                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    UNITED STATES OF AMERICA

                         v.
                                                      Case No. 1:17-cr-00234-2 (TNM)
    WAYNE HOLROYD,

                         Defendant.

                                MEMORANDUM AND ORDER

         Wayne Holroyd is serving a 120-month prison sentence for conspiracy to distribute and

possess with intent to distribute more than 280 grams of a mixture or substance containing a

detectable amount of cocaine base. Judgment at 1–2, 1 ECF No. 198; see 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii), 846. He resides at the Federal Correctional Institution (“FCI”) in Ashland,

Kentucky.

         Two months ago, Holroyd moved for compassionate release under 18 U.S.C.

§ 3582(c)(1)(A)(i). He originally filed the motion pro se, but the Court appointed the Federal

Public Defender (“the FPD”) to represent him and reply on his behalf, which it did. See Def.’s

Mot., ECF No. 224; Def.’s Reply in Supp. of Original Mot., ECF No. 228; Def.’s Renewed Mot.,

ECF No. 231. The Court denied the motion, United States v. Holroyd, --- F. Supp. 3d ---, 2020

WL 2735664 (D.D.C. May 26, 2020), and a few days later Holroyd (through the FPD) appealed

that decision. Notice of Appeal, ECF No. 234. That appeal is pending, see No. 20-3041 (D.C.

Cir.), but Holroyd has now filed a pro se motion for reconsideration of the decision he is

appealing. Def.’s Mot. for Reconsid., ECF No. 237. Having reviewed Holroyd’s brief, the

relevant law, and the entire record of the case, the Court will deny this motion.


1
    All page citations refer to the page numbers that the CM/ECF system generates.
                                                I.

       Holroyd’s conspiracy conviction stems from his involvement in a drug trafficking ring.

Gov’t Proffer of Proof at 4, ECF No. 93. Among other actions, he supplied a co-conspirator with

crack cocaine, who in turn sold the drugs to an undercover officer. Id. Holroyd admitted “that

he joined and assisted in the drug trafficking conspiracy knowing that the primary purpose of the

conspiracy was to distribute and possess with the intent to distribute more than 280 grams of

suspected crack cocaine.” Id. A grand jury indicted Holroyd on the conspiracy charge and five

substantive counts of distributing cocaine base, and he pled guilty to the former in exchange for

the Government dismissing the substantive counts. Plea Agreement at 1–2, ECF No. 92.

       Before Holroyd’s plea, the Court ordered Holroyd detained, finding that he posed a

danger to the community, in large part because of the serious and harmful nature of the charged

conduct. Mem. Op. at 4–6, ECF No. 23. The Court ultimately sentenced him to 120 months in

prison—the mandatory minimum under 21 U.S.C. §§ 841(b)(1)(A)(iii), 846—and 60 months of

supervised release. Judgment at 2–3. His projected release date is in 2026. Gov’t Opp’n to

Original Mot. Ex. D at 1, ECF No. 226-4.

       Citing COVID-19, Holroyd twice asked the warden at FCI Ashland to move for

compassionate release on his behalf, to no avail. Def.’s Reply in Supp. of Original Mot. Ex. A at

2–4, ECF No. 228-2. He then asked this Court for compassionate release, stressing that his

health conditions make him vulnerable to the COVID-19 virus. See Def.’s Renewed Mot. at 1.

The Court denied Holroyd’s motion, finding that COVID-19 did not present an “extraordinary

and compelling” reason for reducing his sentence to time served, that he still posed a danger to

the community, and that the sentencing factors under 18 U.S.C. § 3553(a) still supported the

original prison term of 120 months. Holroyd, 2020 WL 2735664, at *3–7. The Court made



                                                2
clear that each finding—standing alone—was a sufficient reason to deny compassionate release.

See id. at *2 & n.4, *5–6.

        Holroyd, through the FPD, is appealing that decision. Notice of Appeal at 1; No. 20-

3041 (D.C. Cir.). But he has also filed a pro se motion for reconsideration of the denial. The

Government has not responded to this motion, but the Court will not hold this against the

Government, as the motion is duplicative of the pending appeal and plainly without merit.

                                                   II.

