Opinion
CRIMINAL NO. 4:00-CR-84-Y
2021-03-29
UNITED STATES of America v. Ronald TOLLIVER
J. Michael Worley, US Attorney's Office, Fort Worth, TX, for United States of America.
J. Michael Worley, US Attorney's Office, Fort Worth, TX, for United States of America.
ORDER GRANTING MOTION TO REDUCE SENTENCE TO TIME SERVED
TERRY R. MEANS, UNITED STATES DISTRICT JUDGE
In 2000, Ronald Tolliver and an accomplice robbed four stores at gunpoint. At the time, he was 21-years old, had no criminal history, and no history of drug use. He received the then minimum sentence of 35 years. Today, for the same crimes, the sentencing guidelines advise the imposition of a 10-year sentence. Having now spent 20 years in prison with a clean prison record, Tolliver moves this Court for early release under the compassionate-release statute. See 18 U.S.C. § 3582(c)(1)(A). He relies on changes to federal law brought about by the recently enacted First Step Act of 2018. See Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (2018).
The Court concludes that the First Step Act gave the Court new discretion to reduce certain sentences, and that Tolliver—due to (1) a change in sentencing regimes, (2) the likely sentence he would receive today, (3) his rehabilitation, and (4) the Bureau of Prison's lack of guidance—presents extraordinary and compelling reasons warranting a sentence reduction. Accordingly, for the reasons below, Tolliver's motion will be granted.
BACKGROUND
In the spring of 2000, Tolliver and an accomplice robbed four locations at gunpoint. (Doc. no. 137.) At the time, Tolliver was 21 years old and had no criminal record. The government indicted him on ten counts and, after a complicated procedural history, Tolliver eventually pleaded guilty to two counts of armed bank robbery and two counts of carrying a weapon during a crime of violence, the latter of which is prohibited by 18 U.S.C. § 924(c). (Doc. no. 138.)
Following his guilty plea, this Court sentenced Tolliver to 420 months—35 years. (Doc. no. 152.) For the two counts of aiding and abetting armed bank robberies, he received concurrent 36-month sentences. (Doc. no. 152.) The § 924(c) offenses, however, carried mandatory minimums that ran consecutively to each other—or were "stacked." The first count of brandishing a firearm under § 924(c) required a minimum of 84 months; Tolliver received 84 months. The second § 924(c) conviction required a minimum of 300 months—25 years—that, again, had to be "stacked" onto the other sentences; this is what Tolliver received. Together, these three sentences totaled 420 months, or 35 years.
Tolliver has been serving his sentence since May 2000. In the last 20 years, the Federal Bureau of Prisons (BOP) reports that Tolliver has had no disciplinary incidents, taken multiple educational courses, and maintained a positive work record. He also attached to his motion eighteen letters of recommendation, all vouching for his character and pledging their support when he is released. (Tolliver's Mot. for Compassionate Release, 38–58, doc. no. 161.) He also states he has plans to obtain a commercial driver's license and work in the trucking industry. (Id. at 35–37.)
Based on this record, Tolliver requested that his warden file a compassionate-release motion on his behalf. On April 10, 2020, the warden denied his request without explanation. (Id. at 30.) Tolliver then filed this motion for compassionate release.
ANALYSIS
Under the compassionate-release statute, a district court has discretion to "reduce a term of imprisonment" upon a convict's motion if it finds that "extraordinary and compelling reasons warrant such a reduction" and "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). There are two issues in this case: (A) whether there is an applicable policy statement that defines "extraordinary and compelling reasons," and (B) whether Tolliver has presented an extraordinary and compelling reason for early release.
A. There is no applicable policy statement.
The government's prime argument against Tolliver's release isn't that the Court shouldn't release Tolliver; it's that it can't. The argument arises from the compassionate-release statute, which requires any sentence reduction to be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). This has been labeled the "consistency requirement." The government claims the United States Sentencing Commission (USSC) has adopted an applicable policy and that, under the policy, Tolliver's reasons for compassionate relief are not "extraordinary and compelling." For the reasons below, the Court concludes that the policy is not "applicable."
