United States v. Reiter

1

UNITED STATES OF AMERICA, v. MARK REITER, Defendant.

No. 87-CR-132 (VSB)

United States District Court, S.D. New York

September 4, 2024

OPINION & ORDER

VERNON S. BRODERICK UNITED STATES DISTRICT JUDGE

Before me is the motion of Mark Reiter (“Defendant” or “Reiter”) for reduction of his sentence and release from prison pursuant to 18 U.S.C. § 3582(c)(1)(A). Because Defendant is ineligible for relief under 18 U.S.C. § 3582(c)(1)(A) as his crimes predate the enactment of this statute, and because the Bureau of Prisons (“BOP”) has not moved for a sentence reduction on Defendant's behalf pursuant to 18 U.S.C § 4205(g), I do not have authority to modify Defendant's sentence. Accordingly, Defendant's motion is DENIED.

I. Background and Procedural History^[1]

On February 17, 1987, Reiter was indicted for supplying heroin and using violence to further the goals of the “Jackson Organization,” a massive racketeering enterprise that sold millions of dollars' worth of heroin in cities across the East Coast from 1981 through 1987. United States v. Reiter, 87-CR-132, 1988 WL 31888, at *1 (S.D.N.Y. Mar. 23, 1988), aff'd, 848 F.2d 336 (2d Cir. 1988). The twelfth and final superseding indictment (see Doc. 490-8 (“S12 Indictment”)), obtained on February 12, 1988, ultimately charged Reiter and his co-defendants with racketeering, racketeering conspiracy, operating a continuing criminal enterprise, distribution of heroin, using a telephone to facilitate heroin distribution, and conspiring to defraud the Internal Revenue Service.^[2] See Reiter v. United States, 371 F.Supp.2d 417, 419-20 (S.D.N.Y. 2005).

Reiter and four co-defendants went to trial on the charges in the S12 Indictment, and on August 25, 1988, a jury convicted the defendants on all counts and found the Government had proven every predicate act of racketeering. Id. Specifically, among other things, Reiter was found to have personally ordered three murders as retribution against co-conspirators who had begun to cooperate with the government. Id. On October 24, 1988, Judge Owen sentenced Reiter to two terms of life imprisonment, plus sixty years' imprisonment. (See id.; see also Doc. 490-10 (“Sent'g. Tr.”).) Reiter, now 76 years old, is currently housed in FCI Allenwood Low. See Find an Inmate, BOP.gov, https://www.bop.gov/mobile/findinmate/index.jsp (last visited Sept. 2024) (BOP Register Number 03271-016).

Over a number of years, Reiter filed several motions for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). On July 23, 2020, I denied Reiter's first motion, (Doc. 453), without prejudice, finding that Reiter failed to (1) exhaust his administrative remedies, and (2) to present extraordinary and compelling circumstances warranting a reduction of his sentence. (Doc. 454.) On August 19, 2020, Reiter filed a second motion for compassionate release. (Doc. 455.) On April 15, 2021, I issued an Opinion & Order finding that although Reiter had exhausted his administrative remedies, that I would benefit from receiving motion papers prepared by an attorney. (Doc. 469.) Therefore, I appointed counsel to represent Reiter on July 16, 2021. (Doc. 484.)

On August 31, 2021, Reiter's counsel filed a third motion for compassionate release, accompanied by 24 exhibits in support, including character references from friends and family, letters of support from prison staff, and other recommendations. (Doc. 490.) The Government filed its opposition to Reiter's motion on September 21, 2021, (Doc. 491),^[3] and Reiter filed his reply on September 28, 2021, (Doc. 494). Reiter subsequently filed several letters providing me with additional materials in support of his motion. (Docs. 495, 510-513.)

Since filing his initial motion, in subsequent letters, Reiter cited a range of circumstances which he argues establish the requisite “extraordinary and compelling reasons” for release under 18 U.S.C. § 3582(c)(1)(A). However, beginning on June 18, 2024, Reiter filed under seal a series of supplemental letters urging me to grant his motion solely due to his recent, grave, medical diagnosis.^[4] On July 11, 2024, in light of this development, I ordered the Government to inform me whether it continued to oppose the motion. In response, the Government argued for the first time since Reiter filed his initial motion on May 28, 2020 that Reiter is ineligible for relief under Section 3582(c)(1)(A) because he is incarcerated for criminal conduct that occurred prior to November 1, 1987, the effective date of the Sentencing Reform Act of 1984. Thus, the Government argues that the governing statute is 18 U.S.C. § 4205(g), which does not permit a defendant to move in the district court for compassionate release, but instead only permits the BOP to file such a motion on the defendant's behalf. Thus, the Government claims that I lack authority to modify Reiter's sentence.

