Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
96 CR 515 (LAP) -against- ORDER
JOHN PORTER, Defendant.
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Defendant John Porter’s motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) (the “Motion”), (dkt. no. 743), the Government’s opposition, (dkt. no. 748), and Defendant’s reply, (dkt. no. 763). For the reasons set forth below, the motion is denied.
I. Factual Background
a. Underlying Conduct, Conviction and Sentence The Defendant was a founding member of a group known as the “Preacher Crew” or the “Family,” a criminal organization run by Clarence Heatley (“Heatley”), whose members and associates engaged in murder, assault, extortion, other acts of violence, and narcotics trafficking, primarily in Harlem and the Bronx from in or about 1983 to in or about 1996. (See Presentence Investigation Report, dated June 15, 1999 (“PSR”), Ex. A to dkt. no. 748, ¶¶ 23- 24, 29.) The Defendant was involved with several murders, an armed robbery, and narcotics distribution, among other activities. (See id. ¶¶ 29-35.) Specifically, as set forth in the PSR, the Defendant participated in the following:
• In or about July 1991, the Defendant, while armed with a gun, and other Preacher Crew members, stole approximately $119,000 from a department store in Queens, during which they threatened to kill store employees. (See id. ¶ 33.) They also kidnapped the store manager, taking him away from the store in his own car, before releasing him when they arrived in the Bronx. (See id.; see also Mar. 26, 1999, Plea Hrg. Tr. (“Tr.”) at 17:9-19:6, Ex. B to dkt. no. 748.) • In or about January 1994, the Defendant, Heatley, and another Preacher Crew member, Derrick Hailstock (“Hailstock”) agreed to murder Hayward Shine (“Shine”) after the Defendant informed Heatley that Shine planned to rob Hailstock’s stash house and kill Hailstock’s girlfriend. (See PSR ¶ 34.) After the Defendant lured Shine to a particular location, a struggle ensued, and Shine was shot and stabbed. (See id.; see also Tr. at 19:8-20:13.)
• In or about March 1994, the Defendant was an accessory after the fact to the murder of another Preacher Crew member named Anthony Boatwright (“Boatwright”). The Defendant helped discard Boatwright’s dismembered body parts. (See PSR ¶ 31.)
• In or about June 1994, at another Preacher Crew member’s direction, the Defendant drove around a Preacher Crew member who had been designated to kill another member named James Brunson (“Brunson”), so that the Defendant could point out Brunson to the shooter. (See id. ¶ 35.) The shooter later shot and killed Brunson and another victim in Manhattan. (See id.; see also Tr. at 15:13- 16:25.)
The Defendant, and others, were charged in Superseding Indictment S11 96 Cr. 515 with conspiring to and engaging in a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) and (d); conspiring to and committing violent crimes in aid of a racketeering enterprise, including murder in aid of racketeering (e.g., Counts 29 and 30), in violation of 18 U.S.C. § 1959(a)(1) and (5); and firearms and accessory charges in association with the racketeering charges. (See Superseding Indictment S11 96 Cr. 515, Ex. C to dkt. no. 748.)
On March 26, 1999, the Defendant pled guilty before the Honorable Michael B. Mukasey, pursuant to a plea agreement, to Superseding Information S17 96 Cr. 515, charging him with the following crimes: (i) one count of conspiracy to commit murder in aid of racketeering, for the murder of Brunson, in violation of 18 U.S.C. § 1959(a)(5) (“Count One”); (ii) one count of threatening to commit an act of violence in aid of racketeering, for threatening to kill employees during the department store robbery, in violation of 18 U.S.C. § 1959(a)(4) (“Count Two”); and (iii) two counts of using and carrying a firearm during in relation to crimes of violence, during the department store robbery and during the murder of Hayward Shine, in violation of 18 U.S.C. §§ 924(c) and 2 (“Count Three” and “Count Four,” respectively). (See Superseding Information S17 96 Cr. 515, Dkt. 420, Ex. D to dkt. no. 748; Tr. at 8:3-9:4.)
