Opinion
13-CR-00069-01
11-04-2024
UNITED STATES OF AMERICA v. MYLES W. ROBINSON
BRANDON B. BROWN, United States Attorney SETH D. REEG, La. Bar No. 34184 Assistant United States Attorney
BRANDON B. BROWN, United States Attorney
SETH D. REEG, La. Bar No. 34184 Assistant United States Attorney
MAGISTRATE JUDGE HORNSBY
UNITED STATES' RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FOR A REDUCED SENTENCE UNDER 18 U.S.C. § 3582(c)(1)(a)(i)
JUDGE FOOTE
Defendant, Myles W. Robinson, an inmate at U.S.P. Victorville, seeks a reduced sentence under 18 U.S.C. § 3582(c)(1)(A)(i) based on the length of the mandatory sentences he received for violations of 18 U.S.C. § 924(c) in relation to the terms that would be applied under current law. Even if § 3582(c)(1)(A) could permit a reduced sentence based upon sentence severity, the Court should deny the motion because the § 3553(a) factors weigh against the reduction requested.
I. BACKGROUND
These facts derive from the defendant's Pre-sentence Investigation Report.
Robinson is currently serving a 3,771-month sentence, resulting in large part from the mandatory “stacked” § 924(c) sentences related to the use of a firearm during a crime of violence, specifically, during numerous robberies in the Shreveport, Louisiana area.
1. On June 1, 2012, Robinson entered the Circle K Convenience Store in Shreveport, Louisiana and forced a female employee to open a cash register while brandishing a .357 caliber revolver. Presentence Investigation Report, ¶10.
2. On September 21, 2012, Robinson and a coconspirator robbed a bar in Bossier City, Louisiana. Robinson carried a .45 caliber pistol, forced the patrons to lie on the floor, and then robbed the three patrons and a bartender at gunpoint. PSR, ¶11.
3. On September 30, 2012, Robinson and his codefendant, Halston Smith, robbed a Pizza Hut in Shreveport, Louisiana. PSR, ¶12. Robinson pointed a shotgun at the store manager, ordered him to open the register, and then asked him “[d]o you want to die?” Id.
4. On October 10, 2012, Robinson and his co-defendant, Halston Smith, robbed the Break Time Bar in Shreveport, Louisiana. Upon entering the business, Robinson wielded a shotgun and threatened to shoot customers. Smith wielded a .357 revolver during the robbery while he worked his way around the bar and took money and other items from customers. PSR, ¶13.
5. On October 11, 2012, Robinson robbed the Waffle House in Shreveport, Louisiana. PSR, ¶14. Robinson held a shotgun and ordered an employee to open a safe. Id. On October 14, 2012, Robinson and Halston Smith robbed the Applebee's restaurant in Shreveport, Louisiana. PSR, ¶15. Robinson personally pointed a shotgun at the manager and took $6,702 in cash before fleeing. Id.
6. On November 2, 2012, Robinson robbed the Channel Marker Lounge in Mooringsport, Louisiana. PSR, ¶16. Robinson entered the restaurant with a shotgun and ordered everyone on the ground. Id. When no one complied, Robinson stated “[t]his is not a joke” and fire a single round into the ceiling. Id. The patrons remained unresponsive and Robinson fled the scene without obtaining any money. Id.
7. On November 4, 2012, Robinson and Smith robbed a Subway in Stonewall, Louisiana. PSR, ¶16. Robinson ordered everyone in the store to the ground at gunpoint. Id.
8. On November 6, 2012, On November 6, 2012, Robinson and an accomplice robbed the Applebee's restaurant in Bossier City, Louisiana. PSR, ¶18.
9. On November 6, 2012, Robinson and Smith attempted to rob an employee of the Southfield Grill in Shreveport, Louisiana. PSR, ¶19. Robinson, brandishing a .45 caliber handgun, demanded money from an employee. Id. When the victim stated that the store was closed and there was no money, both men fled. Id.
10. On November 9, 2012, Robinson robbed the Break and Run Bar in Shreveport, Louisiana. PSR, ¶20. Robinson entered the bar with a .380 handgun and ordered the clerk to hand over $828.00 in cash. Id.
