United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Gerald S. Mack's
(“Defendant”) pro se Motion for Sentence
Reduction  and Motion to Set Payment .
August 21, 2014, Defendant was sentenced to ninety (90)
months imprisonment with three (3) years of supervised
release, after pleading guilty to one count of Theft of
Government Funds, in violation of 18 U.S.C. §§ 641
and 2, and one count of Aggravated Identity Theft, in
violation of 18 U.S.C. §§ 1028A(a)(1) and 2. (,
Judgment ). The Court ordered that Defendant “shall
make restitution in the amount of $315, 315.72, jointly and
severally with any defendant later determined to be related
to the scheme, to the victim, Wells Fargo Bank, N.A.”
(Judgment at 5). The Court included in the Judgment that
Restitution is due and payable immediately. The defendant
shall make restitution payments from any wages he may earn in
prison in accordance with the Bureau of Prisons Financial
Responsibility Program. If restitution is not paid in full at
the time of the defendant's release, payment shall become
a condition of supervised release to be paid at a monthly
rate of at least $150.00, plus 25% of gross income in excess
of $2, 300.00 per month.
at 5 (emphasis added)). Defendant did appeal his sentence or
December 23, 2015, the Court, pursuant to a motion under Rule
35 of the Federal Rules of Criminal Procedure, reduced
Defendant's custodial sentence to seventy-eight (78)
16, 2017,  Defendant filed his Motion for Sentence
Reduction. In it, Defendant requests that the Court reduce
his sentence because he has been diagnosed with leukemia and
is currently undergoing intensive treatment. Defendant
further requests a reduction pursuant to the United States
District Court for the Eastern District of New York's
decision in United States v. Holloway, 68 F.Supp.3d
310 (E.D.N.Y. 2014).
31, 2017, Defendant filed his Motion to Set Payment. In it,
Defendant requests a reduction in his “quarterly”
payment toward restitution, under the Bureau of Prisons
(“BOP”) Financial Responsibility Program.
Defendant states that his counselor increased his quarterly
payment from $25.00 to $168.00 per quarter. Defendant
requests that his payment be returned to the $25.00 per
quarter amount he previously was required to pay.
Reduction of Sentence
Court is permitted to modify a term of imprisonment, after it
has been imposed, only where expressly permitted by 18 U.S.C.
§ 3582 (“Section 3582”). United States
v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010).
The Court lacks “inherent power” to re-sentence a
defendant. Id. at 1196-97.
3582 authorizes the modification of a sentence
(1) where the Bureau of Prisons has filed a motion and either
extraordinary and compelling reasons warrant a reduction or
the defendant is at least 70 years old and meets certain
other requirements; (2) where another statute or Federal Rule
of Criminal Procedure 35 expressly permits a sentence
modification; or (3) where a defendant has been sentenced to
a term of imprisonment based on a sentencing ...