At the Defendant’s sentencing hearing on June 23, 1999, Judge Mukasey imposed a total sentence of 480 months imprisonment: 120 months on Count One; 60 months on Counts Two, 60 months on Count Three; and 240 months on Count Four, each of which ran consecutively to one another. (See June 23, 1999, Judgment, dkt. no. 467, Ex. E to dkt. no. 748.)
Prior to his conviction in the instant case, the Defendant’s criminal convictions included a 1970 attempted robbery at gunpoint in Manhattan; a 1976 robbery at gunpoint in Manhattan, during which the Defendant fired a shot at an arresting officer but missed; and a 1989 murder in Manhattan, after he accepted a contract to murder a victim and then directed a co-defendant, Boatwright, to murder that individual. (See PSR ¶¶ 82-91.)
b. Compassionate Release Motion On October 28, 2022, the Defendant filed this Motion, seeking a reduced sentence under 18 U.S.C. § 3582(c)(1)(A)(i).
First, the Defendant argues in his motion and on reply that his sentence should be reduced because the § 924(c) counts in his case were “stacked” (i.e., he was subject to mandatory consecutive sentences for “second or successive” § 924(c) convictions in the same case in which the first conviction was obtained), a practice which has since been eliminated by Congress. (See dkt. no. 743 [“Mot.”] at 1-3.) In 2018, Congress passed the First Step Act, which, among other things, amended the “stacking” provisions of Section 924(c)(1)(C) that provide enhanced penalties for “second or subsequent” firearm convictions. At the time of the Defendant’s sentencing, the statute mandated a twenty-year consecutive sentence for any second or subsequent conviction under Section 924(c). Under the First Step Act, however, an enhanced sentence is only mandatory for such convictions after the prior conviction under Section 924(c) has “become final.” 18 U.S.C. § 924(c)(1)(C)(ii), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). Congress did not make the amended stacking provision retroactive.
Based on the foregoing, the Defendant argues that if he were sentenced today, he would be subject to a maximum possible sentence of thirty-two years rather than forty years. (See Mot. at 4-5.) In other words, today, he would face a mandatory, consecutive term of seven years for brandishing a firearm in connection with Count Three and a mandatory, consecutive term of ten years for discharging a weapon in connection with Count Four, rather than the mandatory, consecutive term of five years which was imposed on Count Three and the mandatory, consecutive term of twenty years which was imposed on Count Four when he was sentenced.
Additionally, the Defendant argues that, considered in combination with the “stacking” argument, his post-sentence rehabilitation and the difficult conditions of confinement during the COVID-19 pandemic warrant a sentence reduction. (See id. at 6- 7.) Finally, the Defendant asserts that the § 3553(a) factors favor a sentence reduction, principally because the Defendant himself did not commit a violent act, at apparently 70 years old he is no longer a danger to the community, and he has strong family connections. (Id. at 7.)
According to the Defendant’s Motion, the Warden of USP Victorville denied the Defendant’s March 2021 administrative request for immediate transfer to home confinement or compassionate release and a reduction of his sentence. (See id. at 2 n.5.)
II. Applicable Law
Under 18 U.S.C. § 3582(c), a district court “may not” modify a term of imprisonment once imposed, except under limited circumstances. See 18 U.S.C. § 3582(c). One such circumstance is the so-called compassionate release provision, which provides that a district court “may reduce the term of imprisonment” where it finds “extraordinary and compelling circumstances.” Id. § 3582(c)(1)(A)(i). A motion under this provision may be made by either the Bureau of Prisons (“BOP”) or a defendant, but in the latter case only “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, whichever is earlier.” Id.
Where a defendant has exhausted his administrative remedies, he may file a motion with the district court. See id. Under § 3582(c)(1)(A), the district court may modify the defendant’s sentence and “may reduce the term of imprisonment . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it 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 . . . . ” Id.
