test. So,
when a defendant grounds his request for compassionate release on the length of his sentence, he must show the following elements:Tolliver, 529 F.Supp.3d at 624. Beginning with the easiest, element three is satisfied, as review of Reedy's attached exhibits and the record in this case demonstrate that: (1) he has been a model inmate; (2) he has held a job while incarcerated for roughly twelve years; and (3) finding a needle in a haystack would be easier than finding a facility supervisor with a negative word on him. (See Doc. 421, at 46.) Without opposition from the government, the Court will take these assertions as true and focus its attention on elements one, two, and four. i. United States v . Booker and relevant amendments to the Guidelines present a dramatic change in sentencing law that would have produced a reduced sentence.
(1) an "exceptionally dramatic change" in the relevant sentencing regime;
(2) that, today, the defendant would receive a significantly reduced sentence;
(3) the defendant appears rehabilitated, deserving of the reduction, and likely to succeed upon release;
(4) strong deference to the [Bureau of Prison's] relevant guidelines and decisions.
In Booker, the Supreme Court held unconstitutional the provision of the Federal Sentencing Act that mandated that judges impose sentences recommended by the Guidelines. United States v. Booker, 543 U.S. 220, 222, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Relevant here, "[t]his modification of the federal sentencing statute . . . 'ma[de] the Guidelines effectively advisory.' " Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting Booker, 543 U.S. at 245, 125 S.Ct. 738.). So "while [18 U.S.C. § 3553(a)] still requires a court to give respectful consideration to the Guidelines, Booker 'permits the court to tailor the sentence in light of other statutory concerns as well.' " Id. (internal citations omitted). Thus, "as modified by Booker, [the law] contains an overarching provision instructing district courts to 'impose a sentence sufficient, but not greater than necessary,' to accomplish the goals of sentencing." Id.
Despite the brevity of this summary, the effect of this change should not be underestimated. Indeed, one need look no further than the Court's prior order in this case acknowledging that Booker in fact changed the law. (Doc. 372, at 7 ("the Court has identified two relevant changes. [The first is] United States v. Booker."); 7 ("When applied to Reedy's life sentence, the Booker discretion amounts to some change."); 8 (noting that Booker alone was likely not an "exceptionally dramatic" change in sentencing law because Reedy would have still served a "long" sentence) (emphasis added)).
So Reedy must still show an exceptionally dramatic change in sentencing law that would have reduced his sentence. Tolliver, 529 F.Supp.3d at 624. The Court previously noted that Reedy failed to do so two years ago, because "the maximum sentences for Reedy's crimes have all increased" since his sentencing. (Doc. 372, at 8.) Reedy contends that the binding nature of the Guidelines at his sentencing prevented the Court from considering any arguments in favor of mitigation or downward departure. (Doc. 421, at 16.) For the reasons discussed infra., the Court agrees.
But what to do with the statutory maximums? The problem lies in the truth that increasing statutory maximums reflect a growing societal contempt for certain types of offenses, including those in this case. (See Doc. 327, at 8.) And the Guidelines still recommended consecutive sentences for multiple-count convictions when this Court denied Reedy's prior motion. (Id.)
The answer comes in the second change in law: the Guidelines' policy statement in § 1B1.13 as amended in 2023. (Id. (noting that Booker, and increased statutory maximums, and the relevant Guidelines "[t]ogether . . . fail to constitute an exceptionally dramatic change in the relevant sentencing law")). By amending the policy statement on motions under § 3582 to allow relief for sentences that are unusually long, Congress has worked a second change in the sentencing law that now cuts in Reedy's favor.
Thus, in 2024, the Court again identifies two changes in sentencing law that impact Reedy's case. First, the Booker decision made the Guidelines advisory. At the time of his sentencing, the Court was prohibited from considering any arguments in favor of mitigation because the Guidelines were mandatory. (See Doc. 238, at 18—19.) Second, Congress approved an explicit avenue for relief from "unusually long sentences." U.S.S.G. § 1B1.13(b)(6). When taken together, a non-binding Guideline (which may not have produced a life sentence at the time) and a Congressionally enacted avenue for relief from such a sentence provide a sufficiently dramatic change in the relevant sentencing law if Reedy's outcome would have been far different. See, e.g., Elam, 2023 WL 6518115, at *2 (5th Cir. 2023) (relying on current policy statements despite forthcoming changes).
