United States v. FOXUnited States v. FOX
18 U.S.C. § 3582(c)(1)(A) (COMPASSIONATE RELEASE)
Upon motion of ☒ the defendant ☐ the Director of the Bureau of Prisons for a reduction in sentence under
IT IS ORDERED that the motion is:
☒ DENIED.
☐ DENIED WITHOUT PREJUDICE.
☐ OTHER:
☒ FACTORS CONSIDERED: See attached opinion.
Defendant Robert Fox (01) has filed a motion seeking compassionate release under § 603 of the First Step Act of 2018, which is codified at
I.
BACKGROUND
On February 17, 2016, Mr. Fox was convicted of two counts of Hobbs Act robbery, in violation of
Between May and August 2014, a series of armed robberies of businesses and restaurants occurred on the east side of Indianapolis. Based on the security footage of the robberies, it appeared the same person may have committed them. An anonymous tip led the Indianapolis Metropolitan Police Department (IMPD) to investigate Robert Fox as a suspect in the robberies. At the time, the defendant was on parole after serving a term of incarceration for armed robbery, and he was residing on the east side of Indianapolis.
On July 20, 2014, Fox robbed a White Castle restaurant on Shelby Street in Indianapolis. During the robbery, he pointed a gun at a worker and demanded money. He stole $130.46. Two victims of the White Castle robbery selected Fox‘s
photo from a photo array and indicated he was the man who had robbed the business. On August 5, 2014, the defendant robbed a Speedway gas station in Indianapolis. He pointed a gun at the clerk and forced the clerk to lie down on the floor. He took $152, cigarettes, and the clerk‘s cell phone.
Also linking Fox to the robberies was a traffic citation he received on June 21, 2014. During the stop, the defendant was driving a bronze 2007 Chevrolet Impala. The Bureau of Motor Vehicles showed the vehicle was registered to [a female individual]. On the night of the White Castle robbery, the Safeway grocery store across the street from the restaurant happened to have its video surveillance equipment operating. The store‘s video showed a man, who appeared to be the robber, running out of the White Castle and entering a vehicle very similar to [the female individual‘s].
On August 20, 2014, two officers with IMPD followed the Chevrolet Impala on North College Avenue in Indianapolis. A traffic stop was initiated. The vehicle was driven by [the female individual], and Fox was the passenger. The defendant was taken into custody for further investigation into the robberies. At this point, an officer noticed a handgun partially hidden underneath the seat where the defendant had been sitting. Fox told officers, “That‘s my gun. She don‘t know nothing about that.” It was a Smith and Wesson model SD9VE 9-millimeter handgun with serial number HFK 1204, which had been stolen during an armed robbery of a Pizza Hut restaurant the night before.
After his arrest, Fox was interviewed by IMPD detectives.... He admitted he robbed the White Castle and Speedway. The defendant also reported an attempted robbery of a Waffle House on an unknown date. Fox denied involvement in any additional robberies, including the Pizza Hut. The firearm seized from Fox was not used in any of the robberies he admitted committing.
[Filing No. 160 at 5-6.]
Mr. Fox faced a guideline term of 63 to 78 months’ imprisonment on the Hobbs Act counts, 84 months on the first
Mr. Fox has filed his third Motion for Compassionate Release, [Filing No. 208], the Government opposes the motion, [Filing No. 212], Mr. Fox did not file a reply, and the motion is now ripe for the Court‘s consideration.
II.
DISCUSSION
The general rule is that sentences imposed in federal criminal cases are final and may not be modified.
The United States Sentencing Commission has been authorized by Congress to develop policies to be used by the courts in considering compassionate release motions. The Sentencing Commission has set forth the following considerations: First, whether “[e]xtraordinary and compelling reasons warrant the reduction” and whether the reduction is otherwise “consistent with this policy statement“; and second, whether the defendant is “a danger to the safety of any other person or to the community, as provided in
The Seventh Circuit has held that district courts have broad discretion in determining what constitutes “extraordinary and compelling reasons” under the statute. United States v. Gunn, 980 F.3d 1178, 1180–81 (7th Cir. 2020). The district court must “consider[] the applicant‘s individualized arguments and evidence,” United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022), but ultimately “[t]he movant bears the burden of establishing ‘extraordinary and compelling reasons’ that warrant a sentence reduction,” United States v. Newton, 996 F.3d 485, 488 (7th Cir. 2021). On this point, the United States Sentencing Commission recently amended the Guidelines Manual to identify several new circumstances as “extraordinary and compelling” reasons potentially warranting compassionate release. See U.S.S.G. § 1B1.13 (Nov. 2023).
Mr. Fox argues in support of his motion that due to changes in the law, he would receive a significantly shorter sentence if he were sentenced today and that he has engaged in rehabilitation while incarcerated. [Filing No. 208.] The Court will address each argument in turn.
A. Extraordinary and Compelling Reasons
1. Changes in the Law
Mr. Fox argues that “[d]ue to changes under the First Step Act, [he] would [receive] a significantly shorter sentence if sentenced today.” [Filing No. 208 at 1.]
