United States District Court, S.D. Florida, Miami Division
ORDER DENYING MOTION TO REDUCE SENTENCE
FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE
CAUSE came before the Court upon Defendant's Motion to
Reduce Sentence (D.E. 1395), filed on
May 17, 2019. THE COURT has
considered the motion, the response in opposition, the
pertinent portions of the record, and being otherwise fully
advised in the premises, it is ADJUDGED that
for the reasons below, the motion is DENIED.
seeks a reduction of his sentence pursuant to two statutes.
First, he argues that under the First Step Act's
amendment of 18 U.S.C. § 3582(c)(1)(A), he is entitled
to a "modification of an imposed term of
imprisonment." 18 U.S.C. § 3582(c)(1)(A). Under
that "compassionate release" provision, a defendant
may petition a court for a reduction of sentence once the
warden of the defendant's prison facility declines to
bring a motion on the defendant's behalf, or fails to
respond to defendant's petition within thirty days.
Id. Once a defendant exhausts these remedies, he or
she must argue that "(i) extraordinary and compelling
reasons warrant such reduction; or (ii) the defendant is at
least 70 years of age, has served at least 30 years in prison
[for a qualifying offense], and a determination has been made
by the Director of the Bureau of Prisons that the defendant
is not a danger to the safety of any other person or the
community." Id. The statute also requires that
for either prong, the potential reduction of sentence be
"consistent with applicable policy statements issued by
the Sentencing Commission." Id.
also seeks a modification of his sentence pursuant to another
statute amended by the First Step Act: 34 U.S.C. §
60541(g). Under that statute, a defendant may seek home
detention in lieu of continued incarceration if he or she is
an "eligible elderly offender." 34 U.S.C. §
60541(g)(5)(A). To be an eligible elderly offender, the
defendant must be "an offender in the custody of the
Bureau of Prisons-(i) who is not less than 60 years of age;
(ii) who is serving a term of imprisonment that is not life
imprisonment [for a qualifying nonviolent crime] and has
served 2/3 of imprisonment to which the offender was
sentenced . . .." Id. Entitlement to home
detention is entirely discretionary. The statute explains
that home detention is part of a larger "pilot
program" conducted by the Attorney General "to
determine the effectiveness of removing eligible elderly
offenders and eligible terminally ill offenders from Bureau
of Prisons facilities and placing such offenders on home
detention." 34 U.S.C. § 60541(g)(1)(A).
motion, Defendant fails to satisfy the requirements of either
statute under which he seeks relief. First, he has failed to
provide any reasons, outside the mere fact that he is
"78 years old [and] his health has begun to fail,"
for why his present health condition rises to the level of an
"extraordinary and compelling reason warranting]...
reduction." 18 U.S.C. § 3582(c)(1)(A)(i). As the
United States explains, Defendant has not demonstrated that
he is suffering from a terminal illness, or any other serious
physical or mental condition for that matter. He vaguely
writes that he "has required outside medical services on
a half dozen occasions," but provides no detail on
whether these services were for a terminal or serious health
condition. If anything, it would appear from the record that
Defendant does not have one, as he is currently housed in a
low-security prison facility, not a medical center.
Furthermore, nowhere in his motion does Defendant state he is
unable to take care of himself or that he is not expected to
recover from his ailments.
also fails to satisfy the second alternative prong of 18
U.S.C. § 3582(c)(1)(A). While Defendant is at least
seventy years of age, he has not yet served thirty years in
prison (he has only served a little more than twenty-one
years), and there is no evidence in the record that a
determination has been made by the Director of the Bureau of
Prisons that the Defendant is not a danger to the safety of
any other person or the community. See 18 U.S.C.
§ 3582(c)(1)(A)(ii). Accordingly, Defendant fails at
this time to satisfy the minimum requirements of this prong.
final argument that he qualifies for home detention under 34
U.S.C. § 60541(g) is also misplaced. Notably, Defendant
fails to satisfy the requirement that he serve at least
two-thirds of his imprisonment. Having only served
approximately twenty-one years and four months of his
thirty-five-year sentence, the Defendant must wait a few more
years to renew his application. But even then, when he does,
the Court cautions that entitlement to home detention is
entirely discretionary. As stated elsewhere, "[b]y its
plain language ... § 603 of The First Step Act does not
authorize prisoners to seek relief as an eligible elderly
offender in federal court because it did not alter the
provision of § 60541(g) that grants the Attorney General
the discretion to release certain elderly offenders."
Rodriguez v. Dobbs, No. 19-20716-CV, at *4 (S.D.
Fla. Apr. 4, 2019). Thus, this Court has no authority under
section 60541(g) to order Defendant serve the rest of his
sentence in home detention, even were he to qualify. See
also United States v. Egan, No. 10 Cr. 191, 2019 WL
1552266, at * 1-2 (S.D.N.Y. Apr. 10, 2019) (holding
based on the above, Defendant's Motion to ...