USA v. Addison et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:17-CR-00134-FDW-SCR
THIS MATTER is before the Court on Defendant’s pro se Motion for Compassionate
Release. (Doc. No. 3268.) The United States responded, (Doc. No. 3464), Defendant timely replied
(Doc. Nos. 3545, 3553, 3571), and this matter is ripe for ruling. For the reasons set forth below,
Defendant’s Motion is DENIED.
I. BACKGROUND
On March 13, 2018, Defendant was named in a seventy two count First Superseding Bill
of Indictment (“Indictment”) filed in the Western District of North Carolina. (Doc. No. 1941, p.
13.) Defendant is one of eighty three named individuals affiliated with the gang enterprise United
Blood Nation (“UBN”) (Id., pp. 3–13.) The Indictment charged Defendant with Conspiracy to
Participate in Racketeering Activity – RICO Conspiracy, (Count 1s), in violation of 18 U.S.C.
§ 1962(d). (Id., p. 3.)
On May 17, 2018, a federal grand jury found Defendant guilty of Count 1s. (Id., p. 13.) On
the same day, the jury also returned a Special Verdict, (Doc. No. 1566), for forfeiture of the
following property: “[a]pproximately $6,268.15 in funds seized in or about May 17 from an inmate
account held by or for the benefit of [Defendant], Inmate 95A3238, at the New York Department
of Corrections.” (Id.)
UNITED STATES OF AMERICA )
)
v. )
) ORDER
JAMES BAXTON, )
)
Defendant. )
)
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On November 23, 2021, Defendant submitted a request to the warden for a reduction in his
sentence. (Doc. No. 3268-1, p. 2.) The warden denied his request on December 27, 2021. (Doc.
No. 3464-1.) On January 4, 2022, Defendant filed a pro se Motion for compassionate release under
18 U.S.C. § 3582. (Doc. No. 3268.) Defendant is presently incarcerated at USP Canaan, and his
projected release date is November 6, 2038. See https://www.bop.gov/inmateloc (last visited July
19, 2024).
II. STANDARD OF REVIEW
Section 603(b) of The First Step Act of 2018, as amended 18 U.S.C. § 3582(c)(1)(A),
permits a defendant to seek a modification of his sentence from the Court for “extraordinary and
compelling reasons” if the defendant has “fully exhausted all administrative rights to appeal a
failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days
from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.”
Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018). Prior to 2018, a court could only act
to reduce a defendant’s sentence for extraordinary and compelling reasons if the Bureau of Prisons
filed a motion seeking that relief.
If a defendant has administratively exhausted a claim for release (or the Government does
not contest the exhaustion requirement),1 the district court generally conducts a two-step inquiry
when deciding whether to reduce a defendant’s sentence under Section 3582(c)(1)(A). United
States v. Bond, 56 F.4th 381, 383 (4th Cir. 2023). First, the court determines whether the defendant
is eligible for a sentence reduction. “A defendant is eligible if the court finds ‘extraordinary and
compelling reasons warrant such a reduction.’” Id. (quoting § 3582(c)(1)(A)(i); citing United
States v. Kibble, 992 F.3d 326, 330 (4th Cir. 2021)). “[D]istrict courts are empowered to consider
1 United States v. Muhammad, 16 F.4th 126, 130 (4th Cir. 2021) (recognizing the exhaustion requirement in
§ 3582(c)(1)(A) is not jurisdictional, and it may be waived or forfeited).
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any extraordinary and compelling reason for release that a defendant might raise.” United States
v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020) (internal alterations and citations omitted).
“Second, the court considers ‘the factors set forth in § 3553(a) to the extent that they are
applicable.’” Bond, 56 F.4th at 384 (quoting 18 U.S.C. § 3582(c)(1)(A)); citing Kibble, 992 F.3d
at 331. Section 3553(a) requires the court to “impose a sentence sufficient, but not greater than
necessary” to comply with the basic aims of the statute. In considering whether a reduced sentence
is warranted given the applicable § 3553(a) factors, the court considers, among others, “the nature
and circumstances of the offense;” “the history and characteristics of the defendant;” the need for
the sentence to “provide just punishment,” “afford adequate deterrence,” “protect the public,” and
“provide the defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner;” the kinds of sentences available and
sentencing ranges; and “the need to avoid unwarranted sentence disparities.” 18 U.S.C.
