USA v. Barth 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. )
)
Shawn Leo Barth, ) Case No. 1:03-cr-046
)
Defendant. )
------------------------------------------------------------------------------------------------------------------------
Before the Court is the Defendant’s pro se motion to reduce sentence under 18 U.S.C. §
3582(c)(1)(A), filed on November 6, 2023. See Doc. No. 410. The Government filed a response in
opposition to the motion on December 4, 2023. See Doc. No. 414. The Defendant filed a reply on
December 28, 2023. See Doc. No. 417. For the reasons set forth below, the motion is denied.
I. BACKGROUND
On December 18, 2003, a jury found Barth guilty of several drug and firearm offenses. See
Doc. No. 131. Barth was sentenced on March 22, 2004, to life imprisonment, with a five-year
consecutive term on a firearm count. See Doc. No. 161. Barth appealed and the Eighth Circuit Court
of Appeals upheld both his conviction and sentence. See Doc. No. 190. Barth subsequently filed a
petition for habeas relief pursuant to 28 U.S.C. § 2255, which was denied. See Doc. No. 233. The
Eighth Circuit refused to grant a certificate of appealability and Barth's appeal of his habeas petition
was ultimately dismissed. See Doc. No. 237.
In June of 2016, Barth filed a second habeas petition pursuant to Johnson v. United States.
See Doc. No. 287. While this petition was pending, an executive grant of clemency reduced the total
sentence of imprisonment to 322 months. See Doc. No. 294. On August 22, 2017, the Court granted
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Barth’s Johnson petition and further reduced his sentence. See Doc. No. 313.
In October of 2017, Barth filed a motion to reduce sentence pursuant to Amendment 782 of
the United States Sentencing Guidelines. See Doc. No. 320. The Court denied the motion finding
Barth was not eligible for the Amendment 782 reduction. See Doc. No. 325. Barth appealed this
decision and the Eighth Circuit denied his appeal. See Doc. No. 343.
Barth filed his first motion seeking a reduction of sentence and compassionate release based
on the First Step Act on November 13, 2019. See Doc. No. 366. On June 9, 2020, this Court denied
Barth’s motion to reduce sentence. Barth filed a second motion seeking a reduction of sentence and
compassionate release on April 21, 2020. See Doc. No. 376. This Court again denied Barth’s motion
on June 9, 2020. See Doc. No. 382. Barth filed a third motion seeking a reduction of sentence and
compassionate release on August 28, 2020. See Doc. No. 383. For a third time, this Court denied
Barth’s motion on October 6, 2020. See Doc. No. 387. A fourth motion for a sentence reduction
(Doc. No. 376) was denied on June 9, 2020. See Doc. No. 382.
Barth has now filed a fifth motion seeking early or compassionate release under 18 U.S.C.
4205(g) or 3582(c)(1)(A) citing his long sentence, changes in the law, and his rehabilitation as
“extraordinary and compelling” reasons for a sentence reduction. See Doc. No. 410. The
Government filed a response in opposition to the motion contending Barth has not provided an
appropriate basis for compassionate release. See Doc. No. 414. Barth is serving his sentence at
Yankton FPC in South Dakota. His presumptive release date is March 25, 2026.
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
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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 is undisputed the
Defendant 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 First Step Act was signed 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–
(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
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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).
The First Step Act does not define “extraordinary and compelling reasons.” The applicable
Sentencing Commission policy statement can be found at Section 1B1.13 of the 2023 Sentencing
Guidelines Manual. Section 1B1.13 provides as follows:
(a) In General.--Upon motion of the Director of the Bureau of Prisons or the
defendant pursuant to 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of
imprisonment (and may impose a term of supervised release with or without
conditions that does not exceed the unserved portion of the original term of
imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the
extent that they are applicable, the court determines that–
(1) (A) Extraordinary and compelling reasons warrant the reduction; or
(B) The defendant (i) is at least 70 years old; and (ii) has served at least
30 years in prison pursuant to a sentence imposed under 18 U.S.C. §
3559(c) for the offense or offenses for which the defendant is
imprisoned;
(2) The defendant is not a danger to the safety of any other person or to the
community, as provided in 18 U.S.C. § 3142(g); and
(3) The reduction is consistent with this policy statement.
