United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
to 30 years in prison on his convictions for conspiracy to
possess with intent to distribute 5 kilograms of cocaine in
2012, Herman Majors has repeatedly sought a reduction of his
sentence or release from imprisonment. Towards that end, he
has filed at least two other lawsuits. (Nos. 3:15-cv-00799
& 3:17-cv-01230). In this case alone, he has filed a
Motion to Reduce Sentence under 18 U.S.C. § 3582 (Doc.
No. 477); a Motion for Relief from Final Judgment Under Rule
60(b) (Doc. No. 477); Objections to the denial of those two
motions (Doc. No. 489); and a Motion to Void Sentence (Doc.
No. 494). Those motions have been denied, and the objections
Majors filed a Motion to Alter or Amend Sentence Pursuant to
the First Step Act (Doc. No. 495), counsel was reappointed
and instructed to file a supplemental brief. In that brief,
counsel argues that because Amendment 782 of the United
States Sentencing Guidelines amended the drug tables in
§ 2D1.1 by lowering all base offense levels by two
levels, Majors' offense level drops from 38 to 36 and,
consequently, his Guidelines range is reduced from 360 months
to life to 324 to 405 months. Accordingly, counsel asks that
Majors sentence be resentenced to 324 months imprisonment.
(Doc. No. 502).
the Government opposed any sentence reduction, being of the
view that Major was a career offender and, as such,
ineligible for relief. It has since changed its position,
however, because the presentence report did not characterize
Majors as a career offender. This may have been because (1)
Majors' aggravated assault conviction did not necessarily
require the requisite intent, or (2) the career offender
determination would have been irrelevant because the drug
quantity coupled with a Criminal History Category VI alone
placed Majors in the 360 month to life range. Either way, the
Government now has no objection to the sentence being reduced
to 324 months, which is the low end of the Guidelines based
on the application of Amendment 782.
dissatisfied with that reduction, Majors has filed a pro
se “Motion to Seek Relief Pursuant to Amendment
789, ” (Doc. No. 504), in which he requests that he be
released from imprisonment. Amendment 789 provided only
technical and clerical changes to the Guidelines, not
substantive changes. To the extent Majors actually seeks
relief based upon Amendment 789, which authorized
retroactive application of Amendment 782 to defendants
sentenced before November 1, 2014, release is not authorized
because “[t]he court may only reduce the
defendant's term of imprisonment” to “the
minimum of the amended guideline range[.]” United
States v. Cannon, 692 Fed.Appx. 228, 231 (6th Cir.
in sentences under Amendment 782 are not automatic. Rather,
whether to reduce a sentence is a matter of discretion for
the district court to determine in light of the sentencing
factors in 18 U.S.C. § 3553(a). United States v.
Domenech, 675 Fed.Appx. 519, 523 (6th Cir. 2017);
see also, 18 U.S.C. § 3582(c)(2) (emphasis
added) (stating that “the court may reduce the
term of imprisonment, after considering the factors set forth
in section 3553(a)”).
the 3553(a) factors cut both ways. As the Government points
out, just as it did during the original sentencing before
Judge John T. Nixon, Majors has a lengthy criminal history
record, including an aggravated assault conviction wherein he
used a baseball bat that resulted in serious bodily injury to
another. He was also responsible for trafficking in kilogram
quantities of cocaine. Nevertheless, Judge Nixon sentence
Majors to 360 months which was the low end of the
then-applicable Guidelinse range.
other hand, Majors is now almost 55 years old, and the
Government does not dispute Majors' claim that he has
behaved well in prison over the last decade. Even with the
three year reduction in sentence authorized by Amendment 782,
Majors will still have a lengthy sentence to serve. Based
upon statistical evidence compiled by the Sentencing
Commission, “[r]ecidivism rates decline relatively
consistently as age increases.” United States
Sentencing Commission, Measuring Recidivism: The Criminal
History Computation of the Federal Sentencing Guidelines 12
(2004). Indeed, “these statistics suggest that past
fifty years old there is a significantly lower rate of
recidivism, ” and “[b]oth the Guidelines and
[Sixth] Circuit cases explicitly acknowledge that a
defendant's age, and specifically old age, is a relevant
consideration in sentencing.” United States v.
Payton, 754 F.3d 375, 379 (6th Cir. 2014).
after reviewing the joint recommendation from counsel, and
considering that Judge Nixon sentenced Majors to the low end
of the Guidelines range at the time, the Court will do the
same in applying Amendment 782. An Amended Judgment will be
entered sentencing Majors to 324 months imprisonment.
Majors' Motion for Extension of Time to File a
Supplemental Pleading (Doc. No. 500) is DENIED AS
MOOT. His pro se “Motion to Seek