United States District Court, S.D. Texas
GARCIA MARMOLEJO UNITED STATES DISTRICT JUDGE.
before the Court is Mr. Cantu's Letter Motion (Dkt. No.
314), which, construed liberally, seeks to reduce his
imprisonment term under 18 U.S.C. § 3582(c)(1)(A) and be
placed in home confinement. (Id.). The Government
has filed two motions asserting that it is not opposed to Mr.
Cantu spending the remainder of his term of imprisonment in
home confinement. (Dkt. Nos. 318, 319).
2005, Mr. Cantu pleaded guilty to one count of racketeering
in violation of 18 U.S.C. § 1962(c). (Dkt. Nos. 70, 71).
He was subsequently sentenced to the mandatory minimum of 290
months imprisonment. (Dkt. Nos. 161, 162). In 2014, the
Sentencing Commission promulgated Amendment 782, which
lowered the base offense levels for all drugs in the Drug
Quantity Table, and made the amendment retroactive. Mr. Cantu
then filed a motion for reduction of sentence based on
Amendment 782. (Dkt. Nos. 262, 263). After Government
briefing (Dkt. No. 267) and an evidentiary hearing, the Court
reduced Mr. Cantu's sentence to 210 months, the maximum
reduction allowed under the amendment. (Dkt. No. 308). Later,
Congress passed the First Step Act, which allows
defendants-as opposed to only the BOP-to bring motions for
reduction of sentence under 18 U.S.C. § 3582(c)(1)(A).
That change in the law precipitated Mr. Cantu's current
motion before the Court. (Dkt. No. 314).
First Step Act of 2018, which focuses on promoting
rehabilitation and combating recidivism, amended the Elderly
and Family Reunification for Certain Nonviolent Offenders
Pilot Program ("Family Reunification Program") and
18 U.S.C. § 3582(c). Pub. L. No. 226-391, § 603,
132 Stat. 5194, 5238-40 (2018). Under the Family
Reunification Program, the BOP has discretion to release
eligible elderly offenders from Bureau facilities to home
confinement. Id. at § 60541(g)(1)(A)-(B). An
eligible elderly offender is one who meets all seven criteria
determined by Congress, three of which the BOP has sole
discretion to determine. Id. at §
section titled "Increasing the Use and Transparency of
Compassionate Release," the First Step Act amended
§ 3582(c)(1)(A) to allow courts to modify sentences not
only upon motion of the Director of the BOP but also upon
"motion of the defendant after the defendant has fully
exhausted all administrative rights to appeal a failure of
the Bureau of prisons to bring a motion on the
defendant's behalf or the lapse of 30 days from the
receipt of such a request by the warden of the
defendant's facility." § 603(b), 132 Stat, at
5239 (codified at 18 U.S.C. § 3582(c)(1)(A)). A court
may now modify a defendant's sentence if it finds on
either the BOP's or the defendant's motion that
"extraordinary and compelling reasons warrant such a
reduction" and "such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission." Id. at 3582(c)(1)(A)(i).
policy statement regarding compassionate release sets forth
three specific reasons that are considered
"extraordinary and compelling" as well as a
catchall provision recognizing as "extraordinary and
compelling" any other reason "[a]s determined by
the Director of the Bureau of Prisons." U.S. SENTENCING
GUIDELINES MANUAL § 1B1.13 cmt. n.l (U.S. SENTENCING
COMM'N 2018). It also requires that "the defendant
is not a danger to the safety of any other person or to the
community," and that the Court's determination is in
line with "the factors set forth in 18 U.S.C. §
3553(a)." Id. at § 1B1.13(2) & cmt.
n.4. That policy statement has not been amended since the
First Step Act,  and some of it now clearly contradicts 18
U.S.C. 3582(c)(1)(A). See Id. at § 1B1.13 cmt.
n.4 ("A reduction under this policy statement may be
granted only upon motion by the Director of the Bureau of
Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A).");
United States v. Overcash, 3:15-cr-263-FDW-l, 2019
WL 1472104, at *2 (W.D. N.C. Apr. 3, 2019) ("The Court
agrees that § 1B1.13 now conflicts with § 3582
insofar as a defendant is now able to request a sentence
reduction upon a defendant's own motion rather than
having to rely on the BOP Director.").