§ 3553(a)(6) (2018). Notwithstanding the existence of “extraordinary and compelling reasons,”
the court retains the discretion to deny a defendant’s motion after balancing the applicable 18
U.S.C. § 3553(a) factors. United States v. High, 997 F.3d 181, 186 (4th Cir. 2021) (“if a court
finds that a defendant has demonstrated extraordinary and compelling reasons, it is still not
required to grant the defendant's motion for a sentence reduction”).
The Government submitted a supplemental exhibit documenting the warden’s denial of
Defendant’s motion for compassionate release, (Doc. No. 3464-1), and the Government does not
contest that Defendant exhausted his administrative remedies. (Doc. No. 3464, p. 3.) Thus, the
Court’s analysis turns to whether Defendant presents extraordinary and compelling reasons
supporting his release or sentence reduction in light of the applicable § 3553(a) factors.
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III. ANALYSIS
Defendant contends he meets the criteria for extraordinary and compelling reasons under
“Medical Circumstances of the Defendant,” “Victim of Abuse,” and “Other Reasons.” See
generally U.S. Sent’g Guidelines Manual § 1B1.13 (U.S. Sent’g Comm’n 2023). First, Defendant
states he suffers from sarcoidosis and this ailment places him at an unknown risk if he were to
contract COVID-19. (Doc. No. 3268-1.) Second, Defendant contends he is a victim of abuse at the
hands of correction officers2 at Metropolitan Detention Center (“MDC”) Brooklyn forcing him to
sell illegal drugs and setting him up with contraband. (Doc. Nos. 3545, 3553.) Third, Defendant
argues other conduct and ailments including a 2015 mental illness diagnosis, a K-9 attack, and a
slip and fall support compassionate release. (Doc. Nos. 3268, 3553.) Fourth, Defendant contends
if he were sentenced today, he would be in category V, not VI. Defendant argues these alone or in
combination counsel in favor of a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A).
Regarding the § 3553(a) factors, Defendant contends the completion of ten educational courses,
denouncement of UBN membership, advocacy for peace and nonviolence, four inmate letters of
support, and a sentencing disparity between himself and a codefendant warrant a sentence
reduction. For the following reasons, the Court disagrees on each issue.
A. Extraordinary and Compelling Circumstances
First, Defendant argues compassionate release is warranted because his sarcoidosis
constitutes an “extraordinary and compelling” circumstance as it places him at unknown, and
potentially increased risk if he were to contract COVID-19. Defendant also tangentially refers to
2 See Press Release, United States Attorney’s Office Eastern District of New York, Ex-Federal Correction Officer
Pleads Guilty to Taking Bribes in Exchange for Smuggling Contraband into Federal Jail in Brooklyn (Jan. 11,
2024), https://www.justice.gov/usao-edny/pr/ex-federal-correction-officer-pleads-guilty-taking-bribes-exchange-
smuggling-0; see also Press Release, United States Attorney’s Office Eastern District of New York, Ex-Federal
Correction Officer Pleads Guilty to Taking Bribes in Exchange for Smuggling Contraband into the Metropolitan
Detention Center in Brooklyn (Mar. 20, 2023), https://www.justice.gov/usao-edny/pr/ex-federal-correction-officer-
pleads-guilty-taking-bribes-exchange-smuggling.
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two inhalers he is issued when speaking about his sarcoidosis and COVID-19. For the following
reasons, Defendant’s argument is unpersuasive.
The current policy statement permits the Court to find “extraordinary and compelling”
reasons support release when a defendant is housed at a correctional facility “affected or at
imminent risk of being affected by an ongoing outbreak of infectious disease” or public health
emergency as declared by the appropriate authorities, personal health risk factors increase the
defendant’s “risk of suffering severe medical complications or death” as a result of the disease or
public health crisis, and the risk “cannot be adequately mitigated in a timely manner.” U.S. Sent’g
Guidelines Manual § 1B1.13(b)(1)(D). In May 2023, the federal government suspended the
national state of emergency due to COVID-19. Nat’l Emergencies Act, Pub. L. No. 118-3, 137
Stat. 6 (2023). Thus, § 1B1.13(b)(1)(D) supports Defendant’s argument to the extent he can show
he is housed at a correctional facility “affected or at imminent risk of being affected by an ongoing
outbreak of an infectious disease” and he is particularly susceptible.
