United States v. Ballard

• Decision Date: 02 August 2021
• Docket Number: 08 Cr. 62 (JSR)
• Parties: UNITED STATES of America, Plaintiff, v. Zachary BALLARD, Defendant.
• Court: U.S. District Court — Southern District of New York

552 F.Supp.3d 461

UNITED STATES of America, Plaintiff,

v.Zachary BALLARD, Defendant.

08 Cr. 62 (JSR)

United States District Court, S.D. New York.

Signed August 2, 2021

Benjamin Naftalis, Rebecca Ann Monck, U.S. Attorney's Office, New York, NY, for Plaintiff.

Martin Geduldig, Martin Geduldig, Esq., Hicksville, NY, for Defendant.

OPINION AND ORDER

JED S. RAKOFF, U.S.D.J.:

Before the Court is Zachary Ballard's motion for sentence reduction under 18 U.S.C. § 3852(c). ECF No. 85. In 2008, a jury convicted Ballard of seven counts: one count of Hobbs Act conspiracy, 18 U.S.C. § 1951 ; three substantive counts of Hobbs Act robbery, 18 U.S.C. § 1951 ; and three counts of brandishing a weapon during a crime of violence, 18 U.S.C. § 924(c). The charges stemmed from a series of gunpoint robberies at commercial businesses in the Bronx. At that time, section 924(c) carried a mandatory minimum sentence of 25 years’ imprisonment for two of the three brandishing counts, and it required that those sentences run consecutively. The Court was therefore required to impose a mandatory minimum sentence of 600 months’ imprisonment, i.e., 50 years. At Ballard's sentencing, the Court remarked that it had "the greatest sympathy for the plight in which [Ballard found himself] because of these mandatory minimums." ECF No. 49 at 20:19–20. The total sentence of imprisonment the Court imposed was 601 months.

Ballard, now 38 years old, has served more than thirteen years of his sentence of fifty years and one month. He is due to be released April 13, 2051. ECF 86 at 2. Under 18 U.S.C. § 3582(c), a court may modify a defendant's sentence to reduce a term of imprisonment if it finds, inter alia, that "extraordinary and compelling reasons warrant such a reduction." Arguing that his original sentence was extraordinarily severe in relation to the factors outlined in 18 U.S.C. § 3553(a), Ballard seeks a reduction of his sentence to time served. He identifies several aspects of his case that he argues amount to extraordinary and compelling reasons warranting such a reduction. ECF No. 86. According to Ballard, these include the enactment of the First Step Act, the disproportionality between his and his co-defendant's sentences, his record of rehabilitation, and the ongoing coronavirus pandemic. Id.

The Court has carefully considered Ballard's motion, the Government's papers in opposition, correspondence from Ballard and members of his family, and the parties’ presentations at oral argument. After due consideration, and for the reasons given below, the Court grants Ballard's motion for a sentence reduction and resentences Ballard to a term of 301 months’ imprisonment. All other aspects of Ballard's sentence remain unaltered.

I. Background

In October and November 2007, Ballard and his co-defendant, Anthony Steele, engaged in a series of armed robberies in the Bronx. ECF No. 34 at 3–6. Ballard "terrorized victims with a firearm," sometimes thrusting the gun at victims’ chests and other times cocking and holding the gun to victims’ heads. ECF No. 87 at 1. The businesses Ballard and Steele targeted included a Sears department store, a Kentucky Fried Chicken restaurant, and a Family Dollar store. Id. Together, Ballard and Steele were involved in approximately twenty robberies, garnering roughly $40,000 in proceeds. ECF No. 87 at 1. As this Court observed at Ballard's sentencing, these were "brutal robberies undertaken for reasons that are still somewhat mind-boggling," such as purchasing trendy clothes. ECF No. 49 at 17.

Steele pled guilty to two counts: conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951, and use of a firearm during and in relation to Hobbs Act robbery, 18 U.S.C. § 924(c). While Steele pled guilty to a criminal information that enumerated six overt acts under the conspiracy count, United States v. Steele, No. 8-cr-62-2 (JSR), ECF No. 29, in his plea agreement Steele acknowledged committing twenty-two other robberies as well, United States v. Steele, No. 8-cr-62-2 (JSR), ECF No. 42 at 8. The Court sentenced Steele to 168 months’ imprisonment. United States v. Steele, ECF No. 40. In September 2019, following the United States Supreme Court's decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the Government consented to vacating Steele's firearm conviction on the ground that Hobbs Act conspiracy was no longer a predicate crime of violence under 18 U.S.C. § 924(c).¹ The Court ultimately resentenced Steele to time served, i.e., 143 months’ imprisonment. United States v. Steele, ECF No. 78.

