Opinion
No. CR-04-00313-003-PHX-SRB
2021-03-25
UNITED STATES of America, Plaintiff, v. Derrick L. MCCREARY, Defendant.
Charles Fred Hyder, US Attorneys Office, Phoenix, AZ, Denise Ann Faulk, US Attorneys Office, Tucson, AZ, for Plaintiff.
Charles Fred Hyder, US Attorneys Office, Phoenix, AZ, Denise Ann Faulk, US Attorneys Office, Tucson, AZ, for Plaintiff.
ORDER
Susan R. Bolton, United States District Judge
Pending before the Court is Defendant Derrick L. McCreary's Motion for Modification of Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(1) ("Motion"). (Doc. 372, ("Mot.").)
I. BACKGROUND
A. Offenses and Sentence
Mr. McCreary is in prison for his role in two armed bank robberies that took place in January and February of 2002. (See Presentence Investigation Report ("PSR") ¶¶ 5, 14.) Mr. McCreary recruited others; cased the banks beforehand; and provided clothes, unloaded guns, and a stolen car to those who carried out the robberies. (Id. ¶¶ 27, 31.) Nobody was seriously injured during either robbery. (Id. ¶¶ 32–37.)
In 2005, a jury convicted Mr. McCreary and his co-defendant, John Freeman Hunter, on five counts: conspiracy in violation of 18 U.S.C. § 371 (Count 1); armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) (Counts 2 & 4); and possessing, using, carrying or brandishing a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c) (Counts 3 & 5). (Doc. 272, 12/14/2005 Judgment & Commitment of McCreary ("J&C-McCreary") at 1.) Mr. McCreary was sentenced to a total of 38.5 years imprisonment. (Id. ) Specifically, Mr. McCreary received: 5 years (60 months) for Count 1 and 6.5 years (78 months) each for Counts 2 and 4, with Counts 1, 2, and 4 to run concurrently; and 7 years (84 months) for Count 3 and 25 years (300 months) for Count 5, with Counts 3 and 5 to run consecutively. (Id. ) The sentencing judge stated that Mr. McCreary's sentence was "harsh," "really long," and "plainly on the high side," but that he was not free to impose a shorter sentence. (Doc. 371-1, Ex, 1, Sentencing Tr. Excerpts ("ST") at 24:9, 38:5, 50:3–6.); see 18 U.S.C. § 924(c) (2005). Mr. McCreary's projected release date is in February 2037. (Doc. 372-1, Ex. 6, BOP Record of Release Date Calcs. and Re-Entry Prog. Review ("BOPR-Release and Re-Entry") at 64.)
The superseding indictment charged that beginning in January of 2002 the defendants conspired to commit armed bank robbery, which resulted in the armed robbery of the Tempe Schools Federal Credit Union, and the theft of more than $100,000 from the Safeway Federal Credit Union on February 28, 2002. (Doc. 118, Superseding Indictment.) The indictment alleged the defendants had used, carried, and brandished a firearm in the furtherance of the crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 18 U.S.C. § 924(c)(2), on both January 22, 2002 (regarding the armed robbery of the Tempe Schools Federal Credit Union), and February 28, 2002 (regarding the armed robbery of the Safeway Federal Credit Union). (Id. )
Mr. Hunter was sentenced to a total of 42 years imprisonment. (Doc 271, 12/14/2005 Judgment & Commitment of Hunter ("J&C-Hunter") at 1.) The other participants entered into plea agreements and received sentences ranging from 39 to 84 months. (PSR at 1a; Mot. at 2 n.2.)
These sentences are based on a total offense level of 26 and a criminal history category of III, which triggered a guideline range of 78 to 97 months imprisonment for Counts 2 and 4, and 60 months for Count 1 which was subject to a statutory maximum. (See PSR ¶ 79; U.S.S.G. §§ 5A, 5.1.1(c)(1).)