The Court of Appeals has held that the First Step Act of 2018
“allows [district] courts independently to determine what reasons,
for purposes of compassionate release, are ‘extraordinary and
compelling’” and that the BOP Director is no longer the sole
arbiter in determining whether the threshold is met. See United
States v. Brooker,
Section 1B1.13 of the United States Sentencing Guidelines Manuel provides that the Court may, after considering the § 3553(a) factors, reduce an imprisonment term if “extraordinary and compelling reasons warrant the reduction,” U.S. Sent’g Guidelines Manual (“U.S.S.G.”) § 1B1.13(a)(1)(A); “the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g),” id. § 1B1.13(a)(2); and “the reduction is consistent with this policy statement,” id. § 1B1.13(a)(3). As relevant here, § 1B1.13(b) provides that “extraordinary and compelling reasons” are present where the defendant suffers from or is at risk of suffering from a serious medical condition, must tend to the care of an immediate family member incapable of self-care, has been the victim of abuse during his or her term of imprisonment, would serve a grossly disparate sentence absent a reduction in sentence, or presents a separate circumstance similar in gravity to those listed above. See id. § 1B1.13(b). [1]
As the moving party, the Defendant bears the burden of proving
that “extraordinary and compelling reasons” exist. United States
v. Gotti, 433 F. Supp.3d 613, 619 (S.D.N.Y. 2020); see generally
United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992) (“A
party with an affirmative goal and presumptive access to proof on
a given issue normally has the burden of proof as to that issue.”);
United States v. Clarke, 09 Cr. 705 (LAP),
Whether such “extraordinary and compelling reasons” exist is
only “[t]he threshold question,” however. United States v.
Daugerdas, 09 Cr. 581 (WHP),
III. Discussion
The Government agrees that the Defendant has exhausted his administrative remedies, in light of the denial of his March 2021 request for compassionate release by the Warden at USP Victorville. (See Mot. at 2 n.5.)
The Defendant has not demonstrated extraordinary and compelling circumstances that would warrant a sentencing reduction, and the factors set forth in 18 U.S.C. § 3553(a) also weigh against reducing his sentence. Accordingly, the motion is denied
a. The Defendant Has Not Met His Burden to Show Compelling and Extraordinary Circumstances The factors raised by the Defendant do not rise to the level of extraordinary and compelling circumstances, either standing alone or considered in combination.
1. “Stacking” of Section 924(c) Counts The length of the Defendant’s sentence and the non-retroactive changes to Section 924(c) under the First Step Act do not constitute extraordinary and compelling reasons for a sentence reduction in this case.
The Government agrees with the defense that, (i) with respect
to Counts Three and Four, if the Defendant were sentenced today,
the Court would be required to impose a mandatory consecutive
sentence of seventeen years on Counts Three and Four rather than
the twenty-five year mandatory consecutive sentence that he
received on those counts in 1999; and (ii) therefore, on Counts
One through Four, his maximum possible sentencing exposure today
would be thirty-two years rather than forty years imprisonment.
(See dkt. no. 748 at 5.) The Defendant’s sentencing range of 360
months to life was capped by statute at forty years imprisonment.
(See PSR ¶ 7(g)). The Defendant was sentenced before United States
v. Booker,
While this Court may consider the First Step Act’s anti-stacking
provision in considering a compassionate release motion, in this
case, the change in law does not militate in favor of reducing
this Defendant’s sentence and the Defendant should not be permitted
to make an end-run around the provision’s non-retroactivity. The
Court of Appeals has found that a district court “may look to, but
is not bound by, the mandatory minimums the defendant would face
if being sentenced for the first time under revised guidelines or
statutes.” United States v. Rose,
2. Rehabilitation
The Court acknowledges that under controlling Second Circuit
case law “‘[r]ehabilitation . . . alone shall not be considered an
extraordinary and compelling reason [justifying compassionate
release].’” Brooker,
The Defendant’s proffered rehabilitation consists of “tak[ing]
all the programming available to him, including drug and vocational
rehabilitation programs,” “obtain[ing] his GED,” and “secur[ing]
work assignments,” including “in the kitchen and library.” (Mot.
at 6.) The Defendant’s efforts to work and to take advantage of
educational opportunities in prison, while laudable, are not
extraordinary. See, e.g., United States v. Tisdale, 15 Cr. 334
(RA),
3. The Conditions of Confinement During the COVID-19 Pandemic
The Defendant argues that his sentence should be reduced due to
difficult conditions of confinement, including hardships imposed
by the COVID-19 pandemic and the risks the Defendant continues to
face. (See Mot. at 6-7.) But he does not assert that any medical
conditions distinguishing him from other inmates heightens his
risk of COVID-19 so as to justify a grant of compassionate release.
