`Case 2:09-cr-00222-HDM-PAL Document 238 Filed 10/30/23 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`
`DISTRICT OF NEVADA
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`
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`UNITED STATES OF AMERICA,
`
`Plaintiff,
`v.
`
`
`ANTHONY SWANSON,
`
`
`Case No. 2:09-cr-00222-HDM-PAL
`
`
`ORDER
`
`Defendant.
`
`The defendant, Anthony Swanson, has filed a motion for
`reduction of sentence for “extraordinary and compelling reasons”
`pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (ECF No. 231). The
`government has opposed (ECF No. 235), and Swanson has replied
`(ECF No. 236).1
`
`A defendant may seek compassionate release pursuant to 18
`U.S.C. § 3582(c)(1)(A), which provides in relevant part:
`
`[T]he court, . . . 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
`
`1 In his motion, Swanson also requests appointment of counsel to
`assist in the filing of his motion. The request is denied as
`moot. Pursuant to Amended General Order 2020-06, the Federal
`Public Defender is appointed to represent any defendant who
`files a pro se motion for compassionate release. Here, the FPD
`filed a notice of non-supplementation pursuant to the order.
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`Case 2:09-cr-00222-HDM-PAL Document 238 Filed 10/30/23 Page 2 of 5
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`of
`term
`original
`the
`of
`portion
`unserved
`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 the Sentencing
`Commission.2
`
`At the time U.S.S.G. § 1B1.13 was drafted to guide
`
`application of § 3582(c)(1)(a), only the warden of a defendant’s
`institution could bring a motion for compassionate release.
`However, following the First Step Act, Pub. L. No. 115-391,
`Title VI, sec. 603(b)(1), § 3582, 132 Stat. 5194, 5239 (2018),
`defendants may now bring such motions directly to the court.
`Section 1B1.13 has not been updated since the amendment. The
`Ninth Circuit has therefore concluded that the current version
`of § 1B1.13 is not applicable to § 3582(c)(1)(A) motions brought
`directly by a defendant, and, as such, is not binding on the
`court in this context. United States v. Aruda, 993 F.3d 797,
`801-02 (9th Cir. 2021). Nevertheless, the factors set forth in §
`1B1.13 may inform the court’s exercise of its discretion. Id.
`U.S.S.G. § 1B1.13 provides:
`
`2 In addition to “extraordinary and compelling reasons,” the
`court may grant a motion if “the defendant is at least 70 years
`of age, has served at least 30 years in prison, pursuant to a
`sentence imposed under section 3559(c), for the offense or
`offenses for which the defendant is currently imprisoned, and a
`determination has been made by the Director of the Bureau of
`Prisons that the defendant is not a danger to the safety of any
`other person or the community, as provided under section
`3142(g).” 18 U.S.C. § 3582(c)(1)(A)(ii). Swanson has not served
`more than thirty years in prison and is not at least 70 years
`old, so this provision does not apply.
`
` .
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`Case 2:09-cr-00222-HDM-PAL Document 238 Filed 10/30/23 Page 3 of 5
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`Upon motion of the Director of the Bureau of Prisons
`under 18 U.S.C. § 3582(c)(1)(A), the court may reduce
`a term of imprisonment (and may impose a term of
`supervised release with or without conditions that
`does not exceed the unserved portion of the original
`term of imprisonment) if, after considering the
`factors set forth in 18 U.S.C. § 3553(a), to the
`extent that they are applicable, the court determines
`that—
`
`
`(1)(A) extraordinary and compelling reasons
`warrant the reduction;
`
`
`. . .
`
`
`(2) the defendant is not a danger to the safety
`of any other person or to the community, as provided
`in 18 U.S.C. § 3142(g); and
`
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`(3) the reduction is consistent with this policy
`statement.
`
`U.S.S.G. § 1B1.13.
`
`A defendant is not entitled to be present for any hearing
`on a motion for compassionate release. See Fed. R. Crim. P.
`43(b)(4).
`Before an inmate may file a motion for relief pursuant to
`§ 3582(c)(1)(A), he must first present his request to the warden
`of his institution. The motion may be filed in court after the
`“defendant has fully exhausted all administrative rights to
`appeal a failure of the Bureau of Prisons to bring a motion on
`[his] behalf” or 30 days have passed from the warden’s receipt
`of his request, whichever is earlier.
`Swanson filed a request with the warden of his institution
`on February 17, 2023. The request asserted that he was entitled
`to relief because he no longer qualifies as a career offender.
`The warden denied Swanson’s request on May 9, 2023. Swanson has
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`therefore exhausted his administrative remedies and may properly
`bring the instant motion.
`Here, Swanson’s primary argument is that he does not
`qualify as a career offender because one of his prior state
`convictions was double counted. While “district courts may
`consider non-retroactive changes in sentencing law, in
`combination with other factors particular to the individual
`defendant, when analyzing extraordinary and compelling reasons
`for purposes of § 3582(c)(1)(A),” United States v. Chen, 48
`F.4th 1092, 1098 (9th Cir. 2022), Swanson’s argument is not
`based on any change to the law. Rather, his argument is based on
`the nature of his convictions and is one that he could have
`raised at sentencing, on appeal, or in his § 2255 proceedings.
`Chen therefore does not authorize this court to consider his
`argument in connection with his § 3582 motion.
`
`Moreover, as the argument is a cognizable § 2255 claim that
`could have been raised at the time of Swanson’s § 2255
`proceedings,
`it
`is
`not
`properly
`considered
`in
`a
`§ 3582(c)(1)(A)(i) motion. “The general rule is that a motion
`under 28 U.S.C. § 2255 is the exclusive means by which a federal
`prisoner may test the legality of his detention. . . .” Marrero
`v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). Most courts that
`have considered the issues have held that a § 3582(c)(1)(A)(i)
`motion cannot be based on arguments that could have been raised
`as § 2255 claims. See United States v. Wesley, 60 F.4th 1277,
`1288-89 (10th Cir. 2023) (so holding and collecting cases).
`
` While Swanson’s motion briefly mentions his conduct in
`prison, participation in programming, and employment, this
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`Case 2:09-cr-00222-HDM-PAL Document 238 Filed 10/30/23 Page 5 of 5
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`cursory argument does not persuade the court that extraordinary
`and compelling reasons for a reduction in sentence otherwise
`exist.
`As Swanson’s motion does not establish extraordinary and
`compelling reasons for a reduction (ECF No. 231), the motion is
`DENIED. To the extent the motion could be construed as a motion
`under § 2255, the motion is second or successive, 28 U.S.C.
`§ 2255(h), and as Swanson has not demonstrated he has
`authorization from the Ninth Circuit for the filing, the motion
`must be dismissed for lack of jurisdiction.
`
`DATED: This 30th day of October, 2023.
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`UNITED STATES DISTRICT JUDGE
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