ORDER AND REASONS

SUSIE MORGAN, District Judge.

Before the Court is a Motion to Reduce Sentence Pursuant to Title 18, U.S.C. 3582(c)(1)(A) filed by Petitioner Shawanda Nevers.1 The Government did not file a response. For the reasons that follow, the motion is DENIED.2

BACKGROUND

On May 6, 2016, a grand jury indicted Shawanda Nevers for: 37 counts of aiding or assisting in the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2); one count of criminal contempt, in violation of 18 U.S.C. § 401(3); one count of bank fraud, in violation of 18 U.S.C. § 1344(2); and one count of forging the signature of a federal judge, in violation of 18 U.S.C. § 505.3 A superseding indictment was later returned, adding one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A.4 On August 3, 2017, Petitioner pleaded guilty to four counts of aiding and assisting in the preparation of false tax returns (Counts 17, 23, 28, and 29).5 In exchange for Plaintiff's agreement to plead guilty to these four charges, the Government agreed to dismiss the remaining counts in the superseding indictment and the original indictment. On December 13, 2017, Petitioner was sentenced on Counts 17, 23, 28, and 29.6 The Court sentenced Petitioner to 84 months, the bottom end of the U.S. Sentencing Guidelines ("USSG") range.7 The Court also ordered that Petitioner's federal sentence run concurrently with her state sentence of 12 years.8

Although Petitioner waived her right to directly appeal her conviction and the right to collaterally attack her sentence under § 2255,9 she appealed her sentence.10 The Fifth Circuit dismissed Petitioner's appeal, holding Petitioner's "guilty plea was knowing and voluntary, and her appeal waiver is enforceable."11 On September 26, 2019, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255,12 which the Court denied.

On September 26, 2019, Petitioner filed the instant motion.13 Petitioner asks the Court to "use the Compassionate Release Statute, as amended by the First Step Act, as a second look provision to reduce [Petitioner's] sentence."14 Petitioner cites as support United States v. Cantu, Criminal Action No. 1:05-CR-458-1, 2019 WL 2498923 (W.D. Tex. June 17, 2019).15 Petitioner also argues the Court has the ability to reduce her sentence pursuant to United States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. July 28, 2014).16

LAW AND ANALYSIS

I. § 3582(c)(1)(A)(i)

Petitioner argues her sentence should be modified pursuant to the provisions of § 3582(c)(1)(A)(i), because "extraordinary and compelling reasons" warrant such a reduction.17

"`[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment' and may not be modified by a district court except in limited circumstances."18 These limited circumstances are addressed in 18 U.S.C. § 3582(b), which provides:

In turn, subsection (c) provides, in relevant part:

The First Step Act of 2018 amended 18 U.S.C. § 3582(c)(1)(A) to allow courts to modify sentences not only upon motion of the Director of the BOP but also 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."21 A court may now modify a defendant's sentence if it finds on either the motion of the Bureau of Prisons ("BOP") or the defendant's motion that "extraordinary and compelling reasons warrant such a reduction" and "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."22

The Sentencing Commission's policy statement has not been amended since the First Step Act, and some of it now clearly contradicts 18 U.S.C. § 3582(c)(1)(A).23 As a result, there is some dispute as to which, if any, policy and program statements should apply.24 The policy statement regarding compassionate release sets forth three specific reasons that are considered "extraordinary and compelling" as well as a catchall provision recognizing as "extraordinary and compelling" any other reason "[a]s determined by the Director of the Bureau of Prisons":

The policy statement regarding compassionate release also requires that "the defendant is not a danger to the safety of any other person or to the community," and that the Court's determination is in line with "the factors set forth in 18 U.S.C. § 3553(a)."26

As previously stated, the policy statement has not been amended. Thus, although the First Step Act amended § 3582(c) to allow a defendant, not just BOP, to bring a motion that extraordinary and compelling reasons warrant a reduction in the defendant's sentence, USSG § 1B1.13 cmt. n.1(D) still only permits BOP to determine what constitutes "extraordinary and compelling reason[s]." In light of this conflict, some courts have held: "the only way direct motions to district courts would increase the use of compassionate release is to allow district judges to consider the vast variety of circumstances that may constitute `extraordinary and compelling.'"27 In United States v. Cantu, the Southern District of Texas held the catch-all provision contained in USSG § 1B1.13 cmt. n.1(D) "no longer describes an appropriate use of sentence-modification provisions and is thus not part of the applicable policy statement binding the Court."28 The Cantu court determined the Director of the BOP is no longer the "sole determiner" of what constitutes an extraordinary and compelling reason,29 and, instead, "when a defendant brings a motion for a sentence reduction under the amended provision, the Court can determine whether any extraordinary and compelling reasons other than those delineated in USSG § 1B1.13 cmt. n.1(A)-(C) warrant granting relief."30 For the reasons stated below, the Court need not determine in this case whether only the BOP may determine what qualifies as "extraordinary and compelling reasons" for a sentence reduction.