1. The policy only applies to motions by the Bureau of Prisons.
The government relies on USSC's Sentencing Guidelines Manual § 1B1.13, titled "Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)." The policy statement defines four categories of "extraordinary and compelling reasons" for sentence reductions. The first three do not apply here: (A) the defendant's medical condition, (B) the defendant's age, and (C) the defendant's family circumstances. U.S. Sent'g Guidelines Manual § 1B1.13, p.s. (U.S. Sent'g Comm'n 2018). The USSG, however, also created a fourth, "catch-all" category, and delegated discretion to the BOP's director to determine, on a case-by-case basis, whether individual circumstances rose to the level of being extraordinary and compelling. Id. ; see also United States v. McCoy , 981 F.3d 271, 283 (4th Cir. 2020).
If the BOP's director finds the policy statement's standards met, then he moves for compassionate release. A "reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons. " USSG § 1B1.13, p.s., ¶ 4 (emphasis added). Thus, by its own terms, the policy statement applies "upon a motion by the Director of the Bureau of Prisons." Id. The policy statement's narrow scope makes sense in context. When the USSC adopted the policy statement, the only person allowed to request compassionate release was the BOP's director. McCoy , 981 F.3d at 276 ("Importantly, prior to the First Step Act, courts could consider compassionate release only upon motion of the BOP."). Regardless, the policy statement's text limits its scope to motions filed by the BOP. In essence, the policy statement makes the BOP's director, in determining what are "extraordinary and compelling reasons," the sole gatekeeper. See Id. at 283.
2. The First Step Act broadened the compassionate-release statute by allowing a defendant to file a motion.
The First Step Act created an alternate path to compassionate relief. Now, defendants can file compassionate-relief motions directly with district courts, bypassing the BOP. 18 U.S.C. § 3582(c)(1)(A). Perhaps one reason for this is that the BOP used this power "sparingly." McCoy , 981 F.3d at 276. In a 2013 report, the Department of Justice's Inspector General found "that an average of only 24 imprisoned persons were released each year by BOP motion." Id. The same report noted that the BOP "poorly managed the compassionate-release process and failed to establish timeliness standards for reviewing prisoner requests, causing delays so substantial that inmates sometimes died awaiting final BOP decisions." Id.
Citing U.S. Dep't of Just., Office of the Inspector Gen., The Federal Bureau of Prisons’ Compassionate Release Program 1 (2013), https://www.oversight.gov/sites/default/files/oig-reports/e1306.pdf.
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To avoid this delay, the First Step Act allows a defendant to file a motion directly with the court. See 18 U.S.C. § 3582(c)(1)(A). First, the defendant must apply for compassionate release with the BOP. But after fully exhausting the BOP's process or after "the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility," the defendant can now move for compassionate release directly in a United States district court. Id. As another court put it, "Congress effectuated an incremental change, expanding the discretion of the courts to consider leniency." McCoy , 981 F.3d at 276 (internal citations omitted).
3. The policy statement is not "applicable" because this motion was not filed by the Bureau of Prisons.
Tolliver applied to the BOP for compassionate release and was denied. He then directly moved for relief in this Court. This is not a "motion by the Director of the Bureau of Prisons," and thus falls outside the policy statement's ambit. See USSG § 1B1.13, p.s. "When a defendant exercises his new right to move for compassionate release on his own behalf, in other words, § 1B1.13 does not apply, and thus § 3582(c)(1)(A) ’s consistency requirement does not constrain the discretion of the district courts." McCoy , 981 F.3d at 281.
Not only does the policy's text support this conclusion, so does the First Step Act's section title. See INS v. Nat'l Ctr. For Immigrants’ Rights, Inc. , 502 U.S. 183, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991) ("[T]he title of a statute or section can aid in resolving an ambiguity in the legislation's text."). Section 603 of the First Step Act, which modified the compassionate-release statute, is titled, "Increasing the Use and Transparency of Compassionate Release." PL 115-391, § 603(b) (2018). Allowing defendants to directly move district courts will increase the number of applications. In addition, having district courts write opinions will likely increase the process's transparency. This is certainly true in Tolliver's case, as the BOP's denial contained no explanation.
Moreover, enforcing the policy statement renders the First Step Act's alternate path illusory. The policy statement defines extraordinary and compelling reasons "[a]s determined by the Director of the Bureau of Prisons ...." USSG § 1B1.13, p.s., ¶ 1(D). For example, imagine that the BOP denies a defendant's request, and then the defendant moves for relief a district court. If this policy statement were binding, the Court would have no choice but to again deny the motion solely because the BOP denies it. Similarly, imagine the BOP fails to answer in 30 days so the defendant files a motion with a district court. If this policy statement were binding, then the court's decision would still have to wait on the BOP. Either way, enforcing the policy statement renders the First Step Act's amendments meaningless.
