United States v. Lopez

534 F.Supp.3d 573

UNITED STATES of America

v.Tony Ervin LOPEZ

Criminal No. 1:07-cr-137

United States District Court, E.D. Virginia, Alexandria Division.

Signed April 20, 2021

Kelli H. Ferry, Lawrence J. Leiser, United States Attorney's Office, Alexandria, VA, for United States of America.

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

At issue in this matter is Defendant Tony Ervin Lopez's pro se Motion for Sentence Reduction under 18 U.S.C. § 3582(c)(1)(A). In support of his motion, Defendant contends that there are "extraordinary and compelling circumstances"¹ warranting a 12-month reduction in his federal sentence: namely, that a 12-month reduction in Defendant's federal sentence will give effect to the 211-month total sentence that Judge Gerald Bruce Lee (Ret.) imposed in this case. Specifically, a 12-month reduction in Defendant's federal sentence is appropriate, according to Defendant, because Judge Lee ordered that Defendant's 211-month federal sentence run concurrent with a previously imposed 12-month Virginia state sentence, for a total sentence of 211 months, but the Virginia Department of Corrections ("VDOC") has refused to honor Judge Lee's Order by insisting that Defendant's 12-month Virginia sentence run consecutive to Defendant's federal sentence. Thus, Defendant is currently scheduled to serve a total of 223 months in prison, a period that is 12 months longer than Judge Lee imposed.

To achieve the 211-month total period of imprisonment that Judge Lee imposed, Defendant has filed the instant Motion for Sentence Reduction, seeking a 12-month reduction in Defendant's federal sentence. If Defendant's motion is granted, then Defendant will serve approximately 199 months in federal prison and 12 months in state prison, for a total of 211 months imprisonment. If Defendant's motion is denied, then Defendant will serve 211 months in federal prison and 12 months in state prison, for a total of 223 months imprisonment, a period that is 12 months longer than Judge Lee imposed.

The government concedes that Defendant presents a compelling case for a 12-month reduction in his federal sentence under 18 U.S.C. § 3553(a) but nonetheless argues that a sentence reduction is inappropriate here. Because the parties’ briefing adequately sets forth the relevant facts and applicable legal framework, oral argument is dispensed with and thus Defendant's Motion for Sentence Reduction is now ripe for disposition.

I.

Analysis of Defendant's Motion for Sentence Reduction properly begins with a summary of the relevant dates, which are undisputed.²

• June 14, 2007: Defendant is sentenced in Orange County Circuit Court for unlawful possession of a controlled substance³ to a three-year term of imprisonment, with two years suspended. Following the imposition of this state sentence, Defendant is transferred to the custody of the U.S. Marshals Service. See Record at 22, 25.

• August 17, 2007: Defendant is sentenced by Judge Lee in the Eastern District of Virginia for drug and firearms offenses⁴ to a 248-month term of imprisonment. The Judgment imposing this 248-month federal sentence specifically states that "this sentence shall run concurrent with the [state] sentence." Judgment at 2 (Dkt. 26).

• September 18, 2007: VDOC sends a one-page letter to the Bureau of Prisons ("BOP"), which:

• (1) informs BOP that, according to VDOC, Defendant's 12-month state sentence must be served consecutive to and thus following Defendant's 248-month federal sentence; and

• (2) requests that BOP place a detainer on Defendant so that Defendant will begin his 12-month state sentence upon the conclusion of his federal sentence. See Record at 39.⁵

• September 25, 2007: BOP notifies VDOC that VDOC's detainer request has been fulfilled and therefore that Defendant will serve his 12-month state sentence following his federal sentence. See id. at 46.

• December 11, 2013: Judge Lee issues an Amended Judgment clarifying that Defendant's federal sentence runs concurrent with Defendant's state sentence. See Am. Judgment (Dkt. 53).

• December 28, 2015: Defendant, separately eligible for a 37-month sentence reduction due to the Fair Sentencing Act of 2010, files an unopposed motion to reduce his federal sentence from 248 to 211 months pursuant to 18 U.S.C. § 3582(c)(2). See Def.’s Mot. to Reduce Sentence (Dkt. 62).⁶

• January 6, 2016: Defendant's unopposed Motion for Sentence Reduction is granted, and Defendant's federal sentence is reduced to 211 months. See January 6, 2016 Order (Dkt. 64)

• Spring / Summer 2017: On an unknown date during this time period, Defendant writes a letter to the Orange County Circuit Court requesting that the Orange County Circuit Court modify Defendant's 12-month state sentence such that this sentence runs concurrent with Defendant's 211-month federal sentence.

• September 6, 2017: Defendant files a Motion to Clarify the Concurrency of Defendant's Federal and State Sentences. See Def.’s Mot. to Clarify (Dkt. 76).

