United States v. Galloway

1

United States Plaintiff v. Kesean Galloway Defendant

No. 17 Cr. 202

United States District Court, S.D. New York

November 1, 2023

MOTION FOR A REDUCTION IN SENTENCE PURSUANT, TO 18 U.S.C. 3582(c)(1)(A).

Relief Sought

Kesean Galloway, (herein, “Galloway”), asks the Court to look at the totality of the 'extraordinary and compelling reasons' he offers and grant him a reduction in sentence pursuant to 18 U.S.C. §3582(c)(1)(A).

Legal Standards

18 U.S.C. §3582(c)(1)(A) permits courts to reduce a previously imposed sentence as long as (1) the defendant exhausts his administrative remedies; (2) the defendant demonstrates that 'extraordinary and compelling reasons' exist that warrant a reduction in sentence; and (3) the 18 U.S.C. §3553(a) factors are consistent with a sentence that is less than the one previously imposed.

1.) Exhaustion Requirement

The first Step Act of 2018 amended 18 U.S.C. §3582(c)(1)(A) to allow a defendant to file a motion for compassionate release on their own behalf as long as they "fully exhaust [] 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 Harden of the defendant's facility, whichever is earlier." 18 U.S.C. §3582(c)(1)(A).

On March 6, 2022, Galloway submitted a requests to the Warden of FCI Otisville, where he is being housed. As of the date of this motion Warden E. Jaimson has not responded to the submitted request. Therefore, more than 30 days have passed since Galloway submitted his initial request, thus the exhaustion requirement has been satisfied. See, United States v. Rodriguez, 2022, U.S. Dist. Lexis 64567 (D Conn. 4/6/22)("Mr. Rodriguez has satisfied the exhaustion requirement by requesting release from the Warden of PCI McDowell in February of 2021").

II. Extraordinary and Compelling Reasons Exist

Courts are empowered to exercise their discretion in determining what are extraordinary circumstances." United States v. Brooker, 975 F.3d 228, 2020 U.S App. Lexis 30605, 2020 WL 5739712 at *8 (2d cir, Sept. 25 2020).

The Supreme Court has held that only Congress and the Constitution may Limit scope of what information a court may consider in deciding to modify a sentence. See, United States v. Concepcion, No. 20-1650 (S.Ct. June 27 2022). The only limitation place on court s is that rehabilitation... alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. 994(t).

Galloway contends that extraordinary and compelling reasons exist that warrant a reduction' in sentence. He claims that if he were sentenced today -- after the ruling in United States v. Chapelle, 41 F.4th 102 (2d Cir. July 21, 2022) -- he would not have been sentenced as a career offender and thus would have received a less harsh sentence. He further claims that his efforts at rehabilitation himself rises to the level of extraordinary and speaks to a reduction in bis sentence.

A.) Hobbs Act Robbery is no longer considered violent under the Guidelines

On September 5th, 2013, Galloway was sentenced to 120 months imprisonment for one count of conspiracy to commit Hobbs Act Robbery in violation of 13 U.S.C. §371 and 1 count of carjacking in violation of 18 U.S.C. §2119 and 2. At his sentencing hearing, it was determined that Galloway was a career offender under the United States Sentencing Guidelines (”USSG”) §4B1.1 because. Hobbs Act robbery was considered violent. This fact caused his criminal history category to rise from a category IV to a category VI, resulting in a substantial higher sentencing range for the courts to consider.

Courts across the country have held that Hobbs Act Robbery cannot be considered violent by the definition provided in USSG . 4B1.2. See United States v. Chapelle, 41 F.4th 102 (2d Cir. July 21, 2022) (Holding that Hobbs Act robbery is categorically broader than §4B1.2's definition of crime of violence.”); see also, United States v. Green, 996 F.3d 176, 2021 U.S. App. Lexis 12844 (4th Cir. Apr. 29, 202§1), United States v. O'Conner 874 F.3d 1147, 1158 (10th Cir. 2017); United States v. Camp, 903 F.3d 594, 604 (6th Cir. 2018); United States v. Rodriguez, 770 F.Appx. 18, 21 (3d Cir. 2019); United States v. Eason, F.3d 1184, 1195 (11th Cir. 2020); Bridges v. United States, 991 F.3d 793, 2021 WL 1016433, at *6 (7th Cir. 2021).

In Short, Hobbs Act robbery extends to a broader range of conduct specifically, the use and threat of force against property, as well as persons - than §4B1.2(a)(1)'s force clause or the offense of robbery enumerated in §4B1.2(a)(2).