(b) Extraordinary and Compelling Reasons.--Extraordinary and compelling reasons
exist under any of the following circumstances or a combination thereof:
(1) Medical Circumstances of the Defendant.--
(A) 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
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organ disease, and advanced dementia.
(B) 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.
(C) The defendant is suffering from a medical condition that requires
long-term or specialized medical care that is not being provided and
without which the defendant is at risk of serious deterioration in health
or death.
(D) The defendant presents the following circumstances–
(i) the defendant is housed at a correctional facility affected or
at imminent risk of being affected by (I) an ongoing outbreak
of infectious disease, or (II) an ongoing public health
emergency declared by the appropriate federal, state, or local
authority;
(ii) due to personal health risk factors and custodial status, the
defendant is at increased risk of suffering severe medical
complications or death as a result of exposure to the ongoing
outbreak of infectious disease or the ongoing public health
emergency described in clause (i); and
(iii) such risk cannot be adequately mitigated in a timely
manner.
(2) Age of the Defendant.--The defendant (A) is at least 65 years old; (B) is
experiencing a serious deterioration in physical or mental health because of the
aging process; and (C) has served at least 10 years or 75 percent of his or her
term of imprisonment, whichever is less.
(3) Family Circumstances of the Defendant.--
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(A) The death or incapacitation of the caregiver of the defendant's
minor child or the defendant's child who is 18 years of age or older and
incapable of self-care because of a mental or physical disability or a
medical condition.
(B) 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.
(C) The incapacitation of the defendant's parent when the defendant
would be the only available caregiver for the parent.
(D) The defendant establishes that circumstances similar to those listed
in paragraphs (3)(A) through (3)(C) exist involving any other
immediate family member or an individual whose relationship with the
defendant is similar in kind to that of an immediate family member,
when the defendant would be the only available caregiver for such
family member or individual. For purposes of this provision,
‘immediate family member’ refers to any of the individuals listed in
paragraphs (3)(A) through (3)(C) as well as a grandchild, grandparent,
or sibling of the defendant.
(4) Victim of Abuse.--The defendant, while in custody serving the term of
imprisonment sought to be reduced, was a victim of:
(A) sexual abuse involving a “sexual act,” as defined in 18 U.S.C.
2246(2) (including the conduct described in 18 U.S.C. 2246(2)(D)
regardless of the age of the victim); or
(B) physical abuse resulting in “serious bodily injury,” as defined in
the Commentary to § 1B1.1 (Application Instructions);
that was committed by, or at the direction of, a correctional officer, an
employee or contractor of the Bureau of Prisons, or any other individual who
had custody or control over the defendant.
For purposes of this provision, the misconduct must be established by a
conviction in a criminal case, a finding or admission of liability in a civil case,
or a finding in an administrative proceeding, unless such proceedings are
unduly delayed or the defendant is in imminent danger.
(5) Other Reasons.--The defendant presents any other circumstance or
combination of circumstances that, when considered by themselves or together
with any of the reasons described in paragraphs (1) through (4), are similar in
gravity to those described in paragraphs (1) through (4).
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(6) 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.
(c) Limitation on Changes in Law.--Except as provided in subsection (b)(6), a
change in the law (including an amendment to the Guidelines Manual that has not
been made retroactive) shall not be considered for purposes of determining whether
an extraordinary and compelling reason exists under this policy statement. However,
if a defendant otherwise establishes that extraordinary and compelling reasons warrant
a sentence reduction under this policy statement, a change in the law (including an
amendment to the Guidelines Manual that has not been made retroactive) may be
considered for purposes of determining the extent of any such reduction.
(d) 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. However, rehabilitation of the defendant while serving the
sentence may be considered in combination with other circumstances in determining
whether and to what extent a reduction in the defendant's term of imprisonment is
warranted.
(e) 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.
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 U.S.S.G. § 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); U.S.S.G. § 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).