A. Standing

The amended statute allows a defendant to file a motion for compassionate release upon the earlier of two dates. First, a defendant can file a motion "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."31 Second, a defendant can file a motion upon "the lapse of 30 days from the receipt of [a defendant's request to bring a motion] by the warden of the defendant's facility."32 "Courts have recognized these two options impose a mandatory requirement that a defendant submit a request to the warden of her facility before filing in court."33 For instance, in Cantu, the case cited by Petitioner in support of her motion, the court found the petitioner "has standing to bring this motion because more than 30 days elapsed between [her] reduction-in-sentence request to the warden and a response."34 In contrast, in this case, Petitioner fails to make the requisite showing that either (A) she has made any attempt to fully exhaust "all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [her] behalf" or (B) she has made any such request to "the warden of [Petitioner's] facility."35 Accordingly, Petitioner lacks standing to bring this motion.

B. Merits

Even if Petitioner had standing to bring this motion, she has not demonstrated "extraordinary and compelling reasons" exist to reduce her sentence, as required by § 3582(c)(1)(A). Petitioner argues her sentence should be reduced to time served so that she can care for her mother.36 According to Petitioner, her aging mother, who is responsible for taking care of Petitioner's elderly stepfather and Petitioner's disabled daughter, has heart and lung conditions.37 Petitioner contends this constitutes an "extraordinary and compelling reason" to reduce her sentence.

Petitioner has not presented evidence that her reasons are extraordinary and compelling under the three explicitly defined reasons in the current policy statement.38 The closest fit is a third explicitly-defined reason, which includes "[t]he death or incapacitation of the caregiver of the defendant's minor child."39 It is not facially apparent from Petitioner's motion whether this reason is applicable, as Petitioner fails to specify her child's age in her motion. However, a review of the record quickly debunks the applicability of the third explicitly-defined reason. According to the "Personal and Family Data" section of the Presentence Investigation Report ("PSR") issued on December 6, 2017, Petitioner has two children, who were 30 and 32 at that time.40 According to the PSR, Petitioner reported one of her children has a "learning disability."41 As a result, the third explicitly-defined reason in the policy statement is inapplicable because Petitioner does not have any minor children.

In Cantu, the district court held that, although the petitioner "has not presented evidence that his reasons are extraordinary and compelling under the three explicitly defined reasons," the petitioner's case nevertheless presented such extraordinary and compelling reasons to warrant a reduction under § 3582(c)(1)(A)(i).42 Recognizing that "[v]ery little guidance exists on what constitutes extraordinary and compelling reasons warranting a sentence reduction under USSG § 1B1.13 cmt. n.1(D)," the court relied on Black's Law Dictionary to define "extraordinary" as "[b]eyond what is usual, customary, regular, or common," and "compelling" as "so great that irreparable harm or injustice would result if [the relief] is not [granted]."43 Applying these definitions, the court held:

The Cantu court cautioned its "determination in this case is narrow and unlikely to have far-reaching implications, as Government non-opposition is both the touchstone of the determination and rare."45

The Court need not decide whether it agrees with the Cantu court's determination that the courts, not the Director of the BOP, may determine what constitutes "extraordinary and compelling" reasons under USSG § 1B1.13 cmt. n.1(D).46 Even under the Cantu court's more expansive reading of USSG § 1B1.13 cmt. n.1(D), this Court find Petitioner's proffered reasons do not qualify as "extraordinary and compelling." This is not one of the "narrow" cases in which the Government has advocated that the Court issue an order causing BOP to release Petitioner. Rather, the Government has filed no response to Petitioner's motion, even though the motion has been pending for over two months.