Defendant argues his sarcoidosis constitutes an “extraordinary and compelling”
circumstance because it places him at an unknown risk if he contracts COVID-19. A court will
consider whether “an inmate shows both a particularized susceptibility to COVID-19 and a
particularized risk of contracting the disease at his prison facility.” United States v. Brown, 78
F.4th 122, 128 (4th Cir. 2023) (emphasis added) (quoting United States v. Hargrove, 30 F.4th 189
(4th Cir. 2022)).
Defendant fails to show a particularized susceptibility or risk of contracting COVID-19
because of his sarcoidosis. The CDC does not indicate individuals with sarcoidosis are more likely
to become very sick from COVID-19. People with Certain Medical Conditions, Centers for
Disease Control and Prevention (Apr. 15, 2024), https://www.cdc.gov/coronavirus/2019-
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ncov/need-extra-precautions/people-with-medical-conditions.html. Additionally, Defendant has
the first dose of the COVID-19 vaccine, (Doc. No. 3465, p. 59), and according to the CDC,
vaccines are “highly effective in preventing the most severe outcomes from a COVID-19
infection.” Benefits of Getting a COVID-19 Vaccine, Centers for Disease Control and Prevention
(Sept. 22, 2023), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/vaccine-benefits.html.
Further, Defendant’s sarcoidosis has been in remission since January 21, 2022, and he indicated
on May 31, 2022, “he has no concern” as it pertains to his sarcoidosis. (Doc. No. 3465, pp. 52,
74.)
Further, Defendant is not housed at a correctional facility “affected or at imminent risk of
being affected” by a COVID-19 outbreak. Defendant was housed at USP Canaan at the time he
filed his Motion, and he is presently housed at USP Canaan. See https://www.bop.gov/inmateloc/
(last visited July 17, 2024). USP Canaan presently reports zero active cases of COVID-19 and
approximately fifty five percent of the inmate population is fully vaccinated against the virus. See
https://www.bop.gov/about/statistics/statistic_inmate_covid19.jsp (last visited July 19, 2024). On
this record, Defendant’s health and alleged susceptibility to COVID-19 do not present
extraordinary and compelling reasons warranting compassionate release.
Second, Defendant argues a sentence reduction is warranted, because he was a victim of
abuse by two correction officers while housed at MDC Brooklyn during 2020 and 2021. Defendant
asserts this constitutes an “extraordinary and compelling” reason for a sentence reduction.
Defendant’s argument is unsubstantiated.
Courts may grant a sentence reduction based on “physical abuse” that causes either: “[1]
extreme physical pain or the protracted impairment of a function of a bodily member, organ, or
mental faculty; or [2] require[s] medical intervention such as surgery, hospitalization, or physical
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rehabilitation.” U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(M); see id. § 1B1.13(b)(4)(B).
Further, pursuant to this provision, the alleged misconduct must be evidenced by a criminal
conviction, “a finding or admission of liability in a civil case, or . . . administrative proceeding”
unless the defendant faces “imminent danger.” U.S. Sent’g Guidelines Manual § 1B1.13(b)(4)(B).
The record before the Court does not demonstrate Defendant was a victim of physical
abuse causing either: “[1] extreme physical pain or the protracted impairment of a function of a
bodily member, organ, or mental faculty; or [2] require[ed] medical intervention such as surgery,
hospitalization, or physical rehabilitation.” See id. § 1B1.1 cmt. n.1(M). Defendant contends two
correction officers at MDC Brooklyn in 2020 through 2021, bribed, coerced, framed, labeled him
as a snitch, and placed a hit on his life. (Doc. No. 3553, pp. 7–8.) Specifically, Defendant asserts
the correction officers coerced him to “secrete [sic] contraband in his rectum . . . causing
hemorrhoids and psychological damage . . . internal bleeding as well.” (Id.) But Defendant’s
medical records do not show he suffered from hemorrhoids or internal bleeding in or around the
rectal area, nor any psychological damage in the years of 2020 or 2021. (See generally Doc. No.
3465.)