11. On November 11, 2012, Robinson robbed Superior Bar and Grill in Shreveport, Louisiana at gunpoint. PSR, ¶21.
12. Finally, on November 14, 2012, Robinson, Smith and another co-defendant robbed the Outback Steakhouse in Shreveport, Louisiana. Presentence Report, ¶22. Robinson personally forced the manager at gunpoint to open the safe in the restaurant. Id. As they were fleeing the scene, Robinson and his two co-defendants were arrested. PSR, ¶23.
Based on these events, on February 28, 2013, the grand jury returned a twentyseven-count indictment charging Robinson and three co-defendants with multiple charges related to robbery and firearms. Relevant to Robinson's current motion for compassionate release, the indictment charged Robinson with eleven counts of Use of a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1) (Counts 5, 7, 9, 11, 13, 17, 19, 21, 23, 25, and 27). Rec. Doc. 1. On January 16, 2014, Robinson appeared for a jury trial and was convicted of eleven § 924(c) counts based upon the use of firearms during the multiple robberies. Rec. Doc. 155.
On June 13, 2014, the district court held a sentencing hearing. Because a firearm had been brandished in connection with Count 7, that count required a sevenyear consecutive sentence under § 924. See 18 U.S.C. § 924(c)(1)(A)(ii) (imposing a seven-year consecutive sentence for an initial § 924(c) conviction where the gun is brandished). Moreover, under the then-current version of 18 U.S.C. § 924(c), each of Robinson's ten other § 924(c) convictions required enhanced 25-year “stacked” consecutive sentences, resulting in a combined statutory requirement of 257 years imprisonment in relation to the § 924(c) counts of conviction. See 18 U.S.C. § 924(c)(1)(C)(i) (2012 version, now amended). The district court sentenced Robinson to a total term of imprisonment of 3,771 months, with the bulk of that sentence being the required § 924(c) consecutive sentences. Rec. Doc. 170.
On June 28, 2022, Robinson submitted his request for compassionate release to the warden at the facility where he is serving his sentence. Robinson urged that compassionate release was appropriate because, following enactment of the First Step Act in 2018, a similarly situated § 924(c) defendant would face lesser mandatory consecutive sentences. Rec. Doc. 263-1. More than thirty days has passed since the filing of the motion. On August 11, 2022, Robinson filed the current motion with this Court. Rec. Doc. 263.
Robinson's codefendant, Halston Smith, also has a pending motion for compassionate release based upon the same grounds. Rec. Doc. 239
II. APPLICABLE LAW
A. The First Step Act's Amendment to 18 U.S.C. § 924(c)
At the time of the defendant's conviction, 18 U.S.C. § 924(c) imposed 25-year consecutive sentences for all but a defendant's first count of conviction, even if the defendant obtained all of his § 924(c) convictions as a result of a single indictment. See 18 U.S.C. § 924(c)(1)(C)(i) (2005). In 2018, however, Congress passed the First Step Act, which amended § 924(c) to require that a defendant's first § 924(c) conviction be “final” before the enhanced 25-year consecutive minimum sentence applied to any additional § 924(c) convictions. See First Step Act of 2018, Pub. L. 115391, 132 Stat. 5222, § 403 (“In the case of a violation of [§ 924(c)] that occurs after a prior conviction under this subsection has become final, the person shall - (i) be sentenced to a term of imprisonment of not less than 25 years....” (emphasis added)).
Thus, the First Step Act's amendment removed the possibility of a defendant receiving an enhanced 25-year “stacked” sentence without already having obtained a § 924(c) conviction from a previous case. Importantly, however, the First Step Act did not make this change retroactive. In fact, in passing the First Step Act, Congress expressly stated that the changes to 18 U.S.C. § 924(c) applied only prospectively, and, thus, did not affect any already-imposed sentences. See First Step Act, § 403(b) (“This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” (emphasis added)).