Few district courts have expanded beyond Cantu to find "extraordinary and compelling" reasons to reduce a petitioner's sentence, even when the Government does not "advocate that the Court issue an order that would cause BOP to release the Defendant."47 One such case, United States v. Bucci, is particularly instructive.48 In that case, the petitioner argued the fact that he was the "only available caregiver . . . for an ailing, close member of his family: his mother," was an "extraordinary and compelling reason" to reduce his sentence.49 The District of Massachusetts agreed, holding:

The Bucci court acknowledged that in another case, United States v. Ingram, the Southern District of Ohio denied compassionate release to defendant to care for his ill mother because "[m]any, if not all inmates, have aging and sick parents."51 The Bucci court emphasized that in the Bucci case, the petitioner's "role as the only potential caregiver for his ailing mother" was an "extraordinary and compelling reason" for compassionate release.52

Unlike Bucci, in this case, there is no indication Petitioner is the only potential caregiver for her mother. Rather, the PSR indicates Petitioner has multiple other family members who are potential caregivers.53 Moreover, the PSR indicates Petitioner's mother was elderly and had ailing health before she was sentenced. Thus, there has been no new change in circumstances that might now warrant Petitioner's early release.

Accordingly, Petitioner is not entitled to relief under § 3582(c)(1)(A)(i).

II. The "Holloway Doctrine"

Petitioner also argues she is entitled to a reduction of her sentence pursuant to United States v. Holloway, a district court decision in the Eastern District of New York from which the so-called "Holloway Doctrine" derives.54

In Holloway, a defendant, whose conviction was affirmed and subsequent motion for habeas corpus relief under 28 U.S.C. § 2255 was denied, filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure to reopen his § 2255 proceeding.55 In response, the Eastern District of New York district court judge issued an order stating: "I respectfully request that the United States Attorney consider exercising her discretion to agree to an order vacating two or more of [the defendant's] 18 U.S.C. § 924(c) convictions."56 The Assistant United States Attorney ["AUSA"] declined to do so.57 The district judge again "asked the United States Attorney to reconsider exercising her discretion to agree to an order vacating two or more of [the defendant's] § 924(c) convictions so he could face a more just resentencing."58 In a subsequent court appearance, the AUSA agreed "to withdraw our opposition to the pending Rule 60(b) motion, and also to state on the record that we wouldn't oppose the granting of the underlying 2255 motion for the purpose of vesting the court with authority to vacate two of the 924(c) convictions, and to proceed to resentence."59 The AUSA made clear that her actions were made "without taking a position on the merits of either the Rule 60 motion or the habeas petition" and further "that the United States Attorney's position in this case shouldn't be interpreted as reflecting a broader view of Section 924(c) generally or its application to other cases."60 The district court itself acknowledged the modification of the defendant's sentence was a product of the prosecutor's discretion, and not any inherent authority of the court:

The Fifth Circuit has clearly held: "Holloway is not binding on this court[.]"62 This Court has likewise declined to find that Holloway is "binding, persuasive, [or] doctrinal."63 Other district courts in this circuit have also rejected the notion that Holloway is binding in this Circuit, or that it is a legal "doctrine" at all. For instance, in United States v. McBride, the Eastern District of Texas denied a defendant's motion to reduce his sentence under the "Holloway Doctrine," explaining: "[t]he Holloway case does not present a specific doctrine but only an example of leniency previously granted."64 In United States v. Green, the Western District of Louisiana denied a similar motion, holding: "[a]s a decision from the Eastern District New York, Holloway has no binding effect on this court. Furthermore, that decision `did not conclude or even suggest that [the court has] unilateral discretion to reduce the defendant's sentence.'"65 "`Rather, it was the Government's decision to not oppose Holloway's motion . . . that permitted the [c]ourt to address the perceived injustice.'"66 Further, in United States v. Terrell, the Middle District of Louisiana, in denying a similar motion, explained:

As the district court itself recognized in Holloway, "the authority exercised" in Holloway to reduce a defendant's final sentence was a decision by the prosecutor not to oppose the defendant's motion.68 In this case, the Government has not made clear whether it opposes Petitioner's motion, as the Government did not express its intent not to oppose Petitioner's motion. Holloway is neither binding, persuasive, doctrinal, nor particularly instructive in this matter.

Petitioner has failed to identify any applicable statutory authority for a sentence reduction, and this Court lacks jurisdiction to modify Petitioner's sentence under 18 U.S.C. § 3582(b). Accordingly, Petitioner is not entitled to the relief she seeks.

CONCLUSION

Defendant's Motion to Reduce Sentence Pursuant to title 18, U.S.C. 3582(c)(1)(A)69 is DENIED.