Further, Defendant asserts he was labeled as a snitch by the correction officers and
therefore, his life is in danger. (Doc. No. 3545, p. 3.) However, Defendant fails to cite or
substantiate any instances where he suffered physical abuse because he is a “snitch.” On this
record, Defendant’s alleged abuse at the hands of correction officers remain unsubstantiated,
therefore it fails to rise to the level of bodily injury contemplated by § 1B1.13(b)(4)(B). United
States v. Curry, No. 3:16-cr-74-MOC-DSC, 2024 WL 203231, at *3 (W.D.N.C. Jan. 18, 2024)
(finding defendant failed to corroborate his claim of Bureau of Prison officials retaliating against
him, and therefore did not meet his burden to show circumstances warranting compassionate
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release), appeal filed, United States v. Curry, (4th Cir. Apr. 17, 2024). Therefore, Defendant fails
to present an extraordinary and compelling reason warranting a sentence reduction on this basis.
Third, Defendant argues thirty two years of incarceration and various incidents during this
time amount to an “extraordinary and compelling” circumstance, warranting a sentence reduction
because he is “psychologically and emotionally scarred.” (See Doc. No. 3553, p. 9.) Defendant’s
argument is unpersuasive. The current policy statement permits the Court to find “extraordinary
and compelling” reasons support release when: (1) a defendant “presents any other circumstance
or combination of circumstances[;]” (2) considered alone or in conjunction with the reasons in
paragraphs (1) through (4); that (3) are similar in nature to the reasons within paragraphs (1)
through (4). U.S. Sent’g Guidelines Manual § 1B1.13(b)(5). Further, the Court may grant a
sentence reduction if a defendant is “suffering from a serious physical . . . or cognitive impairment
. . . that substantially diminishes the ability of the defendant to provide self-care within the
environment of the correctional facility and from which [defendant] is not expected to recover.”
Id. § 1B1.13(b)(1)(B).
Defendant argues the “abusive apparatus” of the prison system has caused him physical
and psychological damage and this is an extraordinary and compelling circumstance. (See Doc.
No. 3553, pp. 9–10.) Specifically, Defendant cites an undated attack by a K-9 dog, an undated slip
and fall, and a 2015 mental illness diagnosis. The Court recognizes Defendant’s hardships.
However, the K-9 attack, slip and fall, and mental illness diagnosis fail to rise to the level of
“serious” circumstances within § 1B1.13(b)(1)(B)(i). Additionally, Defendant’s medical records
as of May 9, 2023, indicate normal mental health posture, affect, and mood. (Doc. No. 3465, p. 5.)
Further, there is no evidence in the record indicating serious impairments resulting from a K-9
attack or slip and fall. (See generally Doc. No. 3465.) See United States v. Young, No. 4:18
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CR00017, 2024 WL 165773, at *1–2 (W.D. Va. Apr. 17, 2024) (finding defendant’s time served,
alleged rehabilitation, numerous health disorders, and COVID-19 do not constitute extraordinary
and compelling circumstances pursuant to U.S. Sent’g Guidelines Manual § 1B1.13(b)(5)).
Defendant’s allegations considered together, are not similar in nature to the other
circumstances Defendant alleged based on paragraphs §§ 1B1.13(b)(1)(B) or (b)(4). Therefore,
the circumstances as Defendant presents them, taken alone or together, fail to present
“extraordinary or compelling” circumstances supporting release.
Fourth, Defendant contends if he were sentenced today pursuant to Amendment 821, to the
U.S. Sentencing Guidelines, his criminal history category would be V not VI, and place him in the
same category as Omari Rosero. See id. amend. 821 (Supp. to App. C pp. 234–6). The Court
disagrees. Amendment 821 made two changes to chapter four of the Sentencing Guidelines
pursuant to a defendants criminal history. See id. The Sentencing Commission made Part A and
Part B, Subpart 1, of Amendment 821 retroactive, permitting eligible defendants to seek a
discretionary sentence reduction under 18 U.S.C. § 3582(c)(2). Id.; see U.S. Sent’g Guidelines
Manual § 1B1.10(d).
Part A of the amendment changes Sentencing Guidelines § 4A1.1 to remove the two status
points previously assessed under § 4A1.1(d) for defendants who “committed any part of the instant
offense . . . while under any criminal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status.” U.S. Sent’g Guidelines Manual amend. 821
(Supp. to App. C pp. 234–6). Instead, Defendants now earn one criminal history point if they
committed the offense while under any criminal justice system sentence and otherwise score seven
or more points. Id. Section 1B1.10(a)(1) of the Sentencing Guidelines permits a district court to
reduce a defendant’s sentence in any case in which a defendant is serving a term of imprisonment
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and the guideline range for the defendant “has subsequently been lowered as a result” of a
retroactive amendment to the Sentencing Guidelines. A defendant is not eligible for a sentence
reduction if the retroactive amendment fails to “lower[ ] the defendant’s applicable guideline
range.” Id. § 1B1.10(a)(2)(B).
