Court filing

Pro Se Motion for Reduction of Sentence Under U.S.S.G. § 4C1.1 — United States v. Bernard Okojie

No. 4:22-cr-00084-LGW-BWC · Doc. 133 · Docket on CourtListener

Full text

Case 4:22-cr-00084-LGW-BWC Document133_ Filed 01/23/24 Page1of16

IN THE UNITED STATES DISTRICT COURT ;
FOR THE Southern DISTRICT OF Geonw’h
, DIVISION

UNITED STATES OF AMERICA,

V. 0 SS aR gu4
0G No. {] CR: 000
Rernaad Oko 11

Defendant. . ‘

/ © .
Begnaaed OBot fe MOTION FOR REDUCTION OF SENTENCE PURSUANT TO U.S.S.G. 4Cl.1

Comes now the defendant, Peenarct OKoiie » by and through Pro Se
J

who moves the Court to modify the previously imposed sentence based on Amendment 821

to the United States Sentencing Guidelines. In Support thereof, the defendant shows the

Court the following:

1.
On Octobe a Zed > ROQD was sentenced ito a custodial term of
© Comtt WFR Khao
months following his plea of guilty to Count m anders ; of the

Indictment. That sentence was at the /ow end of the applicable advisory guideline

range: calculated for an offense level At and a Criminal History Category of A .
Case 4:22-cr-00084-LGW-BWC_ .Document 133 Filed 01/23/24 Page 2 of 16

Effective November 1, 2023, Amendment 821 to the Sentencing Guidelines will

. 9.0
add 4C1.1 to the Guidelines which will have a direct beneficial impact on OKove.
J

.As summarized by the Commission, the new guideline provides:

Part B, Subpart 1 of Amendment 821 creates a new Chapter Four guideline at

4C1.1 (Adjugtment for Certain Zero-Point Offenders) providing a decrease of two
levels from the offense level determined under Chapters Two and Three for defendants
who did not receive any criminal history points under Chapter Four, Part A and

whose instant offense did not involve specified aggravating factors.
leoo3 and attached exhibit:

(See Amendment to the Sentencing Guidelines dated ox)
A andl QB , .

On August 31, 2023, the Commision's proposed supplement to Amendment 821 makes

the adjustment in the offense level for Zero-Point Offenders retroactive.

The court shall not order a reduced term of imprisonment based on Part A or Part B
Subpart 1 of Amendment 821 unless the effective date of the court's order is

February 1, 2024 or later.

(See, sxhibit. A-A, crt Y- 5 ‘Most importantly for Hoite » this special ©

instruction does not preclude the court from conducting sentence reduction proceedings

and entering orders before February 1, 2024, provided that any order reducing the

defendant's term. ~
Case 4:22-cr-00084-LGW-BWC Document133_ Filed 01/23/24 Page 3of 16

of imprisonment has an effective date no sooner than February 1, 2024 (See, Exhibit

A-| at

eligible for a sentence reduction under Amendment 821's addition to Chapter 4 of the
Guidelines. The two level decrease of the offense to Level O which when combined

with Criminal, History Category I results in a reduced advisory range fron70- tO- Se months

to 54 “AL moriths. Oot re. began his 6+] month sentence on Li for+ ot (2023
when he reported to the st bs stecct Co Court, af Georgia . A revised sentence would lead

to a new presumptive release date that would reflect earned good time under the

First Step Act and other relief.

Consideration of the adjustment of OK? Pe. sentence in advance of the
v

effective date of the Amendment is important to allow the Court adequate time to

meaningful and timely

asses the appropriate adjustment, to afford Oko? te.
, ~S)
relief, and to provide the Bureau of Prisons sufficient time to make the necessary

' adjustments to a) release date and eligibility for half-way house

placement. (Reference #1).