Galloway was erroneously sentenced as a career offender because of a misreading of USSG 4B1.2's definition of violent offense. This sentencing range was established as 188 to 235 months when in fact his range should have been 151 to 188 months at the appropriately calculated criminal history category of IV.

At his sentencing, Galloway, received a 36% downward variance from the low end of his established guidelines range. If the Court had the knowledge set forth in United States v. Chapelle, they would have realized that Galloway was not a career offender and could have provided the same variance from Galloway's correct guidelines range -- 151 to 188 months -- and sentenced him to 97 months,, a substantial amount of time, to be sure. With the Good Conduct Time ("GCT") he would earn he would serve 68 months. Because of his good behavior while incarcerated he would have been eligible for halfway house in about 56 months served. To date, Galloway has served approximately 53 months. He would be a mere 3 months away from transfer to a halfway house if be had not erroneously received the career offender designation.

Galloway claims this extraordinary difference in the sentence he should have received, compels a reduction, in sentence.

B.) Galloway's rehabilitative efforts go above and beyond the average inmate and, thus, calls for a reduction.

Galloway claims that his efforts a rehabilitation goes beyond what is expected of the average inmate and thus serves as an extraordinary and compelling reason that warrants a reduction in sentence.

The only limit placed on a court when considering extraordinary and compelling circumstances is that "[r]ehabilitation ... alone shall not be considered an extraordinary and compelling reason." 28 U.S.C. §994(t)(Emphasis added). Courts have held that while rehabilitation standing alone is not extraordinary and compelling, but in conjunction with other extraordinary and compelling, but in conjunction with other extraordinary and compelling reasons can rise to the same level. See, United States v. Glynn, 2022 U.S. Dist. Lexis 32794 (SDNY Feb. 24, 2022) ("[T]he Court is not considering rehabilitation alone, but instead rehabilitation along with the other circumstances [...] that together constitute extraordinary and compelling reasons for reducing [... the] sentence.”)

Galloway's behavior while he's been incarcerated is exceptional. He has received no disciplinary infraction since the commencement of his sentence, which is nothing less than extraordinary when "infractions may be issued for matters as small as a messy cell." United States v. Underwood, No. 88a Cr. 822.

Going beyond his clear record, Galloway has taken the court s advice and has participated in several rehabilitative programs including: Drug Abuse Education, the Non-Residential Drug Abuse Program, Anger Management and parenting. See, Ex. A. Additionally, he is currently on the waiting lists for other programs.

Galloway has also maintained employment while incarcerated by working in the kitchen. He was also selected to be a suicide watch companion where be was tasked with helping inmates Learn to cope with prison life. When that failed he would sit with the inmate on suicide watch, monitor and record their behavior while continuing to help them cope with their situation. See, Ex. B.

While rehabilitation is expected of those who are incarcerated, there are a few inmates who go the extra mile to ensure their success upon. Galloway is one of those individuals. Galloway's extraordinary efforts at rehabilitating himself weights in favor of the reduction requested.

These reasons on their own may not warrant a reduction, however, the Court will see, when looking at the totality of Galloway's circumstances, that they rise to the level of extraordinary and compelling reasons that warrant a reduction in sentence. See, United States v. Piggott, 2022 U.S. Dist. Lexis 5293, 2022 WL 118632, at *2 (S.D.N.Y. Jan. 12, 2022)("The Court need not find a single dispositive circumstances to determine that extraordinary and compelling reasons exist; rather, it may consider whether the totality of the circumstances justify such a finding.); United States v. Secchiaroli, 2021 U.S. Dist. Lexis 29212 (“[T]he totality of circumstances presented here render release appropriate.")

III.) The 18 U.S.C. §3553(a) factors weigh in favor of a reduction

The first factor to consider is "the nature and circumstances of the offense and the history and characteristics of the defendant..." 18 U.S.C. §3553(a)(1).

Galloway was 20 years old when these crimes were committed and was only 22 years old when he received a 120 month sentence for one count of conspiracy to commit Hobbs Act robbery and one count of carjacking. These two crimes are as the prosecutor put it, 'very, very serious," but that fact is mitigated because the victims weren't "babes in the woods," in fact they were drug dealers. Sent. Tr. @ 9-10.

Additionally because Galloway was so young when these crimes were committed he was considered less culpable than older more mature defendants. See, Roper v. Simmons., 543 U.S. 551 (2005); Miller...