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United States v. McMillon

United States District Court, D. Kansas

November 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER McMILLON (05), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         This matter comes before the court on defendant Christopher McMillon's pro se[1]motions. Mr. McMillon has filed two motions: (1) “Motion to Alter/Amend Recommendations” (Doc. 246) and (2) “Motion to Reconsider Sentence” (Doc. 260). After reciting the relevant history in this case, the court will address each of these motions in turn. For the reasons described below, the court denies Mr. McMillon's motions.

         I. Background

         On April 12, 2016, Mr. McMillon entered a plea agreement under Rule 11(c)(1)(C), pleading guilty to cocaine distribution in violation of 21 U.S.C. § 841(a)(1). His plea agreement included a proposed sentence: a sentence of imprisonment of 60 months; three years of supervised release; no fine; and the mandatory special assessment of $100. Doc. 153 at 2.

         On July 11, 2016, the court accepted Mr. McMillon's plea agreement and sentenced him according to the proposed sentence. Docs. 183 & 184. At Mr. McMillon's request, the court recommended that Mr. McMillon participate in any available drug treatment, including the Residential Drug Abuse Program (“RDAP”). Docs. 183 & 184.

         II. “Motion to Alter/Amend Recommendations” (Doc. 246)

         With his first motion, Mr. McMillon asks the court to amend its recommendation to the Bureau of Prisons to include the Second Chance Act. He requests this amendment so that he can transfer to a residential re-entry center (“RRC”) after he completes RDAP. The court construes this as a motion to amend the judgment, or, in the alternative, for a supplemental recommendation by the court made outside of the judgment concerning RRC placement. See United States v. Grant, No. 5:14-CR-296-FL-1, 2017 WL 2799851, at *1 (E.D. N.C. June 28, 2017) (construing defendant's motion for recommendation concerning length of residential reentry center, halfway house, or home confinement placement time as a motion to amend the judgment, or, in the alternative, for a supplemental recommendation by the court made outside of the judgment concerning RRC or halfway house placement because the court already had made recommendations regarding defendant's prison placement, but made no recommendation about RRC or halfway house placement); see also United States v. Galindo, No. 2:13-CR-73-FTM-38CM, 2017 WL 3499254, at *2 (M.D. Fla. Aug. 16, 2017) (construing defendant's Motion for Recommending 12 Months CCC/RRC placement as a motion requesting a supplemental recommendation on RRC or halfway house placement and noting that “[t]o the extent that [defendant] seeks the Court to amend the judgment, it has no basis to do so under the circumstances presented.”).

         First, the court has no authority or basis to amend the judgment. Except in limited situations, 18 U.S.C. § 3582(c) prohibits the court from modifying a term of imprisonment once the court has imposed it. The court will describe the exceptions in its analysis of Mr. McMillon's “Motion to Reconsider Sentence” (Doc. 260) in Part III, below. But generally, the exceptions are limited to a motion of the BOP, lowering of the sentencing range by the Sentencing Commission, or if expressly permitted by Fed. R. Crim. P. 35. Grant, 2017 WL 2799851, at *1; see 18 U.S.C. § 3582(c). None of these exceptions apply here.

         Second, the court, in its discretion, declines to make a supplemental recommendation outside the judgment concerning RRC placement. The court already made its recommendations at sentencing based on Mr. McMillon's circumstances. Mr. McMillon offers two more mitigating circumstances for the court's consideration: he is active in the sports program and he is participating in RDAP. The court commends Mr. McMillon for his participation in these programs, but these two additional factors do not warrant the court making a supplemental recommendation to the BOP. See Grant, 2017 WL 2799851, at *1 (declining to make a supplemental RRC recommendation because the court carefully considered multiple factors bearing on defendant's incarceration at sentencing); see also Galindo, 2017 WL 3499254, at *2 (finding that a supplemental RRC recommendation was not appropriate because defendant reiterated many of the same facts that the court carefully considered at sentencing).

         Even if the court chose to make the requested recommendation, recommendations from the court are not binding on the BOP. 18 U.S.C. § 3621(b) (“Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau under this section to determine or change the place of imprisonment of that person.”). The BOP has its own policies that will identify if Mr. McMillon is eligible for RRC placement. U.S. Dep't of Justice, Fed. Bureau of Prisons, Program Statement 7310.04, Cmty. Corr. Ctr. (CCC) Utilization and Transfer Procedures (1998).

         For these reasons, the court denies this motion.

         III. “Motion to Reconsider Sentence” (Doc. 260)

         Mr. McMillon's second motion asks the court to reduce his sentence. The court sentenced him to 60 months in custody. He alleges that his co-defendant, Shanae Ransom, received a lower sentence of 46 months. Mr. McMillon asserts that both he and Mr. Ransom have the same aggravating and mitigating circumstances so the court should reduce his sentence to match Mr. Ransom's. The court may not reduce Mr. McMillon's sentence for this reason.

         “Federal courts, in general, lack jurisdiction to reduce a term of imprisonment once it has been imposed.” United States v. McKinney, No. 06-20078-01-JWL, 2015 WL 13357588, at *1 (D. Kan. Nov. 12, 2015) (citing Freeman v. United States, 564 U.S. 522, 526 (2011)). “A district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization.” United States v. Smartt, 129 F.3d 539, 540 ...


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