Court filing

Memorandum in Support of Motion for Sentence Reduction — United States v. Monica Faye Barnes (E.D.N.C.)

Filed December 12, 2023 in U.S. v. Barnes; one of 7 filings from this case.

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Court	U.S. District Court, Eastern District of North Carolina
Filed	2023-12-12

U.S. District Court, Eastern District of North Carolina · No. 5:23-cr-00094-D · Doc. 67 · 2023-12-12 · Docket on CourtListener

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

NO. 5:23-CR-94-D-1

UNITED STATES OF AMERICA

MONICA FAYE BARNES

MEMORANDUM IN SUPPORT OF MOTION
FOR SENTENCE REDUCTION PURSUANT
TO 18 U.S.C. § 3582(c)
(Amendment 821)

Monica Faye Barnes, by and through undersigned counsel, respectfully submits this
memorandum of law in support of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2),
U.S.S.G. § 1B1.10(c), and U.S.S.G. Amendment 821. Ms. Barnes respectfully requests this Court
reduce the sentence to eight months, effective February 1, 2024. In support thereof, Ms. Barnes
states the following.
BRIEF STATEMENT OF THE CASE
On April 26, 2023, Ms. Barnes pled guilty to one count of conspiracy to commit wire fraud,
in violation of 18 U.S.C. §§ 1349 and 1343. Ms. Barnes was a zero-point offender, receiving no
criminal history points, which corresponded to a Criminal History Category I. Ms. Barnes’s total
offense level, after all enhancements and reductions, was 13 which, combined with Criminal
History Category I, resulted in a guideline imprisonment range of 12 to 18 months. On July 28,
2023, Ms. Barnes was sentenced to the custody of the Bureau of Prisons for 12 months and 1 day.
On November 1, 2023, Amendment 821 to the U.S. Sentencing Guidelines was enacted.1
Part A modified “status points” by (a) eliminating status points for individuals with six or less
criminal history points and (b) decreasing status points by one point for individuals with seven or

1 See U.S.S.G. App. C, Amendment 821. The effective date of the amendment is February 1, 2024. Id.
Case 5:23-cr-00094-D Document 67 Filed 12/12/23 Page 1 of 8

more criminal history points.2 Part B addressed “zero-point” offenders (those with no criminal
history points) and provided a decrease of two offense levels for these individuals.3 Application
of Amendment 821 would result in the lowering of Ms. Barnes’s offense level by two points, for
a total offense level 11, which when combined with Criminal History Category I, results in a
reduced sentencing guideline range of 8 to 14 months.
This Court has the discretion under § 3582(c)(2) and § 1B1.10 to determine whether, and
to what extent, to reduce Ms. Barnes’s sentence. As shown below, both the Sentencing
Commission’s policy rationales for adopting this Amendment and the particularized § 3553(a)
factors applicable to Ms. Barnes—including a positive post-sentencing record, impeccable
disciplinary record, and request for a modest reduction—argue in favor of granting a reduction in
this case.
MEMORANDUM OF LAW
The U.S. Code provides that where a defendant who was sentenced to an imprisonment
term “based on a sentencing range that has subsequently been lowered by the Sentencing
Commission,” files his own motion seeking a sentence reduction, “the court may reduce the term
of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they
are applicable, if such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 4 The Guidelines policy statement implementing this statutory provision
is found in U.S.S.G. § 1B1.10. This section of the Guidelines lists amendments that are covered
by the policy statement, one of which is Amendment 821.5

2 Id.
3 Id. Additionally, this amendment is fully retroactive, effective November 1, 2023, pursuant to the terms of 18 U.S.C.
§ 3582(c)(2) and U.S.S.G. § 1B1.10.
4 18 U.S.C. § 3582(c)(2).
5 See U.S.S.G. App. C, Amendment 821.
Case 5:23-cr-00094-D Document 67 Filed 12/12/23 Page 2 of 8

The changes in Amendment 821 to status points and to zero-point offenders was motivated
by multiyear recidivism studies from 2016 to 2022.6 With respect to status points, while “an
offender’s criminal history calculation under the guidelines is strongly associated with likelihood
of future recidivism,” the Commission found “status points add little to the overall predictive value
associated with the criminal history score.”7 This research suggested to the Commission that status
points do not improve the “predictive value of the criminal history score” as the Commission
originally expected, warranting modification.8 Further, the Commission found status points may
also be double counted because of revocations of probation or supervised release.9 In sum,
Commission “concluded that accounting for status on a more limited basis continues to serve the
broader purposes of sentencing while also addressing other concerns raised regarding the impact
of status points.10 With respect to zero-point offenders, the Commission’s recidivism data showed
“offenders with zero criminal history points have considerably lower recidivism rates than other
offenders, including offenders with one criminal history point.”11 Importantly, the Commission’s
“report concluded that ‘zero-point offenders’ were less likely to be rearrested than ‘one point’
offenders (26.8% compared to 42.3%), the largest variation of any comparison of offenders within

