United States v. Hebert
| Decision Date | 08 December 2021 |
| Docket Number | CRIMINAL NO. 1:96-CR-41-TH-1 |
| Citation | 574 F.Supp.3d 416 |
| Parties | UNITED STATES of America v. Scyrus Dion HEBERT |
| Court | U.S. District Court — Eastern District of Texas |
Lauren C. Barnett, Pro Hac Vice, Munger Tolles & Olson LLP, Los Angeles, CA, Ginger D. Anders, Pro Hac Vice, Jacobus P. van der Ven, Pro Hac Vice, Munger, Tolles & Olson LLP, Washington, DC, for Scyrus Dion Hebert.
Scyrus Dion Hebert, Atwater, CA, Pro Se.
Thad Heartfield, United States District Judge Before the Court is a Motion to Reduce Sentence - First Step Act , [Doc. No. 129], filed by counsel for Scyrus Dion Hebert. On December 8, 2021, the Court held a hearing and heard oral arguments from the parties. The Court has considered the motions, all relevant findings, the applicable law, and oral arguments. The Court is of the opinion that the Motion to Reduce Sentence - First Step Act , [Doc. No. 129], should be granted.
From November 1995 to March 1996, Mr. Hebert, at 24 years old, had robbed multiple fast food restaurants, banks, and liquor stores in Beaumont, Texas, while carrying a firearm. [Doc. No. 105 at 6-7]. On August 1, 1996, a jury convicted Mr. Hebert of four counts of bank robbery in violation of 18 U.S.C. § 2113 ; eleven counts of use of a firearm during the course of a violent crime in violation of 18 U.S.C. § 924(c)(1), and seven counts of interference with commerce by committing robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. [Doc. Nos. 105, 145]. In total, Mr. Hebert had stolen $36,475.00. [Doc. No. 118 at 35]. Throughout the eleven robberies, no victims were reportedly injured. [Id. ]. The firearm that Mr. Hebert used in connection with the robberies was inoperable and never discharged. [Doc. Nos. 129-7 at 4-5; 145 at 1].
While awaiting sentencing, Mr. Hebert devised a plan of escape with two other inmates on October 5, 1996. [Doc. No. 118 at 7]. During the attempt, Mr. Hebert struck a guard in the throat and then a struggle ensued. [Id. ]. A search of Mr. Hebert's person and cell revealed two homemade weapons. [Id. ]. The guard assaulted by Mr. Hebert had difficulty breathing but suffered no serious injury. [Id. at 8]. This altercation was considered in Mr. Hebert's sentence as an adjustment of obstruction of justice. [Id. at 9].
On December 12, 1996, the Court sentenced Mr. Hebert to 121 months for the bank robbery and Hobbs Act counts to run concurrently; 60 months for the use of a firearm count relating to the first robbery to run consecutively to any other term of imprisonment; and 240 months for each of the subsequent ten convictions for use of a firearm, each to run consecutively to any other term of imprisonment. [Doc. No. 105]. Mr. Hebert was sentenced to a total of 2,581 months in federal prison, of which 2,400 months is attributed to ten subsequent convictions for use of a firearm in violation of 18 U.S.C. § 924(c). [Id. ]. He was also sentenced to pay $36,475.00 in restitution. [Id. ].
At the time of sentencing, Mr. Hebert had no juvenile adjudications, and his only adult criminal conviction was for writing an insufficient funds check for $38.96 to Walmart. [Id. at 17]. To date, Mr. Hebert is 50 years old and has served 25 years of his sentence in federal prison. [Doc. No. 145 at 2]. Based on information provided by the Government, he has paid approximately $5,627.57 in restitution owed. [Doc. Nos. 125 at 1-2].
In sum, Mr. Hebert now seeks compassionate release based on recent sentencing reforms and his history of rehabilitation. Specifically, Mr. Hebert maintains that "extraordinary and compelling circumstances" warrant a sentence reduction because of "(1) [Mr.] Hebert's remarkable record of demonstrated rehabilitation, contrition, and positive contribution to the inmate community combined with (2) the severity of [Mr.] Hebert's sentence—which represents the type of sentence Congress deemed unjust in the First Step Act (FSA)—relative to those sentences imposed for both similar and more severe crimes." [Doc. No 129 at 14 (citing McCoy v. United States , No. 2:03-cr-197, 2020 WL 2738225, at *6 (E.D. Va. May 26, 2020), aff'd , 981 F.3d 271 (4th Cir. 2020) )]. The sentencing severity to which Mr. Hebert refers to is "sentence stacking," which was a compounded sentence of consecutive 20-year mandatory minimums while using a firearm in the commission of a violent offense. See 18 U.S.C. § 924(c) (1996) ; United States v. McCoy , 981 F.3d 271, 275 (4th Cir. 2020). In 2018, Congress ended this sentencing practice under the FSA. The First Step Act, Pub L. No. 115-391, § 403(a), 132 Stat. 5194, 5222 (2018). In Mr. Hebert's case, 2,400 months of his total conviction are a result of sentence stacking.
