United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
Lake United States District Judge.
February 23, 1990, this Court sentenced Arturo Cantu-Rivera
to concurrent terms of life imprisonment on Counts 1 and 2 of
the indictment, which charged him with conspiracy to possess
with intent to distribute in excess of 5 kilograms of
cocaine, in violation 21 U.S.C. § 841(a)(1), (b)(1)(A)
and 846, and aiding and abetting the possession with intent
to distribute the same, in violation of 21 U.S.C. § 841
(a)(1), (b)(1)(A) and 18 U.S.C. § 2. Before trial, the
United States fled notice of enhancement by reason of prior
convictions, in accordance with 21 U.S.C. § 851, so that
a sentence of life imprisonment was mandatory. In addition to
the term of imprisonment, the Court imposed a 10-year term of
supervised release fr each count, also to run concurrently, a
$1, 000, 000 fine and a $100 special assessment per count.
Cantu-Rivera now petitions this Court to modify the life
terms of imprisonment on each count to a period of time
served, which now represents more than 30 years of
imprisonment. For the reasons explained below, and in
accordance with 18 U.S.C.§ 3582(c)(1)(A)(i), the Court
will grant the motion and modify the term of imprisonment on
Counts 1 and 2 to a period of time served, with all other
terms of sentence as originally imposed on February 23, 1990,
to remain unchanged.
First Step Act of 2018 amended 18 U.S.C. § 3582(c)(1)(A)
to allow district courts to modify sentences of imprisonment
upon motion by the defendant if "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 30 days from the receipt of such a
request by the warden of the defendant's facility,
whichever is earlier...."§ 603(b), 132 Stat. 5194,
5239 (codified at 18 U.S.C.§ 3582(c)(l)(A)). Mr.
Cantu-Rivera's petition, fled on March 11, 2019, (Docket
No. 475) meets the requirement of a lapse of 30 days from the
receipt by the warden of the defendant's facility. The
response of the warden to Mr. Cantu-Rivera's request,
dated May 13, 2019, acknowledged receipt of the request on
January 31, 2019. (Docket No. 485-1 at 2).In the same
response, the BOP confirmed that Mr. Cantu-Rivera had
exhausted all administrative rights of appeal. Id.
The Court therefore has the authority to address the motion
of the defendant.
3582(c)(1)(A)(i) authorizes the modification of a sentence of
imprisonment if "extraordinary and compelling reasons
warrant such reduction" and "such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission," as set out in United States
Sentencing Guideline§ 1 B 1.13. Mr. Cantu-Rivera's
Motion fr Modification of Term of Imprisonment, his Reply to
United States' Response, and the documents attached
thereto as appendices, establish extraordinary and compelling
reasons as further defined by U.S.S.G. § 1 B 1.13,
Cantu-Rivera meets the age-related definition of
extraordinary and compelling circumstances in U.S.S.G. §
1B1.13, comment. (n.1(B)). He is 69 years old, he is
experiencing serious deterioration in physical health because
of the aging process (arthritic conditions in multiple
joints, cataracts, diabetes, prostrate conditions), and he
has served 30 years in prison.