(Reference #1) The United States Sentencing Cémmission estimates that_7,200

defendants are eligible for a lower sentencing range. (See, Exhibits .
is not aware of an estimate for the number of defendance in

. District of Geo Seg nor before this Court who are impacted.
Nevertheless, an early assessment Oke\ig case would be beneficial to the

COurt, the Bureau of Prisons and to hin

Case 4:22-cr-00084-LGW-BWC Document133 Filed 01/23/24 Page 4 of 16

Wherefore, the defendant, O PALE » requests that the previously

imposed sentence be reduced pursuant to 4Cl.1 set forth in Amendment 821 to a custodial

term of wt months. All other genral and special conditions are to remain intact.

Respectfully submitted,
a '

_ Fc Talladena

PMB [000

Talladena AL ZSILO USA
tlonogable: Lis Godbey - Wosd ee o

Aod\ Gloucestee Sheet
Haunsioick Ga )5Q0

Case 4:22-cr-00084-LGW-BWC Document133_ Filed 01/23/24 Page 5of 16

CERTIFICATE OF SERVICE

I hereby certify that have on this day served a true and correct copy of the

within and foregoing pleadings upon counsel for the government by mailing addressed

as follows: . (\ y ¢ IN _ |
Marthe Ae Sosephesn
Qa_Resnaad Street, Suite 200

Savonnala Ga, 2140
‘Phone # (412) 689 - 44a

This { h day of Spauey > RORY

Case 4:22-cr-00084-LGW-BWC Document 133 / Filed 01/23/24 Page 6 of 16

Amendment to the
sentencing Guidelines

August 31, 2023

This document contains unofficial text of an amendment to the policy statement at
§1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range
(Policy Statement)) and is provided only for the convenience of the user. Official text of
the amendment can be found on the Commission’s website at www.ussc.gov and will
appear in a forthcoming edition of the Federal Register.

Exhibit A1 Page 1 of 8
Case 4:22-cr-00084-LGW-BWC Document133_ Filed 01/23/24 Page 7 of 16

NAS ROM INNSN? PRC IE ESTE NUP RE MREEY tea
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SAIS eS

AMENDMENT _ PAGE NO.

RETROACTIVE APPLICATION OF PARTS A
AND B, SUBPART 1 OF AMENDMENT 821 ..........s.scsssscsssssssssssssssesesserseenees teoseeessotesacncae 1

SUPPLEMENTARY INFORMATION

The United States Sentencing Commission is an independent agency in the judicial branch
of the United States Government. The Commission promulgates sentencing guidelines and

policy statements for federal sentencing courts pursuant to 28 U.S.C. §994(a). The

‘Commission also -perioditally reviews and. revises previously promulgated guidelines
pursuant to 28 U.S.C. §-994(0) and generally.submits guideline ‘amendments to the Congress
not later than the first day of May each year. pursuant to 28 U.S.C. §.994()). Absent action of
the Congress to the contrary, submitted ‘amendments become effective by operation of law on
the date. specified. by the Commission (generally November 1 of the year in which the
amendments are submitted to Congress)... me

The Commission specified an effective date of November 1, 2023, for the amendment listed
above and. included in this document.

Exhibit At Page 2 of 8
Case 4:22-cr-00084-LGW-BWC Document133_ Filed 01/23/24 Page 8of16

RETROACTIVE APPLICATION OF PARTS A AND B, SUBPART 1 OF AMENDMENT 821

Reason for Amendment: The Commission has determined that the targeted changes to the
criminal history rules made in Parts A and B, Subpart 1 of Amendment 821 should be
applied retroactively. Accordingly, this amendment expands the listing in subsection (d) of
§1B 1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range
(Policy Statement)) to implement the directive in 28 U.S.C. § 994(u) with respect to
guideline amendments that may be considered for retroactive application.

Part A of Amendment 821 limits the overall criminal history impact of “status points”

(i.e., the additional criminal history points given to defendants for the fact of having
committed the instant offense while under a criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or escape status) under §4A1.1
(Criminal History Category). Part B, Subpart 1 of Amendment 821 creates a new Chapter
Four guideline at §4C1.1 (Adjustment for Certain Zero-Point Offenders) providing a

. decrease of two levels from the offense level determined under Chapters Two and Three for
defendants who did not receive any criminal history points under Chapter Four, Part A and
whose instant offexse did not involve specified aggravating factors.