In its response, the Government argues that based on Mr. Fox‘s previous motions for compassionate release, it understands him to be arguing that he would receive a shorter sentence today due to changes to
At the outset, the Court notes that Mr. Fox does not explain in his motion what changes to the law he is relying upon. He does not provide any specific argument regarding his statement that changes in the First Step Act would lead to a shorter sentence if he were sentenced today. Due to this lack of specificity, his argument is waived. M.G. Skinner Ins. Agency, Inc. v. Normal-Spencer Agency, Inc., 845 F.3d 312, 321 (7th Cir. 2017) (“Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority.“).
In any event, assuming his argument is based on changes to
(6) Unusually Long Sentence. – If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant‘s individualized circumstances.
The Seventh Circuit Court of Appeals has held that a change-in-the-law argument regarding
The disparity created by Congress‘s amendment to
§ 924(c) does not satisfy [the] definition [of “extraordinary and compelling“]. Far from “extraordinary,” nonretroactive amendments to criminal penalties are the norm. Ordinarily, we have explained, statutory changes to federal penalties only benefit future offenders. Congress sometimes deviates from the default, as it did in the Act, by extending the revised penalties to defendants not yet sentenced. Even then, some measure of prospectivity is par for the course: The ordinary practice is to withhol[d] that change from defendants already sentenced. And regardless of whether the line is drawn at the offense or the sentence, a nonretroactive penalty change necessarily creates a disparity between those who receive the benefit and those who do not.... Such a disparity is an unexceptional feature of a system in which nonretroactivity is the default.As for “compelling“: It is hard to see how Congress‘s deliberate decision not to extend newly reduced penalties to those already sentenced could be a convincing reason that warrants a reduction. As we have explained, Congress decided to apply the lower prison sentences to some violators of
§ 924(c) – those for whom a sentence had not yet been imposed – but not others. In doing so, Congress reinforced its interest in finality and avoided burdening district courts with additional litigation. Treating the disparity resulting from§ 924(c) ‘s amendment as a compelling reason for reducing a sentence would undermine Congress‘s choice to leave the sentence intact.
Rutherford, 146 S. Ct. at 1330-31 (quotations and citations omitted, emphasis in original).
In short, the nonretroactive changes to
2. Rehabilitation
Mr. Fox also argues in support of his motion that during his incarceration, he “has demonstrated rehabilitation through programming, mentorship, and discipline.” [Filing No. 208 at 1.]
BOP records indicate that Mr. Fox has engaged in programming while incarcerated, [see Filing No. 212-4], but such efforts are expected and rehabilitation “is not, by itself, an extraordinary and compelling reason” for release in any event. U.S.S.G. § 1B1.13(d);
In sum, Mr. Fox has not presented extraordinary and compelling reasons for release, but the Court goes on to consider whether he is a danger to the safety of any other person or to the community.
B. Danger to the Safety of Any Other Person or to the Community
Mr. Fox argues that he “has matured and no longer presents the same risk,” and that he would live with his grandmother upon release, has family support, will seek employment, and will “comply with all conditions.” [Filing No. 208 at 2; see also Filing No. 208-2 at 1.].] He submits a letter of support from his grandmother and a statement regarding her willingness to have Mr. Fox live with her upon his release. [Filing No. 208-2 at 2-3.]
Mr. Fox committed two armed robberies in which he pointed a gun at employees, and during one of those robberies he forced an employee to lie down on the floor and took the employee‘s cell phone. Significantly, Mr. Fox was on parole for a state court case involving armed robbery when he committed the offenses underlying this case. And although Mr. Fox argues that he has matured while incarcerated, the Court also finds it significant that he has been involved in numerous disciplinary incidents including smoking in an unauthorized area, being insolent to staff members, threatening bodily harm, refusing a work assignment, possessing drugs/alcohol, and allowing another inmate to use a phone. [Filing No. 212-2 at 1-3.] The Court cannot discount the real danger to the community that Mr. Fox would pose if he were to be released before an additional period of incarceration. The Court finds that Mr. Fox is a serious danger to the safety of any other person or to the community, making compassionate release inappropriate.
C. Section 3553(a) Factors
Mr. Fox argues that the
The Court has already found that compassionate release is not warranted because Mr. Fox has not presented extraordinary and compelling reasons for his release and because he would be a danger to any other person or the community if he were to be released before an additional period of incarceration. Although it need not consider the factors set forth in
In sum, the Court finds that Mr. Fox has not presented extraordinary and compelling reasons to release him, he would be a danger to the safety of any other person or the community if
III.
CONCLUSION
For the reasons stated above, Mr. Fox‘s Motion for Compassionate Release, [208], is DENIED.
Date: 7/20/2026
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution via ECF only to all counsel of record
Distribution via United States Mail to:
Robert E. Fox
#12612-028
FCI McKean
Federal Correctional Institution
P.O. Box 8000
Bradford, PA 16701