B. Compassionate Release after the First Step Act
“[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 825 (2010) (cleaned up). Consistent with that principle of finality, 18 U.S.C. § 3582(c) provides that a court generally “may not modify a term of imprisonment once it has been imposed,” except in three circumstances: (1) upon a motion for reduction in sentence under 18 U.S.C. § 3582(c)(1)(A), such as that presented by the defendant; (2) “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure,” 18 U.S.C. § 3582(c)(1)(B); and (3) where the defendant was sentenced based on a retroactively lowered sentencing range, 18 U.S.C. § 3582(c)(2).
Relevant here, under § 3582(c)(1)(A), a court may reduce a term of imprisonment upon finding “extraordinary and compelling circumstances.” Under the statute as amended by the First Step Act of 2018 (“FSA”), the Court may act “upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.” Id.
In United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021), the Fifth Circuit addressed, as a question of first impression, whether § 1B1.13 and its commentary bind the district court when it rules on motions filed by defendants on their own behalf after Congress amended § 3582(c)(1)(A) to permit such filings. After exhausting his administrative remedies, Shkambi had filed a motion for compassionate release in the district court, citing as an “extraordinary and compelling reason” for relief his fear of a COVID-19 re-infection because he took immunosuppressant medication for gout. The district court dismissed the motion and found that Shkambi's extraordinary-and-compelling-reason argument “failed because it was untethered to the Sentencing Commission's binding applicable policy statement in section 1B1.13 of the Sentencing Guidelines.” Shkambi, 993 F.3d at 388 (cleaned up).
The district court had dismissed Shkambi's motion on jurisdictional grounds, finding because he was ineligible for relief, it was without jurisdiction to consider his motion. Shkambi, 993 F.3d at 388. The Fifth Circuit held the district court had erred in that respect, as “Shkambi [had] properly filed [his motion] in a court that had the power to grant it,” and the fact that it had ultimately found it meritless did not affect its jurisdiction. Id. at 388-389. That aspect of Shkambi is not relevant to the instant motion, as the United States is not contesting jurisdiction in this case.
On appeal of that ruling, the Fifth Circuit reversed and remanded. Tracing the history of § 3582(c)(1)(A), the Court observed that the FSA had made a significant change to the statute. While the former version had authorized only the Director of the Bureau of Prisons to file motions for sentence reduction, under the FSA's amendment, defendants, after exhausting their administrative remedies, could “move on their own accord.” Shkambi, 993 F.3d at 390. The Court noted that other aspects of § 3582 remained unchanged, however, and defendants seeking relief “still must show ‘extraordinary reasons'; they still must show that compassionate release is consistent with applicable policy statements from the Commission; and they still must convince the district judge to exercise discretion to grant the motion after considering the § 3553(a) factors.” Shkambi, 993 F.3d, at 391.
Addressing the issues of whether § 1B1.13 remained the “applicable policy statement” cabining the court's discretion when a defendant files his own motion, the Court concluded it did not. Citing the plain language of the guideline and its commentary, both of which expressly refer to “motion[s] of the Director of Bureau of Prisons,” the Court concluded a district court “cannot rely on pieces of text in an otherwise inapplicable policy statement.” Shkambi, 993 F.3d at 391. Accordingly, the Court held “that neither the policy statement nor the commentary to it binds a district court addressing a prisoner's own motion under § 3582,” and “[t]he district court ... is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a).” Shkambi, 993 F.3d at 392.
Though the United States acknowledges this Court is now bound by Shkambi, it maintains its initial position-that the § 1B1.13 policy statement is binding-in order to preserve the issue for later review. Further, it notes the § 1B1.13 policy statement could once again be “applicable” in the future if the Sentencing Commission regains a quorum and updates § 1B1.13 to reflect the FSA's amendments to § 3582(c)(1)(A). See United States v. Gunn, 980 F.3d 1178, 1179-81 (7th Cir. 2020) (discussing the Sentencing Commission's inability at the time the FSA was passed to update the policy statement due to lack of a quorum, and its option to do so in the future when new members are appointed).