The Court is free to make this determination because, to date, the Fifth Circuit has not ruled on the issue. United States v. Gowdy , 832 F. App'x 325, 327 n. 4 (5th Cir. 2020) (stating that the court has "not yet answered this question" and "need not decide [this] question today"). It has, however, suggested the policy statement should be consulted for guidance. See United States v. Gonzalez , 819 F. App'x 283, 284 (5th Cir. 2020). Although the Fifth Circuit is silent, four other circuit courts have ruled on this issue, and all agree with the analysis above. See McCoy , 981 F.3d 271 (4th Cir. 2020) ; United States v. Gunn , 980 F.3d 1178, 1180 (7th Cir. 2020) ; United States v. Jones , 980 F.3d 1098, 1101 (6th Cir. 2020) ; United States v. Brooker , 976 F.3d 228, 230 (2nd Cir. 2020). In addition, this conclusion appears to represent an "emerging consensus" of district courts. McCoy at 284, ; see also United States v. Fowler , 4:92-CR-177-Y (N.D. Tex. Feb. 24, 2021). There are, however, district courts that reached the opposite conclusion. See e.g., United States v. Lynn , Crim. No. 89-0072-WS, 2019 WL 3805349 (S.D. Ala. Aug., 12, 2019).
4. The absence of a policy statement gives discretion to the courts to consider leniency.
Congress charged the Sentencing Commission to create "general policy statements regarding the application" of the compassionate-release statute, 28 U.S.C. § 994(a)(2)(C), and to "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." Id. § 994(t). Given the Sentencing Commission's statutory role, the government argues that treating USSG § 1B1.13 as non-binding "would mark a profound alteration of the sentencing scheme Congress designed" and violate the separation of powers. (Gov't Resp. at 18, doc. no. 163.) The Court disagrees for two reasons.
First, the changes wrought by the First Step Act are part of Congress's "scheme." To begin with, the idea of there being a "scheme" smacks of the "false notion that the spirit of a statute should prevail over its letter." Scalia & Gardner, READING LAW 343 (2012). Any scheme that exists must be "collected chiefly from [the law's] words." Sturges v. Crowninshield , 17 U.S. 122, 202, 4 Wheat. 122, 4 L.Ed. 529 (1819) (Marshall, C.J.). Congress specifically authorized the judicial branch to grant compassionate releases. See 18 U.S.C. § 3582(c)(1)(A). Although Congress charged the Sentencing Commission, part of the executive branch, with creating applicable policies that are binding on the judicial branch, there are no such applicable policies. Despite the government's entreaties, the Court will not stretch USSG § 1B1.13 ’s language to say something it does not merely to fit some supposed "scheme." That suggestion ignores the First Step Act's change to the "scheme" and—more importantly—ignores USSG § 1B1.13 ’s plain text. Instead, the Court will exercise its judgment and act. As another district court reasoned, "[n]othing in § 3582(c)(1)(A)(i) requires courts to sit on their hands if there is a gap in Commission policy." United States v. Rodriguez , 451 F. Supp. 3d 392, 400 (E.D. Pa. 2020). Once the Sentencing Commission adopts an "applicable" policy, then that policy will govern, and this issue will vanish.
Second, there is no separation-of-powers problem. Again, this argument arises from some supposed "scheme" that drives the resulting interpretation. The Court instead starts with the statutes’ text. Congress expressly authorized the judicial branch to grant compassionate releases. 18 U.S.C. § 3582(c)(1)(A). In doing so, courts must follow "applicable policy statements by the Sentencing Commission." Id. But the absence of an "applicable policy statement" leaves courts with discretion to consider leniency. Brooker , 976 F.3d at 230. Thus, Congress has granted the judicial branch this authority.
* * *
The Court concludes that USSG § 1B1.13 —by its own terms—applies solely to motions made by the BOP. When the defendant moves for compassionate release, there is no applicable policy. As a result, the district court, "after considering the factors set forth in section 3553(a)," has discretion to determine when "extraordinary and compelling reasons warrant" a reduction of a sentence. See 18 U.S.C. § 3582(c)(1)(A).
