United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
Kevin Houston, a federal prisoner, filed pro se a
Motion for Consideration of Rehabilitation and for Time
Served [Dkt. No. 148] (the “Motion”).
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.
undersigned enters these findings of fact, conclusions of
law, and recommendation that the Court should deny the
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).
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.”).
Standards and Analysis
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).
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. §
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)).
Sentencing Commission added Amendment 787 following
Sester, and it ...