United States v. Hairston

UNITED STATES OF AMERICA, Plaintiff, v. MARIO HAIRSTON, Defendant.

Case Number 12-20423

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 17, 2021

Honorable David M. Lawson

ORDER DENYING MOTION TO REDUCE SENTENCE

Defendant Mario Hairston filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), essentially reprising an argument he made on collateral review relating to the Bureau of Prisons' (BOP) refusal to credit him for the time he spent in state custody while his federal case was pending. Hairston pleaded guilty to Hobbs Act robbery and discharging a firearm during and in relation to a crime of violence and was sentenced by the Honorable Avern Cohn to 157 months in prison. That sentence was negotiated by his lawyer and the government to account in part for 30 months he spent in state custody after he was charged in the present case. The original plea offer was for a 180-month prison term. By Hairston's calculation, he was short-changed by seven months. Even if true, however, the seven-month disparity does not amount to extraordinary and compelling reasons under section 3582(c)(1)(A). Hairston's motion, therefore, will be denied.

I.

A.

Mario Hairston has a criminal history dating back to 2003. As a minor, he was convicted of possessing marijuana in March 2003, and in April 2003, he pleaded guilty to second-degree home invasion and conspiracy to commit home invasion. He was sentenced to Boot Camp for 90 days under the Holmes Youthful Trainee Act. In November 2003, he was convicted of driving while impaired. His Youthful Trainee status was revoked in April 2004, and he received a custodial sentence of 18 months to 15 years in prison. He was released from custody and placed on parole in May 2008. Less than a month after being placed on parole, he committed an assault. He was placed back on parole, failed to comply with his tether requirements, and absconded from supervision until his arrest in 2009. He was released on parole and violated the conditions of his release twice more. One of those violations involved a September 7, 2009, arrest for intentionally breaking into and entering a building. He was convicted of the breaking and entering charge in October 2009 and was granted parole on December 1, 2010. While on parole, Hairston robbed a 7-Eleven store on June 7, 2011. He was arrested in August 2011, and on August 29, 2011 he was returned to the Michigan Department of Corrections (MDOC) as a parole violator.

On March 13, 2012, the government charged Mario Hairston in a criminal complaint with being a felon in possession of a firearm, discharging a firearm in relation to a crime of violence, interference with commerce by threats or violence (Hobbs Act robbery), and delivering marijuana. The charges stemmed from two separate, unrelated events: the search of Hairston's home based on suspicions of drug trafficking, during which federal law enforcement found a gun, ammunition, and marijuana; and the armed robbery of the 7-Eleven store. Because Hairston was on parole to the MDOC at the time, he was taken into state custody after his arrest. He stayed in state custody for about 30 months until he was "paroled" to federal custody to serve his federal sentence in April 2014.

B.

The state never formally found Hairston guilty of a parole violation. Shortly after his arrest by ATF agents, Hairston requested an adjournment of his parole revocation hearing due tothe possible pending federal charges in September 2011. The Michigan Parole Board granted Hairston's request and adjourned the hearing on his possible parole violation "so that [he] can address forthcoming criminal charges." Hairston was charged with eight parole violations. He later pleaded no contest to one count, which alleged possession of a handgun, and his remaining violations were dismissed. The hearing officer recommended re-parole with "nfd' (no fixed date), which means that he would have no fixed date with the parole board and would not need to serve any additional disciplinary prison time as a parolee.

The Parole Board never formally acted on the recommendation by issuing a final decision. There is no evidence in the record of a Notice of Decision, or form "CFJ-279," and therefore there is no evidence that Hairston ever formally received a sentence for his parole violation.

C.

The government tried unsuccessfully to negotiate a pre-indictment plea. Hairston apparently was prepared to plead guilty to the drug and gun charges but not the robbery-related charges. The government then took the case to the grand jury and filed an indictment on June 21, 2012, charging Hairston with Hobbs Act Robbery and discharging a firearm during and in relation to a crime of violence.