In making this determination, the Commission considered the following factors, among
others: (1) the purpose of the amendment: (2) the magnitude of the change in the

guideline range made by the amendment; and (8) the difficulty of applying the amendment
retroactively. See §1B1.10, comment. (backg’d.). Applying those standards to

Amendment 821, the Commission determined that, among other factors:

(1) The purpose of these targeted amendments is to balance the Commission’s mission
of implementing data-driven sentencing policies with its duty to craft penalties that
reflect the statutory purposes of sentencing and to reflect “advancement in
knowledge of human behavior as it relates to the criminal justice process.”

See 28 U.S.C. § 991(b). The Commission determined that the policy reasons
underlying the prospective application of the amendment apply with equal force to

individuals who are already sentenced.

In relation to Part A, the Commission determined 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. The
Commission also determined that the changes made by Part A reflect updated
research suggesting that status points’ ability to predict future recidivism—a core
justification for their use—may be less than the original Commission may have

expected.

In implementing Part B, Subpart 1, the Commission sought, in part, to fulfill one of
its core congressional directives to ensure that “the guidelines reflect the general
appropriateness of imposing a sentence other than imprisonment in cases in which
the defendant is a first offender who has not been convicted of a crime of violence or
an otherwise serious offense.” See 28 U.S.C. § 994(j). The Commission further
determined that the changes made by Part B, Subpart 1 reflect its statutory mission
to provide for penalties that are “sufficient, but not greater than necessary” by

August 31,2023 | 1
Exhibit A1 Page 3 of 8
Case 4:22-cr-00084-LGW-BWC Document133_ Filed 01/23/24 Page9of16

Retroactive Application of Parts A and:B, Subpart. 1 of Amendment 821

recognizing that individuals with zevo criminal history points have considerably
lower recidivism rates than other sentenced individuals, as well as the fact.that
courts generally depart and vary. moie-often in cases involving individuals.with zero
criminal history points.as compared with other individuals.

(2). The Commission determined that the changes in Parts A and B, Subpart 1 of
Amendment 821 would meaningfully impact the sentence of many currently
incarcerated individuals. The Commission estimates that 11,495 currently
incarcerated individuals would have a lower guideline range as the result.of
retroactive application of Part B, Subpart 1 of Amendment 821, with an average:
sentence. reduction of 14 months (or 11.7%). The Commission further estimates-that
7,272 currently incarcerated individuals would have a lower guideline range as the
result of retroactive application of Part A of Amendment 821, with an average
sentence reduction of 15 months (or 17.6%).

(3) The Commission determined that applying Part A of Amendment 821 retroactively, :
requiring the recalculation of criminal. history points and making the determination
as:to whether the individual would fall within a lower criminal history category;
presents minimal difficulty. While recognizing that consideration of the exclusionary

criteria in. Part B, Subpart 1 of Amendment 821 could. result in an increased
‘administrative burden, the Commission concluded that.any such burden is
manageable.

The Commission.concludes that consideration of these factors supports a policy
determination that:a reduced guideline range is sufficient to achieve the purposes of
sentencing and that, in the sound discretion of the court, a reduction in the term-of
imprisonment may be appropriate for previously sentenced, qualified defendants. In
making this determination, the Commission remains cognizant.of the fact that public saféty
will be considered, in every case because §1B1.10 requires the court, in determining whether
and to what extent a reduction in the term of imprisonment is warranted, to consider the
nature and seriousness of the danger to any person or the community that may be posed by
such a reduction. See §1B1.10, comment. (n.1(B)(ii)).