B. Extraordinary and compelling reasons exist to warrant early release.
Having concluded that no binding definition of "extraordinary and compelling reasons" exists, the Court must now determine what standard to apply. After considering other circuit-court and district-court opinions, relevant statutes, USSC's policies, and BOP policies, the Court concludes that, when a defendant grounds his request for compassionate release on the length of his sentence, he must show the following elements:
(1) an "exceptionally dramatic change" in the relevant sentencing regime;
(2) that, today, the defendant would receive a significantly reduced sentence;
(3) the defendant appears rehabilitated, deserving of the reduction, and likely to succeed upon release; and
(4) strong deference to the BOP's relevant guidelines and decisions.
The Court articulates this test for consistency. Like cases should be decided the same or else the decisions will appear arbitrary. This is especially true when cases appear before the same judge. Without explaining its rulings, the Court risks the appearance of inconsistency, which tends to reduce trust in the judiciary and the rule of law. 1. Exceptionally Dramatic Change to Relevant Sentencing Regime
Grounding a compassionate-release motion solely on the sentence's severity should require a dramatic change in relevant sentencing law. This is a flood-control element. Only in rare instances will a dramatic change in the sentencing regime exist.
The relevant statutes suggest this limit. Section 3553 sets forth the factors to consider when initially imposing a sentence, which includes the relevant statutes and sentencing guidelines. See 18 U.S.C. § 3553. In charging the Sentencing Commission with adopting policies defining compassionate release, Congress specified that "[r]ehabilitaiton of the defendant alone shall not be considered an extraordinary and compelling reason." 28 U.S.C. § 944(t).
Excluding rehabilitation, the only reasons to deviate from the original sentence would be personal reasons or a change in the sentencing policies and priorities. The former are covered by the USSC's policies. Although those policies are not binding when the defendant moves directly with the courts, they should be given strong deference. See Gonzalez , 819 F. App'x at 284. The only other relevant inquiry would be a change in the sentencing priorities, which the relevant statutes and sentencing guidelines embody. The Court concludes, in agreement with many other courts, that a change in the law only warrants a sentence reduction when the change is "an exceptionally dramatic one." McCoy , 981 F.3d at 285. This should prevent every minor sentencing change from resulting in a slew of inconsistent and possibly ill-advised compassionate releases.
Like many other courts, the Court concludes that the First Step Act's amendments to 18 U.S.C. § 924(c) constitute an exceptionally dramatic change. In reaching this conclusion, the Court considered the "gross disparity" between the sentence that would now be imposed and the one that was imposed. The First Step Act ended the practice of "stacking" § 924(c) offenses within the same case "by clarifying that the 25-year mandatory minimum sentence applies only when a prior § 924(c) conviction arises from a separate case [that] already ‘has become final.’ " McCoy , 981 F.3d at 275. Before this, a defendant could receive a mandatory minimum sentence of 25 years on his first conviction. Id.
This harsh minimum sentence was imposed on Tolliver. Tolliver's convictions were for two robberies, both of which were enhanced under § 924(c) for brandishing a firearm. (Doc. no 137.) The first § 924(c) count mandated seven years, the second count—which was stacked in the same case—added a mandatory 25 years. Today, the then-mandatory 25 years would be absent. This 25-year difference—which accounts for the majority of Tolliver's sentence—is exceptionally dramatic.
The government argues that the First Step Act does not apply this reduction retroactively. This is true, but irrelevant. See § 403(b), 132 Stat. at 522; McCoy , 981 F.3d at 271. The fact that the First Step Act did not make its changes to § 924(c) retroactive reflects Congress's conclusion "that not all defendants 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." Id. at 279 (emphasis in original)(quoting United States v. Bryant , Crim. No. 95-202-CCB-3, 2020 WL 2085471, *3 (D. Md. Apr. 30, 2020) ). On its own, this counterargument fails to persuade the Court.
Another factor the Court considered was the "sheer and unusual length of the sentences." McCoy , 981 F.3d at 285. As other courts have noted, the average sentence for murder in 2018 was 291 months. Bryant , 2020 WL 2085471, *5 n. 8. In this case, the Court sentenced Tolliver to 420 months—300 of which were for the second § 924(c) sentence. This one sentence alone required a longer sentence than the average murder sentence. Like other courts, the Court concludes this is an unusually long sentence.