Ballard, in contrast, chose to exercise his right to trial rather than plead guilty. After a four-day trial before this Court, the jury convicted Ballard of seven counts: one Hobbs Act conspiracy count, three substantive Hobbs Act robbery counts, and three section 924(c) counts of brandishing a firearm during those robberies. ECF No. 47.

The statutes under which Ballard was convicted, as well as the United States Sentencing Guidelines, carried very severe punishment. The conspiracy and substantive robbery counts carried a recommended Guidelines range of 84 to 105 months’ imprisonment, but no statutory minimum, United States v. Ballard, 599 F. Supp. 2d 539, 540 (S.D.N.Y. 2009). The gun counts, however, carried mandatory minimum sentences that at the time were set forth under 18 U.S.C. § 924(c)(1)(A) and (C). Over the course of a two-day sentencing hearing, the Court concluded that section 924(c) carried a mandatory minimum sentence of 300 months’ imprisonment on each of two of the gun counts and that the statute's so-called "stacking" provision required that those sentences run consecutively. Ballard, 599 F. Supp. 2d at 541. The Court determined that the stacking provision overrode the mandatory minimum sentence on the third gun count, and with respect to all the remaining counts, the Court decided to impose only one month of imprisonment. Id. at 540-542. Ballard's total sentence, therefore, came to 601 months’ imprisonment.

The Government, believing that section 924(c) required this Court to sentence Ballard to three, rather than two, consecutive mandatory minimum sentences totaling approximately 64 years in prison, moved that Ballard's sentence be corrected for clear error. See ECF 45. The Court denied that motion, observing that "[w]hen the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt." Ballard, 599 F. Supp. 2d at 543. Ballard's appeals of his conviction and sentence were denied. See ECF 51, 57, 60, & 70.

II. Legal Framework

Ballard brings his motion for sentence reduction under 18 U.S.C. § 3852(c)(1)(A). An incarcerated defendant may file such a motion 30 days after having petitioned the Bureau of Prisons to move for a sentence reduction on his behalf or after having fully exhausted all administrative remedies to appeal the Bureau's failure to do so. Id. The statute's now-familiar standard requires the Court to "ask four questions: (1) has the defendant complied with the administrative exhaustion requirement, (2) has the defendant shown extraordinary and compelling reasons warranting a sentence reduction, (3) are the 18 U.S.C. § 3553(a) sentencing factors consistent with a lesser sentence than that previously imposed, and (4) is there a particular sentence reduction consistent with the § 3553(a) factors that is also warranted by extraordinary and compelling reasons." United States v. Garcia, 505 F. Supp. 3d 328 (S.D.N.Y. 2020). Following the Second Circuit's decision in United States v. Brooker, it is undisputed that district courts are "free[ ] ... to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release." 976 F.3d 228, 237 (2d Cir. 2020).²

III. Analysis

The Court finds that Ballard has satisfied all four of the elements of a motion for sentence reduction, which are addressed seriatim.

A. Administrative Exhaustion

On December 8, 2020, Ballard submitted a pro se compassionate release application to the Warden of United States Penitentiary Big Sandy, Inez, Kentucky. ECF No. 85, Ex. A. The Bureau of Prisons denied Ballard's application on January 6, 2021. Id. Ex. B. Ballard then filed the instant motion on May 3, 2021, more than thirty days after applying. ECF No. 85. The Court therefore holds that he has satisfied 18 U.S.C. § 3852(c)(1)(A)’s administrative exhaustion requirements.

B. Extraordinary and Compelling Reasons

In 2018, Congress amended section 924(c) to eliminate the draconian "stacking" provision that required this Court to sentence Ballard to a mandatory minimum of fifty years’ imprisonment, which the Court noted at the time was plainly unjust. Therefore, were Ballard convicted of the same offenses today, he would be subject to a far shorter minimum sentence. The Court therefore holds that the First Step Act's dramatic amendment to section 924(c) constitutes an extraordinary and compelling reason warranting a reduction of Ballard's sentence. But assuming arguendo that further reasons were required, the Court finds that the totality of the change in the law, the substantial disparity between Ballard's and his co-defendant's sentences, and Ballard's ongoing rehabilitation together amount to an extraordinary and compelling reason warranting a sentence reduction.

1. First Step Act

Nine years into Ballard's fifty-year sentence, Congress passed, and the President signed, the First Step Act, 502 Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). The First Step Act eliminated the provision requiring "stacking" of mandatory minimum sentences for multiple convictions under 18 U.S.C. § 924(c) in a single prosecution.³ First Step Act, § 403(a). As discussed above, it was the now-abolished "stacking" provision that compelled this Court to impose on Ballard two consecutive, 25-year sentences. Ballard, 599 F. Supp. 2d at 541. But the First Step Act...