`UNITED STATES OF AMERICA,
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`Plaintiff,
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`vs.
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`DONNIE BRYANT,
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`Defendant.
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`Case No.: 2:06-cr-00234-GMN-GWF-1
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`ORDER DENYING MOTION FOR
`SENTENCE REDUCTION
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`Case 2:06-cr-00234-GMN-GWF Document 865 Filed 11/14/23 Page 1 of 9
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Pending before the Court is Defendant Donnie Bryant’s Motion for Sentence Reduction
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`(“MSR”) under 18 U.S.C. § 3582(c)(1)(A)(i), (ECF No. 849). The Court appointed Defendant
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`counsel, (Order Appointing Counsel, ECF No. 853), who subsequently filed a Supplement to
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`Defendant’s Motion, (ECF No. 857). The Government filed a Response to Defendant’s Motion
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`and Supplement, (ECF No. 859), to which Defendant filed a Reply, (ECF No. 864).
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`For the reasons discussed below, the Court DENIES without prejudice Defendant’s
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`Motion for Sentence Reduction because he has not met his burden of showing extraordinary
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`and compelling reasons warranting such a reduction.
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`I.
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`BACKGROUND
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`The Court incorporates the background and procedural history of this case from its Order
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`Granting in Part and Denying in Part Defendant’s Motion to Vacate, Set Aside, or Correct
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`Sentence Pursuant to 28 U.S.C. § 2255. (Order 1:15–4:5, ECF No. 838). In short, in 2008
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`Defendant was convicted on several counts of Violent Crimes in Aid of Racketeering Activity
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`(“VICAR”) in violation of 18 U.S.C. § 1959 and Use of a Firearm During a Crime of Violence
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`in violation of 18 U.S.C. § 924(c) for acts he committed when he was 16. (J., ECF No. 18).
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`Defendant was sentenced to life imprisonment for the VICAR murder counts, plus an
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`Case 2:06-cr-00234-GMN-GWF Document 865 Filed 11/14/23 Page 2 of 9
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`additional 50 years for his firearm offenses. (Id.). Defendant’s judgment of conviction has been
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`amended several times following his sentence. (First Am. J., ECF No. 617); (Second Am. J.,
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`ECF No. 694); (Third Am. J., ECF No. 828); (Fourth Am. J., ECF No. 840). Defendant is now
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`sentenced to 70 years imprisonment for his VICAR murder counts and firearm offenses. (See
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`generally Fourth Am. J.). Defendant filed the instant Motion for Sentence Reduction, (ECF
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`No. 849), which the Court discusses below.
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`II.
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`LEGAL STANDARD
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`Under 18 U.S.C. § 3582(c)(1)(A), a court may, in certain circumstances, grant a
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`defendant’s motion to modify his or her term of imprisonment. Before filing such a motion, the
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`defendant must first petition the Bureau of Prisons (“BOP”) for compassionate release. Id. A
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`court may grant the defendant’s motion for a modification in sentence only if the motion was
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`filed “after the defendant has fully exhausted all administrative rights to appeal a failure of the
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`[BOP] to bring a motion on the defendant’s behalf” or after thirty (30) days have lapsed “from
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`the receipt of such a request by the warden of the defendant's facility, whichever is earlier.” Id.
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`If the exhaustion requirement is met, a court may modify or reduce the defendant's term
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`of imprisonment “after considering the factors set forth in [18 U.S.C.] section 3553(a)]” if the
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`Court finds, as relevant here, that “extraordinary and compelling reasons warrant such a
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`reduction” and “such a reduction is consistent with applicable policy statements issued by the
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`Sentencing Commission.” Id. As the movant, the defendant bears the burden to establish that
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`he is eligible for compassionate release. See United States v. Wright, 46 F.4th 938, 951
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`(explaining it is the defendant’s burden to establish his eligibility for compassionate release”)
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`The Sentencing Commission has recently passed guidance as to when “extraordinary
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`and compelling reasons” exist for compassionate release. U.S.S.G. § 1B1.13(b). Such
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`circumstances include, among others: (1) the medical circumstances of the defendant, (2) the
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`advanced age of the defendant resulting in “a serious deterioration in physical or mental
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`Case 2:06-cr-00234-GMN-GWF Document 865 Filed 11/14/23 Page 3 of 9
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`health,” (3)“[t]he death or incapacitation of the caregiver of the defendant's minor child,” (4)
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`the defendant, while in custody was the victim of sexual or physical abuse, or (5) “other
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`circumstance or combination of circumstances that, when considered by themselves or together
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`with any of the reasons described in paragraphs (1) through (4), are similar in gravity to those
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`described in paragraphs (1) through (4).” Id.
