United States District Court, N.D. Indiana
OPINION AND ORDER
A. BRADY JUDGE
matter is before the Court on a Motion for Appointment of
Counsel [ECF No. 2], that Defendant Malcolm L. Scarbrough has
filed in connection with this 1973 criminal case. Defendant
asserts that he is entitled to a modification of his sentence
pursuant to recent amendments to 18 U.S.C. § 3582(c) as
part of the First Step Act. One of the changes brought about
by the First Step Act (§ 603) is that prisoners can now
move for a reduction in their sentence under 18 U.S.C. §
3582(c)(1)(A) if the warden has not been responsive for 30
days, or the Defendant has exhausted Bureau of Prisons (BOP)
administrative appeals. Prior to the FSA, only the Director
of the BOP could file a motion for compassionate release.
Defendant maintains that he is a good candidate for
compassionate release under the FSA, and that the it has been
more than 30 days since the Director of the BOP has responded
to his request.
Government has filed a response in opposition [ECF No. 5],
and the United States Probation and Pretrial Services has
submitted a status for the Court's consideration [ECF No.
6]. The Government's Response notes that neither 18
U.S.C. § 3582, nor the First Step Act's amendments
to 18 U.S.C. § 3582, are applicable to Defendant's
sentence, which was imposed prior to § 3582's
passage as a law. According to the probation officer's
memorandum, the probation officer made inquires with the BOP
concerning Defendant's request for relief under the First
Step Act. BOP records show that he last made a request, under
18 U.S.C. § 4205(g), in 2016.
filed a Reply [ECF No. 7], requesting that the Court construe
his request for relief under a prior version of Federal Rule
of Civil Procedure 35, and exercise its equitable authority
to order his immediate release.
reasons stated herein, the Court finds that Defendant is not
entitled to relief under the First Step Act, and that the
appointment of counsel is not warranted.
release is the term used to describe early release from a
term of imprisonment under “particularly extraordinary
or compelling circumstances.” 28 C.F.R. § 571.61.
Two statutory provisions-18 U.S.C. § 4205(g) and 18
U.S.C. § 3582(c)-are relevant to the issue of when a
sentencing court may reduce the sentence of a
federally-convicted prisoner upon motion of the BOP. Congress
repealed § 4205(g) in the Sentencing Reform Act of 1984
(SRA). SRA § 235(a)(1), Pub.L. 98-473, 98 Stat.2031-32,
Oct. 12, 1984; as amended, Judicial Improvements Act of 1990
§ 316, Pub.L. 101-650, 104 Stat. 5115, Dec. 1, 1990;
Parole Commission Phaseout Act of 1996 § 2a, Pub.L.
104-232, 110 Stat. 3055, Oct. 2, 1996; 21st Century
Department of Justice Appropriations Act § 11017(a),
Pub.L. 107-273, 116 Stat. 1758, Nov. 2, 2002. The SRA
replaced section 4205(g) with section 3582(c), which became
effective on November 1, 1987. Amendments to the SRA
explicitly provide that section 3582(c) would apply only to
offenses occurring after its effective date. SRA §
235(a)(1); as amended Sentencing Reform Amendments Act of
1985 § 2, Pub.L. 99-217, 99 Stat. 1728, Dec. 26, 1985;
Sentencing Act of 1987 § 2, Pub.L. 100-182, 101 Stat.
1266, Dec. 7, 1987.
Senate Report on § 235(a)(1), the provision establishing
the effective date of the SRA, states:
The title will apply to any offense or other event occurring
on or after the effective date. A sentence imposed before the
effective date of the guidelines as to an individual
imprisoned or on probation or parole on that date would not
be affected by this title. As to an offense committed
prior to the effective date, the preexisting law will apply
as to all substantive matters including the imposable
S. Rep. No. 98-225, 98th Cong., 1st Sess. 189 reprinted in
1984 U.S. Code Cong. & Admin. News 3182, 3372 (emphasis
1973, Defendant was charged for his involvement in a bank
robbery, pled guilty, and was sentenced. He was released to
parole in 1996. When he violated his parole for commission of
a new offense, he first served time for that offense.
Defendant began serving his time on the parole violation,
which relates back to his 1973 offense, on December 3, 2013.
Defendant's release date is in April 2022, but he is
scheduled to appear before the Parole Board in October 2019.
Defendant is serving a term of imprisonment that was imposed
pre-Sentence Reform Act, the provisions of § 3582(c) do
not apply to him. This means he cannot petition the Court
directly for compassionate release or a reduction in his
sentence. Rather, 18 U.S.C. § 4205(g), although repealed
effective November 1, 1987, still applies to his
incarceration. See 28 C.F.R. § 572.40. Relief
under § 4205(g) requires a motion by the BOP. 28 C.F. R.
§§ 571.60, 571.62; see also United States v.
Booker, 543 U.S. 220, 300 (2005) (noting that under
§ 4205(g) “[s]entencing judges had the discretion
to reduce a minimum term of imprisonment upon the
recommendation of the Bureau of Prisons”).
has not filed a motion for Defendants' release. Defendant
hopes to remedy this by asking that the Court construe his
request as one for relief under “Old Rule” 35.
(Reply 3, ECF No. 7.) Defendant points to a case where the
filing of a Rule 35 motion was prompted by the passage of a
new law that raised the minimum length of a prison sentence
required to be imposed before an individual would become
eligible for parole after serving one-third of his sentence-
from the original one hundred and eighty days to more than
one year. United States v. Wigoda, 417 F.Supp. 276,
277 n.2 (N.D. Ill. 1976). The defendant had been sentenced to
a prison term of one year. To receive the benefit of the new
law, he asked the court to reduce his sentence to a
four-month term, or in the alternative, to resentence him to
a term of one year and one day. Id. at 277. The
court obliged by resentencing the defendant for a period of
one year and one day, and designating that the defendant
“shall become eligible for parole at the expiration of
4 months of said sentence.” Id. However, the
Parole Commission denied his request for parole. Rather than
requiring the defendant to pursue the normal administrative
and judicial channels for review of the hearing officers'
determination, the court exercised its powers under Rule 35
to “provide for defendant's release within the
period originally contemplated by this Court at the time of
sentencing.” Id. at 278.
matter what discretion existed under the previous version of
Rule 35, strict time limits still applied, unless the
sentence was ...