        As the Court explained in its original decision, see Holroyd, 2020 WL 2735664, at *2 &

n.3, a court may reduce a defendant’s term of imprisonment if, “after considering the factors set

forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, . . . it finds

that . . . extraordinary and compelling reasons warrant such a reduction . . . and that such a

reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

18 U.S.C. § 3582(c)(1)(A)(i). Under the Commission’s applicable policy statement, a court may

reduce a term of imprisonment “if, after considering the factors set forth in 18 U.S.C. § 3553(a),

to the extent that they are applicable, the court determines that . . . (1)(A) Extraordinary and

compelling reasons warrant the reduction . . . (2) The defendant is not a danger to the safety of

any other person or to the community, as provided in 18 U.S.C. § 3142(g); and (3) The reduction

is consistent with this policy statement.” USSG § 1B1.13.

        Holroyd has the burden of establishing that he is eligible for a sentence reduction under

§ 3582(c)(1)(A)(i). See, e.g., United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016) (noting

that the defendant has the burden of establishing that he is eligible for a sentence reduction under

18 U.S.C. § 3582(c)(2)).




                                                   3
       Because Holroyd is appealing the Court’s original decision, a question arises whether the

Court has jurisdiction to entertain his simultaneous motion for reconsideration. See Griggs v.

Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982); United States v. Jackson, --- F. Supp. 3d

---, ---, 2020 WL 3402391, at *4 (D.D.C. June 19, 2020). But the law is clear that district courts

maintain some authority over motions filed during an appeal. In United States v. Cronic, 466

U.S. 648 (1984), the Supreme Court held that a district court had jurisdiction to entertain a

motion for new trial—even though the case was pending on direct appeal—and could “either

deny the motion on its merits, or certify its intention to grant the motion to the Court of Appeals,

which could then entertain a motion to remand the case.” Id. at 667 n.42.

       Federal Rule of Criminal Procedure 37 codifies this principle. It provides that “[i]f a

timely motion is made for relief that the court lacks authority to grant because of an appeal that

has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the

motion; or (3) state either that it would grant the motion if the court of appeals remands for that

purpose or that the motion raises a substantial issue.” Fed. R. Crim. P. 37(a). The Court will

thus consider Holroyd’s motion for reconsideration on its merits. Accord Jackson, 2020 WL

3402391, at *4.

       And though the Federal Rules of Criminal Procedure contain no provision governing

motions for reconsideration, these motions are “ordinary elements of federal practice” that

“permit district judges to correct their oversights and errors.” United States v. Rollins, 607 F.3d

500, 502 (7th Cir. 2010) (citing United States v. Healy, 376 U.S. 75 (1964)). Denying a motion

for reconsideration is appropriate when it raises arguments already rejected. United States v.

Hemingway, 930 F. Supp. 2d 11, 12 (D.D.C. 2013); cf. Exxon Shipping Co. v. Baker, 554 U.S.

471, 485 n.5 (2008) (noting that Federal Rule of Civil Procedure 59(e) “may not be used to



                                                 4
relitigate old matters, or to raise arguments or present evidence that could have been raised prior

to the entry of judgment”).

       Some courts have granted these motions “as justice requires.” Hemingway, 903 F. Supp.

2d at 12. Under this standard, relief may be warranted “where a court patently misunderstood

the parties, made a decision beyond the adversarial issues presented, or made an error in failing

to consider controlling decisions or data, or where a controlling or significant change in law has

occurred.” Id. at 12–13 (cleaned up); cf. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.

1996) (noting that a motion under Rule 59(e) “is discretionary and need not be granted unless the

district court finds that there is an intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent manifest injustice” (cleaned up)).

                                                  III.

       Nothing in Holroyd’s motion for reconsideration leads the Court to second-guess its

original decision, either as a matter of law or as a matter of justice.

       Holroyd first disputes the notion that he poses a danger to the community, an issue the

Court has now considered three times—in its order denying pretrial release, at sentencing, and in

its ruling denying compassionate release. Holroyd, 2020 WL 2735664, at *6. At this fourth time

of asking, Holroyd’s arguments are no more convincing. For example, he characterizes himself

as a “non-violent offender,” Def.’s Mot. for Reconsid. at 1, but as the Court has explained, “a

drug dealer need not himself be violent to fuel violence in the community.” Holroyd, 2020 WL

2735664, at *6. The drug trade can—and often does—cause violence, death, and addictions in

the community, especially when done on a large scale.

