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United States v. Kessler

United States District Court, S.D. Texas, Houston Division

May 2, 2018

UNITED STATES OF AMERICA
v.
JAMES HENRY KESSLER

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt United States District Judge

         This case is before the Court on James Henry Kessler's petition for a writ of audita querela (Doc. # 41) and motion for modification or reduction of sentence (Doc. # 40), the government's response (Doc. # 55), and Kessler's Traverse to the Government's response (Doc. # 61) and addendum to the traverse (Doc. # 65). Having considered the motion and petition, the response, the traverse and addendum, the record, and all the arguments and authorities submitted by the parties, the Court concludes that Kessler's motion should be denied, and his petition should be granted in part. The reasons for this conclusion follow.

         I. Background

         On January 19, 2007, the United States charged Kessler with participating in a RICO conspiracy as an associate of the Texas Syndicate prison gang. The specific acts he committed in furtherance of the conspiracy were robbery, attempted robbery, and distribution and possession with intent to distribute cocaine, as well as conspiracy to possess with intent to distribute cocaine. See Criminal Information (Doc. # 1). Kessler pled guilty on March 27, 2007. On September 9, 2009, he was sentenced to 180 months in prison. The judgment stated that Kessler should receive credit for time served in federal detention in connection with this prosecution, beginning on January 17, 2008. See Judgment (Doc. # 36).

         II. Applicable Legal Standards

         A writ of audita querela is

a common law writ constituting the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its rendition and which could not be taken advantage of otherwise.

BLACK'S LAW DICTIONARY 131 (6th ed. 1990). “It is an open question whether the obsolescent writ survives as a post-conviction remedy.” United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). In United States v. Reyes, 945 F.2d 862 (5th Cir. 1991), the Fifth Circuit noted the definition of this writ, and observed that “audita querela [is] a means of attacking a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition.” Id. at 863 n.1.

         III. Analysis

         Kessler requests retroactive application of an amendment to the United States Sentencing Guidelines. He also asks the Court to credit him for time served on a state charge related to his federal conviction, and to amend the judgment in this case to conform it to the Court's oral statements regarding credit for time served.

         A. Sentencing Guidelines

         In his motion for modification, Kessler argues that Amendment 782 to the Sentencing Guidelines makes him eligible for a 2-level downward adjustment. He asks this Court to apply the amendment retroactively to his case.

         Amendment 782 lowers the penalty for certain drug offenses by 2 levels. Kessler was convicted for violating the RICO Act, not for a narcotics offense. While drug-related crimes underlie the RICO conspiracy, Kessler's conviction is for the RICO conspiracy, not for the drug-related crimes. Therefore, the amendment is inapplicable to him.

         In addition, Kessler's 180 month sentence, based on an offense level of 42, is well below the guidelines range of 360 months to life. Even if Kessler's offense level is reduced to 40 under Amendment 782, the guidelines range is 324 to 405 months, still well above Kessler's actual sentence. Thus, even if Amendment 782 applied to this case, it would provide no ...


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