At the same time, the Commission-also determined that the agencies of the federal criminal
justice system responsible for reentry into society need time to prepare, and to help the
released individuals prepare, for that reentry. The Commission concluded that a ‘three-
month delay in the effective date of any orders.granting sentence reductions under
Amendment 821 is needed (1) to give courts adequate time to obtain and review the.
information necessary to make an individualized determination in each case of whether a
sentence reduction is appropriate, (2) to ensure ‘that, to the extent practicable, all
individuals who are. to be released have the opportunity to participate-in reentry programs
and transitional services, such as placement in halfway houses, while ‘still in the custody of
the Bureau of Prisons, which increases .their likelihood of successful reentry to society and
thereby promotes public safety, and (3) to permit those agencies that will be responsible for
individuals after their release to prepare for the increased responsibility. .

Therefore, the Commission added a Special Instruction at subsection (e) providing thata
reduced term of imprisonment based on. retroactive application of Amendment 821 shall not
be ordered unless-the effective date of the court's order is February 1,.2024, or later. An

2 | August 31, 2023
Exhibit A1 Page 4 of 8
| —

Case 4:22-cr-00084-LGW-BWC Document 133 Filed 01/23/24 Page 10 of 16

Retroactive Application of Parts A and B, Subpart 1 of Amendment 821

application note clarifies that this special instruction does not preclude the court from
conducting sentence reduction proceedings before February 1, 2024, as long as any order
reducing the term of imprisonment has an effective date of February 1, 2024, or later.

Amendment:

§1B1.10. Reduction in Term of Imprisonment as a Result of Amended Guideline Range
(Policy Statement)

(a) AUTHORITY.—

(1) IN GENERAL.—In a case in which a defendant is serving a term of
_imprisonment, and the guideline range applicable to that defendant
“has subsequently been lowered as a result of an amendment to the

Guidelines Manual listed in subsection (d) below, the court may
reduce the defendant’s term of imprisonment as provided by 18 U.S.C.
§ 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction
in the defendant’s term of imprisonment shall be consistent with this
policy statement.

(2) EXCLUSIONS.—A reduction in the defendant’s term of imprisonment is
not consistent with this policy statement and therefore is not

authorized under 18 U.S.C. § 8582(c)(2) if—

(A) none of the amendments listed in subsection (d) is applicable to
the defendant; or

”

(B) an amendment listed in subsection (d) does not have the effect of
lowering the defendant’s applicable guideline range.

(8) LIMITATION.—Consistent with subsection (b), proceedings under
18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a
full resentencing of the defendant.

(b) DETERMINATION OF REDUCTION IN TERM OF IMPRISONMENT.—

(1) -IN GENERAL.—In determining whether, and to what extent, a
reduction in the defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) and this policy statement is warranted, the court shall
determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the guidelines
listed in subsection .(d) had been in effect at the time the defendant
was sentenced. In making such determination, the court shall
substitute only the amendments listed in subsection (d) for the
corresponding guideline provisions that were applied when the

August 31, 2023 | 3
Exhibit A1 Page 5 of 8
Case 4:22-cr-00084-LGW-BWC Document133_ Filed 01/23/24 Page11of 16

n
i

Retroactive Application of Paris Adnd B, Subpart 1 of Amendment 821

defendant was sentenced and shall leave all other guideline
” application decisions: unaffected.

(2) LIMITATION AND PROHIRITION ON EXTENT OF REDUCTION.—

(A) LIMITATION.—Except as provided in subdivision. (B), the court

_ shall not reduce the defendant's term of imprisonment under.
18. U.S.C. § 3582(c)(2) and this policy statement to a term that is
less than the minimum of the amended guideline range
determined under subdivision (1) of this subsection.

(B) EXCEPTION FOR SUBSTANTIAL ASSISTANCE.—If the term of
imprisonment imposed was less than the term of imprisonment
provided by the guideline range applicable to the defendant at
the time of sentencing pursuant to. a government motion to reflect
the defendant's substantial assistance to authorities, a reduction
comparably less than the amended guideline range determined
under'subdivision (1) of this subsection may be appropriate.

(C) PROHIBITION.—In no event may the reduced term of
imprisonment be less than the term of imprisonment the
defendant has aleady served.