The Family Reunification Program
though both this Court and the Government agree that Mr.
Cantu is an eligible elderly offender who should be released
to home confinement under the Family Reunification
Program-and the Government further urges that the
Court could issue an order causing the BOP to release Mr.
Cantu under that program- this Court does not have the authority
to grant such relief. The First Step Act grants only the
Attorney General, and by delegation the BOP, authority to
grant release to home confinement under the Family
Reunification Program. See 34 U.S.C. §
60541(g)(1). And it has long been settled that the Attorney
General has "exclusive authority and discretion
to designate the place of an inmate's confinement."
Zheng YiXiao v. La Tuna Fed. Corr. Inst.,
EP-19-CV-97-KC, 2019 WL 1472889, at *3 (W.D. Tex. Apr. 3,
2019) (emphasis added) (citing Moore v. United States
Att'y Gen., 473 F.2d 1375, 1376 (5th Cir. 1973);
Ledesma v. United States, 445 F.2d 1323, 1324 (5th
Cir. 1971)); see 18 U.S.C. § 3621(b). Moreover,
the BOP has "sole discretion" to determine if an
offender has a history of violence, clearly foreclosing the
courts from making an alternative finding. See 34
U.S.C. § 60541(g)(5)(A)(iv). The Court thus may not
reject the BOP's disqualification of Mr. Cantu from the
Family Reunification Program.
Availability of Relief Under 18 U.S.C. § 3582
Mr. Cantu requests relief under 18 U.S.C. § 3582. (Dkt.
No. 314 at 3-4). Because the Family Reunification Program
only allows a modification in the method of imprisonment and
not the term of imprisonment, see Curry, 2019 WL
508067, at *2, the Court will construe Mr. Cantu's motion
liberally to seek separate relief under §
3582. So construed, Mr. Cantu asks the Court to
reduce his sentence to time-served and impose a term of
supervised release equal to the unserved portion of his
previous term of imprisonment, with a special condition that
he remain confined to the home of his son, who is a doctor in
Corpus Christi, Texas. (Dkt. No. 314 at 3-6).
the newly amended § 3582(c)(1)(A), Mr. Cantu has
standing to bring this motion because more than 30 days
elapsed between his reduction-in-sentence request to the
warden and a response. (Dkt. No. 314 at 8). The Court may
reduce the term of imprisonment (and may impose a term of
probation or supervised release with or without conditions
that does not exceed the unserved portion of the original
term of imprisonment), after considering the factors set
forth in section 3553(a) to the extent that they are
applicable, if it finds that-(i) extraordinary and compelling
reasons warrant such a reduction . . . and that such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A). To determine what the
Sentencing Commission considers "extraordinary and
compelling," the Court turns to United States Sentencing
Guidelines § 1B1.13. Mr. Cantu has not presented evidence
that his reasons are extraordinary and compelling under the
three explicitly defined reasons. U.S. Sentencing Guidelines
Manual § 1B1.13 cmt. n.l(A)-(C) (U.S. Sentencing
COMM'N 2018). The question then is whether the Court, as
opposed to the Director of and compelling reason other than,
or in combination with, the reasons described in subdivisions
(A) through (C)" and grant relief on that basis.
Id. at § 1B1.13 cmt. n.l(D).