In response, the Government claims that statutory changes to § 924(c) and his record of rehabilitation do not qualify as extraordinary and compelling reasons for a sentence reduction under compassionate release. [Doc. No. 135 at 3-4]. In particular, the Government contends that the sentencing changes to § 924(c) are not retroactive, and therefore, do not qualify as an extraordinary and compelling reason. [Id. at 5-7]. As a fallback, the Government argues that even if extraordinary and compelling reasons exist for a sentence reduction, Mr. Hebert has failed to show that he is entitled to a sentence reduction under 18 U.S.C. § 3553(a). [Id. at 7].
"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." Dillon v. United States , 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). One such exception commonly known as "compassionate release" contravenes the general rule regarding the finality of a criminal sentence. 18 U.S.C. § 3582(c)(1)(A). Congress enacted the FSA which modified 18 U.S.C. § 3582(c)(1) to allow a defendant to bring a motion to modify his or her sentence where "extraordinary and compelling reasons warrant such a reduction." Id. § 3582(c)(1)(a)(i).
Under § 3582(c)(1)(A), a district court may grant a sentence reduction if it finds: (1) a defendant "fully exhausted all administrative rights"; (2) "extraordinary and compelling reasons warrant such a reduction"; (3) "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission"; and (4) such a reduction is appropriate "after considering the factors set forth in § 3553(a) to the extent that they are applicable." Id. § 3582(c)(1)(A). The FSA "grants broad discretion to the district courts in providing relief[.]" Jones v. United States , 431 F. Supp. 3d 740, 746 (E.D. Va. 2020).
Mr. Hebert satisfied the exhaustion requirements in 18 U.S.C. § 3582(c)(1)(A).
A motion for compassionate release may be considered only if it first meets § 3582(c)(1)(A) ’s exhaustion requirement. Courts may not consider a modification to a defendant's sentence under § 3582(c)(1)(A)(i) unless a motion for such a modification is properly made by the Director of the BOP or by a defendant who has fully exhausted their administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Fully exhausting administrative remedies requires either a denial by the warden of a defendant's facility or a defendant waiting thirty days without receiving a response to a request. Id.
Section 3582(c)(1)(A) ’s exhaustion requirement is not waivable. See United States v. Rivas , 833 F. App'x 556, 558 (5th Cir. 2020) (). If a defendant has not sought relief from the BOP, or has not waited thirty days since seeking relief, the Court may not consider that motion. 18 U.S.C. § 3582(c)(1)(A).
Mr. Hebert has provided sufficient documentation to show that he has properly exhausted his appeal, making his pending motion ripe before this Court for review. In sum, on August 6, 2020, Warden McConnell of FCI Pollock (the "Warden") received Mr. Hebert's written request for compassionate release. [Doc. No. 129-1 at 1]. Upon denial, Mr. Hebert appealed the Warden's decision on September 17, 2020, which was again denied by the Warden. [Id. at 4, 5, 8]. On October 26, 2020, Mr. Hebert appealed to the BOP's South Central Regional Office, which was also denied. [Id. at 10-12]. On January 26, 2021, Mr. Hebert appealed to the BOP's Administrative Remedy Section located in Washington D.C., and it was promptly denied. [Id. at 13-16]. Upon receiving the denied appeal from the BOP Administrative Remedy Section, the Warden's decision denying Mr. Hebert's initial request for compassionate release on August 6, 2020, became final. After navigating the administrative headwinds, counsel for Mr. Hebert filed a motion for compassionate release more than 30 days after the Warden's receipt of Mr. Hebert's request for compassionate release. See 18 U.S.C. § 3582(c)(1)(A) ; [Doc. No. 129]. The Court concludes that Mr. Hebert exhausted all mandatory administrative requirements.1
Under § 3582(c)(1)(A)(i), a court may reduce a defendant's term of imprisonment if, "after considering the factors set forth in section 3553(a) to the extent that they are applicable," the court finds that "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). The Sentencing Commission issued U.S.S.G. § 1B1.13, a policy statement that governs motions under § 3582(c)(1)(A). At the time that § 1B1.13 was issued, however, the Bureau of Prisons (BOP) had the sole authority to bring motions for release under § 3582(c)(1)(A). Section 1B1.13 has not been updated to reflect that, as a result of the FSA, defendants now have the...
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