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United States v. Houston

United States District Court, N.D. Texas, Dallas Division

May 1, 2019

UNITED STATES OF AMERICA,
v.
KEVIN ARWIN HOUSTON (BOP Register No. 25012-077), Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

         Defendant Kevin Houston, a federal prisoner, filed pro se a Motion for Consideration of Rehabilitation and for Time Served [Dkt. No. 148] (the “Motion”).

         United States District Judge David C. Godbey referred the Motion to the undersigned United States magistrate judge for findings and recommendation under 28 U.S.C. § 636(b). See Dkt. No. 149.

         The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny the Motion.

         Applicable Background

         As explained in a previous decision of the Court, denying Houston's initial 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence,

[o]n February 9, 1994, a jury found [Houston] guilty of charges pending against him. In a judgment entered April 7, 1994, the District Court sentenced him to 78 months imprisonment on one count and 60 months imprisonment on a second count to be served consecutively. On April 25, 1994, [Houston] filed a notice of appeal. In March 1995, the Fifth Circuit Court of Appeals dismissed his appeal.

Houston v. United States, No. 3:02-cv-1338-H, 2002 WL 31422975, at *1 (N.D. Tex. Sept. 27, 2002).

         Houston now explains in the Motion that he “served 23.5 years in State Prison before being paroled to begin to serve his Federal Sentence: Should [he] serve his remaining 138 months he will have served over 33 years in prison.” Dkt. No. 148 at 1. As such, citing Amendment 787 to the United States Sentencing Guidelines - which he characterizes as “afford[ing] Federal Judges the authority and discretion to run a State Sentence Concurrent with a Federal Sentence and/or order time served” - he requests that the Court “take under full consideration that in November of 1992, at the young age of 19, he began his term of imprisonment. Now, at the age of 46, [he] has been fully rehabilitated, as shown by supporting documentation.” Id. at 2; see also Id. (“Houston requests that the Honorable Court review the attachments hereto, before making it's final determination on this plea for leniency. As well as contact the staff within the Bureau of Prisons and Texas Department of Criminal Justice as to his progress within these prisons systems.”).

         Legal Standards and Analysis

         “A district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization. Methods of altering a sentence after it has been entered include a direct appeal, a collateral attack under 28 U.S.C. §§ 2241 or 2255, a motion under 18 U.S.C. § 3582(c), and a motion under Federal Rule of Criminal Procedure 36.” United States v. Hernandez, No. 3:08-cr-268-B (03), 2016 WL 1039540, at *2 (N.D. Tex. Feb. 19, 2016) (quoting United States v. Martinez, No. 1:09-cr-74 TS, 2014 WL 2515315 (D. Utah June 4, 2014)), rec. accepted, 2016 WL 1028236 (N.D. Tex. Mar. 15, 2016).

         The statutory authorization apparent through the Motion is Section 3582(c)(2), which “permits the discretionary modification of a defendant's sentence ‘in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to' the Sentencing Commission's changes to the guidelines.” United States v. Benton, 546 Fed.Appx. 365, 367 (5th Cir. 2013) (quoting 18 U.S.C. § 3582(c)(2)).

         As background, the United States Supreme Court held in Setser v. United States, 566 U.S. 231 (2012), that a district court may order that a federal sentence be consecutive to an anticipated state sentence that has not yet been imposed. See, e.g., United States v. Lynn, 912 F.3d 212, 216-17 (4th Cir. 2019) (“In Setser, noting that sentencing judges ‘have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings,' the [Supreme] Court held that 18 U.S.C. § 3584(a) allows judges to impose a federal sentence concurrently or consecutively to an anticipated, but unimposed, state sentence.” (citations omitted)).

         The Sentencing Commission added Amendment 787 following Sester, and it ...


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