USA v. Lewis-Zubkin et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
v. 	No. 3:16-CR-30011-006
PHILLIP EUGENE GREENHAW 	DEFENDANT
OPINION AND ORDER
Defendant filed a motion (Doc. 285) to reduce his sentence pursuant to the First Step Act
amendments to 18 U.S.C. § 3582(c). The Government filed a response (Doc. 286) in opposition.
The motion will be denied.
The Court may modify a term of imprisonment on motion by a defendant if the defendant
has exhausted BOP administrative remedies or that process has stalled for 30 days, extraordinary
and compelling reasons consistent with Sentencing Commission policy statements warrant the
modification, and a consideration of 18 U.S.C. § 3553(a) factors supports modification. 18 U.S.C.
§ 3582(c). 	Though Defendant satisfies the exhaustion requirement and his medical records and
the COVID-19 pandemic demonstrate extraordinary and compelling reasons for modification,
Defendant has not shown that the § 3553(a) factors support modification.
In 2017, the Court sentenced Defendant to a term of imprisonment of 96 months—a 55-
month downward variance from his recommended guidelines range. While aggravating factors,
such as the nature and circumstances of the offense and Defendant’s history and characteristics,
weighed 	against 	a 	downward 	variance, 	the 	Court 	ultimately 	varied 	downward 	to 	avoid
unwarranted sentencing disparities. Having reviewed the record in this case and reflected on the
sentence imposed on Defendant in light of sentences imposed on similarly-situated defendants
since that time, it is the Court’s view that this § 3553 factor—the need to avoid unwarranted
Case 3:16-cr-30011-TLB Document 287 Filed 07/21/20 Page 1 of 3 PageID #:
<pageID>

2
sentencing disparities—remains adequately accounted for in Defendant’s original sentence.
Meanwhile, there is no evidence that the aggravating factors that were present at sentencing are
less weighty now.
Defendant is a career offender who has a history of participation in criminal drug
trafficking, even while on supervision following previous sentences. In this case he participated
as a dealer in a multiple-member drug trafficking organization and helped the leader of the
organization, Patricia Gayle Lewis-Zubkin, collect debts owed to her by other dealers in the
organization. 	When Lewis-Zubkin believed other members of the conspiracy were cooperating
with law enforcement and wanted someone to commit acts of violence against them, she accepted
Defendant’s offer to enlist one of his associates to assault the suspected cooperators.
While the Court is sympathetic to Defendant’s arguments about his vulnerability to
COVID-19, and agrees that the purpose of the sentence imposed in this case was not to expose
Defendant to a life-threatening illness, Defendant has a history of disobeying the law while on
supervised release and he took affirmative steps to facilitate acts of violence during the
commission of the offense of conviction. This case is distinguishable from a simple nonviolent
drug crime that might justify modification on the basis of the information Defendant has provided.
Here, something else is necessary to show that Defendant’s specific risk of recidivism and the
danger he posed to the public at sentencing are now reduced or absent, and Defendant has not
made this showing. The Court cannot find on this motion that converting Defendant’s sentence to
home detention for the remainder of his original term, let alone a reduction of his sentence to time
served, will adequately accomplish the aims of the § 3553(a) sentencing factors.
Though the Court will not grant Defendant the relief he requests, the denial will be without
prejudice to the BOP making its own motion under § 3582, so long as any future motion is
Case 3:16-cr-30011-TLB Document 287 Filed 07/21/20 Page 2 of 3 PageID #:
<pageID>

3
premised on a release plan that is supported by evidence (such as records of good behavior during
incarceration or participation in programs intended to help him avoid future incidents of violence
or substance abuse) showing that risks of recidivism or harm to the public have become less likely
than they were at the time of sentencing.
IT IS THEREFORE ORDERED that Defendant’s motion (Doc. 285) is DENIED.
IT IS SO ORDERED this 21st day of July, 2020.
/s/P. K. Holmes ,
ΙΙΙ
P.K. HOLMES, III
U.S. DISTRICT JUDGE
Case 3:16-cr-30011-TLB Document 287 Filed 07/21/20 Page 3 of 3 PageID #:
<pageID>