B. Criminal History
The Presentence Report assigned Mr. McCreary a criminal history category of III, which reflected one prior felony conviction for second-degree robbery at age 18 and several misdemeanor convictions for tampering with a vehicle, shoplifting, and driving with a suspended license. (PSR ¶¶ 61–70.) Mr. McCreary was 30 years old at the time of the armed robberies. (PSR ¶ 70.) He has now served 17 years and is nearing 50 years old.
C. Conduct in Prison
Mr. McCreary has made productive use of his time in prison. He obtained his GED in 2007 and continued taking courses to prepare him for a career when he leaves prison. (Doc. 372-1, Ex. 4, BOP Record of Classes Taken by Mr. McCreary ("BOPR-Classes") at 58–59.) He has taken courses entitled "Starting Your Own Business," "Business Etiquette," and "Financial Statements." (Id. ) He has taken courses geared toward rehabilitation, including "Conflict Management," "Attitude Adjustment," and "Alternatives to Violence." (Id. ) He has taken several typing classes as well as classes focused on health and wellness. (Id. ) In total, he has completed over 500 hours of coursework. (Mot. at 22.)
Mr. McCreary's prison discipline history is short. He was disciplined once in 2010 for possessing a dangerous weapon, during which he admitted that he "made a bad decision," and once in 2017 for "Mail Abuse," in which Mr. McCreary "admitted to sending emails, but had deleted after he received his last email." (Doc. 378, Ex. 8.) He has no record of substance abuse. (Mot. at 22.)
Mr. McCreary holds the position of Compound Orderly and participates in a financial responsibility plan, under which he has consistently made payments. (BOPR-Release and Re-Entry at 65.) The United States does not challenge the accuracy, validity, or relevancy of any of Mr. McCreary's activities in prison. (See Doc. 389, United States’ Resp. to Mot. ("Resp.") at 16.) D. Plan Upon Release
Mr. McCreary has an offer of employment at an auto mechanic shop owned by his cousin and has a similar backup job should this fall through. (Doc. 372-1, Ex. 5, McCreary Release Plan at 61.) He would live with his mother and his aunt. (Id. ) Members of Mr. McCreary's support system have written letters to the Court expressing their continued love and support for him. (See Doc. 372-1, Ex. 3, Character Letters at 41–56.) The United States does not challenge any aspect of Mr. McCreary's plan. (See Resp.)
E. Procedural Background
On April 21, 2020, Mr. McCreary made a request to the warden of his facility to file a motion for a sentence reduction on his behalf. (Doc. 372-1, Ex. 1, Admin. Request to BOP for Compassionate Release at 2–14.) This request was denied. (Id. at 5.) On October 7, 2020, Mr. McCreary filed his Motion in this Court. (Mot.) On November 9, 2020, Mr. McCreary filed supplemental exhibits. (Doc. 388, Def.’s Supp'l Exs. to Mot.) On November 20, 2020, the United States filed its Response. (Resp.) On December 7, 2020, Mr. McCreary filed his Reply. (Doc. 390, Def.’s Reply to Resp. ("Reply").)
The Court does not detail Mr. McCreary's subsequent appeals of this denial within the prison system because the parties agree that Mr. McCreary has met his administrative exhaustion requirements. (Mot. at 19; Resp. at 3.)
II. LEGAL STANDARD & ANALYSIS
Federal district courts "may not modify a term of imprisonment once it has been imposed" except in limited circumstances. 18 U.S.C. § 3582(c) ; Dillon v. United States , 560 U.S. 817, 824–25, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Mr. McCreary seeks a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Section 3582(c)(1)(A) provides that a court may reduce a term of imprisonment if, after determining that the prisoner satisfied administrative exhaustion requirements, (1) "extraordinary and compelling reasons" warrant a reduction, (2) the reduction would be "consistent with any applicable policy statements issued by the Sentencing Commission," and (3) the applicable sentencing factors under 18 U.S.C. § 3553(a) warrant a reduction. Dillon , 560 U.S. at 824, 130 S.Ct. 2683 ; 18 U.S.C. § 3582(c)(1).
