United States District Court, W.D. Virginia, Lynchburg Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Ciro Gamaliel Garcia filed a “Motion for Reduction of
Sentence Pursuant to 18 U.S.C. § 3582(c)(2) and Amended
Amendments Set out in the ‘First Step Act' of
2018.” (Dkt. 470). On March 20, 2006, Defendant pled
guilty to Count One of the Superseding Indictment, which
charged Defendant with conspiracy to distribute 500 grams or
more of a mixture or substance containing methamphetamine.
(Dkts. 86, 180, 181). Defendant was sentenced on July 21,
2006, to a term of 300 months imprisonment. (Dkt. 251). On
November 1, 2015, Defendant received an Amendment 782
reduction of sentence to 241 months imprisonment. (Dkt. 461).
argues that Sections 401, 402, and 603 of the First Sep Act
apply to him. (Id. at 2). The Government moves
to dismiss the Motion, arguing that the First Step Act does
not authorize consideration of a reduction in this case
because the Defendant pled guilty to one count of a
methamphetamine conspiracy. (Dkt. 471). Although the Court
agrees with the Government that Defendant is not eligible for
a sentence reduction under Section 404 of the First Step Act,
Defendant seeks relief under other sections of the Act. (Dkt.
in limited circumstances that are not applicable on this
record, Congress has ordered that a “court may not
modify a term of imprisonment once it has been imposed . . .
.” 18 U.S.C. § 3582(c). For the reasons stated
below, the Court finds that Defendant is not entitled to a
sentence reduction under Section 401 or 402 of the First Step
Act. The Court further finds that Defendant has not
demonstrated that he is entitled to relief under Section 603
of the First Step Act.
is not eligible for relief under Section 401 or 402 of the
First Step Act. Section 401(a) revised the type of prior
convictions that triggered increased penalties under 21
U.S.C. § 841(b)(1)(A) and (B). See Pub. L. No.
115-391, § 401(a), 132 Stat. 5194 (2018). Section 401
and “the amendments made by this section, ”
however, apply retroactively to any offense that was
committed before the date of enactment of the First Step Act
only “if a sentence for the offense has not been
imposed as of such date of enactment.” Pub. L. No.
115-391, § 401(c). Thus, the provision is
forward-looking and not retroactive. United States v.
Wiseman, __ F.3d __, 2019 WL 3367615, at *3 (6th Cir.
2019) (“[T]he First Step Act is largely forward-looking
and not retroactive.” (citing § 401(c))). The date
of enactment of the First Step Act was December 21, 2018.
Defendant's sentence was imposed in 2006, well before
enactment of the First Step Act. Accordingly, Section 401
does not apply to Defendant. See United States v.
Stallworth, No. 1:08CR00024-036, 2019 WL 2912845, at *1
n.1 (W.D. Va. July 8, 2019) (§ 401 not made
retroactive); United States v. Bean, No.
1:09-cr-143, 2019 WL 2537435, at *5 n.9 (W.D. Mich. June 20,
2019) (“The most natural reading of Section 401 of the
First Step Act, however, is that it is not
retroactive.”); see also United States v.,
Pierson, 925 F.3d 913, 927 (7th Cir. 2019) (discussing
when sentence is “imposed”).
also asserts that he is entitled to a reduction of his
offense level by two levels pursuant to Section 402 of the
First Step Act. (Dkt. 474). Defendant's reference to a
two level reduction appears to be to U.S. Sentencing
Guidelines §§ 2D1.1(b)(18) and 5C1.2(a), which
provide a two-level reduction if the court finds the
defendant meets the criteria for the “safety
valve” provision in 18 U.S.C. § 3553(f).
First Step Act amended the “safety valve”
provision, which allows a court to impose a sentence below
the statutory minimum if the defendant meets the five
requirements set out in 18 U.S.C. § 3553(f). The First
Step Act amended the first requirement in § 3553(f),
which had the effect of expanding the number of defendants
who may receive a sentence without regard to the statutory
minimum. However, the amendment made by Section 402 applies
“only to a conviction entered on or after the date of
enactment of this Act.” Pub. L. No. 115-391, §
402(b). Defendant's conviction occurred in 2006, more
than a decade before the effective date of the First Step
Act. Thus, Defendant's conviction was not entered on or
after the enactment of the First Step Act. He is, as a
result, not eligible for the benefits of § 402 of the
Act. See United States v. Vargas, __ Fed.Appx. __,
2019 WL 2577420, at *4 (11th Cir. 2019) (per curiam)
(“Congress made the amendment applicable to convictions
entered only on and after the date of enactment. . . .”
