United States v. McCreary

528 F.Supp.3d 1083

UNITED STATES of America, Plaintiff,

v.Derrick L. MCCREARY, Defendant.

No. CR-04-00313-003-PHX-SRB

United States District Court, D. Arizona.

Signed March 25, 2021

Charles Fred Hyder, US Attorneys Office, Phoenix, AZ, Denise Ann Faulk, US Attorneys Office, Tucson, AZ, for Plaintiff.

ORDER

Susan R. Bolton, United States District Judge

Pending before the Court is Defendant Derrick L. McCreary's Motion for Modification of Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(1) ("Motion"). (Doc. 372, ("Mot.").)

I. BACKGROUND

A. Offenses and Sentence

Mr. McCreary is in prison for his role in two armed bank robberies that took place in January and February of 2002. (See Presentence Investigation Report ("PSR") ¶¶ 5, 14.) Mr. McCreary recruited others; cased the banks beforehand; and provided clothes, unloaded guns, and a stolen car to those who carried out the robberies. (Id. ¶¶ 27, 31.) Nobody was seriously injured during either robbery. (Id. ¶¶ 32–37.)

In 2005, a jury convicted Mr. McCreary and his co-defendant, John Freeman Hunter, on five counts: conspiracy in violation of 18 U.S.C. § 371 (Count 1); armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) (Counts 2 & 4); and possessing, using, carrying or brandishing a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c) (Counts 3 & 5). (Doc. 272, 12/14/2005 Judgment & Commitment of McCreary ("J&C-McCreary") at 1.)¹ Mr. McCreary was sentenced to a total of 38.5 years imprisonment. ²

(Id. ) Specifically, Mr. McCreary received: 5 years (60 months) for Count 1 and 6.5 years (78 months) each for Counts 2 and 4, with Counts 1, 2, and 4 to run concurrently; and 7 years (84 months) for Count 3 and 25 years (300 months) for Count 5, with Counts 3 and 5 to run consecutively.³ (Id. ) The sentencing judge stated that Mr. McCreary's sentence was "harsh," "really long," and "plainly on the high side," but that he was not free to impose a shorter sentence. (Doc. 371-1, Ex, 1, Sentencing Tr. Excerpts ("ST") at 24:9, 38:5, 50:3–6.); see 18 U.S.C. § 924(c) (2005). Mr. McCreary's projected release date is in February 2037. (Doc. 372-1, Ex. 6, BOP Record of Release Date Calcs. and Re-Entry Prog. Review ("BOPR-Release and Re-Entry") at 64.)

B. Criminal History

The Presentence Report assigned Mr. McCreary a criminal history category of III, which reflected one prior felony conviction for second-degree robbery at age 18 and several misdemeanor convictions for tampering with a vehicle, shoplifting, and driving with a suspended license. (PSR ¶¶ 61–70.) Mr. McCreary was 30 years old at the time of the armed robberies. (PSR ¶ 70.) He has now served 17 years and is nearing 50 years old.

C. Conduct in Prison

Mr. McCreary has made productive use of his time in prison. He obtained his GED in 2007 and continued taking courses to prepare him for a career when he leaves prison. (Doc. 372-1, Ex. 4, BOP Record of Classes Taken by Mr. McCreary ("BOPR-Classes") at 58–59.) He has taken courses entitled "Starting Your Own Business," "Business Etiquette," and "Financial Statements." (Id. ) He has taken courses geared toward rehabilitation, including "Conflict Management," "Attitude Adjustment," and "Alternatives to Violence." (Id. ) He has taken several typing classes as well as classes focused on health and wellness. (Id. ) In total, he has completed over 500 hours of coursework. (Mot. at 22.)

Mr. McCreary's prison discipline history is short. He was disciplined once in 2010 for possessing a dangerous weapon, during which he admitted that he "made a bad decision," and once in 2017 for "Mail Abuse," in which Mr. McCreary "admitted to sending emails, but had deleted after he received his last email." (Doc. 378, Ex. 8.) He has no record of substance abuse. (Mot. at 22.)

Mr. McCreary holds the position of Compound Orderly and participates in a financial responsibility plan, under which he has consistently made payments. (BOPR-Release and Re-Entry at 65.) The United States does not challenge the accuracy, validity, or relevancy of any of Mr. McCreary's activities in prison. (See Doc. 389, United States’ Resp. to Mot. ("Resp.") at 16.)

D. Plan Upon Release

Mr. McCreary has an offer of employment at an auto mechanic shop owned by his cousin and has a similar backup job should this fall through. (Doc. 372-1, Ex. 5, McCreary Release Plan at 61.) He would live with his mother and his aunt. (Id. ) Members of Mr. McCreary's support system have written letters to the Court expressing their continued love and support for him. (See Doc. 372-1, Ex. 3, Character Letters at 41–56.) The United States does not challenge any aspect of Mr. McCreary's plan. (See Resp.)