A. First Step Act & Applicable Policy Statements
Prior to the First Step Act, courts could consider sentence reductions under 18 U.S.C. § 3582(c) only upon motion of the Bureau of Prisons ("BOP"). See 18 U.S.C. § 3582(c)(1)(A) (2012). The First Step Act eliminated the BOP's gatekeeping role and granted federal prisoners the right to file their own motions after exhausting administrative remedies. See First Step Act, 132 Stat. at 5239.
Congress has not defined "extraordinary and compelling reasons" except to note elsewhere that "rehabilitation ... alone" does not suffice. See 28 U.S.C. § 994(t). Pursuant to its delegated authority and before passage of the First Step Act, the Sentencing Commission issued a policy statement defining "extraordinary and compelling reasons." U.S.S.G. § 1B1.13. Section 1B1.13 states that "extraordinary and compelling reasons" include: (A) medical condition; (B) age; (C) family circumstances of the defendant; and (D) "other reasons"—a catch-all provision permitting the BOP to determine that "reason[s] other than, or in combination with, the reasons described in subdivisions (A) through (C)," rise to the level of "extraordinary and compelling." Id. § 1B1.13 cmt. n.1(A)–(D).
The Commission first issued its policy statement in 2006 and last updated it in November 2018. United States v. McCoy , 981 F.3d 271, 276 (4th Cir. 2020).
To date, four circuit courts have issued published decisions concluding that Section (D)’s catch-all provision does not constrain courts’ discretion in determining the existence of extraordinary and compelling reasons. United States v. Jones , 980 F.3d 1098, 1109 (6th Cir. 2020) ("We now join the majority of district courts and the Second Circuit in holding that the passage of the First Step Act rendered § 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for compassionate release."); United States v. Brooker , 976 F.3d 228, 235–36 (2d Cir. 2020) ("[W]e read the Guideline as surviving [the First Step Act], but now applying only to those motions that the BOP has made."); United States v. Gunn , 980 F.3d 1178, 1180 (7th Cir. 2020) ("[B]ecause the Guidelines Manual lacks an applicable policy statement, the trailing paragraph of § 3582(c)(1)(A) does not curtail a district judge's discretion. Any decision is ‘consistent with’ a nonexistent policy statement."); McCoy , 981 F.3d at 280–83 ("By its plain terms, in short, § 1B1.13 does not apply to defendant-filed motions under § 3582(c)(1)(A)."). Each of these courts has concluded that because § 1B1.13 presupposes a provision that no longer exists—the provision designating the BOP as gatekeeper — § 1B1.13 does not apply when prisoners file motions under 18 U.S.C. § 3582(c). Jones , 980 F.3d at 1109 ; Brooker , 976 F.3d at 235–36 ; Gunn , 980 F.3d at 1180 : McCoy , 981 F.3d at 280–83. This Court agrees that Section (D) of the Application Notes no longer limits courts’ discretion in § 3582(c) motions filed by prisoners. Accord United States v. Pollard , No. CR 10-633-1, 2020 WL 4674126, at *5 n.5 (E.D. Pa. Aug. 12, 2020) (collecting district court cases holding the same). However, lacking any controlling Ninth Circuit authority at this time, the Court does not disregard § 1B1.13 in its entirety, but continues to assess whether the defendant poses a danger to the community as required elsewhere in § 1B1.13. See U.S.S.G. § 1B1.13(2).
Application Note (4) states: "A reduction under this policy statement may be granted only upon motion by the BOP Director pursuant to 18 U.S.C. § 3582(c)(1)(A)." U.S.S.G. § 1B1.13 cmt. n.4. The First Step Act changed this provision. See First Step Act, 132 Stat. at 5239. A new policy statement has not (and presently cannot) be issued because the Sentencing Commission lacks a quorum. Gunn , 980 F.3d at 1180.