III. ARGUMENT
The defendant seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), which, as amended by the First Step Act, permits a court to reduce a sentence upon a showing of “extraordinary and compelling reasons.” Unlike traditional compassionate release motions, the defendant does not assert that illness, advanced age, or other unique personal or familial obligations justify a reduction in sentence. Instead, relying on the First Step Act's recent amendment to § 924(c)'s penalty provisions, he urges that the disparity between his current sentence and the minimum sentence he would be eligible for if convicted today justifies a reduction in sentence. Specifically, he argues the inequity between his current sentence, and the sentences imposed on similar defendants after the First Step Act's passage, is an “extraordinary and compelling reason” for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A)(i). For the reasons that follow, this Court should deny the motion on one or more alternative grounds.
A. An amendment to a penalty provision-particularly one that Congress expressly deemed non-retroactive-is not an “extraordinary and compelling reason” entitling the defendant to a sentence reduction under § 3582(c)(1)(A).
The United States concedes that post-Shkambi, a district court is not bound by the § 1B1.13 policy statement, and it can define “extraordinary and compelling circumstances,” on a case-by-case basis. Shkambi does not, however, render § 1B1.13 irrelevant with respect to defendant-filed motions under § 3582(c)(1)(A). As the Fifth Circuit recognized even before Shkambi, “[a]lthough not dispositive, the commentary to ... § 1B1.13 informs our analysis as to what reasons may be sufficiently ‘extraordinary and compelling' to merit compassionate release.” United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021). Other circuits are in accord. United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020) (“The substantive aspects of the Sentencing Commission's analysis in § 1B1.13 and its Application Notes provide a working definition of ‘extraordinary and compelling reasons'; a judge who strikes off on a different path risks an appellate holding that judicial discretion has been abused. In this way the Commission's analysis can guide discretion without being conclusive.”); United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (citing Gunn and recognizing “[t]he Sentencing Commission's statements in U.S.S.G. § 1B1.13 may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding”).
Shkambi does not purport to overrule Thompson; in fact, Shkambi does not mention Thompson at all. Regardless, because Thompson was decided earlier, under the Fifth Circuit's rule of orderliness, Shkambi could not overrule it. Jacobs v. Nat'l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”).
In his motion, the defendant asks this Court to find that his consecutive sentences under § 924(c) constitute an extraordinary and compelling reason for sentence reduction and accordingly, he should be released with a sentence of “time served.” Rec. Doc. 263, p. 1. The government asserts that the “stacked” sentences are not necessarily an extraordinary and compelling reason for a sentence reduction. In United States v. Cooper, 996 F.3d 283, 289 (5th Cir. 2021), relying on Shkambi, the Fifth Circuit “offer[ed] no views as to the merits” of the § 3582(c) motion and stated, “[w]e leave for the district court to consider, the first instance, whether the nonretroactive sentencing changes to his § 924(c) convictions, either alone or in conjunction with any other applicable considerations, constitute extraordinary and compelling reasons for a reduction in sentence.”
The Fifth Circuit, therefore, did not hold that the nonretroactive sentencing changes to § 924(c) were “extraordinary and compelling reasons” for a § 3582(c) sentence reduction. In two decisions after Cooper, the Fifth Circuit affirmed denials of § 3582(c) motions based on non-retroactivity of changes to the § 924(c) consecutive sentencing provision, but neither the Fifth Circuit nor the district courts have specifically addressed whether the impact of the non-retroactivity of those changes constitutes an “extraordinary and compelling” reason. United States v. Kizer, 853 Fed.Appx. 997, 998 (5th Cir. 2021)(finding no abuse of discretion in district court's denial of § 3582(c)(1)(A) motion, for “even if the sentencing changes for § 924(c) convictions could be an extraordinary and compelling reason, the § 3553(a) factors militated against reduction”); United States v. Coats, 853 Fed.Appx. 941, 942 (5th Cir. 2021) (affirming the denial of the § 3582(c) motion because the district court did not find itself bound by § 1B.13 in contravention of Shkambi, even if the assumption was made that “the post-sentencing legal developments on which [defendant] relies could be considered as extraordinary and compelling reasons for a sentence reduction.”).