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`III. DISCUSSION
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`The Government does not dispute that Defendant has exhausted his administrative
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`remedies. (See generally Resp., ECF No. 859). As such, the Court turns to whether Defendant
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`has shown extraordinary and compelling reasons warranting a sentence reduction. Here,
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`Defendant argues that a sentence reduction is warranted because: (1) there is an impermissible
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`sentencing disparity between his sentence and that of his codefendant Johnathon Toliver; (2)
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`there may be a sentencing disparity between the sentence he received and the sentence he
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`would likely receive under present sentencing law; and (3) he may have been deprived of the
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`opportunity to earn good time credit under the FSA. (See MSR); (Supplement). The Court
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`examines each reason in turn.
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`A. Impermissible Sentencing Disparity Between Codefendants
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`First, Defendant argues a sentence reduction is warranted because his sentence is
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`“double that of his-codefendant Johnathon Toliver.” (Reply 4:1–3, ECF No. 864). Specifically,
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`Toliver was re-sentenced in 2018 to 420 months, or 35 years of imprisonment as opposed to
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`Defendant’s 70-year sentence. (Id. 3–7). Here, the Court finds the difference in length between
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`Toliver and Defendant’s sentence, standing alone, is insufficient to warrant a sentence
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`reduction because Toliver’s judgment of conviction is materially different than Defendant’s.
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`Like Defendant, Toliver was convicted on several counts of VICAR in violation of 18
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`U.S.C. § 1959 and Use of a Firearm During a Crime of Violence in violation of 18 U.S.C. §
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`924(c) and sentenced to life imprisonment plus an additional 90 years in July 2008. (J., ECF
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`No. 560 in United States v. Bryant et al., No. 2:06-cr-00234-RHW-GWF-2). However, in
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`2018, Toliver was resentenced based on a plea agreement he entered with the Government in
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`which he pled guilty to one count of Use of a Firearm During and In Relation to a Crime of
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`Violence in violation of 18 U.S.C. § 925(j)(1). (Plea Agreement, ECF No. 812 in United States
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`v. Bryant et al., No. 2:06-cr-00234-RHW-GWF-2). Thus, Toliver’s judgment of conviction
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`and corresponding sentence is materially different than Defendant’s because it does not include
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`a VICAR murder count, nor does it include as many counts for the related firearm offenses.
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`(Compare Second Am. J., ECF No. 820 in United States v. Bryant et al., No. 2:06-cr-00234-
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`RHW-GWF-2 with Fourth Am. J, ECF No. 840 in United States v. Bryant et al., No. 2:06-cr-
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`00234-RHW-GWF-1). And the Ninth Circuit has made clear that acceptance of a guilty plea is
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`a permissible explanation for a sentencing disparity. See, e.g., United States v. Valdez-Lopez, 4
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`F. 4th 886, 893 (9th Cir. 2021) (“Valdez-Lopez’s codefendants had received shorter sentences
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`after pleading guilty, and a codefendant’s acceptance of a guilty plea is a permissible
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`explanation for a sentencing disparity.”)
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`Currently, Defendant’s argument rests on the proposition that a sentence reduction is
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`warranted merely because of the difference in length between his and Toliver’s sentence.
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`While the difference in length is significant, Defendant bears the burden of explaining why this
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`disparity results from “extraordinary and compelling” reasons as opposed to the permitted
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`reason identified by the Court. See United States v. Grummer, 519 F. Supp. 3d 760, 762 (S.D.
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`Cal. 2021) (“As the movant, Defendant bears the burden of establishing that he is eligible for a
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`sentence reduction.”) He has not done so here.
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`B. Sentencing Disparity Following Passage of the First Step Act (“FSA”)
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`Next, Defendant argues that a sentence reduction is warranted because his sentence may
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`have been impermissibly “stacked” as to his convictions under 18 U.S.C. § 924(c). (Supp. 6:6–
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`8). However, Defendant’s counsel acknowledges that she “cannot determine whether the
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`subject sentence was ‘stacked’ as to his several convictions under . . . . § 924(c).” (Id.).