B. Extraordinary and Compelling Reasons, Sentencing Goals, and Danger to the Public
Mr. McCreary bears the burden of establishing that extraordinary and compelling reasons warrant a reduction in his sentence. United States v. Sprague , 135 F.3d 1301, 1306–07 (9th Cir. 1998). Mr. McCreary argues that the disparity between the sentence he received and the sentence he would receive today for the same § 924(c) offenses—an 18-year difference—is "punitive[ly] unfair[.]" (Mot. at 19.) Further demonstrating the unfairness of his sentence, Mr. McCreary argues, are: the sentence disparities between him and his co-conspirators, most of whom received sentences ranging from 39 to 84 months for their involvement in the armed robberies; the sentencing judge's comments regarding the lack of flexibility afforded by § 924(c) at the time of sentencing; and Congress's acknowledgement that § 924(c) ’s prior sentencing requirements were excessive. (See Mot.; Reply at 14.) Mr. McCreary also argues that his rehabilitation efforts and limited prison disciplinary record indicate that he is not a danger to the public and further justify a sentence reduction. (Mot. at 2–3, 5; Reply at 14.)
Mr. McCreary makes two additional arguments which the Court rejects. First, Mr. McCreary argues that Dean v. United States , ––– U.S. ––––, 137 S.Ct. 1170, 197 L.Ed.2d 490 (2017) "mak[es] clear that fair sentencing allows judges to sentence as an entire ‘package’ taking into consideration § 924(c) mandatory minimums" and applies to this case. (Reply at 14.) Had the sentencing court "been considering a ‘sentencing package’ as opposed to sentencing count-by-count[,]" Mr. McCreary continues, the court "likely would have sentenced [him] differently on Counts 1, 2 and 4[.]" (Mot. at 19.) The Court agrees with Mr. McCreary's reading of Dean but rejects his argument because it is speculative and ignores this Court's discretion in sentencing matters. See Brooker , 976 F.3d at 237–38 (stating that as in all sentencing matters, a court's discretion under § 3582(c)(1)(A) is broad). Second, Mr. McCreary argues that the racially disproportionate impact of 18 U.S.C. § 924(c) ’s prior sentencing scheme justifies his early release. (Reply at 14.) But because Mr. McCreary does not trace this argument to a specific factor enumerated in either § 3553(a) or § 1B1.13, or develop this argument in any significant way, the Court does not consider it. (See Mot.; Reply.)
"[C]ourts legitimately may consider, under the ‘extraordinary and compelling reasons’ inquiry, that defendants are serving sentences that Congress itself views as dramatically longer than necessary or fair." McCoy , 981 F.3d at 285–86. The Court agrees with the sentencing judge that the length of Mr. McCreary's total sentence—38.5 years—was "harsh" at the time of sentencing and even harsher compared to what he would receive if sentenced today. (ST at 38:5.) In cases in which a defendant does not have a § 924(c) conviction in a prior case, the current version of § 924(c) mandates a minimum consecutive sentence of five years, increased to seven years if the weapon is brandished, and ten years if it is discharged. See 18 U.S.C. § 924(c)(1)(A)(ii). Because a firearm was brandished in both robberies, Mr. McCreary would today face a minimum sentence for his § 924(c) offenses of 14 years. This time would be stacked on top of the 6.5 years imposed for the substantive offenses, for a total of 20.5 years. (PSR ¶ 60; J&C-McCreary at 1.) A 20.5-year sentence differs from Mr. McCreary's 38.5-year sentence by 18 years. This discrepancy demonstrates the harshness of Mr. McCreary's sentence.
Confirming the excessiveness of Mr. McCreary's sentence is the nature of the § 924(c) amendment. Section 403 of the First Step Act—entitled "Clarification of § 924(c)"—limited "stacking" by imposing the 25-year mandatory minimum only in cases in which there was a prior § 924(c) conviction in a separate case that had already "become final." First Step Act, 132 Stat. at 5221–22. Implicit in this amendment is Congress's recognition that more extensive criminal histories merit more extensive punishment, and that a 25-year stacked sentence is on the more extensive end of the spectrum.