E. Procedural Background

On April 21, 2020, Mr. McCreary made a request to the warden of his facility to file a motion for a sentence reduction on his behalf. (Doc. 372-1, Ex. 1, Admin. Request to BOP for Compassionate Release at 2–14.) This request was denied.⁴ (Id. at 5.) On October 7, 2020, Mr. McCreary filed his Motion in this Court. (Mot.) On November 9, 2020, Mr. McCreary filed supplemental exhibits. (Doc. 388, Def.’s Supp'l Exs. to Mot.) On November 20, 2020, the United States filed its Response. (Resp.) On December 7, 2020, Mr. McCreary filed his Reply. (Doc. 390, Def.’s Reply to Resp. ("Reply").)

II. LEGAL STANDARD & ANALYSIS

Federal district courts "may not modify a term of imprisonment once it has been imposed" except in limited circumstances. 18 U.S.C. § 3582(c) ; Dillon v. United States , 560 U.S. 817, 824–25, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Mr. McCreary seeks a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Section 3582(c)(1)(A) provides that a court may reduce a term of imprisonment if, after determining that the prisoner satisfied administrative exhaustion requirements, (1) "extraordinary and compelling reasons" warrant a reduction, (2) the reduction would be "consistent with any applicable policy statements issued by the Sentencing Commission," and (3) the applicable sentencing factors under 18 U.S.C. § 3553(a) warrant a reduction. Dillon , 560 U.S. at 824, 130 S.Ct. 2683 ; 18 U.S.C. § 3582(c)(1).

A. First Step Act & Applicable Policy Statements

Prior to the First Step Act, courts could consider sentence reductions under 18 U.S.C. § 3582(c) only upon motion of the Bureau of Prisons ("BOP"). See 18 U.S.C. § 3582(c)(1)(A) (2012). The First Step Act eliminated the BOP's gatekeeping role and granted federal prisoners the right to file their own motions after exhausting administrative remedies. See First Step Act, 132 Stat. at 5239.

Congress has not defined "extraordinary and compelling reasons" except to note elsewhere that "rehabilitation ... alone" does not suffice. See 28 U.S.C. § 994(t). Pursuant to its delegated authority and before passage of the First Step Act, the Sentencing Commission issued a policy statement defining "extraordinary and compelling reasons."⁵ U.S.S.G. § 1B1.13. Section 1B1.13 states that "extraordinary and compelling reasons" include: (A) medical condition; (B) age; (C) family circumstances of the defendant; and (D) "other reasons"—a catch-all provision permitting the BOP to determine that "reason[s] other than, or in combination with, the reasons described in subdivisions (A) through (C)," rise to the level of "extraordinary and compelling." Id. § 1B1.13 cmt. n.1(A)–(D).

To date, four circuit courts have issued published decisions concluding that Section (D)’s catch-all provision does not constrain courts’ discretion in determining the existence of extraordinary and compelling reasons. United States v. Jones , 980 F.3d 1098, 1109 (6th Cir. 2020) ("We now join the majority of district courts and the Second Circuit in holding that the passage of the First Step Act rendered § 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for compassionate release."); United States v. Brooker , 976 F.3d 228, 235–36 (2d Cir. 2020) ("[W]e read the Guideline as surviving [the First Step Act], but now applying only to those motions that the BOP has made."); United States v. Gunn , 980 F.3d 1178, 1180 (7th Cir. 2020) ("[B]ecause the Guidelines Manual lacks an applicable policy statement, the trailing paragraph of § 3582(c)(1)(A) does not curtail a district judge's discretion. Any decision is ‘consistent with’ a nonexistent policy statement."); McCoy , 981 F.3d at 280–83 ("By its plain terms, in short, § 1B1.13 does not apply to defendant-filed motions under § 3582(c)(1)(A)."). Each of these courts has concluded that because § 1B1.13 presupposes a provision that no longer exists—the provision designating the BOP as gatekeeper⁶ — § 1B1.13 does not apply when prisoners file motions under 18 U.S.C. § 3582(c). Jones , 980 F.3d at 1109 ; Brooker , 976 F.3d at 235–36 ; Gunn , 980 F.3d at 1180 : McCoy , 981 F.3d at 280–83. This Court agrees that Section (D) of the Application Notes no longer limits courts’ discretion in § 3582(c) motions filed by prisoners. Accord United States v. Pollard , No. CR 10-633-1, 2020 WL 4674126, at *5 n.5 (E.D. Pa. Aug. 12, 2020) (collecting district court cases holding the same). However, lacking any controlling Ninth Circuit authority at this time, the Court does not disregard § 1B1.13 in its entirety, but continues to assess whether the defendant poses a danger to the community as required elsewhere in § 1B1.13. See U.S.S.G. § 1B1.13(2).

B. Extraordinary and Compelling Reasons, Sentencing Goals, and Danger to the Public

Mr. McCreary bears the burden of establishing that extraordinary and compelling reasons warrant a reduction in his sentence. United States v. Sprague , 135 F.3d 1301, 1306–07 (9th Cir. 1998). Mr. McCreary argues that the disparity between the sentence he received and the sentence he would receive today for the same § 924(c) offenses—an 18-year difference—is "punitive[ly] unfair[.]" (Mot. at 19.) Further...