(c) CASES INVOLVING MANDATORY MINIMUM SENTENCES AND SUBSTANTIAL
ASSISTANCE.—If the case involves a statutorily required minimum
sentence and the court had the: authority to impose a sentence below the
statutorily required minimum sentence pursuant to a government motion
to reflect the defendant’s substantial assistance to authorities, then for
purposes of this policy statement the amended guideline range shall be
determined without regard to. the operation of §5G1.1 (Sentencing on a
Single Count of Conviction) and $501. 2 (Sentencing on Multiple Counts of
Conviction).

(d) COVERED AMENDMENTS.—Amendments covered by this policy statement
are listed in Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371,
379, 380, 433, 454, 461, 484, 488, 490, 499, 508, 506, 516, 591, 599, 606,
657, 702, 706 as amended yy 711, 715, 750

(e)

(1) The court shall not order a reduced term of i imprisonment based.on
Amendment 782 unless the effective date of the court’s order is
November 1, 2015, or later.

4 | Avgust31, 2023

Exhibit A1. Page 6 of 8

Case 4:22-cr-00084-LGW-BWC Document133 Filed 01/23/24 Page 12 of 16

Retroactive Application of Parts A and B, Subpart 1 of Amendment 821

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Commentary

Application Notes:

1. Application of Subsection (a).—

(A) Eligibility.—Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by
an amendment listed in subsection (d) that lowers the applicable guideline range (i.e., the
guideline range that corresponds to the offense level and criminal history category
determined pursuant to §1B1.1(a), which is determined before consideration of any
departure'provision in the Guidelines Manual or any variance). Accordingly, a reduction in
the defendant’s term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is
not consistent with this policy statement if: @) none of the amendments listed in subsection
(d) is applicable to the defendant; or (ii) an amendment listed in subsection (d) is applicable
to the defendant but the amendment does not have the effect of lowering the defendant's
applicable guideline range because of the operation of another guideline oy statutory
provision (¢.g., a statutory mandatory minimum term of imprisonment).

(8) Factors for Consideration.—

(i) In General—Consistent with 18 U.S.C. § 3582(c)(2), the court shall consider the
factors set forth in 18 U.S.C. § 3553(a) in determining: (I) whether a reduction in the
defendant’s term of imprisonment is warranted; and (ID) the extent of such reduction,
but only within the limits described in subsection (b).

(ii) Public Safety Consideration.—The court shall consider the nature and seriousness
of the danger to any person or the community that may be posed by a reduction in the
defendant’s term of imprisonment in determining: (I) whether such a reduction is
warranted; and (IJ) the extent of such reduction, but only within the limits described

in subsection (b).

(ii) Post-Sentencing Conduct.—The court may consider post-sentencing conduct of the
defendant that occurred after imposition of the term of imprisonment in determining:
() whether a reduction in the defendant’s term of imprisonment is warranted; and
(II) the extent of such reduction, but only within the limits described in subsection (b).

2. Application of Subsection (b)(1).—In determining the amended guideline range under
subsection (b)(1}, the court shall substitute only the amendments listed in subsection (d) for the
corresponding guideline provisions that were applied when the defendant was sentenced. All

other guideline application decisions remain unaffected.

3. Application of Subsection (b)(2).—Under subsection (b)(2), the amended guideline range
determined under subsection (b)(1) and the term of imprisonment already served by the
defendant limit the extent to which the court may reduce the defendant’s term of imprisonment
under 18 U.S.C. § 3582(c)(2) and this policy statement. Specifically, as provided in subsection
(b)(2)(A), if the term of imprisonment imposed was within the guideline range applicable to the
defendant at the time of sentencing, the court may reduce the defendant's term of imprisonment
to a term that is no less than the minimum term of imprisonment provided by the amended
guideline range determined under subsection (b)(1). For example, in a case in which: (A) the
guideline range ayplicable to the defendant at the time of sentencing was 70 to 87 months; (B)

August 31,2023 | 5
Exhibit A1 Page 7 of 8
Case 4:22-cr-00084-LGW-BWC Document133 Filed 01/23/24 Page 13 of 16

Retroactive Application of Parts Avond B, Subpart 1. of Amendment 821

the term of.imprisonment imposed, was 10. months; and. (C) the amended guideline range
determined: ‘under subsection (b)(1) is'51 to G8 months, the court may-reduce the defendant’s term
of imprisonment, but shall not reduce it.to a term Jess‘than 51 months.

