United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATE DISTRICT JUDGE.
MATTER is before the Court on the Defendant's
“Motion to Vacate Count . . . One” and
Alternative “Motion to Reopen Case” [Doc. 388].
Defendant was charged along with ten co-defendants with
conspiring to possess with intent to a quantity of
methamphetamine, in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1), and 851 (Count One). [Doc. 6]. On
January 7, 2003, a jury found the Defendant guilty of the
conspiracy charge. [Doc. 177].
Presentence Report (PSR) was prepared in advance of the
Defendant's sentencing. In the PSR, the probation officer
calculated a total offense level of 38 for the conspiracy
offense based on the 17.96 kilograms of methamphetamine for
which the Defendant was responsible. [Doc. 384 at 6]. The
probation officer further noted that the Defendant had two
prior felony convictions for possession of narcotic
controlled substances and second degree robbery under
California law, and one prior misdemeanor conviction for
inflicting corporal injury on a spouse or cohabitant under
California law, resulting in a criminal history category of
IV. [Id. at 7-8]. Because of the Defendant's
prior felony drug conviction, the Defendant faced a mandatory
minimum sentence of 20 years. See 21 U.S.C.
§§ 841(b)(1)(A) and 851. Based on his total offense
level of 38 and a criminal history category of IV, the
Defendant's recommended guideline range was 324-405
months. [Id. at 11].
Defendant was sentenced on July 1, 2003 to a term of 360
months' imprisonment. [Doc. 222]. The Fourth Circuit
Court of Appeals affirmed his conviction and sentence on
March 19, 2004. [Doc. 271]. Thereafter, the Defendant filed a
motion to vacate his conviction pursuant to 28 U.S.C. §
2255. [Doc. 293]. That motion was denied on September 2,
2008. [Doc. 332]. The Defendant appealed, but the Fourth
Circuit denied a certificate of appealability and dismissed
his appeal on June 30, 2009. [Doc. 338].
February 25, 2016, the Court reduced the Defendant's
sentence from 360 months to 291 months pursuant to 18 U.S.C.
§ 3582 and Amendment 782 to the Sentencing Guidelines.
Defendant now returns to this Court, arguing for a further
reduction of his sentence in light of his exemplary behavior
in prison and his allegedly non-violent criminal history.
Court may reduce a criminal sentence only in limited
circumstances. Pursuant to 18 U.S.C. § 3582(c), the
Court may reduce or sentence only: (1) upon motion of the
Director of the Bureau of Prisons, if certain extraordinary
and compelling reasons so warrant; (2) under the express
authority of Rule 35 of the Rules of Criminal Procedure,
which provides that the Court may correct a clear error in a
sentence within 14 days after sentencing or reduce a sentence
upon motion by the Government for the defendant's
substantial assistance; or (3) when a defendant is sentenced
to a term of imprisonment based upon a sentencing range that
was subsequently lowered by the United States Sentencing
Commission. See 18 U.S.C. § 3582(c). None of
these circumstances, however, are applicable in the present
arguing that his conviction should be vacated and his
sentence reduced to a sentence of time served, the Defendant
relies on the so-called “Holloway
doctrine.” [Doc. 388 at 1-2]. The Holloway
doctrine gets its name from a decision of the Eastern
District of New York, United States v. Holloway, 68
F.Supp.3d 310 (E.D.N.Y. 2014). In that case, Holloway and an
accomplice stole three cars at gunpoint over a two-day
period. Holloway was charged with three counts of carjacking
and three counts of using a firearm during the commission of
a violent felony, in violation of 18 U.S.C. § 924(c).
Id. at 312. He was convicted on all six counts and
was sentenced to 151 months concurrent on each of the
carjackings and a series of consecutive sentences for the
§ 924(c) convictions, resulting in a total term of
imprisonment in excess of 57 years. Id. at 312-13.
Holloway's sentence was affirmed on appeal, and
subsequent § 2255 petitions were unsuccessful.
Id. at 313-14. Holloway then moved to reopen his
initial § 2255 petition pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure. Id. at 314. The
district judge, apparently troubled by the harshness of
Holloway's sentence but recognizing that there were
“no legal avenues or bases for vacating it, ”
urged the United States Attorney to agree to an order
vacating one or more of Holloway's § 924(c)
convictions. Id. The United States Attorney declined
to agree to such an order, observing instead that Holloway
may be eligible for clemency. Id. After the
Department of Justice announced the criteria it would use in
its nationwide clemency initiative, the district court
determined that Holloway was likely disqualified from seeking
clemency. Accordingly, the district court asked the United
States Attorney to reconsider her position. Id. She
agreed to do so and withdrew her opposition to Holloway's
Rule 60(b) motion. Id. Thereafter, the district
court vacated two of Holloway's § 924(c) convictions
and imposed a sentence of time served. United States v.
Holloway, No. 1:95-cr-00078-JG-4 (E.D.N.Y.), ECF No.
rationale underlying Holloway has no application
here. Here, the Defendant was convicted of a single charge of
conspiracy. Holloway involves the dismissal of some,
but not all, of the counts of conviction under § 924(c)
in order to ameliorate the severe result of stacking
multiple, consecutive sentences for those convictions. The
Defendant faced no mandatory consecutive sentences in this
case. Rather, the Defendant seeks to revisit his sentence
with the benefit of hindsight. The law, however, affords no
addition, the Fourth Circuit has not approved the rationale
applied in Holloway. Indeed, every district court
within this Circuit which has addressed the issue has
declined to apply Holloway to reduce a
defendant's sentence. See, e.g., Green v.
United States, No. 4:06-cr-01322-TLW-4, 2017 WL 679644,
at *3 (D.S.C. Feb. 12, 2017) (“Notably absent from
Holloway is an explanation of any statutory or
constitutional basis for vacating Holloway's
convictions.”); Slade v. United States, Nos.
4:08-CR-3-FL, 4:13-CV-132-FL, 2016 WL 3911918, at *4 (E.D.
N.C. July 15, 2016) (“Holloway is not binding
on this court, and it involved different charges and
resentencing considerations.”), appeal
dismissed, 675 F. App'x 360 (4th Cir. 2017);
Wade v. United States, Nos. JKB-15-3372,
JKB-77-0565, 2015 WL 7732834, at *2 (D. Md. Nov. 30, 2015)
(“While the Holloway ruling is educational and
the court is sympathetic to Wade's medical situation, it
finds no basis to apply the benefits of the Holloway
decision, a New York federal district court ruling, to
Wade's criminal cases.”). The Court agrees with
these fellow district courts and concludes that the
Holloway decision provides no basis for relief for
the Defendant in the present case.
IS, THEREFORE, ORDERED that the Defendant's
“Motion to Vacate Count . . . One” and
Alternative “Motion to Reopen Case” [Doc. 388] is