II. Discussion

A. Applicable Law

“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). Prior to passage of the Sentencing Reform Act of 1984 (“SRA”), the only statute under which an individual in custody could bring a motion for compassionate release was 18 U.S.C. § 4205(g). However, a district court's authority to grant such relief was contingent on the BOP's decision to file a motion on the inmate's behalf. 18 U.S.C. § 4205(g) (“At any time upon motion of the Bureau of Prisons, the court may reduce any minimum term to the time the defendant has served.”).

When Congress passed the SRA, it “created the substantive standard that we still apply: whether ‘extraordinary and compelling reasons' exist for compassionate release.” United States v. Brooker, 976 F.3d 228, 231 (2d Cir. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i) and tracing history of statute). However, although Section 4205(g) was repealed as part of the SRA and replaced with 18 U.S.C. § 3582(c)(1)(A), the BOP maintained “exclusive power over all avenues of compassionate release . . . [a] power [used] sparingly, to say the least.” Id.^[5]

When Congress passed the First Step Act of 2018 (“FSA”), it amended the SRA to remove the BOP as the “sole arbiter of compassionate release motions,” id. at 233, authorizing defendants to file motions under Section 3582(c)(1)(A) directly in the district court.^[6] However, Section 3582(c)(1)(A) does not apply to all defendants. An amendment to the SRA established that the SRA's provisions only apply to defendants whose offenses were committed on or after November 1, 1987, the date on which the SRA took effect. See Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 1728 (1985) (amending the SRA to provide an effective date of November 1, 1987); Sentencing Act of 1987, Pub. L. No. 100-182, § 2(a), 101 Stat. 1266 (1987) (inserting “shall apply only to offenses committed after the taking effect of this chapter” into the text of the SRA).

Consistent with the unanimous view of every other Circuit to have considered the issue, the Second Circuit has held that defendants whose offenses were committed prior to November 1, 1987 may not obtain relief under the First Step Act's amendments to Section 3582(c)(1)(A). See United States v. Rivera-Rios, No. 20-1773, 2022 WL 14206094, at *2 (2d Cir. Oct. 25, 2022) (summary order) (affirming denial of compassionate release motion because defendants whose offenses were committed prior to November 1, 1987 are “categorically ineligible for a sentence reduction under § 3582(c)(1)(A)”); United States v. Borelli, No. 21-1506, 2022 WL 6831650, at *1 (2d Cir. Oct. 12, 2022) (summary order) (same); see also United States v. Jackson, 991 F.3d 851, 854 (7th Cir. 2021) (holding that § 3582 remains “inapplicable” to defendants whose offenses were committed prior to November 1, 1987); King, 24 F.4th at 1228 (citing the Seventh Circuit's analysis in Jackson and holding that “inmates who committed crimes before November 1, 1987, cannot move for compassionate release pursuant to 18 U.S.C. § 3582(c)(1), as amended by the FSA”). Numerous district courts in this Circuit, both prior to and after Rivera-Rios and Borelli, have similarly concluded that Section 3582(c)(1) does not apply to defendants whose offense conduct occurred prior to November 1, 1987. See, e.g., United States v. Coonan, No. 87-CR-249, 2024 WL 3567520, at *4 (S.D.N.Y. July 26, 2024) (citing Rivera-Rios and Borelli and holding that “[b]ecause (1) [defendant's] offense conduct took place prior to November 1, 1987, and (2) BOP has not brought a compassionate release or sentence reduction motion on his behalf, [defendant] is not eligible for relief under 18 U.S.C. § 3582(c)(1)(A)”); United States v. Shakur, No. 82-CR-312, 2022 WL 3910581, at *5 (S.D.N.Y. Aug. 31, 2022) (“[T]he statute [defendant] relies upon to authorize this Court to consider his motion for compassionate release does not apply to him, given that his crimes of conviction antedated November 1, 1987.”); United States v. Rios, No. 70-CR-592, 2020 WL 2522069, at *2 (E.D.N.Y. May 18, 2020) (“[C]ourts have uniformly held that the current compassionate release statute, § 3582, does not apply to individuals whose criminal conduct occurred before November 1, 1987.”); United States v. Rivera, No. 86-CR-1124, 2020 WL 2094094, at *1 (S.D.N.Y. May 1, 2020) (“[T]he provisions of 18 U.S.C. § 3582(c), which became effective on November 1, 1987, do not apply to [defendant's] term of incarceration, which was imposed for criminal conduct that occurred prior to that date.”).

B. Application

In light of the foregoing controlling authority, I find that 18 U.S.C. § 3582(c)(1)(A), the statute on which Reiter relies in bringing this motion, does not apply to him because his...