United States District Court, W.D. Missouri, Western Division
Fernando J. Gaitan, Jr. United States District Judge.
pending before the Court is defendant's Motion to Reduce
Sentence and Modify Conditions of Release (Doc. # 390).
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
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.
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
(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;
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
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
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which