Hairston eventually pleaded guilty to both counts of the indictment, agreeing to a sentence of 157 months in prison. "The offer was initially for 180 months, but the government agreed to revise the offer to 157 months to account for the time Hairston spent in state custody for the parole violation." Hairston v. United States, 664 F. App'x 485, 487-88 (6th Cir. 2016). "When indicting Hairston for the charges stemming from the robbery, the government also separately indicted him for charges resulting from the search of his home; those charges were dropped as part of the plea agreement." Ibid. Judge Cohn accepted the guilty plea and sentenced the defendant on December23, 2013 to 157 months in prison. Judge Cohn amended the judgment on February 4, 2014, to make clear that the federal sentence "shall run concurrent with any sentence imposed by the Michigan Department of Corrections."

D.

After filing an appeal, which he voluntarily dismissed, Hairston filed a motion to vacate his sentence under 28 U.S.C. § 2255 on January 30, 2015. He raised two issues relevant to the motion currently before the Court. He alleged that his attorney provided ineffective assistance by telling him that he would receive time-served credit for approximately 30 months of detention with the MDOC, and he argued that he was entitled to that credit against his federal sentence, an issue he raised under 28 U.S.C. § 2241.

Judge Cohn denied the motion. He concluded that Hairston's attorney provided effective assistance because counsel raised the dead time issue, which prompted the government to reduce its plea offer from 15 years (180 months) to thirteen years and one month (157 months). Judge Cohn found that counsel adequately advised Hairston about the government's reduced offer in light of the time he spent in the custody of the MDOC, and that "Hairston knew, or should have understood, that his time with the MDOC was not going to be credited against his federal sentence." Judge Cohn concluded the Court lacked jurisdiction to address Hairston's second argument because a petition under section 2241 challenging the execution of his sentence must be raised before the appropriate district court in West Virginia, the state in which Hairston was incarcerated at the time. Hairston has since been transferred to FCI Edgefield, a medium-security institution in South Carolina. Hairston appealed Judge Cohn's order, and the Sixth Circuit affirmed the decision on November 16, 2016. Hairston, 664 F. App'x 485.

Hairston also raised the dead time issue with the BOP several times throughout 2014 and 2015. On July 27, 2016, the BOP denied his request for a sentence reduction, concluding that Hairston's arrest in August 2011 was "unrelated to the instant federal offense" (the robbery convictions). It also stated that "[a]ny time spent in custody of [the MDOC] would have been credited towards the sentence [Hairston] was serving for their state, [sic] and therefore is ineligible to be applied to [his] federal sentence."

Hairston later filed a pro se motion for compassionate release on September 8, 2020 due to the incapacity of his wife, who was suffering from terminal cancer. The Court appointed counsel under the Criminal Justice Act, who filed a supplemental motion in October 2020. Hairston withdrew that motion on January 20, 2021, after his wife had passed away. On January 28, 2021, he submitted a request to the Warden of FCI Edgefield, raising the same argument about crediting his dead time that he raised in his motion to vacate sentence, but never heard back. He filed a second motion for compassionate release, on March 9, 2021, which is now before the Court.

II.

As a general rule, "a federal court 'may not modify a term of imprisonment once it has been imposed.'" United States v. Alam, 960 F.3d 831, 832 (6th Cir. 2020) (quoting 18 U.S.C. § 3582(c)). "But that rule comes with a few exceptions, one of which permits compassionate release." Ibid. "The request may come through a motion in federal court filed by the Director of the Bureau of Prisons. 18 U.S.C. § 3582(c)(1)(A). Or it may come through a motion filed by the inmate after he has 'fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the [prisoner]'s behalf' or after 'the lapse of 30 days from the receipt of such a request by the warden of the [prisoner]'s facility, whichever is earlier.'" Ibid. (quoting 18 U.S.C. § 3582(c)(1)(A)).

Upon a proper motion via either avenue, the Court may, "[a]fter 'considering the factors set forth in section 3553(a) . . . reduce the prisoner's sentence if it finds that 'extraordinary and compelling reasons warrant such a reduction' or if the '[prisoner] is at least 70 years of age,' has 'served at least 30 years,' and meets certain other conditions." Ibid. (quoting 18 U.S.C. § 3582(c)(1)(A)(i), (ii)). Hairston relies on subparagraph (i) of the statute. Under that provision, the Court can order a reduction of a sentence, even to time served, by following a procedure that the court of appeals has distilled into three steps. First, consider whether "extraordinary and compelling reasons warrant such a reduction." Second, determine if the "reduction is consistent with...