• September 8, 2017: An Orange County Circuit Court Judge, Daniel R. Bouton, writes a two-sentence, handwritten note to Defendant, stating in full: "The court has no authority to recall a detainer issued by the U.S. Dept of Justice to the Comm. of Va. Dept. of Corrections. The court also has no jurisdiction to modify its sentencing order at this point. The matter can be addressed as deemed appropriate by the Dept. of Corrections. DRB." Record at 51.

• September 18, 2017: Judge Lee, writing in response to Defendant's Motion to Clarify the Concurrency of his Sentences, issues an Order stating that "Defendant's federal sentence [is] to run concurrent with Defendant's state sentence in Orange County, Virginia." Sep. 18, 2017 Order at 1 (Dkt. 77).

• June 15, 2018: Defendant files a separate habeas corpus action, Lopez v. Ormond et al. , No. 2:18-cv-322 (E.D. Va. 2018), seeking, in effect, an Order compelling BOP and/or VDOC to modify his 12-month consecutive sentence to a 12-month concurrent sentence, such that Defendant can serve the 12-month state sentence during the pendency of his 211-month federal sentence.

• June 18, 2019: Magistrate Judge Douglas Miller issues a Report and Recommendation that recommends the denial of Defendant's habeas petition. In relevant part, Judge Miller concludes that a federal district court "lacks any authority to order VDOC to commence Lopez's state sentence or designate Lopez's present federal facility for service of that sentence." Lopez v. Ormond et al. , No. 2:18-cv-322, 2019 WL 3365850, at *7 (E.D. Va. June 18, 2019).

• July 24, 2019: Chief Judge Mark Davis adopts Magistrate Judge Miller's Report and Recommendation and accordingly, Defendant's habeas petition is denied. SeeLopez v. Ormond et al. , No. 2:18-cv-322, 2019 WL 3366554, at *1 (E.D. Va. July 24, 2019).

• May 13, 2020: Seeking an alternative way to achieve the 211-month total sentence Judge Lee imposed, Defendant requests that the Warden at FCI Petersburg file a motion requesting a 12-month sentence reduction in Defendant's federal sentence. The Warden denies Defendant's request.

• June 24, 2020: Defendant files the instant Motion for Sentence Reduction under 18 U.S.C. § 3582(c)(1)(A), seeking a 12-month reduction in Defendant's federal sentence.

II.

As a preliminary matter, the parties agree that Defendant has fully exhausted his administrative remedies, and therefore that Defendant's Motion for Sentence Reduction is now ripe for disposition. A defendant seeking sentence reduction under 18 U.S.C. § 3582(c)(1)(A) bears the burden of establishing (1) that there are "extraordinary and compelling circumstances" warranting a sentence reduction and (2) that analysis of the § 3553(a) factors also warrants a sentence reduction. 18 U.S.C. § 3582(c)(1)(A) ; see also United States v. Sprague , 838 F. App'x 775, 775–76 (4th Cir. 2021). Recently, in United States v. McCoy , 981 F.3d 271 (4th Cir. 2020), the Fourth Circuit clarified that, under the first part of this two-part test, the phrase "extraordinary and compelling circumstances" is not limited to any particular set of circumstances. Id. at 284. Rather, the ultimate guide in assessing a motion for sentence reduction is the individual circumstances of a particular defendant. See id. at 284 (emphasis in original) (internal citation omitted) ("[N]o ‘applicable’ policy statement govern[s] compassionate-release motions ... and as a result, district courts are ‘empowered ... to consider any extraordinary and compelling reason for release that a defendant might raise’ "); see also Sprague , 838 F. App'x at 776 (same). Thus, a district court may reduce a defendant's sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) if the district court finds, following an "individualized assessment[ ] of [a] defendant's sentence" and "full consideration of the defendant[’s] individual circumstances," that there are "extraordinary and compelling circumstances" warranting a sentence reduction. McCoy , 981 F.3d at 284. Decision on whether or not to grant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) is reviewed for abuse of discretion. See United States v. Kibble , 992 F.3d 326, 328-29 (4th Cir. 2021).

A.

There can be no dispute here that there are "extraordinary and compelling circumstances" warranting a 12-month reduction in Defendant's federal sentence. 18 U.S.C. § 3582(c)(1)(A). Simply put, without such a reduction, Defendant will be incarcerated for a term that exceeds and is directly contrary to the express order of the sentencing judge. Surely, such a circumstance is "extraordinary and compelling"; there is simply no basis whatsoever to imprison a person in contravention of the sentencing judge's order. Id. Moreover, it is axiomatic that a criminal defendant may not be incarcerated for any period longer than necessary to achieve the goals of sentencing, which Judge Lee determined was 211 months. See 18 U.S.C. § 3553(a) ; see also United States v. Freeman , 992 F.3d 268, 278-79 (4th Cir. 2021) (same). Yet...