United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant's pro se motion
to reduce sentence. (Doc. 155.) The government has filed a
response. (Doc. 156.) As set forth below, the court finds the
motion lacks any basis for a sentence reduction and
accordingly it is DISMISSED for lack of jurisdiction.
2010, defendant Jeffrey Childs was convicted of multiple drug
trafficking crimes, as well as the possession of firearms in
furtherance of such crimes (Counts 4 and 10). The court
sentenced Childs to 300 months imprisonment, comprised of 180
months imprisonment as to the drug trafficking counts, and
two consecutive five-year terms based upon the firearms
counts. Due to a binding plea agreement under Rule
11(c)(1)(C), Judge Marten sentenced Childs based on that
agreement and consideration of the statutory minimums, but
not the sentencing Guidelines. (Docs. 108, 140.) In 2015,
Defendant moved for a reduction in his sentence due to a
change in the Guidelines. (Doc. 139.) That motion was denied
on the basis that Defendant was not sentenced in accordance
with the Guidelines. (Doc. 140.) In 2016, Childs moved to
vacate his sentence pursuant to 28 U.S.C. § 2255. The
court denied the motion. (Doc. 145).
2017, Childs moved for reconsideration and that motion was
dismissed. (Docs. 148, 149.) In 2018, Childs again moved for
reconsideration and that motion was also dismissed. (Docs.
153, 154.) Liberally construing the motion presently before
the court, Childs seeks a sentence reduction based on the
“Holloway doctrine” and under the First
Step Act, Public Law 115-391, 132 Stat. 5194 (2018).
moves to reduce his sentence pursuant to what has been
referred to as the “Holloway doctrine, ”
a reference to United States v. Holloway, 68
F.Supp.3d 310 (E.D.N.Y. 2014). In that case, the
defendant's mandatory minimum sentence was fifty-seven
years for three convictions under 18 U.S.C. § 924(c) and
three carjackings. The U.S. Attorney's Office agreed to
an order vacating two of the defendant's three §
924(c) convictions and the defendant was resentenced on the
remaining count. Id. at 311, 314.
“Holloway doctrine, ” however, requires
the consent of the government. See Holloway, 68
F.Supp.3d at 316 (E.D.N.Y. 2014) (“There are no
floodgates to worry about; the authority exercised in this
case will be used only as often as the Department of Justice
itself chooses to exercise it, which will no doubt be
sparingly.”); United States v. Espino, No.
03-20051-08-JWL, 2019 WL 858735, at *1 (D. Kan. Feb. 22,
2019); United States v. Perez, 2018 WL 4207147, at
*2 (D. Kan. Sept. 4, 2018) (the “Holloway
doctrine, in and of itself, does not provide the requisite
statutory basis to vacate a sentence.”). In response to
Defendant's motion, the government expressly states that
it does not agree to a sentence reduction. (Doc. 156 at 2.)
Although Defendant requests that the court ask the U.S.
Attorney's office to agree to a sentence reduction, the
court declines to do so. See Espino, 2019 WL 858735,
at *1. Therefore, although the Tenth Circuit has not yet
addressed the availability of such relief, this court is, in
any event, without jurisdiction to award Defendant the relief
he seeks. Perez, 2018 WL 4207147, at *2 (court lacks
jurisdiction without the government's consent).
also urges the court to reduce his sentence pursuant to
Section 3582(c)(1)(A)(i), which permits the court to grant
such a motion where “extraordinary and compelling
reasons warrant such a reduction” and the
“reduction is consistent with applicable policy
statements issued by the Sentencing Commission....” 18
U.S.C. § 3582(c)(1)(A). Defendant argues that the
extraordinary and compelling reasons are the recent passage
of the First Step Act combined with the stacking of his
firearm offenses and the new Guideline calculations. (Doc.
155 at 18-19.) This argument fails for two reasons. First,
the statute requires Defendant to have fully exhausted his
administrative rights to appeal the failure of the Bureau of
Prisons to bring this motion on Defendant's behalf.
§ 3582(c)(1)(A). There is no indication in his motion
that he has exhausted his administrative remedies. Second,
the extraordinary and compelling reasons do not include
changes to the statutory minimums or the Guidelines.
See U.S.S.G. § 1B1.13, app. 1 (listing
reasons). Therefore, this court lacks jurisdiction to reduce
Defendant's sentence on this basis. Moreover, although
Defendant spends a significant amount of time discussing his
rehabilitation while incarcerated, which is to be commended,
this court does not have any authority to reduce a sentence
due to “good conduct or other accomplishments.”
See Espino, 2019 WL 858735, at *2.
motion can also be construed as a § 2255, as it seeks to
vacate his gun convictions and corresponding sentence on the
basis that they are unjust. Section 2255(h) provides in part
that a second or successive § 2255 motion must be
certified as provided in § 2244 by a panel of the
appropriate court of appeals to contain certain newly
discovered evidence or a new rule of constitutional law made
retroactive by the Supreme Court. 28 U.S.C. § 2255(h).
Defendant has previously filed a § 2255 motion in this
authorization from the appropriate court of appeals, a
district court has no jurisdiction to consider a second or
successive § 2255 motion. In re Cline, 531 F.3d
1249, 1251 (10th Cir. 2008). In such circumstances, the
district court may either dismiss the motion for lack of
jurisdiction or transfer it to the court of appeals if it is
in the interest of justice to do so. Id. at 1252.
Where a defendant's petition is plainly insufficient, it
is appropriate for the district court to dismiss the matter.
court concludes Defendant's motion should be dismissed.
(See Doc. 149.)
THEREFORE ORDERED this 12th day of December, 2019, that
Defendant's motion to reduce sentence (Doc. 155) is
DISMISSED FOR LACK OF JURISDICTION.
appeal from a final order on a § 2255 may not be taken
absent a certificate of appealability, which may issue only
if a petitioner has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2). The
court concludes Defendant has ...