For these reasons, the Court concludes that there has been an exceptionally dramatic change in the relevant sentencing regime.
2. Today, Tolliver would have received a significantly reduced sentence.
If Tolliver were sentenced today, he would receive a much shorter sentence. Although the term for armed bank robbery and the first § 924(c) would be unchanged, the mandatory, "stacked," 25-year addition would be removed. Even when the Court sentenced him in 2005, he received the minimum amounts on all charges.
In determining this, the Court must apply the factors in § 3553(a) "to the extent they are applicable." 18 U.S.C. § 3582(c)(1)(A). The applicable factors are as follows: (1) Tolliver's personal history and characteristics; (2) his sentence relative to the nature and seriousness of his offense; (3) the need for a sentence to provide just punishment, promote respect for the law, reflect the seriousness of the offense, deter crime, and protect the public; (4) the need for rehabilitative services; (5) the applicable guideline sentence; and (6) the need to avoid unwarranted sentencing disparities among similarly situated defendants. 18 U.S.C. § 3553(a) ; Bryant , 2020 WL 2085471, at *4. In applying these factors, the Court draws heavily from Tolliver's 2005 pre-sentence report.
Before his arrest, Tolliver had a clean record. He was 21 years old with no prior criminal history or drug use. His accomplice was a father-like figure, and likely exerted a strong influence. Since being incarcerated, he has received no disciplinary actions and has maintained a good work record. Further, he has shown initiative by taking approximately 250 hours of educational and vocational courses. These hours include courses on gaining a commercial driver's license, which Tolliver plans to obtain if released. Lastly, he attached eighteen letters of support and recommendation from family members, friends, and community leaders.
Moreover, Tolliver has served over twenty years for his crimes. His offenses were very serious, and the Court in no way downplays their seriousness. But some facts must be pointed out: nobody was hurt, no victim showed any lasting emotional damage, and Tolliver was not the crimes’ ringleader. Compared to sentences of similar severity, twenty years is more than sufficient to demonstrate the need for deterrence, public safety, and respect for the law. In fact, if sentenced today, Tolliver would have likely only received a ten-year sentence.
Based on these considerations, "and in light of the principle that a sentence should be ‘sufficient, but not greater than necessary,’ see 18 U.S.C. § 3553(a), the Court finds that the § 3553(a) factors weigh in favor of reducing" Tolliver's sentence because his current sentence would have been significantly lower today. See Bryant , 2020 WL 2085471, at *5.
3. Tolliver appears rehabilitated.
Although this element overlaps somewhat with the prior element, the Court believes it relevant when granting compassionate release to consider the defendant's rehabilitation and chances of success. The Sentencing Commission lists this as a prime consideration. USSG § 1B1.13, p.s., ¶ 3. Here, Tolliver has taken responsibility for his actions, maintained a clean prison record for twenty years, and used the time to learn and improve. Many people from the community vouch for his character and have pledged their support upon his release. He has a plan to obtain his commercial driver's license and contribute back to society. There is no indication that he has been involved with drugs. Together, the evidence suggests a better-than-average chance of success if released.
4. Neither the BOP's guidelines nor the BOP's decision suggest a different conclusion.
As many courts have noted, the Sentencing Commission's policies can still provide relevant guidance—even if they are not "applicable." See e.g., Gonzalez , 819 F. App'x at 284. For instance, the district court should defer to the USSC's policies upon a defendant's direct motion based on medical conditions. USSG § 1B1.13, p.s., ¶ 1(A). In this case, however, the policies provide no guidance. In addition, where the BOP has considered and denied the defendant's request, the BOP's reasons should be considered. But here the BOP's denial lacked any explanation. (Tolliver's Motion at 30, doc. no. 161.) If the BOP had provided any reasons for its denial, however, the Court would have given them strong consideration.
CONCLUSION
After review of Tolliver's motion and all related briefs and materials, and for the reasons stated in this order, the Court concludes that Tolliver's motion should be and it is hereby GRANTED . Tolliver's sentence is hereby REDUCED to TIME SERVED , effective after the United States Probation Services approves a suitable release plan. Once released, Tolliver shall report to probation services in accordance with his release plan and the terms in his Amended Judgment (doc. no. 152).
The Court wishes Tolliver good luck in his future endeavors and urges him to return the Court's extension of leniency with good behavior during his term of supervised release.