United States v. Cantu

Decision Date17 June 2019
Docket NumberCriminal Action No. 1:05-CR-458-1
Citation423 F.Supp.3d 345
Parties UNITED STATES of America v. Conrado CANTU
CourtU.S. District Court — Southern District of Texas

Christopher Andrew dos Santos, US Attorney's Office, Laredo, TX, Jody L. Young, Office of US Attorney, Brownsville, TX, John B. Kinchen, Hughes Arrell Kinchen LLP, James L. Turner, US Attorneys Office, Financial Litigation, US Attorney's Office Southern District of Texas, Houston, TX, US Marshal, US Pretrial Svcs-Br, US Probation, for United States of America.


Marina Garcia Marmolejo, United States District Judge

Pending before the Court is Mr. Cantu's Letter Motion (Dkt. No. 314), which, construed liberally, seeks to reduce his imprisonment term under 18 U.S.C. § 3582(c)(1)(A) and be placed in home confinement. (Id. ). The Government has filed two motions asserting that it is not opposed to Mr. Cantu spending the remainder of his term of imprisonment in home confinement. (Dkt. Nos. 318, 319).


In 2005, Mr. Cantu pleaded guilty to one count of racketeering in violation of 18 U.S.C. § 1962(c). (Dkt. Nos. 70, 71). He was subsequently sentenced to the mandatory minimum of 290 months imprisonment. (Dkt. Nos. 161, 162). In 2014, the Sentencing Commission promulgated Amendment 782, which lowered the base offense levels for all drugs in the Drug Quantity Table, and made the amendment retroactive. Mr. Cantu then filed a motion for reduction of sentence based on Amendment 782. (Dkt. Nos. 262, 263). After Government briefing (Dkt. No. 267) and an evidentiary hearing, the Court reduced Mr. Cantu's sentence to 210 months, the maximum reduction allowed under the amendment. (Dkt. No. 308). Later, Congress passed the First Step Act, which allows defendants—as opposed to only the BOP—to bring motions for reduction of sentence under 18 U.S.C. § 3582(c)(1)(A). That change in the law precipitated Mr. Cantu's current motion before the Court. (Dkt. No. 314).


The First Step Act of 2018, which focuses on promoting rehabilitation and combating recidivism, amended the Elderly and Family Reunification for Certain Nonviolent Offenders Pilot Program ("Family Reunification Program") and 18 U.S.C. § 3582(c). Pub. L. No. 226-391, § 603, 132 Stat. 5194, 5238–40 (2018). Under the Family Reunification Program, the BOP has discretion to release eligible elderly offenders from Bureau facilities to home confinement. Id. at § 60541(g)(1)(A)(B). An eligible elderly offender is one who meets all seven criteria determined by Congress, three of which the BOP has sole discretion to determine. Id. at § 60541(g)(5)(A).

In a section titled "Increasing the Use and Transparency of Compassionate Release," the First Step Act amended § 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." § 603(b), 132 Stat. at 5239 (codified at 18 U.S.C. § 3582(c)(1)(A) ). A court may now modify a defendant's sentence if it finds on either the BOP's 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." Id. at 3582(c)(1)(A)(i).

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." U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 cmt. n.1 ( U.S. SENTENCING COMM'N 2018). It 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 "the factors set forth in 18 U.S.C. § 3553(a)." Id. at § 1B1.13(2) & cmt. n.4. That policy statement has not been amended since the First Step Act,1 and some of it now clearly contradicts 18 U.S.C. 3582(c)(1)(A). See id. at § 1B1.13 cmt. n.4 ("A reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A)."); United States v. Overcash , 3:15-cr-263-FDW-l, 2019 WL 1472104, at *2 (W.D.N.C. Apr. 3, 2019) ("The Court agrees that § 1B1.13 now conflicts with § 3582 insofar as a defendant is now able to request a sentence reduction upon a defendant's own motion rather than having to rely on the BOP Director.").