Furthermore, at this point there is a split in the circuits as to whether the changes to the consecutive provisions of § 924(c) are extraordinary and compelling reasons for a sentence reduction. In United States v. Thacker, 4 F. 4th 569 (7th Cir. July 15, 2021), the Seventh Circuit held the change to § 924(c) cannot constitute an extraordinary and compelling reason for a sentencing reduction but addressed the approaches by the different circuits. For instance, the Sixth Circuit in United States v. Jarvis, 999 F.3d 442, (6th Cir. 2021) and the Eighth Circuit in United States v. Loggins, 966 F.3d 891, 892-893 (8th Cir. 2020), for basically the reasons articulated below, found that the non-retroactive change did not constitute an extraordinary and compelling reason for a reduction in sentence. The Fourth Circuit in United States v. McCoy, 981 F.3d 271, 285-287 (4th Cir. 2020) held that the sentencing disparity resulting from the anti-stacking amendment to § 924(c) may constitute an extraordinary and compelling reason. The Tenth Circuit in United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021) has “adopted a middle ground” and determined that “the sentencing disparity resulting from a nonretroactive change to sentencing law in the First Step Act may serve in combination with other rationales as an extraordinary and compelling reason for early release.” Thacker, 2021 WL 2979530, at * 5.
Therefore, out of an abundance of caution and to preserve the issue, the government maintains that the nonretroactivity of the First Step Act to “stacking” under § 924(c) is neither extraordinary nor compelling. By allowing defendants to file their own motions for compassionate release via 18 U.S.C. § 3582(c)(1)(A), Congress did not intend to alter drastically the scope of appropriate compassionate release considerations to include sentencing inequities based on the First Step Act's change to § 924(c)'s penalty provisions, despite the First Step Act stating elsewhere that those changes are not retroactive. In passing the First Step Act, Congress expressly rejected the notion that defendants already serving sentences based on § 924(c)'s “stacked” penalty provisions should benefit from the First Step Act's changes to the law. See First Step Act § 403(b) (stating that § 924(c)'s amended penalties apply only prospectively-that is, “if a sentence for the offense has not been imposed as of such date of [the First Step Act's] enactment”-and thus do not apply to defendants already serving sentences under the former version of § 924(c)). In contrast, Congress did make other portions of the First Step Act retroactive, further undercutting the notion that, merely by affording defendants the procedural right to petition district courts directly for compassionate release, Congress intended to create a new mechanism for defendants to benefit retroactively from the change to § 924(c). See First Step Act § 404(b) (permitting courts to apply retroactively various provisions of the Fair Sentencing Act of 2010).
The text of the First Step Act shows that Congress carefully considered which First Step Act-based amendments should apply retroactively, and, in doing so, rejected retroactive application of 18 U.S.C. § 924(c)'s new penalty provisions, even as it decided other changes to criminal penalties warranted retroactive application. See United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (restating the well-established cannon of statutory interpretation that, “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”); see also 1 U.S.C. § 109 (stating that the mere repeal of a statute “shall not have the effect to release or extinguish any penalty” previously imposed under it, “unless the repealing Act shall so expressly provide [otherwise]”). Accordingly, there is no statutory basis for the defendant's suggestion that, merely by allowing defendants to file their own motions for compassionate release via 18 U.S.C. § 3582(c)(1)(A), Congress intended to alter drastically the scope of appropriate compassionate release considerations to include sentencing inequities based on the First Step Act's change to § 924(c)'s penalty provisions, despite the First Step Act stating elsewhere that those changes are not retroactive.
The defendant also argues that under the recently decided Concepcion v. United States, 142 S.Ct. 2389, 2392 (2022), that this Court may consider intervening changes of law or fact when deciding whether to “reduce a sentence.” Rec. Doc. 263, p. 3. The defendant is correct. This Court may indeed consider these changes when deciding to reduce a sentencing pursuant to the First Step Act. However, the government continues to maintain its argument that Congress expressly intended for those provisions to not be retroactive, and the nonretroactivity of the First Step Act with regards to 924(c) stacking is neither extraordinary or compelling.
B. This Court should deny the motion because the factors in 18 U.S.C. § 3553(a) especially the nature and circumstances of the offense weigh heavily against release.
