ORDER DENYING MOTION FOR VACATUR OF CONVICTION

DERRICK K. WATSON, District Judge.

INTRODUCTION

On September 8, 2000, Defendant Khang Kien Tran was sentenced to a 360-month term of imprisonment for methamphetamine distribution and firearms violations. He currently moves the Court to vacate his Count 2 conviction for violation of 21 U.S.C. Section 841(a)(1), and reduce his sentence to 120 months to run concurrently with Count 5, pursuant to United States v. Holloway, 68 F.Supp.3d 301 (E.D. N.Y. 2014), and to "produce orders for [his] immediate deportation." Motion at 7, Dkt. No 742. Because the United States objects to his request, and the Court is without the authority to modify his sentence or otherwise grant the relief sought, Tran's Motion is DENIED.

BACKGROUND

I. Plea, Sentencing, and Direct Appeal

In 1998, Tran was charged in the Third Superseding Indictment with: (1) conspiring to possess with the intent to distribute more than 100 grams of crystal methamphetamine between 1994 and 1996, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); (2) distributing more than 100 grams of crystal methamphetamine on January 27, 1995, in violation of Section 841(a)(1) (Count 2); (3) possession with the intent to distribute more than 100 grams of crystal methamphetamine on January 27, 1995, in violation of Section 841(a)(1) and 18 U.S.C. § 2 (Count 3); (4) carrying a firearm during and in relation to a drug trafficking crime on January 27, 1995, in violation of 18 U.S.C. § 924(c)(1) (Count 4); and (5) being a felon in possession of a firearm on January 27, 1995, in violation of 18 U.S.C. § 922(g)(1) (Count 5). See Dkt. No. 434 (7/8/98 Third Superseding Indictment).

On December 10, 1998, pursuant to a plea agreement, Tran entered a plea of guilty to Counts 2 and 5, and the government agreed to dismiss Counts 1, 3, and 4. See Dkt. Nos. 503 (12/10/98 Minutes) and 511 (12/28/98 Order). On September 8, 2000, Tran was sentenced to 360 months imprisonment as to Count 2 and 120 months as to Count 5, terms to run concurrently. The sentencing court also imposed a five-year term of supervised release on Count 2, and three years for Count 5, also to run concurrently. See Dkt. Nos. 592 (9/8/2000 Minutes) and 600 (10/2/2000 Presentence Investigation Report ["PSR"]).

Tran appealed on April 16, 2001, challenging the effectiveness of counsel, alleging that the government breached its obligations under the plea agreement, and asserting that the court erred in calculating his guideline range. The Ninth Circuit affirmed his conviction and sentence on January 31, 2002. See Dkt. No. 624.

II. Post-Conviction Motions

In his first Section 2255 Motion, filed on October 6, 2003, Tran challenged his sentence based on allegations of ineffective assistance of counsel and prosecutorial misconduct. The sentencing court denied the first Section 2255 Motion on February 3, 2004 and denied Tran's application for a certificate of appealability on May 7, 2004. See Dkt. Nos. 636 and 643. Tran then sought reconsideration, which the sentencing court construed as a "second or successive" habeas petition because it challenged his sentence based on a new theory of law. See Dkt. No. 659 (1/4/05 Order). The sentencing court transferred Tran's second 2255 Motion to the Ninth Circuit Court of Appeals. See Dkt. No. 659.

Tran filed a third Section 2255 Motion on June 24, 2016.1 Dkt. Nos. 707, 709. On July 7, 2016, the Court concluded that Tran's third Section 2255 Motion seeking relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), was a "second or successive" petition that required certification from the Ninth Circuit Court of Appeals. Dkt. No. 712. On May 10, 2017, the Ninth Circuit granted Tran's petition and instructed the district court to process it as a Section 2255 motion. Dkt. No. 726. The Court did so, and subsequently denied Tran's third Section 2255 Motion seeking relief under Johnson because Tran was neither subject to a sentencing enhancement under the Armed Career Criminal Act nor classified as a career offender under the Sentencing Guidelines. See 8/3/17 Order at 6-9, Dkt. No. 736. The Court likewise denied his request for a sentencing reduction pursuant to Amendment 794 and declined to issue a certificate of appealability. See 8/3/17 Order at 11-13.

On several prior occasions, Tran's motions for reduction of his sentence have been rejected by the district court and the Ninth Circuit. Recently, two orders rejected his requests under 18 U.S.C. § 3582(c)(2)—a November 25, 2014 Order denying his motion for reduction of sentence pursuant to Amendment 782 ("11/25/14 Order") entered by Judge David Alan Ezra (Dkt. No. 679), and this Court's September 22, 2016 Order ("9/22/16 Order") denying the same (Dkt. No. 724).2 One year after the Court's denial of his second motion for a sentencing reduction pursuant to Amendment 782, Tran asked the Court to "reconsider the district court's denial of petitioner's previous § 3582 motions" because he "has discovered that the court's denials were based largely in part due to errors based on. . . a Sixth Amendment violation of petitioner's rights under the Constitution as to `ineffective assistance of counsel' affecting petitioner's § 3582 proceedings that occurred during the (pre)sentencing phase unbeknownst to petitioner until recently." Dkt. No. 737 at 1-2. The Court construed Tran's request as a Fourth Section 2255 Motion, which was a "second or successive" petition that requires certification from the Ninth Circuit before this Court may assert jurisdiction. The Ninth Circuit denied Tran's application for authorization to file a second or successive petition on May 17, 2018. Dkt. No. 747.

