United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION TO REDUCE
L. HOVLAND, CHIEF JUDGE.
the Court is the Defendant's motion to reduce sentence
pursuant to the First Step Act of 2018, filed on May 23,
2019. See Doc. No. 89. The Government filed a
response in opposition to the motion on August 1, 2019.
See Doc. No. 95. The Defendant filed a reply on
August 8, 2019. See Doc No. 96. The Defendant filed
a supplemental reply on August 13, 2019. See Doc.
No. 97. For the reasons set forth below, the motion is
November 8, 2016, Burbidge pled guilty to one count of
conspiracy to possess with intent to distribute and
distribute a controlled substance (methamphetamine) in
violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)A)(viii), 846, and 18 U.S.C. § 2 and one count
of conspiracy to launder monetary instruments in violation of
18 U.S.C. §§ 1956(h) and 2. See Doc. No.
67. On May 30, 2017, the Court sentenced Burbidge to 60
months of imprisonment and 5 years of supervised release. The
Court allowed Burbidge to self-surrender on August 4, 2017,
in order to permit him to attend a state court hearing
regarding custody of his minor children. Burbidge did not
appeal his conviction or sentence. His presumptive release
date from the custody of the Bureau of Prisons
(“BOP”) is October 31, 2020. He has been a model
prisoner while incarcerated and has successfully completed
the RDAP program.
January 11, 2019, Burbidge submitted a request for a
compassionate release reduction in sentence to the BOP. On
May 23, 2019, Burbidge, with the assistance of retained
counsel, filed a motion to reduce sentence pursuant the First
Step Act in federal court. On July 31, 2019, the BOP denied
his request for a reduction in sentence. See Doc.
No. 95-1. In its denial, the BOP noted the mother of
Burbidge's children was no longer in custody and Morton
County Social Services had extended the period of foster care
until June of 2020. The BOP also found Burbidge had failed to
show that no other family members were available to care for
contends his circumstances satisfy the “extraordinary
and compelling reasons” standard set forth in 18 U.S.C.
§ 3582(c)(1)(A)(i) based upon the need for him to care
for his minor children who are now in foster care. He asks
that his sentence be reduced to time served. The Government
opposes the motion.
undisputed that Burbidge has exhausted his administrative
remedies and the motion is ripe for consideration by the
Court. In considering the motion, the Court must assess
whether, after considering the 3553(a) factors, extraordinary
and compelling circumstances exist which warrant a sentence
reduction, and if a sentence reduction is consistent with the
Sentencing Commission's applicable policy statement.
See 18 U.S.C. § 3582(c)(1)(A).
to the passage of the First Step Act in 2018, district courts
could only grant compassionate release sentence reductions
based upon a motion filed by the director of the BOP. Such
motions were rarely filed. This all changed when the
President signed the First Step Act into law on December 21,
2018. The relevant portion of the new law now reads as
(c) Modification of an imposed term of
imprisonment.--The court may not modify a term of
imprisonment once it has been imposed except that-
(1) in any case-
(A) the court, upon motion of the Director
of the Bureau of Prisons, or upon motion of the
defendant 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, may reduce the term of imprisonment (and may impose
a term of probation or supervised release with or without
conditions that does not exceed the unserved portion of the
original term of imprisonment), after considering the factors
set forth in section 3553(a) to the extent that they are
applicable, if it finds that-
(i) extraordinary and compelling reasons
warrant such a reduction; and that such a reduction is
consistent with applicable policy statements issued by ...