The United States argues that "permitting a sentencing reduction on the basis of stacked successive § 924(c) sentences contravenes the First Step Act's explicit statutory directive of non-retroactivity." (Resp. at 5.) The United States is correct that the First Step Act's § 924(c) amendments are nonretroactive. See United States v. Voris , 964 F.3d 864, 875 (9th Cir. 2020) ("Congress ... expressly limited the retroactive application of § 403."). The Court, however, disagrees that this provision bars any consideration of Mr. McCreary's unusually long sentence under the different statutory scheme of 18 U.S.C. § 3582(c). As another court recognized, " ‘[i]t is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis’ through compassionate release." United States v. Clausen , No. CR 00-291-2, 2020 WL 4260795, at *7 (E.D. Pa. July 24, 2020) (quoting United States v. Chan , 2020 WL 1527895, at *6 (N.D. Cal. Mar. 31, 2020) ). And as the Fourth Circuit and multiple district courts have explained, "there is a significant difference between automatic vacatur and resentencing of an entire class of sentences—with its ‘avalanche of applications and inevitable resentencings[ ]’—and allowing for the provision of individual relief in the most grievous cases." McCoy , 981 F.3d at 286–87 (citation omitted) (collecting cases). This Court agrees: by according relief only to those defendants whose sentences meet the threshold requirement of being "dramatically longer than necessary or fair"—only in the most "grievous" of cases, in other words—courts do not subvert congressional intent.
The Court finds that Mr. McCreary's sentence is "dramatically longer than necessary or fair." See McCoy , 981 F.3d at 285–86. The Court emphasizes that this is a threshold finding and now proceeds to examine whether Defendant's lengthy sentence, when combined with other factors, rises to the level of "extraordinary and compelling." Accord Brooker , 976 F.3d at 238 (identifying "the injustice of [a] lengthy sentence" as a factor that may weigh in favor of a sentence reduction); McCoy , 981 F.3d at 287 (affirming district courts’ grant of compassionate release motion because they "relied not only on the defendants’ § 924(c) sentences but on full consideration of the defendants’ individual circumstances").
The Court next considers whether Mr. McCreary's sentence exceeds the length necessary to accomplish the goals of sentencing and whether Mr. McCreary presents a danger to the public. See 18 U.S.C. § 3582(c)(1)(A) (requiring courts to "consider[ ] the factors set forth in section 3553(a) to the extent that they are applicable"). Section 3553(a), 18 U.S.C., requires a court to "impose a sentence ‘sufficient, but not greater than necessary’ to accomplish the goals of sentencing." Kimbrough v. United States , 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting 18 U.S.C. § 3553(a) ). Applicable § 3553(a) factors include: (1) the nature and circumstances of the offense and the defendant's history and characteristics; (2) the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide punishment, deter criminal conduct and protect the public from further crimes by the defendant; (3) the kinds of sentences and sentencing ranges available; and (4) the need to avoid unwarranted sentence disparities among defendants committing similar offenses. 18 U.S.C. § 3553(a) ; United States v. Babbitt , No. CR 18-384, 496 F.Supp.3d 903, 915-16 (E.D. Pa. Oct. 21, 2020) (identifying relevant factors). The Court also considers whether Mr. McCreary presents "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. § 1B1.13(2). Applicable § 3142(g) factors include "the nature and circumstances of the offense, ... the person's character, physical and mental condition, family ties, employment, ... criminal history," and "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g).
The Court finds the following circumstances relevant to these considerations.
First, uncontradicted testimony introduced at trial established that Mr. McCreary ensured that the guns used in the robberies were not loaded. (ST at 40:6–13 (referencing testimony).) The sentencing judge believed this fact significant and this Court does too. (Id. at 48:18–19.) While the Court recognizes the serious nature of armed robberies and the potential for physical harm to victims, this evidence suggests that Mr. McCreary had some level of concern for the safety of his victims.
