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Xiao v. La Tuna Federal Correctional Institution

United States District Court, W.D. Texas, El Paso Division

April 3, 2019

ZHENG YI XIAO
v.
LA TUNA FEDERAL CORRECTIONAL INSTITUTION.

          MEMORANDUM OPINION AND ORDER

          KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

         Zheng 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 petition.

         BACKGROUND

         Xiao is 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.

         APPLICABLE LAW

         A. 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. 1992).

         During 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)).

         B. 18 U.S.C. § 3582

         In 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.

         Hence, 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.

         The § 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)).

         “These 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) (emphasis added).

         C. 34 U.S.C. ...


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