       Holroyd also suggests that he poses no danger because he is remorseful and will live in a

new neighborhood if released. See Def.’s Mot. for Reconsid. at 1–2. While the Court does not



                                                   5
question his sincerity, it does not overcome countervailing factors. Holroyd was a mid-level

dealer in a drug trafficking conspiracy that distributed large quantities of cocaine. Holroyd, 2020

WL 2735664, at *6. His prior convictions were drug-related, so the Court remains concerned

that his criminal conduct marks a return to troubling behavior. Id. Holroyd’s vow to live in a

new neighborhood is little comfort, as narcotics can be sold anywhere, including from the home.

Id. Because the Court still finds that Holroyd poses a danger to the community, his request for

compassionate release cannot succeed. See 18 U.S.C. § 3582(c)(1)(A)(i); USSG § 1B1.13(2).

       Holroyd next reiterates that he has medical conditions making him more vulnerable to the

virus, and he argues that the conditions at FCI Ashland are unsafe. See Def.’s Mot. for Reconsid.

at 2–4. The Court is sympathetic to Holroyd’s fears and it takes notice of the serious threat that

the COVID-19 pandemic poses, but the circumstances here do not present “extraordinary and

compelling reasons” for compassionate release. 18 U.S.C. § 3582(c)(1)(A)(i). As the Court

explained, the Bureau of Prisons has been taking measures to protect its inmates, which mitigates

the risks to Holroyd and others. Holroyd, 2020 WL 2735664, at *3. And release here is

particularly inappropriate given the serious nature of Holroyd’s crime, the danger he poses to the

community, and the risk that probation officers would be unable to supervise him adequately

during the pandemic. Id. at *4–5.

       Holroyd states that “FCI Ashland is not COVID-19 free,” Def.’s Mot. for Reconsid. at 2,

but this contradicts his earlier representation that FCI Ashland has had no positive cases, see

Def.’s Reply in Supp. of Original Mot. at 38. Even if FCI Ashland gained positive cases in the

time between the Court’s original decision and Holroyd’s motion for reconsideration, this still

does not warrant release. As the Court has observed, if Holroyd’s risk of contracting the virus at

FCI Ashland is as high as he suggests, releasing him would potentially inject a carrier into the



                                                 6
community. Holroyd, 2020 WL 2735664, at *4. And, of course, Holroyd faces some risk of

contracting COVID-19 whether he is in prison or not. Id.

       Finally, Holroyd objects to his 120-month prison sentence, see Def.’s Mot. for Reconsid.

at 3, even though that was the mandatory minimum for his conspiracy conviction, see supra

Section I. Holroyd suggests that he was eligible for safety-valve relief and thus could have

received a sentence below the mandatory minimum. But this does not bear on whether Holroyd

is eligible for compassionate release. The statute governing compassionate release directs the

Court to consider the factors set forth in 18 U.S.C. § 3553(a), but it says nothing about

considering whether the defendant might have been eligible for safety-valve relief under 18

U.S.C. § 3553(f). See 18 U.S.C. § 3582(c)(1)(A)(i). And as the Court explained in its original

decision, the balance of factors under § 3553(a) still supports a 120-month prison sentence,

which is a sufficient reason to deny compassionate release. Holroyd, 2020 WL 2735664, at *6–

7; see United States v. Chambliss, 948 F.3d 691, 693–94 (5th Cir. 2020). 2

                                                IV.

       For all these reasons, it is hereby

       ORDERED that the Defendant’s [237] Motion for Reconsideration is DENIED. See

Fed. R. Crim. P. 37(a)(2).


                                                                              2020.07.23
                                                                              11:03:14 -04'00'
Dated: July 23, 2020                                  TREVOR N. McFADDEN
                                                      United States District Judge


2
  In a separate motion under 28 U.S.C. § 2255, Holroyd alleges that his lawyer provided
ineffective assistance in failing to appeal his original sentence, and he asks the Court to
resentence him so that he can file a direct appeal. See Mot. to Vacate Sentence at 1, 4, 12, ECF
No. 223. The Government’s response to this motion is currently due on August 6, see Min.
Order (June 22, 2020), so the motion is not yet ripe and not at issue here.
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