USA v. Howard et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES OF AMERICA, 	§
§
v. 	§
§
No. 3:15-cr-40-K
JERRY WARE, 	§
§
MEMORANDUM OPINION AND ORDER
This 	matter 	is 	before 	the 	Court 	on 	Defendant 	Jerry 	Ware’s 	Motion 	for
Reduction of Sentence under 18 U.S.C. § 3582(c)(1)(A)(i), filed on June 24, 2025.
(Doc. 	109.) 	The 	government 	filed 	a 	response 	opposing 	the 	Court
granting compassionate release. 	(Doc. 	116.) 	Ware 	did 	not 	file 	a 	reply. 	Having
considered all the relevant pleadings and applicable law, the Court finds Ware’s motion
should be DENIED.
I.
Ware pled guilty to Counts Two and Four of a five-count indictment, using and
carrying 	a 	firearm 	in 	relation 	to 	a 	crime 	of 	violence 	under 18 	U.S.C. 	§§
924(c)(1)(A)(ii) and 924(c)(1)(C)(i) (second 	or 	subsequent), 	predicated 	on
substantive Hobbs Act robberies. He was sentenced to 312 months’ imprisonment—
84 months on Count Two to be followed by 228 months on Count Four. See (Doc. 76).
Ware subsequently appealed to the Fifth Circuit Court of Appeals. On March 15, 2017,
the Fifth Circuit dismissed his appeal as frivolous. See (Doc. 102).
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Thereafter, Ware filed a motion to vacate, set-aside, or correct sentence under
28 U.S.C. § 2255. The § 2255 motion was denied on August 21, 2019. See Ware v.
United States, 2019 WL 3947267, at *1–2 (N.D. Tex. Aug. 21, 2019).
On February 5, 2021, Ware filed his first motion for compassionate release
pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc. 107). The court denied this motion on
February 18, 2021 for failure to exhaust administrative remedies and on the merits.
(Doc. 108). Specifically, the Court reasoned that Ware failed to identify extraordinary
or compelling reasons for a sentence reduction through his ineffective assistance of
counsel claims.
Ware filed the instant motion for compassionate release on June 24, 2025. (Doc.
109).
II.
On December 21, 2018, while Ware was serving his sentence, Congress passed
the First Step Act (“FSA”). See Pub. L. No. 115-391, 132 Stat. 5194. As is relevant
here, Congress amended 18 U.S.C. § 924(c)(1)(C), the provision that imposes a 25-
year minimum sentence for repeat firearms offenders, to eliminate stacking. See id., §
403. After that amendment, the 25-year mandatory minimum applies only “[i]n the
case of a violation of [§ 924(c)] that occurs after a prior conviction under this
subsection has become final.” 18 U.S.C. § 924(c)(1)(C). However, the provision to
eliminate stacking is not retroactive. Id.
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In the present motion, the court interprets Ware as seeking modification of his
sentence on Count 4, the second § 924(c) conviction, under § 3582(c)(1)(A)(i). The
sole reason asserted by Ware to reduce his sentence is that his sentence is unusually
long, there is a gross disparity between his sentence and the sentence that would be
imposed today, and he has served more than ten years of the sentence.
The government opposes Ware’s motion. As set forth below, the Court agrees
that Ware has failed to present compelling reasons that justify a sentence reduction
based on compassionate release under the circumstances of this case.
III.
A district court lacks inherent authority to modify a defendant’s sentence after
it has been imposed. See 18 U.S.C. § 3582(c). However, under § 3582(c)(1)(A), as
amended by the FSA of 2018, “[a] court, on a motion by the BOP or by the defendant
after exhausting all BOP remedies, may reduce or modify a term of imprisonment,
probation, or supervised release after considering the factors of 18 U.S.C. § 3553(a), if
‘extraordinary and compelling reasons warrant such a reduction.’ ” United States v.
Chambliss, 	948 	F.3d 	691, 	692-93 	(5th 	Cir. 	2020) (quoting §
3582(c)(1)(A)(i)); see Chambliss, 948 F.3d at 693 n.1.
And, if a defendant does proffer a reason for a reduction that the Court finds to
be extraordinary and compelling, that alone is not a basis to reduce a sentence. The
defendant still must convince the Court “to exercise discretion to grant the motion
for compassionate release after 	considering 	the Section 	3553(a) factors.” Ward 	v.