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`Prior to the FSA, prosecutors could “stack” multiple counts of § 924(c) firearm
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`violations, which resulted in defendants without previous convictions being charged for both a
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`first offense—carrying a five-year mandatory minimum—and a “second or subsequent offense”
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`—carrying a mandatory twenty- or twenty-five-year sentence, to be served consequently—in
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`the same indictment. United States v. Jones, 482 F. Supp. 3d 969, 978 (N.D. Cal. 2020) (citing
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`Deal v. United States, 508 U.S. 129, 132 (1993)). Thus, someone convicted of two § 924(c)
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`counts in a single offense automatically faced a minimum sentence of 25 to 30 years.
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`In 2018, Congress enacted the FSA. Section 403(a) of the FSA revised § 924(c) by
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`eliminating the twenty-five-year stacking provision for a “second or subsequent count of
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`conviction” under § 924(c). Instead, the twenty-five-year mandatory-minimum sentence
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`applies only on a second § 924(c) conviction if the defendant has a prior § 924(c) conviction
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`that has become final. The FSA did not make § 403(a) retroactive. See FSA § 403(b).
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`However, in United States v. Chen, the Ninth Circuit held that “district courts may consider
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`non-retroactive changes in sentencing law, in combination with other factors particular to the
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`individual defendant, when analyzing extraordinary and compelling reasons for purposes of §
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`3582(c)(1)(A).” 48 F.4th 1092, 1098 (9th Cir. 2022). The Chen court further articulated that
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`“[t]here is no textual basis for precluding district courts from considering non-retroactive
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`changes in sentencing law when determining what is extraordinary and compelling.” Id.
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`Accordingly, pursuant to Chen, this Court must consider the changes in sentencing law to
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`determine whether “extraordinary and compelling” purposes exist.
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`If Defendant’s sentence was stacked, the disparity between the sentence Defendant
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`received and the sentence he would have received after passage of the FSA is likely significant.
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`But Defendant has not shown his sentence was stacked. Instead, Defendant’s argument rests on
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`the speculative proposition that it may have been stacked. It is Defendant’s burden to show
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`“extraordinary and compelling” reasons warranting a sentence reduction. Grummer, 519 F.
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`Supp. 3d at 762. Defendant is advised that he must submit argument and evidence
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`demonstrating his sentence was stacked.
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`C. Risk and Needs Assessment and Opportunity to Earn Good Time Credit1
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`Third, Defendant argues that under the FSA, he is entitled to a risk and needs assessment
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`to participate in recidivism reduction programs and accrue earned time credits. (Supp. 4:19–20,
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`6:14–7:8). Defendant’s counsel again acknowledges, however, that she is neither aware of
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`whether Defendant received a risk and needs assessment and has been able to participate in
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`recidivism reduction programs, nor how good time credit has been calculated for Defendant’s
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`sentence. (Id.). The Court finds a sentence reduction is not warranted on this basis for two
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`reasons.
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`At bottom, Defendant’s argument challenges the “manner, location, or conditions of [his]
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`sentence’s execution.” 28 U.S.C. § 2241. A “defendant may . . . challenge BOP’s calculation
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`[of his sentence]—in other words, the execution of his sentence—by filing a petition for a writ
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`of habeas corpus under 28 U.S.C. § 2241.” Zavala v. Ives, 785 F.3d 367, 370 n.3 (9th Cir.
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`2015). Thus, Defendant’s argument regarding earned time credits is better suited to a § 2241
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`petition. See, e.g., United States v. Ortiz, No. 12-cr-62, 2023 WL 1781565, at *5–6 n.3 (W.D.
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`1 Defendant also advances a sentence reduction is warranted because of his rehabilitative efforts. (MSR at 1).
`“Although the [C]ourt commends [Defendant] for taking these strides and does not intend to minimize his
`progress, such rehabilitative efforts do not alone establish ‘extraordinary and compelling’ circumstances
`warranting [a sentence reduction].” United States v. Brooks, No. 19-cr-0093, 2023 WL 6442595, at *3 (W.D.
`Wash. Oct. 3, 2023) (citing 28 U.S.C. § 994(t)) (stating that “[r]ehabilitation of the defendant alone shall not be
`considered an extraordinary and compelling reason” for a reduction in sentence”).
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`Case 2:06-cr-00234-GMN-GWF Document 865 Filed 11/14/23 Page 7 of 9
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`Wash. Feb. 6, 2023) (noting that the defendant's argument regarding earned time credits was
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`“likely better suited to a . . . § 2241 petition”); see United States v. Samal, No. 18-cr-0214,
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`2023 WL 2579887, at *6 (W.D. Wash. Mar. 16, 2023) (same).
