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United States v. Nevers

United States District Court, E.D. Louisiana

December 27, 2019

UNITED STATES OF AMERICA
v.
SHAWANDA NEVERS

         SECTION: “E” (1)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Reduce Sentence Pursuant to Title 18, U.S.C. 3582(c)(1)(A) filed by Petitioner Shawanda Nevers.[1] The Government did not file a response. For the reasons that follow, the motion is DENIED.[2]

         BACKGROUND

         On May 6, 2016, a grand jury indicted Shawanda Nevers for: 37 counts of aiding or assisting in the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2); one count of criminal contempt, in violation of 18 U.S.C. § 401(3); one count of bank fraud, in violation of 18 U.S.C. § 1344(2); and one count of forging the signature of a federal judge, in violation of 18 U.S.C. § 505.[3] A superseding indictment was later returned, adding one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A.[4] On August 3, 2017, Petitioner pleaded guilty to four counts of aiding and assisting in the preparation of false tax returns (Counts 17, 23, 28, and 29).[5] In exchange for Plaintiff's agreement to plead guilty to these four charges, the Government agreed to dismiss the remaining counts in the superseding indictment and the original indictment. On December 13, 2017, Petitioner was sentenced on Counts 17, 23, 28, and 29.[6] The Court sentenced Petitioner to 84 months, the bottom end of the U.S. Sentencing Guidelines (“USSG”) range.[7] The Court also ordered that Petitioner's federal sentence run concurrently with her state sentence of 12 years.[8]

         Although Petitioner waived her right to directly appeal her conviction and the right to collaterally attack her sentence under § 2255, [9] she appealed her sentence.[10] The Fifth Circuit dismissed Petitioner's appeal, holding Petitioner's “guilty plea was knowing and voluntary, and her appeal waiver is enforceable.”[11] On September 26, 2019, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, [12] which the Court denied.

         On September 26, 2019, Petitioner filed the instant motion.[13] Petitioner asks the Court to “use the Compassionate Release Statute, as amended by the First Step Act, as a second look provision to reduce [Petitioner's] sentence.”[14] Petitioner cites as support United States v. Cantu, Criminal Action No. 1:05-CR-458-1, 2019 WL 2498923 (W.D. Tex. June 17, 2019).[15] Petitioner also argues the Court has the ability to reduce her sentence pursuant to United States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. July 28, 2014).[16]

         LAW AND ANALYSIS

         I. § 3582(c)(1)(A)(i)

         Petitioner argues her sentence should be modified pursuant to the provisions of § 3582(c)(1)(A)(i), because “extraordinary and compelling reasons” warrant such a reduction.[17]

         “‘[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment' and may not be modified by a district court except in limited circumstances.”[18] These limited circumstances are addressed in 18 U.S.C. § 3582(b), which provides:

         Notwithstanding the fact that a sentence to imprisonment can subsequently be-

(1) modified pursuant to the provisions of subsection (c);
(2) corrected pursuant to the provisions of rule 35 of the Federal Rules of Criminal Procedure and section 3742; or
(3) appealed and modified, if outside the guideline range, pursuant to the provisions of section 3742;
a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.[19]

         In turn, subsection (c) provides, in relevant part:

The court may not modify a term of imprisonment once it has been imposed except that-
(1) in any case-
(A) the court, upon motion of the Director of the Bureau of Prisons, or 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, whichever is earlier, 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; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, 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, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and
(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure . . .[20]

         The First Step Act of 2018 amended 18 U.S.C. § 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.”[21] A court may now modify a defendant's sentence if it finds on either the motion of the Bureau of Prisons (“BOP”) 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.”[22]

         The Sentencing Commission's 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).[23] As a result, there is some dispute as to which, if any, policy and program statements should apply.[24] The 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”:

1. Extraordinary and Compelling Reasons.--Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.-
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is-
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process,
that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
(B) Age of the Defendant.--The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.-
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons.--As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).[25]

         The policy statement regarding compassionate release 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 ...


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