Even if 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act, could allow for compassionate release motions based on sentence severity, this Court should deny the defendant's motion because § 3553(a) factors weigh against a reduction in sentence. “The defendant bears the burden to establish circumstances exist under which he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).” United States v. Harper, Case No. 3:13-CR-000231, 2021 WL 2457193, at * 4 (W.D. La. June 16, 2021).
The defendant argues in his Motion for Compassionate Release, that he “was definitely less culpable for his criminal conduct” due to his age at the time of the offense. Rec. Doc. 263, p. 8. However, the nature and circumstances of the defendant's offenses of conviction cut against his argument for a reduction in sentence. See 18 U.S.C. § 3582(a) (allowing the court to consider the § 3553(a) factors, including the nature and circumstances of the offense, and history and characteristics of the defendant, when deciding whether to grant compassionate release). The defendant organized and perpetrated a string of armed robberies in which innocent and unsuspecting victims were placed in fear for their lives. Armed with firearms in each of his known robberies, the defendant repeatedly placed lives in danger. In one of the robberies, the defendant himself fired a shot into the ceiling of a bar in a failed attempt to frighten the patrons. PSR, ¶16. In multiple robberies, threats of violence were made to customers and employees of the various businesses. The PSR reflects that he the defendant himself was violent and brandished firearms during the robberies in a show of force. At gunpoint, he repeatedly ordered individuals to lie on the ground and forced clerks to open registers. PSR, ¶¶6 - 23. From June to November 2012, Robinson and his codefendants coordinated a long and violent string of robberies in the Shreveport area which left the community shaken. In this case, the egregious nature and circumstances of the offenses do not warrant a reduction.
Additionally, there is a “need to avoid unwarranted sentencing disparities among defendants with similar records who were found guilty of similar conduct.” 18 U.S.C. §3553(a)(6). Up until the implementation of the First Step Act, defendants across the United States were convicted of violations of 18 U.S.C. §924(c) and sentenced accordingly. These defendants were subject to the “stacking” provisions of the statute and received sentences accordingly. As the Fifth Circuit Court of Appeals noted in affirming Robinson's lengthy sentence, “[w]hile Smith and Robinson's sentences are lengthy, they are the result of congressionally established mandatory minimums. ‘[I]t is for Congress to ameliorate the result of application of statutory mandatory minimum sentences if it deems it too harsh.'” United States v. Smith, 609 Fed.Appx. 180, 190 (5th Cir. 2015) quoting United States v. Looney, 532 F.3d 392, 397 (5th Cir.2008).
Finally, when looking at the history and characteristics of the defendant, his disciplinary history while incarcerated has continued this pattern of violence. Government Exhibit 1. In 2016, he was sanctioned for threatening bodily harm. Id. at 3. In 2017, the defendant was sanctioned by the Bureau of Prisons for possessing a dangerous weapon. Id. at 2. Later in 2017, he was sanctioned for possessing a dangerous weapon and fighting with another person. Id. In 2019, the defendant admitted to possessing a dangerous weapon. Id. In 2020, the defendant was sanctioned for yet again possessing a dangerous weapon. Id. In addition to these serious violations, the defendant committed several other minor infractions while in BOP custody. Gov. Ex. 1. However, the majority of the defendant's infractions are 100 and 200-level offenses, the most serious within BOP's disciplinary system. The defendant's disciplinary history clearly show that his violent behavior has not abated since incarceration. On the contrary, possessing weapons seem to be a hallmark of the defendant's time in custody.
The regulations governing the BOP disciplinary process are found at 28 C.F.R. §§ 541.1-541.8. Under that process, prohibited acts are categorized by severity, with “100 level” offenses being the most severe and “400 level” offenses being the least severe. Offenses falling in the 100- and 200-level categories must be adjudicated by a Discipline Hearing Officer, while 300- and 400-level offenses can be adjudicated by the inmate's unit team. See 28 C.F.R. § 541.7(a)(4).
IV. CONCLUSION
For the above and foregoing reasons, this Court should deny his motion because he has not shown an “extraordinary and compelling” reason for relief, and regardless, the § 3553(a) factors render the defendant an unsuitable candidate for a reduction in sentence.
Matter Omitted