So, is Reedy's sentence "unusually long?" This Court thinks so. The Court thought so in 2001, considering Reedy's degree of culpability. See (Doc. 238, at 18—19); compare United States v. McGinn, 551 Fed.Appx. 115 (5th Cir. 2013) (affirming 188-month sentence for receiving child pornography); United States v. Stamper, 539 Fed.Appx. 408, 409 (5th Cir. 2013) (affirming 480-month sentence for receipt of child pornography by defendant with a proven history of child sexual exploitation).
Indeed, a life sentence is unusually long for just about any sex offense. If it were not, society would have no need for registries and restraining orders to prevent recidivism. And courts routinely treat the Guidelines with respect and deference because they provide invaluable assistance to courts in carrying out the overarching goal of fairly sentencing offenders. See Elam, 2023 WL 6518115, at *2 (5th Cir. 2023); McGinn, 551 Fed.Appx. at 115; 18 U.S.C. § 3553.
So, when the Guidelines are amended, courts must—and do—pay attention. Adjustments in the Guidelines will alter sentences to some degree across the country. And for the reasons discussed below, the inability of a defendant to have mitigating factors considered in his individual case because of mandatory Guidelines and statutory maximums—which can undermine the statutory goals of sentencing—is one of the problems that Booker set out to solve, and the one that § 1B1.13(b)(6) can now remedy in part.
Accordingly, Reedy has met elements one and two of this Court's Tolliver test. Booker, in conjunction with the 2023 amendments to § 1B1.13, now present a sufficiently dramatic change in sentencing law that would have produced a lower sentence in 2001. Reedy would have been able to present mitigating factors that courts have used to change outcomes in child pornography cases post-Booker. And he now has an avenue to constitutionally square his case with others.
As for the fourth Tolliver element—deference to the Guidelines—the Court collapses its analysis with the consistency requirements of § 3582 below and concludes that Reedy has met it.
III. A reduction is consistent with applicable policy statements as required by § 3582.
Sentencing for non-production child pornography offenders is governed by § 2G2.2. But § 2G2.2 is not without its problems either. As early as 2012, the Commission was engaged in a multi-year study at the behest of Congress to assess and suggest revisions to it, accounting for varying degrees of culpability within the realm of non-production offenses. See UNITED STATES SENT'G COMM'N, FEDERAL CHILD PORNOGRAPHY OFFENSES, "Key Findings," xii (2012). Relevant here, the Commission recommended that "[a] revised guideline that more fully accounts for the full range of an offender's collecting behavior, the degree of his involvement in a child pornography community, and any history of sexually dangerous behavior—would better promote proportionate sentences and reflect the statutory purposes of sentencing." Id. The Commission was poignantly concerned that § 2G2.2 "could be amended to better distinguish between more and less culpable distribution conduct." Id., at 324.
And this struggle to judge culpability has been demonstrated in case law. "Since Booker, sentencing courts have increasingly exercised their discretion to impose below range sentences for non-production child pornography offenses, [with] some appellate courts [approving] a district court's categorical refusal to sentence in accordance with the child pornography guidelines based on a 'policy' disagreement." Id., at 124; see also United States v. Miller, 665 F.3d 114, 116-17 (5th Cir. 2011) (affirming district court's sentence below the statutory maximum and imposing twenty-five years of supervised release by considering the policy underpinning the Guidelines).
These considerations were wholly unavailable to Reedy because the Guidelines were mandatory at the time he was sentenced. And it is difficult for the Court—in its discretion—to defer to Guidelines that admittedly fail to account for the panoply of Reedy's conduct. To be sure, though Reedy was a non-production child pornography offender, he profited handsomely from the industry. (Doc. 327, at 7—8.) But Reedy "did not actively participate in the creation of the pornography . . . had no criminal history, [and had] a stable family life." (Id.) These are some of the important factors that the Court could have considered in 2001 had it the benefit of Booker. Despite the likelihood that Reedy would have still been assessed a lengthy prison sentence, as this Court acknowledged in 2021, he certainly would not have been sentenced to life in prison.
Therefore, the Court's deference to the Guidelines counsels in favor of reducing Reedy's sentence. And Reedy has shown that his sentence is unusually long for the nature of his offense. (Doc. 421, at 23—31) (noting the disparities between Reedy's life sentence imposed and the rates of downward departures awarded to similar defendants in the years post-Booker.) Reedy has therefore met the fourth Tolliver element and the Court will now exercise its discretion to vary from the Guidelines.