6 See e.g. U.S. Sentencing Commission, Report at a Glance: Recidivism and Federal Sentencing Policy,
https://www.ussc.gov/research/research-reports/report-glance-recidivism-and-federal-sentencing-policy;
U.S.
Sentencing Commission, 2023 Amendments in Brief, https://www.ussc.gov/sites/default/files/pdf/amendment-
process/amendments-in-brief/AIB_821R.pdf; and U.S. Sentencing Commission, Recidivism of Federal Offenders
Released in 2010 (2021), available at: https://www.ussc.gov/research/research-reports/recidivism-federaloffenders-
released-2010.
7 See U.S. Sentencing Commission, Amendments to the Sentencing Guidelines, Policy Statements, Official
Commentary,
and
Statutory
Index,
Nov.
1,
2023,
at
p.
50-51,
available
at:
https://www.ussc.gov/sites/default/files/pdf/amendment-process/official-text-
amendments/202305_Amendments.pdf.
8 Id. at p. 51.
9 Id.
10 Id.
11 U.S. Sentencing Commission, Recidivism of Federal Offenders Released in 2010 (2021), available at:
https://www.ussc.gov/research/research-reports/recidivism-federaloffenders-released-2010.
Case 5:23-cr-00094-D Document 67 Filed 12/12/23 Page 3 of 8

the same Criminal History Category.”12 Moreover, the Commission considered departure and
variance rates for individuals with zero criminal history points and one criminal history point,
finding in fiscal year 2021, 39.2% of zero point offenders and 47.7% of one point offenders were
sentenced within the guidelines range.13 After concluding recidivism data and departure/variance
rates warranted action in the form of a two-point base offense level reduction, the Commission
also “identified circumstances in which zero-point offenders are appropriately excluded from
eligibility in light of the seriousness of the instant offense of conviction or the existence of
aggravating factors,” leading to certain exclusionary criteria.14 In sum, “[t]hese targeted
amendments balance the Commission’s mission of implementing data-driven sentencing policies
with its duty to craft penalties that reflect the statutory purposes of sentencing.”15
The § 3553(a) factors, lack of public safety considerations, and positive post-sentencing
conduct warrant a reduction under Amendment 821.

Ms. Barnes is eligible for relief under Amendment 821, and examination of the § 3553(a)
factors, public safety considerations, and post-sentencing conduct demonstrate that a reduction is
warranted in this case.
A. The 18 U.S.C. § 3553(a) factors favor a sentence reduction.
First, a reduction is warranted under § 3553(a)(1) - the nature and circumstances of the
offense and the history and characteristics of the defendant. Ms. Barnes pled guilty to a very serious
offense but accepted full responsibility for her actions at the time of the guilty plea and again at
sentencing. While Ms. Barnes’s conduct rightly merited punishment, the appropriate punishment

12 See U.S. Sentencing Commission, Amendments to the Sentencing Guidelines, Policy Statements, Official
Commentary,
and
Statutory
Index,
Nov.
1,
2023,
at
p.
52,
available
at:
https://www.ussc.gov/sites/default/files/pdf/amendment-process/official-text-
amendments/202305_Amendments.pdf.
13 Id.
14 Id. at p. 53.
15 Id. at p. 50.
Case 5:23-cr-00094-D Document 67 Filed 12/12/23 Page 4 of 8

is set forth under the reduced sentencing range applicable to the offense. Despite only have been
in custody since September 27, 2023, Ms. Barnes has completed several education courses (basic
finance, types of release, and USPO workshop) and is presently taking additional courses (Circle
of Strength) and is on the waiting list for more (including assert yourself, growth mind, and the
resolve workshop). See Exhibit 1 – Individualized Needs Plan Packet;16 see also Exhibit 2–
SENTRY Report (Sealed), at p. 6-7, 14. Ms. Barnes also maintains a work assignment in Camp
Food Service. Exhibit 1. This employment has helped Ms. Barnes make payments towards her
financial obligations. Exhibit 1 and Exhibit 2 at p. 13.
Second, a reduction is warranted under § 3553(a)(2) – the need to reflect the seriousness
of the offense, afford adequate deterrence, and protect the public. The reduction available to, and
being sought by, Ms. Barnes is modest and not likely to increase the risk of recidivism or endanger
the public. See supra, p. 3, fn. 6. Studies on deterrence have concluded that it is the certainty, rather
than the severity, of punishment that serves as a deterrent.17
B. A sentence reduction in this matter will not jeopardize public safety.
Reducing Ms. Barnes’s sentence will not increase the risk to public safety. See 18 U.S.C.
§ 3553(a)(2)(C). Ms. Barnes is classified as minimum security level and a minimum risk
recidivism level. See Exhibit 1, at p. 3; Exhibit 2, at p. 2, 5. Importantly, Ms. Barnes has no
infractions, indicating respect for the law and ability to integrate into society as a law-abiding
citizen. Exhibit 1, 2.