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The Defendant’s primary contention is that he is serving an unusually long sentence and a
sentence reduction under U.S.S.G. § 1B1.13(b)(6) is warranted. The Government contends the
Sentencing Commission overstepped its authority is promulgating U.S.S.G. § 1B1.13(b)(6) and thus
that provision cannot be used to grant a sentence reduction. The Government also maintains the
circumstances of the case are such that any further sentence reduction is unwarranted.
First, the Court disagrees with the Government’s assertion that U.S.S.G. § 1B1.13(b)(6) is
invalid. The Sentencing Commission submitted its proposed Sentencing Guidelines amendments to
Congress on April 27, 2023. Because Congress did not act to modify or disapprove of the
amendments, they became effective on November 1, 2023. 88 Fed. Reg. at 28,254; see 28 U.S.C. §
994(p). If Congress believed the Sentencing Commission had overstepped its authority it would have
acted to modify U.S.S.G. § 1B1.13(b)(6). The Court also notes the Sentencing Guidelines remain
advisory.
As for the merits of the current motion, the Court agrees with the Government that a sentence
reduction is unwarranted. The Defendant is no longer serving the life sentence that was originally
imposed in this case in 2004. The Defendant’s sentence was commuted by President Obama in 2016
to a total of 322 months. This sentence is less than what a defendant convicted today under similar
circumstances would receive.
The Court also concludes the Section 3553(a) sentencing factors weigh against any sentence
reduction. The Defendant has an extensive prior criminal history which placed him in criminal
history category VI. The Presentence Investigation Report determined the Defendant was an armed
career criminal. The offenses involved four serious drug trafficking crimes as well as the possession
of a firearm by a convicted felon and possession of a firearm in furtherance of a drug trafficking
crime. The original sentence was life imprisonment. The need for the sentence imposed under
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Section 3553(a)(2)(A)-(C) still remains given the scale of the crime (the distribution of large
quantities of methamphetamine and the unlawful possession of firearms) and the reduction in sentence
previously granted to the Defendant.
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)).
III. CONCLUSION
For the reasons set forth above, the Defendant’s motion to reduce sentence (Doc. No. 410) is
DENIED. The motion to appoint counsel (Doc. No. 411) is also DENIED. See United States v.
Brown, 565 F.3d 1093, 1094 (8th Cir. 2009) (noting there is no right to counsel in Section 3582(c)
proceedings). Although the Court has denied the motion for a sentence reduction, it should be noted
the record reflects that Barth has taken significant and positive steps to turn his life around over the
past 20+ years in federal custody. He has done virtually everything in his power to rehabilitate
himself while in custody. The Court would strongly urge the BOP to release Barth to a halfway house
or home confinement so that he may complete his sentence in a less restrictive environment. There
seems to be no reasonable or common sense reason for the BOP to retain custody under the
circumstances. Barth is currently housed in a prison camp in Yankton, South Dakota. In his
submissions to the Court (Doc. No. 419), Barth advises that as of May 2024, he is a “Yankton town
driver” whose custody status is now labeled as “community custody.” The BOP has allowed him to
obtain a drivers license and he transports other inmates to hospitals, airports, bus stations and other
locations outside of FPC Yanktown. Why not allow an RRC placement for such an inmate with so
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little time left before his release date of March 25, 2026? Why not allow home confinement to serve
out his remaining sentence? The costs of continuing to incarcerate an inmate such as Barth are far
outweighed by considerations of rehabilitation, compassion, and common sense. And placement at
a RRC or home confinement is not a ‘get-out-of-jail” free card. Barth will also serve a significant
period of time on supervised release - subject to a multitude of standard and special conditions -
which is a serious restraint on his liberty. At 53 years of age, Barth deserves a second chance. The
BOP has a chance to do right by placing him in a halfway house or on home confinement to serve out
his remaining sentence. The Court would respectfully request that the BOP carefully review Barth’s
case and give him a chance to move on with his life.
IT IS SO ORDERED.
Dated this 10th day of September, 2024.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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