IV. The sentencing factors set forth in § 3553(a) counsel in favor of a reduction.
As always, any reduction in a defendant's sentence must be awarded within the considerations set forth in 18 U.S.C. § 3553. In sentencing—or resentencing—a defendant, "[t]he court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of sentencing.]" 18 U.S.C. § 3553(a). They are:
(1) The nature and circumstances of the offense and history and characteristics of the defendant; [and]
(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;
18 U.S.C. § 3553(a)(1)-(2).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.
The Court agrees with Reedy that "[t]he factors identified by the Sentencing Commission as particularly aggravating in this context are absent from [his] case." (Doc. 421, at 54.) Reedy has served roughly twenty-two years for effectively being a "middleman" in the child pornography community. (Id., at 2.) Reedy's company simply provided age-verification services for the marketplace of pornography websites—not all of which happened to contain child pornography. (Id.) To be sure, this is a serious offense. The Court refused to minimize the heinous nature of child pornography, its abusive immediate impact, and the lasting trauma it inflicts upon its victims. Reedy should have been sentenced to prison. But his sentence is unusually disproportionate to the nature and degree of his offense conduct.
As Reedy identifies, he was not a "collector" of child pornography, did not "validate . . . child exploitation . . . through words and actions" in the traditional sense, and has no history of "criminal [or] sexually dangerous behavior." (Id., at 54-55.) Thus, the nature and circumstances of the offense, Reedy's history and characteristics, and the need to protect the public from any further crimes by Reedy all counsel in favor of reduction.
"Freedom has its charms, and authority its use—but there are certain points beyond which neither can be stretched without falling into licentiousness, or sinking under oppression." An Old State Soldier I, THE LIBRARY OF AMERICA, THE DEBATE ON THE CONSTITUTION PART TWO, 33 (1993 ed.) (1788). An abuse of freedom requires the use of authority. But the overuse of authority in the name of deterrence does not promote "respect for the rule of law," nor does it always "reflect the seriousness of the [abuse]." 18 U.S.C. § 3553(a)(2). The Supreme Court made that much clear in Booker, which is why advisory guidelines comport with the overarching goal of sentencing in § 3553. Reedy has served "just punishment for the offense" through a twenty-two-year incarceration. And reducing Reedy's sentence that was imposed under an unconstitutional mandate would promote respect for the rule of law because it would allow the correction of the disproportionate punishment Reedy received.
Thus, having duly considered the sentencing factors set forth in 18 U.S.C. § 3553, the Court concludes that they counsel in favor of reduction.
***
"The Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all." Chief Justice John Marshall, Handbook for Judges, 186 (1967 ed.). And "what [does] the Lord require of [the judiciary], but to do justly . . . and walk humbly." Micah 6:8 (KJV). This Court, since the date of sentencing, August 6, 2001, has doubted the propriety of Reedy's life sentence. And Reedy has flawlessly served over two decades in prison for an offense for which our guiding law remains unable to comprehensively take account. While the Court abhors the fact that behavior exists which necessitates a criminal code devoted to child pornography, it cannot overlook the full and individualized extent to which Reedy was involved in this case. In that light, Reedy cannot justly remain imprisoned for life, and the Court will humbly right this error by reducing his term of imprisonment to time served.
CONCLUSION
Accordingly, for the reasons stated above, the Court GRANTS Reedy's motion for a reduction in sentence (doc. 421). Reedy's term of imprisonment is hereby REDUCED to TIME SERVED.
Upon release from the custody of the Federal Bureau of Prisons, Reedy shall immediately present himself to and reside in the residential re-entry center located at the Volunteers of America ("the VOA"), 800 W. Wintergreen Rd, Hutchins, TX 75141 for a period of no more than 180 days—and successfully participate in the residential re-entry center program—to be released at the direction of the probation officer. While there, Reedy shall initially participate in its community corrections component, but may become eligible in the last one-third of the term of confinement for placement in its pre-release component upon approval of the program review team, and provided the defendant meets all the center's requirements.
During Reedy's residency at the VOA and for his entire term of supervised release of three years imposed by this Court on August 29, 2005, in its Second Amended Judgment in a Criminal Case (doc. 294), he shall comply with all of the conditions of supervised release set out on page two of that judgment and be subject to revocation and re-incarceration for any violation of those conditions.
The Court, having confidence in the ability of Thomas Reedy to successfully complete this term of supervised release, wishes him success in his re-entry into society and prays for him a long and fulfilling life.