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United States, 11 F.4th 354, 361 (5th Cir. 2021) (cleaned up; quoting Shkambi, 993
F.3d at 392); see also United States v. Clark, No. 24-10020, 2024 WL 4930383, at *2
(5th Cir. Dec. 2, 2024) (per curiam) (Section 3553 factors “independently support the
court’s denial.”).
IV.
As a threshold matter, Ware asks that the court appoint him counsel to assist
with his compassionate release motion. This request is DENIED.
Courts in this district have noted that “[t]he First Step Act does not provide for
the appointment of counsel for those seeking relief under § 3582(c)(1)(A); nor has the
Fifth Circuit addressed the issue.” E.g., United States v. Jackson, No. 3:16-CR-196-L-1,
2020 WL 4365633, at *3 (N.D. Tex. July 30, 2020), aff’d, 829 F. App’x 73 (5th Cir.
2020). However, the Fifth Circuit has found that there is “no constitutional right to
appointed counsel for the purpose of bringing a § 3582(c)(2) motion.” United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). This has been interpreted and accepted
by courts to “logically apply to § 3582(c)(1)(A) motions for sentence reduction or
modification filed directly by defendants in court.” See e.g., United States v. Dirks, No.
3:14-CR-0374-L-3, 2020 WL 3574648, at *2 (N.D. Tex. June 30, 2020); see also United
States v. Diaz, No. 22-40044, 2023 WL 1879404, at *3 (5th Cir. Feb. 10, 2023) (per
curiam) (finding no abuse of discretion when the district court denied a defendant’s
motion for appointed counsel under § 3582(c)(1)(A)).
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Nonetheless, the Court has discretion to appoint counsel when it determines
that the “interest of justice” requires it. See Diaz, 2023 WL 1879404, at *3. Here,
Ware’s motion presents straightforward issues regarding whether his circumstances
constitute 	extraordinary 	and 	compelling 	reasons
justifying compassionate release. See United States v. Smith, No. 3:18-CR-0482-B-5,
2022 WL 326688, at *1 (N.D. Tex. Feb. 2, 2022) (finding the defendant was not
entitled 	to 	appointed 	counsel 	because 	his 	claims 	were 	not 	legally 	or 	factually
complex); United States v. Wagner, No. 4:18-CR-155(1), 2021 WL 2118420, at *2
(E.D. Tex. May 25, 2021) (same). Moreover, Ware’s motion provides no support that
appointing counsel would “benefit him or the court in addressing his motion.”
See United States v. Johnson, No. 9:10-CR-26, 2023 WL 2479595, at *2 (E.D. Tex. Mar.
10, 2023).
Accordingly, the court finds that Ware is not entitled to appointment of counsel.
V.
Ware is not entitled to compassionate release.
A 	prisoner 	seeking compassionate release under § 	3582(c)(1)(A) must 	show
that (1) “extraordinary and compelling reasons” justify the reduction of his sentence;
(2) the reduction is “consistent with applicable policy statements issued by the
Sentencing 	Commission”; 	and 	(3) 	“early 	release 	would 	be 	consistent 	with 	the
sentencing factors in 18 U.S.C. § 3553(a).” United States v. Jackson, 27 F.4th 1088,
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1089 (5th Cir. 2022) (quoting 18 U.S.C. § 3582(c)(1)(A)) (internal quotation marks
omitted).
On November 1, 2023, the Sentencing Commission issued an amended policy
statement setting forth non-exclusive circumstances that constitute extraordinary and
compelling reasons for purposes of § 3582(c)(1)(A). One such circumstance is an
“unusually long sentence”:
If a defendant received an unusually long sentence and has served
at least 10 years of the term of imprisonment, a change in the law
(other than an amendment to the Guidelines Manual that has not
been made retroactive) may be considered in determining whether
the defendant presents an extraordinary and compelling reason,
but only where such change would produce a gross disparity
between the sentence being served and the sentence likely to be
imposed at the time the motion is filed, and after full consideration
of the defendant’s individualized circumstances.
U.S.S.G. 1B1.13. As stated, this provision is the sole reason cited by Ware to reduce
his sentence.
Before this policy statement was issued, however, the Fifth Circuit held that “a
prisoner 	may 	not 	leverage 	non-retroactive 	changes 	in 	criminal 	law 	to 	support
a compassionate release motion, because such changes are neither extraordinary nor
compelling.” United States v. McMaryion, 2023 WL 4118015, at *2 (5th Cir. June 22,
2023); see also United States v. Austin, 125 F.4th 688, 692 (5th Cir. 2025) (“A non-
retroactive change in the law affects every prisoner previously sentenced under that
provision in the exact same way” and therefore “is not an extraordinary or compelling
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reason to reduce a prisoner’s sentence.” (citing United States v. Escajeda, 58 F.4th 184,
186 (5th Cir. 2023))).