16 Although Ms. Barnes’s Individualized Needs plan notes she was initially enrolled in GED coursework, after her
education level was confirmed (she has her high school diploma and a Bachelor’s Degree), her paperwork was adjusted
to so reflect. See also SENTRY Report (Sealed), at p. 4.
17 Valerie Wright, Sentencing Project, Deterrence in Criminal Justice: Evaluating Certainty v. Severity of Punishment
8 (2010). See also Steven N. Durlauf & Daniel S. Negin, Imprisonment and Crime: Can Both be Reduced? 10
Criminology & Pub. Pol'y 13, 37 (2011).
Case 5:23-cr-00094-D Document 67 Filed 12/12/23 Page 5 of 8

Further, two studies from 2014 and 2020 by the U.S. Sentencing Commission confirm Ms.
Barnes is no more likely to recidivate if granted a modest sentence reduction.18 The Commission
study from 2014 found that “there is no evidence that offenders whose sentence lengths were
reduced pursuant to retroactive application of the 2007 Crack Cocaine Amendment had higher
recidivism rates than a comparison group of crack cocaine offenders who were released before the
effective date of the 2007 Crack Cocaine Amendment and who served their full prison terms less
earned credits.”19 The 2020 study similarly found, “There was no statistically significant
difference in the recidivism rates of the Retroactivity Group (offenders who were released on
average 37 months early through retroactive application of the Drugs Minus Two Amendment)
and the Comparison Group (offenders who would have been eligible for retroactivity but had
served their sentences before retroactivity took effect).”20
C. Post-sentencing conduct favors a sentence reduction.
Finally, the U.S. Sentencing Commission and the U.S. Supreme Court expect courts to
consider post-sentencing conduct during resentencings.21 In its acknowledgment form the
government suggests that Ms. Barnes’ sentence should remain unchanged. However, this Court is
required to consider public safety considerations and may consider post-sentencing conduct in

18 See e.g. U.S. Sentencing Commission, Retroactivity & Recidivism: The Drugs Minus Two Amendment, July 8, 2020,
available
at:
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2020/20200708_Recidivism-Drugs-Minus-Two.pdf (last visited 11/9/2023); and U.S. Sentencing
Commission, Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007 Crack Cocaine
Amendment, May 2014, at pp. 1-2, available at: https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/research-projects-and-
surveys/miscellaneous/20140527_Recidivism_2007_Crack_Cocaine_Amendment.pdf (last visited 11/9/2023).
19 U.S. Sentencing Commission, Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 2007
Crack Cocaine Amendment (May 2014), at pp. 1-2.
20 U.S. Sentencing Commission, Retroactivity & Recidivism: The Drugs Minus Two Amendment, July 8, 2020,
available
at:
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2020/20200708_Recidivism-Drugs-Minus-Two.pdf (last visited 11/9/2023).
21 See U.S.S.G. § 1B1.10, comment. (n. 1(B)(iii)) and Pepper v. United States, 562 U.S. 476, 491 (2010)(“evidence
of postsentencing rehabilitation may be highly relevant to several of the §3553(e) factors that Congress has expressly
instructed district courts to consider at sentencing”).
Case 5:23-cr-00094-D Document 67 Filed 12/12/23 Page 6 of 8

considering sentence reductions, despite this court’s having imposed an alternative variance at
sentencing. See 1B1.10, comment, (n. 1(B)(ii)-(iii). Moreover, there is nothing in Ms. Barnes’
post-sentencing history to suggest a sentence at the higher end of the revised guidelines range is
warranted when this Court imposed a sentence below the original advisory guidelines range. As
previously stated, while incarcerated, Ms. Barnes has taken advantage of educational courses and
programs offered by the Bureau of Prisons, she has maintained employment, she has followed all
institutional rules, and is making payments towards her financial obligations. See Exhibits 1, 2.
CONCLUSION
For all the foregoing reasons, it is respectfully requested that the Court grant the motion
for reduction of sentence and reduce Ms. Barnes’s sentence to eight months’ custody.

Respectfully requested this the 12th day of December, 2023.

G. ALAN DUBOIS
Federal Public Defender

/s/ Laura S. Wasco
LAURA S. WASCO
Attorney for Defendant
Office of the Federal Public Defender
150 Fayetteville Street, Suite 450
Raleigh, North Carolina 27601
Telephone: 919-856-4236
Fax: 919-856-4477
E-mail: Laura_Wasco@fd.org
N.C. State Bar No. 34885
LR 57.1 Counsel Appointed

Case 5:23-cr-00094-D Document 67 Filed 12/12/23 Page 7 of 8

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was served upon:
FELICE CORPENING
United States Attorney’s Office - EDNC
150 Fayetteville Street, Suite 2100
Raleigh, North Carolina 27601
usance.ecfcivil2@usdoj.gov

by electronically filing the foregoing with the Clerk of Court on December 12, 2023, using the
CM/ECF system which will send notification of such filing to the above and/or by email.

This the 12th day of December, 2023.

Case 5:23-cr-00094-D Document 67 Filed 12/12/23 Page 8 of 8

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Memorandum in Support of Motion for Sentence Reduction — United States v. Monica Faye Barnes (E.D.N.C.)

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