USA v. Berry et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DENYING DEFENDANT’S
) MOTION TO REDUCE SENTENCE
vs. )
)
Russell Larell Berry, ) Case No. 1:19-cr-007
)
Defendant. )
______________________________________________________________________________
Before the Court is the Defendant’s pro se motion to reduce sentence pursuant to the First Step
Act of 2018, filed on January 24, 2023. See Doc. No. 153. The Government filed a response in
opposition to the motion on February 21, 2023. See Doc. No. 157. The Defendant filed a reply brief
on May 3, 2023. See Doc. No. 163. For the reasons set forth below, the motion is denied.
I. BACKGROUND
On February 26, 2020, the Defendant pled guilty to one count of conspiracy to distribute a
controlled substance (500 grams or more of methamphetamine) in violation of 21 U.S.C. §§
841(b)(1)((A)(viii) and 846. See Doc. No. 86. On June 23, 2020, the Court sentenced the Defendant
to 108 months of imprisonment and 5 years of supervised release. See Doc. No. 100. No appeal was
taken. The Defendant is serving his sentence at FMC Fort Worth in Fort Worth, Texas. His
presumptive release date is November 9, 2026.
Now before the Court is the Defendant’s pro se motion to reduce sentence under the First Step
Act. The Defendant contends his health problems and age satisfy the “extraordinary and compelling
reasons” standard set forth in 18 U.S.C. § 3582(c)(1)(A)(i). The Defendant also cites his good conduct
while incarcerated. He asks that his sentence be reduced. The Government opposes the motion.
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II. LEGAL DISCUSSION
18 U.S.C. § 3582(c)(1)(A) allows the Court to modify a term of imprisonment under two
circumstances: by motion of the Director of the BOP or upon motion of the Defendant “after 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.” In this case, it appears the Defendant
asked the warden for compassionate release which was denied on August 31, 2021. See Doc. No. 153-
4. The Court concludes he has exhausted his administrative remedies.
In considering a motion to reduce sentence, the Court must assess whether, after considering
the 18 U.S.C. § 3553(a) factors, “extraordinary and compelling reasons” exist which warrant a sentence
reduction, and if a sentence reduction is consistent with the Sentencing Commission’s applicable policy
statement. See 18 U.S.C. § 3582(c)(1)(A). There is no right to counsel in Section 3582(c) proceedings.
United States v. Brown, 565 F.3d 1093, 1094 (8th Cir. 2009). Nor is there a right to a hearing. See
Dillon v. United States, 560 U.S. 817, 827-28 (2010) (observing that, under Federal Rule of Criminal
Procedure 43(b)(4), a defendant need not be present at a proceeding under Section 3582(c)(2) regarding
the imposition of a sentencing modification).
Prior to the passage of the First Step Act in 2018, district courts could only grant compassionate
release sentence reductions based upon a motion filed by the director of the BOP. Such motions were
rarely filed. This all changed when the President signed the First Step Act into law on December 21,
2018. The relevant portion of the new law now reads as follows:
(c) Modification of an imposed term of imprisonment.--The court may not modify
a term of imprisonment once it has been imposed except that–
(1) in any case–
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(A) the court, upon motion of the Director of the Bureau of Prisons, or upon
motion of the defendant after 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, may
reduce the term of imprisonment (and may impose a term of probation or
supervised release with or without conditions that does not exceed the unserved
portion of the original term of imprisonment), after considering the factors set
forth in section 3553(a) to the extent that they are applicable, if it finds that–
(i) extraordinary and compelling reasons warrant such a reduction;
and that such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission;
18 U.S.C.A. § 3582(c)(1)(A)(I) (emphasis added).
Unfortunately, the First Step Act does not define “extraordinary and compelling reasons.” The
Sentencing Commission’s policy statement can be found at Section 1B1.13 of the 2021 Sentencing
Guidelines Manual. The policy statement requires a finding that a claimant meets three requirements:
1) extraordinary and compelling reasons warrant the reduction; 2) the defendant is not a danger to the
community; and 3) the reduction follows the Sentencing Commission’s policy statement. USSG §
1B1.13. However, the policy statement pertains to the old law rather than the new law and thus is of
questionable applicability. See United States v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *6
(M.D.N.C. June 28, 2019) (concluding the old policy statement provides helpful guidance but does not
control the district court’s independent assessment of whether “extraordinary and compelling reasons”
warrant a sentence reduction.). This Court agrees that the Sentencing Commission’s existing policy
statement provides only limited guidance. See United States v. Fox, No. 2:14-CR-03, 2019 WL
3046086, at *3 (D. Me. July 11, 2019).
The Application Note to U.S.S.G. § 1B1.13 provides as follows:
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1. Extraordinary and Compelling Reasons.--Provided the defendant meets the
requirements of subdivision (2), extraordinary and compelling reasons exist
under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.--
(i) The defendant is suffering from a terminal illness (i.e., a serious
and advanced illness with an end of life trajectory). A specific
prognosis of life expectancy (i.e., a probability of death within
a specific time period) is not required. Examples include
metastatic solid-tumor cancer, amyotrophic lateral sclerosis
(ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is–
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive
impairment, or
(III) experiencing deteriorating physical or mental health
because of the aging process,
that substantially diminishes the ability of the defendant to
provide self-care within the environment of a correctional
facility and from which he or she is not expected to recover.