Recently addressing § 1B1.13(b)(6), the Fifth Circuit held that the Sentencing
Commission “cannot make retroactive what Congress made non-retroactive” and “
‘does not have the authority to amend’ ” the Fifth Circuit’s prior construction of the
statute. Austin, 125 F.4th at 692 (quoting Neal v. United States, 516 U.S. 284, 290
(1996)). Therefore, based on current Fifth Circuit precedent, Ware has not asserted an
extraordinary and compelling reason to support his motion based on the First Step
Act’s sentencing change to § 924(c). See id.
To the extent that Ware argues for relief under § 1B1.13(b)(5)—namely, his
rehabilitation efforts, coupled with the non-retroactive change to § 924(c)—the court
concludes that they fail to establish extraordinary and compelling reasons for purposes
of a sentence reduction under § 3582(c)(1)(A). The court acknowledges Ware’s
rehabilitation 	efforts, 	but rehabilitation 	“is 	not, 	by 	itself, 	an 	extraordinary 	and
compelling 	reason.” U.S.S.G. 	§ 	1B1.13(d). 	Moreover, 	Ware’s 	post-sentencing
institutional 	record 	identifies 	prison 	disciplinary 	infractions 	for 	possession 	of 	a
dangerous weapon and, separately, amphetamines. Even considering his rehabilitation
efforts, 	Ware’s 	behavior 	does 	not 	support 	a 	commitment 	to 	rehabilitation 	and
following the law.
Further, for the same reasons discussed in the court’s denial of Ware’s prior
motion for a sentence reduction, the totality of the circumstances do not present
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extraordinary and compelling reasons for a reduction of sentence, even in light of the
sentencing change to § 924(c). See Doc. 108 at 1–2.
Even if Ware could establish extraordinary and compelling reasons for a sentence
reduction, based on the record as a whole and after weighing the § 3553(a) sentencing
factors, the court finds in its discretion that they do not support his request for a
sentence reduction. See United States v. Chambliss, 948 F.3d 691, 692-93 (5th Cir.
2020) (noting that “compassionate release is discretionary, not mandatory, and c[an]
be refused after weighing the sentencing factors of 18 U.S.C. § 3553(a).”).
The nature, circumstances, and seriousness of Ware’s offenses and his history
and characteristics do not justify a reduced sentence. Reducing Ware’s sentence will
not adequately reflect the seriousness of his offenses, promote respect for the law,
provide just punishment for the offenses, adequately deter criminal conduct, or protect
the public from further crimes. See United States v. Martinez, 832 F. App’x 906 (5th Cir.
2021) (noting that it was “not unreasonable for [a] court to place greater weight on the
seriousness of [the] offense, including the fact that a dangerous weapon was involved
in the criminal activity[.]”). Moreover, the nature, circumstances, and gravity of his
offenses, combined with the possession of firearms, as summarized in the presentence
investigation report prepared in this case, demonstrate that Ware would be a danger to
the community if released.
VI.
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Ware also raises arguments challenge his sentencing, including the effectiveness
of his counsel at trial.
To the extent Ware’s motion can be construed as challenging the legality of his
sentence, the proper vehicle for raising such a claim after the expiration of the period
for filing a direct appeal is a motion to vacate sentence under 28 U.S.C. § 2255.
See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (“Section 2255 provides the
primary means of collaterally attacking a federal conviction and sentence. Relief under
this section is warranted for errors that occurred at trial or sentencing.” (citations
omitted)) And insofar as Ware seeks relief cognizable under § 2255, his claim would
not support relief under § 3582(c). See United States v. Escajeda, 58 F.4th 184, 186-87
(5th Cir. 2023) (“[A] prisoner cannot use § 3582(c) to challenge the legality or the
duration of his sentence; such arguments can, and hence must, be raised under Chapter
153” 	of 	Title 28, through 	which “Congress 	provided specific 	avenues 	for post-
conviction relief that permit prisoners to challenge the legality of their confinement in
federal court.”) (citations omitted).
Accordingly, to the extent that Ware challenges the legality of his underlying
sentence, 	the 	court will 	not consider 	this 	challenge 	in deciding 	his 	motion for
compassionate release.
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VII.
For the foregoing reasons, Ware’s motion for compassionate release (Doc. 109)
is DENIED.
SO ORDERED.
February 23rd
, 2026.
________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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