Second, Mr. McCreary has a limited criminal history. He was categorized as a level 26 offender with a criminal history category of III, which reflects one prior felony conviction for second-degree robbery at age 18 and several misdemeanor convictions for tampering with a vehicle, shoplifting, and driving with a suspended license. (PSR ¶¶ 61–69.) The Court finds that this criminal history does not preclude the possibility that during incarceration, Mr. McCreary has taken substantial steps toward rehabilitation.
Third, the Court finds that Mr. McCreary has proved as much. He has completed over 500 hours of education and taken classes such as "Alternatives to Violence," "Conflict Management," and "Attitude Adjustment," which will, upon release, aid him in avoiding future criminal conduct. (Mot. at 22; BOPR-Classes at 58–59.) He holds the position of Compound Orderly and periodically makes his payments under his financial responsibility plan. (BOPR-Release and Re-Entry at 65.) See McCoy , 981 F.3d at 286 (district courts appropriately considered defendants’ "excellent institutional records" and the "substantial steps" taken by these defendants "toward rehabilitation").
Fourth, Mr. McCreary's prison disciplinary record is slim. Aside from a minor infraction related to an email in 2017, Mr. McCreary's only disciplinary action dates back to 2010. (See Mot. at Ex. 8.) His prison disciplinary record lacks significant indicia of aggression, violence, substance use or abuse, or gang-related activity.
Lastly, in a letter to the Court, Mr. McCreary states that he has reflected on his actions and regrets his "reckless, bad and selfish decisions that not only hurt myself" but others, too. (Doc. 372-1, Ex. 7, Def. Ltr. to Ct. at 68–69.)
"[A] sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing." Gall v. United States , 552 U.S. 38, 54, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (quotation omitted). After considering all of the above factors, the Court finds that Mr. McCreary has presented "extraordinary and compelling reasons" and proved that he is not a danger to the public. These circumstances, considered together, justify a sentence reduction.
The Court highlights what it did not rely on: a comparison of Mr. McCreary's sentence to the sentences received by others who participated in the robberies. (See Mot. at 2 & n.2 (arguing their relevance).) While most co-participants entered into plea agreements and received sentences ranging from 39 to 84 months, the Court notes that Mr. McCreary's co-defendant at trial received a longer sentence (42 years) than Mr. McCreary himself. (J&C-Hunter at 1.)
III. CONCLUSION
After considering the sheer length of Mr. McCreary's sentence; the significant disparity between the sentence he received and the sentence he would receive following the First Step Act's amendments; the nature of Congress's amendments to 18 U.S.C. § 924(c) ; the facts of the underlying offenses, particularly Mr. McCreary's decision to unload the guns that were used in the robberies; the substantial steps Mr. McCreary has taken toward rehabilitation, including over 500 hours of coursework completed, a position held, and payments made while incarcerated; Mr. McCreary's other conduct in prison, including his slim prison disciplinary record; Mr. McCreary's specific plans for release; letters from Mr. McCreary expressing regret and letters from his family members expressing support; the Court concludes that Mr. McCreary has carried his burden of proving that he qualifies for a sentence reduction under 18 U.S.C. § 3582(c). The Court will grant Mr. McCreary's Motion and reduce his sentence.
IV. SENTENCE REDUCTION
As in all sentencing matters, the Court's discretion under § 3582(c)(1)(A) is broad. Brooker , 976 F.3d at 237–38. If sentenced after The First Step Act's amendments to § 924(c), the sentencing judge likely would have sentenced Mr. McCreary to 20.5 years in prison (6.5 years for the substantive offenses plus the 7 + 7 stacked § 924(c) sentences). Accordingly, the Court reduces Mr. McCreary's total sentence from 38.5 years to 20.5 years.
IT IS ORDERED granting Defendant's Motion for Modification of Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(1) (Doc. 372).
IT IS FURTHER ORDERED that Defendant's sentence is MODIFIED and REDUCED to 20.5 years pursuant to 18 U.S.C. § 3582(c). The term of supervised release previously ordered as to Defendant remains unchanged. An Amended Judgment will issue.