(B) Age of the Defendant.--The defendant (i) is at least 65 years old; (ii) is
experiencing a serious deterioration in physical or mental health because
of the aging process; and (iii) has served at least 10 years or 75 percent
of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.--
(i) The death or incapacitation of the caregiver of the
defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered
partner when the defendant would be the only available
caregiver for the spouse or registered partner.
(D) Other Reasons.--As determined by the Director of the Bureau of
Prisons, there exists in the defendant's case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).
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2. Foreseeability of Extraordinary and Compelling Reasons.--For purposes of
this policy statement, an extraordinary and compelling reason need not have
been unforeseen at the time of sentencing in order to warrant a reduction in the
term of imprisonment. Therefore, the fact that an extraordinary and compelling
reason reasonably could have been known or anticipated by the sentencing court
does not preclude consideration for a reduction under this policy statement.
3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. § 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and compelling
reason for purposes of this policy statement.
4. Motion by the Director of the Bureau of Prisons.--A reduction under this
policy statement may be granted only upon motion by the Director of the Bureau
of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission encourages
the Director of the Bureau of Prisons to file such a motion if the defendant
meets any of the circumstances set forth in Application Note 1. The court is in
a unique position to determine whether the circumstances warrant a reduction
(and, if so, the amount of reduction), after considering the factors set forth in 18
U.S.C. § 3553(a) and the criteria set forth in this policy statement, such as the
defendant's medical condition, the defendant's family circumstances, and
whether the defendant is a danger to the safety of any other person or to the
community.
This policy statement shall not be construed to confer upon the defendant any
right not otherwise recognized in law.
5. Application of Subdivision (3).--Any reduction made pursuant to a motion by
the Director of the Bureau of Prisons for the reasons set forth in subdivisions (1)
and (2) is consistent with this policy statement.
U.S.S.G. § 1B1.13.
Even when extraordinary and compelling reasons exist, a court should only grant a motion for
release if it determines that the defendant is not a danger to the public. See USSG § 1B1.13(2). A
court should also consider whether the 18 U.S.C. § 3553(a) factors weigh in favor of release. See 18
U.S.C. § 3582(c)(1)(A); USSG § 1B1.13. Whether to grant relief under Section 3582(c)(1)(A) is vested
in the sound discretion of the district court. United States v. Vangh, 990 F.3d 1138, 1140 (8th Cir.
2021). The burden is on the defendant to demonstrate an “extraordinary and compelling reason” that
would warrant a sentence reduction. See United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016).
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The Court has carefully reviewed the entire record and concludes the Defendant has failed to
demonstrate “extraordinary and compelling reasons” that would warrant a sentence reduction. See
United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016) (the burden is on the defendant to establish
a sentence reduction is warranted under 18 U.S.C. § 3582(c)(2)). The case law offers very little
guidance on what constitutes “extraordinary and compelling reasons” warranting a sentence reduction
as the First Step Act is a recent enactment and the previous law only permitted the BOP to seek such
relief, and it rarely did so. United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *5 (S.D.
Tex. June 17, 2019). The common legal definition of extraordinary is “beyond what is usual,
customary, regular, or common” while a compelling need is defined as “so great that irreparable harm
or injustice would result if [the relief] is not [granted].” Id. (quoting Black’s Law Dictionary).
The Defendant is 56 years old. His age is not considered advanced under U.S.S.G. §
1B1.13(1)(B). The medical records submitted by the Defendant reveal he has diabetes, high blood
pressure, hemiplegia, high cholesterol, obesity, uses a wheel chair at times, and requires the use of a
catheter. However, the record does not reveal that he is unable to care for himself in a prison
environment. He receives medical treatment and medication for all his health problems and resides in
a Federal Medical Center which is able to care for him. The Court was aware of many of the
Defendant’s medical problems at the time of sentencing and recommended he serve his sentence in a
Federal Medical Center. The Court concludes the Defendant’s age and medical problems do not rise
to the level of “extraordinary and compelling.”
Even if the Defendant could establish extraordinary and compelling circumstances which
warrant a sentence reduction, the Court would need to weigh the Section 3553(a) factors. In this case,
the 3553(a) factors do not favor release. The Defendant’s drug offense is serious. The Defendant has
a lengthy criminal history which placed him in criminal history category VI for sentencing purposes.
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His past offenses evidence a life of crime involving violence, gun crimes, a sex offense, and gang
involvement. The PSR reveals no significant employment history. He has served approximately two-
thirds of his current 108 month sentence and can expect to be released from BOP custody in
approximately 3 1/2 years. Working in favor of the Defendant are the significant efforts he has made
while incarcerated to obtain training and education of various types. See Doc. No. 163-1.
Nevertheless, the Court concludes the Section 3553(a) factors weigh against early release.
III. CONCLUSION
The Court has carefully reviewed the entire record and concludes the Defendant has failed to
demonstrate “extraordinary and compelling reasons” that would warrant a sentence reduction.
Accordingly and for the reasons set forth above, the Defendant’s motion to reduce sentence (Doc. No.
153) is DENIED.
IT IS SO ORDERED.
Dated this 22nd day of May, 2023.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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