(citing § 402(b) in context of addition of Maritime Drug
Law Enforcement Act to safety valve statute)); United
States v. Tovar-Zamorano, No. 16-20052-JAR, 2019 WL
2005918, at *2 (D. Kan. May 7, 2019) (“Defendant's
conviction was entered prior to the date of enactment and he
is not eligible for relief under this section [§
Defendant “contends that he is one of the 1, 882
offenders [impacted by Section 603] and does qualify for
relief under Section 603.” (Dkt. 47 at 2). He does not,
however explain how he is entitled to relief under Section
603 or cite to the statutory provisions which Section 603
amended: (1) the “compassionate release”
provisions of 18 U.S.C. § 3582(c)(1)(A), sometimes
referred to as “compassionate relief, ” and new
§ 3582(d) (notification requirements); and (2) the
federal prisoner reentry initiative reauthorization, 34
U.S.C. § 60541(g).
§ 603(b) of the First Step Act amended 18 U.S.C. §
3582(c)(1)(A), which allows a sentencing court to reduce an
imposed sentence upon a showing that either: (1)
“extraordinary and compelling reasons” exist
which warrant a reduction; or (2) the defendant is at least
70 years old, has served at least 30 years in prison pursuant
to a sentence under 18 U.S.C. § 3559(c), and the Bureau
of Prisons Director has determined that the defendant is not
a danger to the safety of any other person or the community.
18 U.S.C.§ 3582(c)(1)(A)(i) & (ii). Prior to the
First Step Act, a motion for compassionate release could only
be brought by the Director of the Bureau of Prisons. The
First Step Act amended the statute to allow a defendant to
file a motion for compassionate release with the court but
only after the defendant “has fully exhausted all
administrative rights to appeal a failure of the Bureau of
Prisons to bring a motion on [his] behalf or the lapse of 30
days from the receipt of such request by the warden of the
defendant's facility, whichever is earlier . . . .”
Thus, a defendant may move for relief under §
3582(c)(1)(A) but only if he or she has met one of these
has not provided evidence that he has fully exhausted all
administrative rights to appeal a failure of the Bureau of
Prisons to bring a motion on his behalf nor has he shown the
lapse of 30 days from the receipt of such a request by the
warden of the Defendant's facility. See 18
U.S.C.§ 3582(c)(1)(A). A prisoner moving for
compassionate release must make this showing to be entitled
to seek relief pursuant to § 3582(c)(1)(A). United
States v. Solis, No. 16-015-CG-MU, 2019 WL 2518452, at
*2 (S.D. Ala. June 18, 2019); United States v. Estrada
Elias, No. 6:06-096-DCR, 2019 WL 2193856, at *2 (E.D.
Ky. May 21, 2019); Guzman v. United States, No.
3:10- CR-161-TAV-DCP, 2019 WL 1966106, at *2 (E.D. Tenn. May
2, 2019). Because a court may consider a compassionate
release motion filed by a defendant only when these
requirements have been met, Defendant cannot obtain relief
under 18 U.S.C.§ 3582(c)(1)(A) based on the record
before the Court. Therefore, Defendant's motion must be
denied to the extent it seeks relief pursuant to Section
603(b) of the First Step Act.
§ 603(a) of the First Step Act reauthorized and amended
the Second Chance Act of Act of 2007, 34 U.S.C. §
60541(g). Section 603(a) also broadened the definition of
elderly inmates eligible for consideration (e.g., reduced the
minimum age from 65 years to 60 years of age) and included
terminally ill offenders as a new category of offender for
whom home detention may be available. Pub. L. No. 115-391,
§ 603(a). The amended section, however, provides the
Attorney General with the discretion to determine if and when
to assign a prisoner to home confinement. United States
v. Guzman, No. 5:16-cr-41-JMH-EBA, 2019 WL 3892416, at
*3 (E.D. Ky. Aug. 19, 2019); United States v.
Buenrostro, No. 2:95-cr-0504 WBS AC, 2019 WL 3245093, at
*3 (E.D. Cal. July 19, 2019) (M.J.), report and
recommendation adopted, 2019 WL 3817624 (E.D. Cal. Aug.
14, 2019); United States v. Overcash, No.
3:15-cr-263-FDW-1, 2019 WL 1472104, at *3 (W.D. N.C. Apr. 3,
2019). Therefore, Defendant's motion must be denied to
the extent it seeks relief pursuant to Section 603(a) of the
First Step Act.
Court, therefore, will deny Defendant's Motion (Dkt.
Clerk of the Court is directed to send certified copies of
this Memorandum Opinion and accompanying Order to all ...