Congress empowered the Commission to issue policy statements
regarding the appropriate use of the sentence-modification
provisions under § 3582, 28 U.S.C. § 994(a)(2)(C),
Congress may override the Commission's policy statements
by statute. Because the Commission's statutory
authority is limited to explaining the appropriate use of
sentence-modification provisions under the current
statute, 28 U.S.C. § 994(a)(2)(C), an amendment to the
statute may cause some provisions of a policy statement to no
longer fall under that authority, as they no longer explain
an appropriate use under the amended statute. For example, at
least one provision of the Commission's previously
promulgated policy statement is clearly contradicted by the
First Step Act's amendments to § 3582: The unamended
policy statement still advises that "[a] reduction under
this policy statement may be granted only upon motion by the
Director of the Bureau of Prisons." U.S. SENTENCING
GUIDELINES Manual § 1B1.13 cmt. n.4 (U.S. Sentencing
Comm'n 2018). Yet § 3582 allows the Court to grant a
motion for extraordinary and compelling reasons upon a motion
by the Director of the Bureau of Prisons or by the defendant.
18 U.S.C. § 3582(c)(1)(A). The mandate that the Director
of the BOP determine additional extraordinary or compelling
reasons likewise fails to explain an "appropriate
use" under the newly amended § 3582.
two statutes are in conflict, it is nearly axiomatic that the
latter enacted is given preference over the former.
See ANTONIN SCALIA & BRYAN A. GARNER, Reading
Law: The Interpretation of Legal Texts 327 (2012) ("The
rule which ha[d] obtained in the courts for determining
[conflicting statutes'] relative validity [was] that the
last in order of time shall be preferred to the first."
(quoting The Federalist, No. 78, at 468 (Clinton
Rossiter ed. 1961))). That principle has especially strong
force here where the Commission derives its power to
promulgate the policy statement from Congress. Statutory
construction, however, is a "holistic endeavor"
that must consider the entire statutory scheme. See
United Sav. Ass'n of Tex. v. Timbers of Inwood Forest
Assocs., Ltd., 484 U.S. 365, 371 (1988). The Court
"must read [statutory] words 'in their context and
with a view to their place in the overall statutory
scheme.'" King v. Burwell, 135 S.Ct. 2480,
2489 (2015) (quoting FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000)). The
Court's role is "to make sense rather than nonsense
out of the corpus juris." W.Va. Univ. Hosps. v.
Casey, 499 U.S. 83, 101 (1991). The corpus juris here
consists of the statute (18 U.S.C. § 3582(c)), the
relevant policy statement (U.S.S.G. § 1B1.13), and the
statute granting the Commission authority to promulgate that
policy statement (28 U.S.C. § 994).
the First Step Act's amendments to § 3582, it made
sense that the BOP would have to determine any extraordinary
and compelling reasons-only the BOP could bring a motion for
a reduction of sentence under § 3582(c)(1)(A). But
defendants no longer need the blessing of the BOP to bring
such motions. The BOP in fact may never weigh in or provide
guidance when a § 3582(c) motion is brought by a
defendant. Cf. DeLuca v. Lariva, 586 Fed.Appx. 239,
241 (7th Cir. 2014) ("[W]hile the BOP's interpretive
Program Statement lists some factors the Bureau may
consider in determining whether to move for compassionate
release, that list is non-exhaustive."). Given the
changes to the statute, the policy-statement provision that
was previously applicable to 18 U.S.C. § 3582(c)(1)(A)
no longer fits with the statute and thus does not comply with
the congressional mandate that the policy statement must
provide guidance on the appropriate use of
sentence-modification provisions under § 3582.
title of the First Step Act section that amends 18 U.S.C.
§ 3582(c)(1)(A) lends further weight to that conclusion.
Titles are useful "when they shed light on some
ambiguous word or phrase," SCALIA & GARNER,
supra, at 221 (quoting Brotherhood of R.R.
Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519,
528-29 (1947)), because in modern practice "the title is
adopted by the legislature," id. (quoting James
DeWitt Andrews, "Statutory Construction," in 14
American Law and Procedure 1, 21-22 (James Parker
Hall & James DeWitt Andrews eds., rev. ed. 1948)). The
title of the section of the First Step Act of 2018 that
amends 18 U.S.C. § 3582 is "Increasing the Use and
Transparency of Compassionate Release." First Step Act
of 2018, Pub. L. No. 115-391, § 603(b), 132 Stat. 5194
(2018). That title supports the reading that U.S.S.G §
1B1.13 cmt. n.l(D) is not applicable when a defendant
requests relief under § 3582(c)(1)(A) as amended because
it no longer explains an appropriate use of that statute. For
if the Director of the BOP were still the sole determiner of
what constitutes an extraordinary and compelling reason, the
amendment's allowance of defendants' own §
3582(c)(1)(A) motions for reduction of sentence would be to
no avail. Such a reading would contravene the explicit
purpose of the new amendments.
one could come up with some policy arguments for leaving
U.S.S.G § 1B1.13 cmt. n.l(D) as is. For instance,
Congress may have wanted the Director of the BOP to publish
additional guidance and maintain control over what additional
factors would constitute extraordinary and compelling. The
statutory structure and history, however, belie such a
reading. And "[e]ven if the reader does not consider the
issue to be as clear as I do, he must at least acknowledge, I
think, that it is eminently debatable-and that is enough,
under the rule of lenity, to require finding for the
petitioner here." Smith v. United States, 508
U.S. 223, 246 (1993) (Scalia, J., dissenting); see Smith
u. United States, 508 U.S. 223, 239 (1993) ("[T]hat
venerable rule [of lenity] is reserved for cases where, after
seizing every thing [sic] from which aid can be derived, the
Court is left with an ambiguous statute." (cleaned up));
Moskal v. United States, 498 U.S. 103, 108 (1990)
(holding that the rule of lenity applies when "a
reasonable doubt persists about a statute's intended
scope even after resort to the language and
structure . . . and motivating policies of the statute."
the rule of lenity, U.S.S.G. § 1B1.13 cmt. n.l(D) no
longer describes an appropriate use of sentence-modification
provisions and is thus not part of the applicable policy
statement binding the Court. The rule of lenity mandates that
when two rational readings of a statute are possible, the one
that treats the defendant less harshly prevails,
seeMcNally v. United States, 483 U.S. 350, 359-60
(1987), because when statutes are unclear, "the
consequences should be visited on the party more able to
avoid and correct the effects of shoddy legislative
drafting," SCALIA & GARNER, supra, at 299.
That principle matters because the less the courts insist on
precision in statutes relating to punishments, "the less
the legislature will take the trouble to provide it."
Id. at 301. Thus, the correct interpretation of
§ 3582(c)(1)(A)-based on the text, statutory history and
structure, and consideration of Congress's ability to
override any of the Commission's policy statements
"at any time," Mistretta v. United States,
488 U.S. 361, 394 (1989)-is that when a defendant brings a
motion for a sentence reduction under the amended provision,
the Court can determine whether any extraordinary and
compelling reasons other than those delineated in U.S.S.G.
§ 1B1.13 cmt. n.l(A)-(C) warrant granting relief.
Court next turns to whether the defendant in this case has
presented such extraordinary and compelling reasons to
warrant a reduction under 18 U.S.C. 3582(c)(1)(A)(i).
Extraordinary and Compelling Reasons
little guidance exists on what constitutes extraordinary and
compelling reasons warranting a sentence reduction under
U.S.S.G § 1B1.13 cmt. n.l(D)-only the BOP was previously
empowered to seek such relief, and it rarely did so,
United States v. Gutierrez, No. CR 05-0217 RB, 2019
WL 1472320, at *1 (D.N.M. Apr. 3, 2019) (citations omitted).
The statute "does [not] define-or place any limits on-
what 'extraordinary and compelling reasons' might
warrant such a reduction." Crowe v. United
States,430 Fed.Appx. 484, 485 (6th Cir. 2011).
Black's Law Dictionary, however, defines
"extraordinary" as "[b]eyond what is usual,
customary, regular, or common," Extraordinary,
BLACK'S LAW DICTIONARY (10th ed. 2014), and extrapolating
from its definition of "compelling need," a