Cantu-Rivera also meets the requirements of U.S.S.G. §
1B1.13, comment. (n.1 (D)), which permits a reduction when
"there exists in defendant's case an extraordinary
and compelling reason other than, or in combination
with," the remainder of the Guideline
definition. Such a combination of factors is present
in this case. First, the Court notes the age-related factors
previously discussed. The Court also recognizes the
extraordinary degree of rehabilitation Mr. Cantu-Rivera has
accomplished during the 30 years he has been
incarcerated. That rehabilitation includes extensive
educational achievements, including Mr. Cantu-Rivera's
completion of over 4, 000 hours of teaching while in federal
prison to complete a Teaching Aide apprenticeship with the
Department of Labor. The extraordinary degree of
rehabilitation is also evident in Mr. Cantu-Rivera's
service as a teaching assistant in several prison facilities
fr high-school equivalence and English-as-a-Second-Language
programs and his service in the BOP's suicide watch
program, helping to care fr inmates placed in solitary
confinement due to suicide attempts. Finally, the Court
recognizes as a factor in this combination the fundamental
change to sentencing policy carried out in the First Step
Act's elimination of life imprisonment as a mandatory
sentence solely by reason of a defendant's prior
convictions. § 401(a)(2)(A)(ii), 132 Stat. at 5220
(codified at 21 U.S.C. § 841(b)(1)(A)). The combination
of all of these factors establishes the extraordinary and
compelling reasons justifying the reduction in sentence in
Cantu-Rivera does not present a "danger to the safety of
any other person or to the community, as provided in 18
U.S.C. § 3142(g)." U.S.S.G. § 1 B 1.13(2).
Although Mr. Cantu-Rivera was convicted of serious offenses,
the evidence of rehabilitation during the intervening 30 year
period, the extensive and close ties that Mr. Cantu-Rivera
maintains with his family and community in the Fort Worth
area, the evidence of the limitations that age now place on
Mr. Cantu-Rivera's physical abilities, and Mr.
Cantu-Rivera's own statements to this Court concerning
his past crimes and current attitudes and beliefs, all
convince this Court that Mr. Cantu-Rivera presents no danger
the Court has considered the factors set out in 18 U.S.C.
§ 3553(a). The Court concludes that, in light of the
changed circumstances explained above, a sentence of time
served, representing 30 years in prison, reflects the
seriousness of the offense, promotes respect fr the law and
provides just punishment. 18 U.S.C. § 3553(a)(2)(A).
This sentence will also avoid unwarranted disparities among
defendants with similar records convicted of similar conduct
in this same case because this 30-year sentence exceeds the
sentences imposed on other members of the drug-trafficking
conspiracy. 18 U.S.C. § 3553(a)(6). Consistent with the
Court's conclusion that Mr. Cantu-Rivera does not
represent a danger to any person or the community, the Court
concludes that this sentence has served and continues to
serve as adequate deterrence and to protect the public form
further crimes of this defendant, which, given Mr.
Cantu-Rivera's age and rehabilitation, this Court expects
will not occur. 18 U.S.C. § 3553(a)(2)(B), (C).
Mr. Cantu-Rivera's Motion fr Modification of Term of
Imprisonment (Docket Entry No. 4 75) is
GRANTED and the Court
MODIFIES the term of imprisonment on Counts
1 and 2 to a period of TIME SERVED, with all
other terms of sentence as originally imposed on February 23,
1990, to remain unchanged.
 Application Note 1 (D), as currently
written, provides that such combination of circumstances will
be "[a]s determined by the Director of the Bureau of
Prisons.'' However, the current policy statement
predates the enactment of the First Step Act and is not
likely to be amended within the foreseeable future due to
lack of a sufficient number of serving members of the
Sentencing Commission. See United States v.
Handerhan, No. 1:1 0-CR-00298, 2019 WL 1437903 at * 1
n.4 (M.D. Pa. 2019) (unpublished). Because the current
version of the Guideline policy statement conflicts with the
First Step Act, the newly-enacted statutory provisions must
be given effect. See United States v. Conrado Cantu,
No. 1:05-CR-458-1, Order at 6-11 (S.D. Tex. June 17,
The Court does not consider Mr.
Cantu-Rivera's rehabilitation, by itself, as sufficient
to constitute an extraordinary and compelling reason. 28
U.S.C. § 994(t); U.S.S.G. § 1 B 1.13, comment.
(n.3). The Court considers his rehabilitation in combination
with the other factors to constitute, in their entirety, such
extraordinary and compelling reasons. See Pepper v.
United States,562 U.S. 476, 490-91 (2011)
("evidence of postsentencing rehabilitation may be
highly relevant to several of the ...