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`Moreover, Defendant has neither shown that he has yet to receive a risk and needs
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`assessment nor the opportunity to receive earned time credits; he merely advances that such a
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`deprivation may have occurred. But without evidence to support his argument, it remains
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`equally likely he received the precise relief he now requests. It bears repeating that it is
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`Defendant’s burden to show a sentence reduction is warranted. Grummer, 519 F. Supp. 3d at
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`762. The Court will not grant a sentence reduction based on speculation.2 Accordingly, the
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`Court finds Defendant’s claims are more appropriately remedied through a § 2241 petition, and
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`even if considered on the merits, his claims fail to show a sentence reduction is warranted.
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`D. Home Confinement
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`Additionally, Defendant also contends that the FSA requires the BOP to confine him
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`within 500 miles of his home in Nevada and seeks an order compelling the BOP to transfer him
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`to a facility within that radius. (Supp. 7:10–22).
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`The FSA amended 18 U.S.C. § 3621(b) to provide that the BOP shall “place the prisoner
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`in a facility as close as practicable to the prisoner's primary residence, and to the extent
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`practicable, in a facility within 500 driving miles of that residence.” Notwithstanding this
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`language, section 3621(b) still preserves the BOP’s discretion to consider all pertinent factors
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`2 Even if the Court were to consider Defendant’s challenge to the BOP’s calculation of his FSA earned time
`credits and as a basis for sentence reduction, district courts within the Ninth Circuit have found that a “failure or
`denial or denial of the BOP to calculate time credits does not constitute an extraordinary or compelling reason
`justifying compassionate release.” United States v. Capetillo-Davila, No. 19-cr-00178, 2023 WL 2599612, at *4
`(D. Haw. Mar. 22, 2023); see (United States v. Penitani, No. 12-cr-00514, 2022 WL 4132900, at *4 (D. Haw.
`Sept. 12, 2022) (“Penitani does not show an extraordinary and compelling reason justifying compassionate
`release in claiming that the BOP has failed to consider him for low security status or to calculate his earned time
`credits.”); United States v. Hayes, 2023 No. 3:15-cr-05490, 2023 WL 2242101, *1 (W.D. Wash. Feb. 27, 2023)
`(same).
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`in making placement decisions, including “bed availability, the prisoner’s security designation,
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`the prisoner's programmatic needs, the prisoner's mental and medical health needs, any request
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`made by the prisoner related to faith-based needs, recommendations of the sentencing court,
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`and other security concerns.” Thus, the text of the statute refutes Defendant’s contention that
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`the BOP is required to place him in any particular prison. See United States v. Segura, No.
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`3:13-cr-00057, 2019 WL 2099920, at *1 (D. Nev. May 13, 2019) (“[W]hile a provision of the
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`First Step Act requires BOP to ‘place the prisoner in a facility as close as practicable to the
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`prisoner's primary residence, and to the extent practicable, in a facility within 500 driving miles
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`of that residence,’ this requirement is tempered by numerous other considerations[.]” (quoting
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`18 U.S.C. § 3621(b))).
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`Moreover, the statute expressly states that “[n]otwithstanding any other provision of law,
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`a designation of a place of imprisonment under this subsection is not reviewable by any court.”
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`18 U.S.C. § 3621(b). The FSA does not divest the BOP of its statutory discretion to determine
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`the location of an inmate’s imprisonment, and this Court does not have the authority to compel
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`the BOP to make any retroactive placement decisions. See e.g., Porche v. Salazar, No. 19-CV-
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`00077, 2019 WL 1373683, at *1 (D. Or. Mar. 5, 2019), report and recommendation adopted,
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`2019 WL 1371139 (D. Or. Mar. 26, 2019) (“Even though petitioner characterizes the BOP’s
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`decision as a ‘refusal’ to reconsider his designation, that refusal effectively designates
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`petitioner’s place of imprisonment and is not reviewable.”). Accordingly, the Court DENIES
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`Defendant’s request to the extent it seeks to compel the BOP to make a placement decision but
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`recommends to the BOP that Defendant be housed in a facility as close to Nevada as possible.
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`IV. CONCLUSION
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`IT IS HEREBY ORDERED that Defendant’s Motion for Sentence Reduction, (ECF
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`No. 849), is DENIED without prejudice. The Court will give Defendant until February 1,
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`2024, to file another motion for sentence reduction. Any renewed motion should remedy the
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`deficiencies identified in this Order.
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`IT IS FURTHER ORDERED that the Court RECOMMENDS that Defendant be
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`transferred within 500 miles of his primary residence.
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`DATED this _____ day of November, 2023.
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`___________________________________
`Gloria M. Navarro, District Judge
`United States District Court
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