Opinion
6:18-CR-06026 EAW
2023-09-05
UNITED STATES of America, v. Jennifer VIETOR, Defendant.
Kyle P. Rossi, Government Attorney, U.S. Attorney's Office, Rochester, NY, for United States of America.
Kyle P. Rossi, Government Attorney, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Pending before the Court is a pro se motion filed by defendant Jennifer Vietor (hereinafter "Defendant") for a sentence reduction. (Dkt. 94). Although the legal basis for Defendant's motion is not specified, it appears that she is seeking relief pursuant to 18 U.S.C. § 3582(c)(1)(A). Defendant cites to her remorse, mental illness when she committed the criminal offense, and positive steps taken toward rehabilitation while incarcerated. (Id.). The government has filed a memorandum opposing the requested relief. (Dkt. 96).
The current motion represents Defendant's third request for a sentence reduction since being sentenced by the undersigned on February 26, 2019, to 188 months incarceration and fifteen years supervised release for her conviction in violation of 18 U.S.C. § 2252A(a)(2)(A) (distribution of child pornography). (Dkt. 43; Dkt. 61). The relevant factual background and procedural history of this case are fully set forth in the Court's prior decisions denying Defendant the relief requested (see Dkt. 81; Dkt. 93)—including that the underlying offense related to Defendant's production and distribution of sexually explicit nude photographs involving a minor, including images reflecting sexual conduct between Defendant and this minor, which were then sold to an individual in the United Kingdom. Familiarity with the Court's prior decisions is assumed for purposes of this Decision and Order.
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti, 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that . . . the court, upon motion of the Director of the [BOP] . . . , or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] . . . 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds 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). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term. "The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney, No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd, 833 F. App'x 850 (2d Cir. 2020).
Although the statute references the Sentencing Commission's policy statements, the Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker, 976 F.3d 228, 236 (2d Cir. 2020).
Here, the Court agrees with the government that Defendant has failed to establish that she exhausted her remedies by filing a request with the BOP. Moreover, even if she had exhausted her remedies, the Court further agrees with the government that Defendant has failed to establish extraordinary and compelling reasons justifying the grant of her motion, and furthermore, the § 3553(a) factors counsel against granting Defendant's motion. That Defendant regrets her criminal conduct and is in a different state of mind than she was when she committed the offense are positive steps—but do not rise to the level of extraordinary and compelling circumstances justifying a sentence reduction. Moreover, as the Court has previously concluded, given the nature and circumstances of Defendant's underlying offense of conviction, along with consideration of the relevant factors set forth at 18 U.S.C. § 3553(a), a sentence reduction would undermine the purposes of sentencing and is not warranted in this case.
For the foregoing reasons, Defendant's motion for a sentence reduction (Dkt. 94) is denied.
SO ORDERED.