United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, Chief Judge United States District Court.
Brian Washington has moved the Court to modify his term of
imprisonment under 18 U.S.C. § 3582(c)(1)(A)(i). [Record
No. 72');">72');">72');">72] Washington pleaded guilty on June 12, 2013, to one
count of possession with intent to distribute crack cocaine,
in violation of 21 U.S.C. § 841(a)(1), and one count of
using and carrying a firearm in relation to drug trafficking,
in violation of 18 U.S.C. § 924(c)(1). [Record Nos. 6
and 20] He was sentenced on February 6, 2014, to a total term
of imprisonment of 280 months, to be followed by 5 years of
supervised release. [Record No. 52] Proceeding pro
se, Washington now requests a modification of his
sentence based on claims of “extraordinary and
compelling reasons” pursuant to §
3582(c)(1)(A)(i), as amended by the First Step Act of 2018
(“the Act”), Pub. L. 115-391, § 603(b)(1),
132 Stat. 5194 (2018). [Record No. 72');">72');">72');">72]
unclear whether Washington has sufficiently exhausted
administrative remedies as required by § 3582(c)(1)(A).
Prior to the Act's passage, only the Director of the
Bureau of Prisons (“BOP”) could file a §
3582(c)(1)(A) “compassionate release” motion on
behalf of an incarcerated defendant. 18 U.S.C. §
3582(c)(1)(A) (2002). The Act amended the subsection to
permit a defendant to file such a motion, “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 . . . .”
18 U.S.C. § 3582(c)(1)(A) (2018); see also,
e.g., United States v. Lake, No. 5:
16-076-DCR, 2019 WL 4143293, at *2 (E.D. Ky. Aug. 30, 2019).
Washington alleges that he has exhausted all administrative
remedies. [Record No. 72');">72');">72');">72, p. 3] However, he has not alleged
that: (i) he has administratively appealed the BOP's
failure to file a § 3582 motion upon his request; (ii)
the warden of his facility failed to act within 30 days of
receiving a request for a § 3582 motion; or (iii) he
made such a request of BOP officials in the first place.
Without further information, the Court cannot determine
whether Washington has sufficiently exhausted administrative
remedies. Regardless, Washington's motion is without
merit and will be denied for that reason.
cites United States v. Cantu, No. 1:05-CR-458-1,
2019 WL 2498923, at *1 (S.D. Tex. June 17, 2019), for the
proposition that after the passage of the Act, “nothing
in the statutory text of 3582(c)(1), nor the Sentencing
Guidelines, precludes a judge from making [his] own
determination of what are ‘extraordinary and
compelling' circumstances warranting a reduction of
sentence.” [Record No. 72');">72');">72');">72, p. 2] The Cantu
court found that the Application Note of a United States
Sentencing Commission policy statement addressing
“other” extraordinary and compelling reasons for
compassionate release, United States Sentencing Guidelines
Manual (“U.S.S.G.”) § 1B1.13 cmt. n. 1(D)
(2018), is incompatible with the Act. Cantu, 2019 WL
2498923, at *3-5. The court based its ruling on the fact that
the Act enables defendants to seek § 3582(c) relief
without a BOP motion in some circumstances, whereas the older
policy statement note only allows the BOP to determine
“other reasons” for compassionate release.
Id. Cantu concluded that federal courts, rather than
the BOP, can now “determine whether any extraordinary
and compelling reasons other than those delineated in
U.S.S.G. § 1B1.13 cmt. n. 1(A)-(C) warrant granting
relief.” Id. at *5.
requests that the Court recognize this new authority and
exercise it by granting compassionate release. His stated
“other reason” for § 3582(c)(1) relief is
that “[h]e has an ideal prison record and is the
prototype of a successfully rehabilitated individual.”
[Record No. 72');">72');">72');">72, p. 4] Washington supports his motion with
descriptions of impressive academic achievements and
exemplary conduct. Id. at p. 3. He also produces
prison records to that effect. Id. at pp. 6-7.
the Court is aware that the Sentencing Commission has not
revised U.S.S.G. § 1B1.13 cmt. n. 1(D) since the
Act's passage, it cannot grant relief here. Title 28 of the
United States Code, section § 994(t) -- a subsection
unaltered by the Act -- provides that while the Sentencing
Commission shall promulgate policy statements concerning the
definition of “extraordinary and compelling reasons,
” “[r]ehabilitation of the defendant alone shall
not be considered an extraordinary and compelling
reason.” 28 U.S.C. § 994(t). Application Note 3 of
the relevant Sentencing Commission policy statement
consequently states: “[p]ursuant 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.” U.S.S.G. § 1B1.13 cmt. n. 3.
The language of § 994(t) evidences clear congressional
intent to bar relief based on rehabilitation alone, and no
provision of the Act indicates that courts should disregard
the corresponding Application Note 3. Further, this Court has
previously endorsed the continued authority of U.S.S.G.
§ 1B1.13 after the Act's passage. See Lake,
2019 WL 4143293, at *2-3.
short, Washington's rehabilitation is an insufficient
basis for § 3582(c)(1)(A)(i) relief It is unclear
whether Cantu stands for the proposition that courts
may now grant compassionate release based on any
reason they find to be “extraordinary and compelling,
” including rehabilitation alone. See Cantu,
2019 WL 2498923, at *3 n. 6 (citing 28 U.S.C. § 994(t)).
But to the extent it does, this Court expressly declines to
follow its reasoning.
on the foregoing analysis and discussion, it is hereby
that Defendant Brian Washington's motion to modify his
term of imprisonment pursuant to 18 U.S.C. §
3582(c)(1)(A)(i) [Record No. 72');">72');">72');">72] is DENIED.
 Application Note 1 also provides that
medical condition of the defendant, age of the defendant, and
family circumstances are “extraordinary and
compelling” reasons in certain instances. U.S.S.G.
§ 1B1.13 cmt. n. 1(A)-(C). Washington does not allege
that he is entitled to compassionate release under these
 Indeed, the Sentencing Commission does
not have the present ability to revise this guideline
provision. Since the Act's passage, the United States
Sentencing Commission has effectively maintained two voting
Commissioners. Four affirmative votes are required to ...