United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
Yi Xiao, Register Number 00366-196, petitions the Court under
28 U.S.C. § 2241 to order his early release from prison
under the Elderly Offender Home Detention Program (EOHDP), 34
U.S.C. § 60541(g). Pet'r's Pet., ECF No. 1. For
the reasons discussed below, the Court will deny the
a prisoner at the La Tuna Federal Correctional Institution in
Anthony, Texas, which is within the Western District of
Texas. 28 U.S.C. § 124(d)(3) (2012). His projected
release date is August 16, 2019. See
https://www.bop.gov/inmateloc/ (search for Reg. No.
00366-196) (last visited Apr. 3, 2019). He claims he is 69
years old, suffers from diabetes and high blood pressure, and
has served over half of his sentence. He does not specify the
nature of his offense, the length of his sentence or the
place of his trial. But he maintains he meets all the
requirements for release under the EOHDP. He provides a
document which suggests he may have asked prison authorities
about an early release-based on his age and medical
condition-on February 11, 2019. Pet'r's Pet. 3, ECF
No. 1. He does not provide a copy of the response, and he
does not suggest prison authorities abused their discretion
by not acting on his message. He asks the Court to intervene
in his behalf and order his immediate release from prison.
28 U.S.C. § 2241
“A section 2241 petition for habeas corpus on behalf of
a sentenced prisoner attacks the manner in which his sentence
is carried out or the prison authorities' determination
of its duration.” Pack v. Yusuff, 218 F.3d
448, 451 (5th Cir. 2000) (citations omitted). To prevail, a
§ 2241 petitioner must show that he is “in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c) (2012). A
§ 2241 petitioner may make this attack only in the
district court with jurisdiction over his custodian.
United States v. Cleto, 956 F.2d 83, 84 (5th Cir.
its initial screening of a habeas corpus petition, a
reviewing court accepts a petitioner's allegations as
true. 28 U.S.C. § 2243; Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007). It also evaluates
a petition presented by pro se petitioner under more a
lenient standard than it would apply to a petition submitted
by counsel. Erickson v. Pardus, 551 U.S. 89, 94
(2007). It must “award the writ or issue an order
directing the respondent to show cause why the writ should
not be granted, unless it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief.” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to
§ 2241 petitions pursuant to Rule 1(b)).
18 U.S.C. § 3582
general, a district court may not modify a sentence because
“‘a judgment of conviction that includes [a
sentence of imprisonment] constitutes a final
judgment.'” Dillon v. United States, 560
U.S. 817, 824 (2010) (quoting § 3582(b)). Nevertheless,
under an exception in 18 U.S.C. § 3582(c)(2), a court
may modify a defendant's sentence “when it is for
‘a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission.'” United States v. Doublin,
572 F.3d 235, 237 (2009) (quoting 18 U.S.C. §
3582(c)(2)). But a court may reduce an otherwise final
sentence under a Guidelines amendment only if the reduction
is consistent with Sentencing Guideline § 1B1.10-the
Sentencing Commission's relevant policy statement-and
after considering the sentencing factors in 18 U.S.C. §
3553(a). Dillon, 560 U.S. at 821.
when the § 3582(c)(2) exception applies, a court uses
“a two-step approach.” Id. at 827. At
step one, a court “follow[s] the Commission's
instructions in [Sentencing Guideline] § 1B1.10 to
determine the prisoner's eligibility for a sentence
modification and the extent of the reduction
authorized.” Id. At step two, a court
“consider[s] any applicable § 3553(a) factors and
determine[s] whether, in its discretion, the reduction
authorized by reference to the policies relevant at step one
is warranted in whole or in part under the particular
circumstances of the case.” Id.
§ 3553(a) factors include “the nature and
circumstances of the offense and the history and
characteristics of the defendant” and “the need
for the sentence imposed . . . to protect the public from
further crimes of the defendant.” 18 U.S.C.
§§ 3553(a)(1), (a)(2)(C). “The court may also
consider the defendant's post-sentencing conduct in
determining whether a reduction is warranted.”
United States v. Rios, 657 Fed.Appx. 255, 258 (5th
Cir. 2016) (quoting U.S. SENTENCING GUIDELINES MANUAL §
1B1.10, cmt. n.1(B)(iii) (U.S. SENTENCING COMM'N 2010)).
ameliorative amendments to the Guidelines do not create a
right to a sentence reduction.” United States v.
Osborn, 679 F.3d 1193, 1196 (10th Cir. 2012). Rather,
even if a defendant is eligible, “the decision whether
to reduce a sentence is left to the sound discretion of the
trial court” and is reviewed “for abuse
of discretion only.” United States v.
Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997)
34 U.S.C. ...