See United States v. Haney,
With respect to the other hardships resulting from being incarcerated in recent years, such as repeated lockdowns, these problems are not unique to this Defendant and do not justify a reduction in sentence. See, e.g., United States v. Cardenas, 17 Cr. 339 (AJN), 2021 WL 3722761, at *3 (S.D.N.Y. Aug. 23, 2021) (explaining “restrictions on visitation or other pandemic-related measures taken by prisons will not amount to extraordinary circumstances for most defendants who have recovered from or been vaccinated against COVID-19”); United States v. Bryant, 06 Cr. 17 (LTS), 2021 WL 738838, at *3 (S.D.N.Y. Feb. 24, 2021) (finding that severe conditions of confinement during the pandemic are “not unique to Mr. Bryant and do not militate strongly in favor of finding there are extraordinary and compelling reasons for a sentence reduction”); United States v. LaBarca, 11 Cr. 12 (RMB), 2021 WL 195996, at *4 (S.D.N.Y. Jan. 20, 2021) (denying compassionate release request based on restrictive COVID-related prison conditions that are “true for all prisoners”).
For these reasons, the Defendant’s arguments regarding the COVID-19 pandemic and the resulting conditions of confinement are unavailing.
b. The Section 3553(a) Factors Counsel Against a Sentence Reduction
Even if the Defendant had established extraordinary and compelling circumstances, which he has not, the §3553(a) factors counsel against release. United States v. Israel, 05 Cr. 1039 (CM), 2019 WL 6702522, at *2 (S.D.N.Y. Dec. 9, 2019) (explaining that court confronted with compassionate release motion must “consider all the Section 3553(a) factors to the extent they are applicable, and may deny such a motion if, in its discretion, compassionate release is not warranted because Section 3553(a) factors override, in any particular case, what would otherwise be extraordinary and compelling circumstances”).
The Defendant highlights, among other things, that he did not plead guilty personally to committing a violent act, that he was in Criminal History Category II, his remorse, and his personal growth. (See Mot. at 7.) But the Defendant’s offenses are some of the most serious possible. See 18 U.S.C. § 3553(a)(1), (a)(2)(A). The Defendant was a founding member of a violent criminal organization that operated in New York City for more than a decade. (See dkt. no. 748 at 9.) Even if the Defendant did not pull the trigger or stab a victim, the Defendant was a willing participant in some of the most serious crimes imaginable—including purposefully luring Shine to his death, pointing out Brunson so he could be murdered, committing an armed robbery of a department store, helping to discard Boatwright’s body after he was murdered, and narcotics distribution. And these crimes were not crimes of youth—the Defendant was in his late thirties and early forties when he committed the crimes to which he pled.
The Defendant’s criminal record includes an attempted armed robbery, an armed robbery during which the Defendant shot at a police officer, and a murder conviction for accepting a murder contract and directing another person to murder a victim. These crimes further weigh against early release. While the Court commends the Defendant on his educational accomplishments and his relationships with his family, these characteristics are not enough to outweigh the Defendant’s grave crimes.
In light of the Defendant’s criminal past, there is every reason to believe that he would pose a danger to the safety of the community if released. Id. § 3553(a)(2)(C). And, just punishment for the Defendant’s heinous crimes demands a forty-year sentence.
IV. Conclusion
For the foregoing reasons, the Defendant’s motion to reduce his sentence pursuant to U.S.C. § 3582(c)(1)(A), (dkt. no. 743), is denied.
SO ORDERED.
Dated: New York, New York
May 14, 2024
____________________________ LORETTA A. PRESKA Senior United States District Judge
Notes
[1] In his briefing, the Defendant did not argue that he meets the criteria such criteria and he does not.