Defendant is ineligible for a sentence reduction pursuant to Amendment 821. Defendant
received two criminal history points for committing Count 1s while incarcerated. Pursuant to
Amendment 821, he would receive one, not two, of those criminal history points because (1) he
had seven or more points related to his prior criminal convictions; and (2) committed the instant
offense while incarcerated. See id. amend. 821 (Supp. to App. C pp. 234–6); (Doc. No. 1941, p.
29) (indicating Defendant’s subtotal criminal history score as 12 and a total criminal history score
of 14 due to the two point enhancement as discussed above). Absent the additional criminal history
point, Defendant’s total criminal history score is reduced from 14 to 13. With 13 criminal history
points, Defendant’s criminal history category remains as VI. See U.S. Sent’g Guidelines Manual
ch. 5, part A. Therefore, because Defendant’s criminal history category remains unchanged by
Amendment 821, he is not eligible for a sentence reduction under Amendment 821 and 18 U.S.C.
§ 3582(c)(2).
B. Section 3553 Factors
Even if Defendant demonstrated extraordinary and compelling reasons for compassionate
release, the applicable § 3553(a) factors fail to support a reduction in Defendant’s sentence. The
nature and circumstances of the offense, Defendant’s criminal history, and Defendant’s
characteristics weigh against a sentence reduction. Further, the sentence disparity Defendant
alleges is misguided.
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Defendant’s behavior while incarcerated fails to indicate he is adequately deterred, and the
Court concludes he would pose a threat to the public if released. The purpose of 18 U.S.C.
§ 3553(a)(6) is for the sentence imposed to “provide just punishment,” “afford adequate
deterrence,” and “protect the public.” The nature and circumstances of the instant offense taken
together with Defendant’s criminal history, his disciplinary infractions, and Defendant’s likelihood
of recidivism support him serving his sentence as imposed.
First, the nature and circumstances of the instant offense weigh against a sentence
reduction. Defendant was named fifth in the seventy two count Indictment pursuant to federal
racketeering conspiracy charges for many UBN members. (See generally Doc. No. 1941, pp. 3–
13.) Defendant held the high ranking position of “Worldwide High” and “Acting Godfather”
within the UBN hood referred to as the Nine Trey Gangsters Hood. (Id., p. 16.) According to the
Indictment, between 2010 and 2018, Defendant engaged in the following acts while incarcerated:
thirteen incidents of receiving gang dues from a UBN member; three instances of conducting or
discussing UBN meetings; and two incidents of writing letters to a UBN member to discuss gang
business. (See generally Doc. No. 1241, pp. 21–4, 31, 34–5, 37–40, 42, 66). See also United States
v. Moore, No. 3:17-cr-293-MOC-DCK-1, 2020 WL 6076318, at *4 (W.D.N.C. Oct. 15, 2020)
(determining the defendant’s illegal acts while incarcerated in federal prison weigh against early
release pursuant to § 3553(a)(6) factors).
Accordingly, the nature and circumstances of Defendant’s crime were serious in both his
leadership role in the offense and the fact his actions for the instant charge were all taken while
incarcerated, indicating Defendant is not “adequate[ly] deter[ed]” by incarceration. United States
v. Maldonado-Guillen, No. 5:14-CR-00072-KDB-DSC, 2021 WL 2593807, at *7 (W.D.N.C. June
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24, 2021) (determining release of defendant would not provide proper punishment or deterrence
for defendant’s conduct as a “leader” in a drug-trafficking conspiracy).
Second, Defendant’s fourteen disciplinary infractions occurred while incarcerated for the
instant offense, once again indicating Defendant is not deterred by incarceration, and similarly,
remains a threat to the public. (Doc. No. 3464-3.) The Government notes Defendant has incurred
new disciplinary infractions since filing his Motion. (Id., p. 10.) Beyond his convictions, Defendant
has approximately thirty additional arrests for crimes ranging from attempted murder to rape in
the first degree. (Doc. No. 1941, pp. 26–9.) Third, as of October 29, 2021, the Bureau of Prison
categorizes Defendant as “High Risk Recidivism Level.” (Doc. No. 3268-1, p. 22); see also United
States v. Dowdle, No. 1:20-cr-00069-MR-WCM, 2023 WL 3669555, at *3 (W.D.N.C. May 25,
2023) (finding the Bureau of Prisons’ categorization of defendant as a “High Risk Level Inmate”
weighs in favor of defendant serving his sentence as originally imposed).
