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United States v. Everett

United States District Court, W.D. Missouri, Western Division

February 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BENJAMIN P. EVERETT, Defendant.

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge.

         Currently pending before the Court is defendant's Motion to Reduce Sentence and Modify Conditions of Release (Doc. # 390).

         I. BACKGROUND

         On March 21, 2011, Everett pled guilty to Counts One and Eleven of the Indictment, charging violations of 18 U.S.C. §§ 371 and 1028A(a)(1) and (2), that is conspiracy and aggravated identity theft. On March 19, 2012, Everett was sentenced to the custody of the Bureau of Prisons for a term of 60 months on Count One, and 24 months on Count Eleven, to be served consecutively for a total term of 84 months. Everett was also ordered to be on supervised release for three years.

         II. DISCUSSION

         Everett raises three claims in his motion: 1) his term of supervised release is too harsh and should be reduced; 2) the time he spent in custody during pretrial should be counted toward his sentence and 3) the guidelines applied to him are ambiguous, relevant conduct applied led to an increase in his punishment and a two point gun enhancement does not apply to him.

         First, as the Government notes in its response, Everett's request for a reduction in his supervised release term is premature. Title 18 U.S.C. §3583(e)(1) states as follows:

(e) Modification of conditions or revocation - -The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6) and (a)(7)-
(1) terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice;

         Pursuant to the Bureau of Prison's website, Everett's release date is July 18, 2017. Thus, because he has not yet completed his sentence nor commenced his term of supervised release, a motion to reduce the length of supervised release is premature.

         Everett's second claim is that any form of pretrial detention (including bond) should be counted toward his sentence. This is incorrect. Time spent on bond in the pretrial phase does not count as time served against any impending sentence. Title 18 U.S.C.§ 3585(b) states in part:

(b) Credit for prior custody - - A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences - -
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which ...

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