If the term of i imprisonment imposed was outside the guideline range applicable to the defendant
at-the:time of sentericing, the limitation in subsection (b)(2)(A) also applies. Thus, if the term of
imprisonment imposed in the example provided above was-not.a.sentence of 70 months (within
‘the: guidelines range) but instead was a sentence of 56 months (constituting a downward
departure.or variance), the court likewise may reduce the defendant’s term of imprisonment, but
shall not reduce it to a term less than 51 months.

Subsection (&)(2)(B) provides an exception to this limitation, which applies if the term of
imprisonment imposed was less than the term of imprisonment provided by the guideline range
applicable tothe defendant at the‘time of sentencing pursuant to a government motion to reflect
the defendant's substantial assistance to authorities. In such a case, the court may reduce. the
defendant's term, but the reduction is not limited by subsection (b)(2)(A) to the minimum of the.
aménded guideline range. Instead, as provided in subsection (b)(2)(B), the court may, if
appropriate, provide a reduction comparably | less-than the amended guideline range. Thuis, if the
term of imprisonment imposed in the. example provided above was 56 months pursuant to a
government:motion to reflect the defendant's substantial assistance to authorities (representing
a. downward departure of 20 percent below the minimum term of imprisonment provided by the-
guideline range applicable to the defendant at the titne of sentencing), a reduction to.a term of
imprisonment of 41 months (representing. a reduction of approximately :20' percent below the
minimum term: of imprisonment provided’ by the amended guideline: range) would amount to a
comparable reduction and may be appropr iate.

The provisions authorizing such a government motion are §5KK1.1 (Substantial Assistance to

Authorities) (authorizing, upon government motion, a downward departure based on the

_ defendant's substantial assistance); 18 U.S.C. § 3553(e) (authorizing the court, upon government

“motion, to impose. a sentence below a statutory minimum to reflect the defendant's substantial

" assistance); and Fed. R. Crim. P. 36(b) (authorizing the court, upon government motion, to reduce
a sentence to reflect the defendant’ 's substantial assistance).

In no case, however, shall the term of imprisonment be reduced below time served.
See subsection (b)(2)(C). Subject: to these limitations, the sentencing court has.the discretion to
‘determine whether, and to what extent, to-reduce a term of imprisonment under this section.

4. Application of Subsection (c).—As. stated in subsection (c), if the case involves a statutorily
required minimum sentence and the court had the authority to impose a sentence below the
statutorily required minimum sentence pursuant to a government. motion to reflect the
defendant's substantial assistance to authorities, then for purposes of this policy statement the.

. amended guideline range. shall be determined without regard to the operation of ‘§5G1.1
(Sentencing on a Single Count of Conviction). and §5G1.2 (Sentencing on Multiple Counts of
Conviction). For. example: .

(A) Defendant A: is subject to a mandatory. minimum teim of imprisonment of 120 months. The
original guideline range : at the time. of sentencing was 135, to 168 months, which i is entirely
toa government motion to reflect. the: defendant's: substantial assistance to authorities. The:

‘. gourt determines that the amended. guideline range as calculated on the Sentencing Table
‘. ig 108 to. 1865 months. Ordinarily,. §5G1.1 would ‘operate to restrict the amended guideline:
range to 120 to 135 months, to reflect the mandatory minimum term of imprisonment. For

6 | August 31, 2023
fo Exhibit A1 Page 8 of 8.
Case 4:22-cr-00084-LGW-B

Ch.1PtA

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Exhibtt

Filed 01/23/24

Page 14 of 16

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Case 4:22-cr-00@84-LGW-BWC Document 133

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Page 15 of 16

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