Fourth, Defendant’s criminal history score of 14 indicates the extensiveness of his criminal
history, which places him in criminal history category VI. Defendant received the statutory
maximum sentence of 240 months, a sentence below the advisory guideline range of 360 months
to life based on his total offense level of 38 and his criminal history category VI.3 Accordingly,
releasing Defendant early would not promote respect for the law. United States v. Minor, No. 3:17-
cr-224-MOC-1, 2021 WL 5567420, at *3 (W.D.N.C. Nov. 29, 2021) (finding a sentence reduction
through compassionate release fails to promote respect for the law where defendant received a
sentence below the advisory guideline range).
3 See U.S. Sent’g Guidelines Manual § 5G1.1(a) (“Where the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline
sentence.”)
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Lastly, Defendant’s completion of ten educational courses, assertions indicating he is an
advocate for peace and nonviolence, disownment of the UBN, and four inmate support letters, fail
to outweigh the nature of Defendant’s instant offense and his criminal history. (See Doc. Nos.
3268, 3545, 3553.) Therefore, the nature and characteristics the instant offense, Defendant’s
criminal history, and Defendant’s characteristics do not weigh in favor of a sentence reduction
pursuant to § 3553(a).
Defendant argues the Court should reduce his sentence to avoid unwarranted sentence
disparity with his codefendant Omari Rosero. (Doc. No. 3553, p. 4.) The Court disagrees.
A central purpose of federal sentencing is to “provide just punishment.” 18 U.S.C.
§ 3553(a); see also United States v. Tate, No. 3:01-cr-00185-FDW, 2022 WL 1085002, at *5
(W.D.N.C. Apr. 11, 2022). Section 3553(a)(6) states the Court must consider “sentence disparities
among defendants with similar records who have been found guilty of similar conduct.” Further,
the Supreme Court states “the Guidelines should be the starting point and the initial benchmark”
for all sentencing proceedings. Gall v. United States, 552 U.S. 38, 49 (2007).
On review of this record, Defendant’s conduct and other relevant evidence fail to indicate
Defendant is “similarly situated” to codefendant Omari Rosero. See Tate, 2022 WL 1085002, at
*5. First, Defendant is correct when he states both himself and Rosero received a four point
leadership enhancement. (See Doc. No. 3553, p. 4.) Second, both Defendant and Rosero were
convicted under the same statute providing a statutory maximum sentence of twenty years.
However, the similarities stop there.
First, Defendant proceeded to trial, while Rosero pled guilty pursuant to a plea agreement.
(See Doc. No. 1941, pp. 3, 10.) Second, Defendant’s criminal history category is VI while
Rosero’s criminal history category is V. Third, Defendant’s base offense level for Count 1s was
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30 and Rosero’s base offense level for his Count 1 was 19. (Id., p. 23.) Fourth, Defendant’s total
offense level was 38, and Rosero’s total offense level was 20.
Despite both Defendant and Rosero being convicted under the same statute, and receiving
the same four point leadership enhancement, the disparity in total offense level and criminal history
category provided different advisory guideline ranges. A total offense level of 38 warrants a
guideline imprisonment range of 360 years to life, while a total offense level of 20 warrants a
guideline imprisonment range of 63 months to 78 months. See U.S. Sent’g Guidelines Manual ch.
5, part A.
Therefore, Defendant and Rosero are not similarly situated. Further, Defendant maintains
a different criminal history and characteristics as compared to Rosero. These differences resulted
in a different sentencing recommendation for each, despite the same statutory maximum applying
under § 1962(d). Thus, to promote respect for the law, deter Defendant, prevent additional crimes
by Defendant, and provide appropriate punishment, the Court finds the § 3553(a) factors weigh
against a reduction of Defendant’s sentence.
For the forgoing reasons, Defendant fails to assert any extraordinary and compelling
reasons for compassionate release and the § 3553(a) factors do not support a reduction of
Defendant’s sentence.
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Signed: July 29, 2024
IT IS SO ORDERED.
IV. CONCLUSION
IT IS, THEREFORE, ORDERED that Defendant’s Motion for Compassionate Release, (Doc. No.
3268), is DENIED.
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