A. The Family Reunification Program

Even though both this Court and the Government agree that Mr. Cantu is an eligible elderly offender who should be released to home confinement under the Family Reunification Program2 —and the Government further urges that the Court could issue an order causing the BOP to release Mr. Cantu under that program3this Court does not have the authority to grant such relief. The First Step Act grants only the Attorney General, and by delegation the BOP, authority to grant release to home confinement under the Family Reunification Program. See 34 U.S.C. § 60541(g)(1). And it has long been settled that the Attorney General has "exclusive authority and discretion to designate the place of an inmate's confinement." Zheng Yi Xiao v. La Tuna Fed. Corr. Inst. , EP-19-CV-97-KC, 2019 WL 1472889, at *3 (W.D. Tex. Apr. 3, 2019) (emphasis added) (citing Moore v. United States Att'y Gen. , 473 F.2d 1375, 1376 (5th Cir. 1973) ; Ledesma v. United States , 445 F.2d 1323, 1324 (5th Cir. 1971) ); see 18 U.S.C. § 3621(b). Moreover, the BOP has "sole discretion" to determine if an offender has a history of violence, clearly foreclosing the courts from making an alternative finding. See 34 U.S.C. § 60541(g)(5)(A)(iv). The Court thus may not reject the BOP's disqualification of Mr. Cantu from the Family Reunification Program.4

B. Availability of Relief Under 18 U.S.C. § 3582

Alternatively, Mr. Cantu requests relief under 18 U.S.C. § 3582. (Dkt. No. 314 at 3–4). Because the Family Reunification Program only allows a modification in the method of imprisonment and not the term of imprisonment, See Curry , 2019 WL 508067, at *2, the Court will construe Mr. Cantu's motion liberally to seek separate relief under § 3582.5 So construed, Mr. Cantu asks the Court to reduce his sentence to time-served and impose a term of supervised release equal to the unserved portion of his previous term of imprisonment, with a special condition that he remain confined to the home of his son, who is a doctor in Corpus Christi, Texas. (Dkt. No. 314 at 3–6).

Under the newly amended § 3582(c)(1)(A), Mr. Cantu has standing to bring this motion because more than 30 days elapsed between his reduction-in-sentence request to the warden and a response. (Dkt. No. 314 at 8). The Court may thus:

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 ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(1)(A). To determine what the Sentencing Commission considers "extraordinary and compelling," the Court turns to United States Sentencing Guidelines § 1B1.13.6 Mr. Cantu has not presented evidence that his reasons are extraordinary and compelling under the three explicitly defined reasons. U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 cmt. n.1(A)(C) ( U.S. SENTENCING COMM'N 2018). The question then is whether the Court, as opposed to the Director of the BOP, can determine that "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)" and grant relief on that basis. Id. at § 1B1.13 cmt. n.1(D).

Although Congress empowered the Commission to issue policy statements regarding the appropriate use of the sentence-modification provisions under § 3582, 28 U.S.C. § 994(a)(2)(C), Congress may override the Commission's policy statements by statute.7 Because the Commission's statutory authority is limited to explaining the appropriate use of sentence-modification provisions under the current statute, 28 U.S.C. § 994(a)(2)(C), an amendment to the statute may cause some provisions of a policy statement to no longer fall under that authority, as they no longer explain an appropriate use under the amended statute. For example, at least one provision of the Commission's previously promulgated policy statement is clearly contradicted by the First Step Act's amendments to § 3582 : The unamended policy statement still advises that "[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons." U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 cmt. n.4 ( U.S. SENTENCING COMM'N 2018). Yet § 3582 allows the Court to grant a motion for extraordinary and compelling reasons upon a motion by the Director of the Bureau of Prisons or by the defendant. 18 U.S.C. § 3582(c)(1)(A). The mandate that the Director of the BOP determine additional extraordinary or compelling reasons likewise fails to explain an "appropriate use" under the newly amended § 3582.

Where two statutes are in conflict, it is nearly axiomatic that the latter enacted is given preference over the former. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 327 (2012) ("The rule which ha[d] obtained in the courts for determining [conflicting statutes']...

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