III. Tran's Current Motion

Tran filed his most recent request on April 2, 2018, entitled Memorandum Regarding the Vacatur of Conviction 841(a)(1), Dkt. No. 742, in which he petitions the Court to vacate his conviction for Count 2 on the basis of another district court's decision in Holloway. The United States opposes the request on several grounds: (1) Tran was the leader of at least 10 people who distributed large quantities of crystal methamphetamine and had several prior felony convictions when he committed the instant offenses; (2) Bureau of Prison's records show at least four serious incidents since his incarceration—including fighting and possession of a dangerous weapon—resulting in the loss of 167 days of good time credit, see Govt. Ex. 4, Dkt. No. 746-4; and (3) the Motion is not the proper procedural vehicle for Tran's request, and he should instead seek relief following the channels established by the Department of Justice, Office of Pardon Attorney. Mem. in Opp'n at 5-8, Dkt. No. 746.

DISCUSSION

I. Tran's Is Not Entitled to Relief Under the Holloway Doctrine

Tran asks the Court to vacate his sentence under United States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014). A district court does not have inherent authority to modify a previously imposed sentence, and may do so only pursuant to statutory authorization. Once a sentence "has been imposed," Section 3582(c) generally prohibits a district court from "modify[ing] a term of imprisonment." Congress grants the district courts authority to modify a final sentence only: (1) upon motion by the Director of the Federal Bureau of Prisons; (2) on its own motion if the applicable sentencing guideline has been reduced; or (3) pursuant to Federal Rule of Criminal Procedure Rule 35. A final sentence is only modifiable under Fed. R. Crim. P. 35 if: (1) it has been vacated and remanded; (2) the government moves to reduce it; or (3) the district court acts within seven days of the original sentence.

Nevertheless, Tran attempts to circumvent these limitations so as to permit a sentence reduction in the interest of fairness, relying upon the so-called Holloway Doctrine. In Holloway, the district court permitted a sentence reduction using the authority of Federal Rule of Civil Procedure 60(b) to revisit the defendant's excessive sentence. 68 F. Supp. 3d at 311, 314.3 Tran asks for the same type of relief that was granted in Holloway, advancing the argument that he is "still considered a model inmate although he has received even the most minute of disciplinary reports as the record will reflect." Motion at 2.

The Court first notes that the Ninth Circuit has not approved the non-binding rationale applied in Holloway, and it appears that every district court within this Circuit which has addressed the issue has declined to apply Holloway to reduce a defendant's sentence. See, e.g., United States v. Burton, No. 1:85-CR-00205-LJO, 2018 WL 1637955, at *2 (E.D. Cal. Apr. 5, 2018) ("No circuit court has directly addressed the Holloway Doctrine, however, from a survey of district court cases, `the one consistent theme for the Courts that have addressed the Holloway decision is that unless the government acquiesces to the reduction [in sentence], there is no jurisdiction for the district court to reduce the Petitioner's sentence.'") (quoting Whitt v. United States, No. 1:95 CR 33, 2017 WL 5257709, at *3 (N.D. Ind. Nov. 13, 2017)).4

Equally important, the Holloway court itself recognized the importance of the government's agreement to resentencing. 68 F. Supp. 3d at 315-16. As noted in another case in this district court, Acuna v. United States, "relief of the type granted in Holloway is contingent on the Government's acquiescence." 2016 WL 3747531, at *3 (D. Haw. July 8, 2016). The court in Acuna explained:

Acuna, 2016 WL 3747531, at *3 (citations omitted). See also Whitt, 2017 WL 5257709, at *3 ("even if the Court broadly interpreted Holloway and determined it had some basis for application here, this Court has no authority to grant Whitt's entreaty for mercy, absent the Government's agreement"). The government likewise objects here, and the Court is without the authority to act on Tran's request.

Moreover, even if this Court had the discretion to reduce Tran's sentence pursuant to Holloway, the Court would not exercise its discretion in his favor for several reasons. First, one of the principal bases for Holloway's reduction was that Holloway was a model prisoner. Tran has made no such showing, and the Government's evidence, in fact, paints quite the opposite picture, including at least four serious incidents since 2001, and additional less significant infractions. See Govt. Ex. 4. Second, to be truly analogous to Holloway, Tran would need to bring this motion after demonstrating his ability to comply with the terms of his incarceration for a number of years. As noted, both his pre- and post-conviction conduct affords little reason to exercise whatever discretion the Court may possess in Tran's favor. Finally, the government agreed to vacate two of Holloway's convictions. Here, there has been no such agreement by the government to vacate any part of Tran's sentence. Because the circumstances of Tran's case and that of Holloway are entirely distinguishable, Tran's request is DENIED.

II. Tran Is Not Entitled to Relief Under Any Other Authority

The Court also lacks authority to consider Tran's motion to vacate or for reduction of sentence on any other basis or to order his immediate deportation.

Although Tran cites several cases and implores the United States Attorney to act on his request, the Court is without the authority to act on his request. Insofar as Tran asks the Court to exercise its discretionary powers with respect to his sentencing and imprisonment, the Court declines to do so. The court's inherent authority is generally vested to manage the affairs of the court, Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962), and must be exercised with caution. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). Its discretion is not a license to intervene in decisions committed to the discretion of the Bureau of Prisons.5 To the extent the Court has discretion to make such a recommendation via its inherent authority, the Court declines to exercise it here.

CONCLUSION

Tran's Motion for Vacatur of Conviction, Dkt. No. 742, is DENIED.

IT IS SO ORDERED.