United States District Court, District of Columbia
ROBERT M. LEVINE, Plaintiff,
FEDERAL BUREAU OF PRISONS et al ., Defendants.
G. SULLIVAN, UNITED STATES DISTRICT JUDGE.
a federal prisoner appearing pro se, seeks review under the
Administrative Procedure Act (“APA) of the Bureau of
Prisons' (“BOP”) refusal to recommend him for
a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).
Defendants have moved to dismiss under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction
and Rule 12(b)(6) for failure to state a claim upon which
relief can be granted [Dkt. # 10]. Upon consideration of the
parties' submissions, and for the reasons explained
below, the Court will grant defendants' motion to dismiss
under Rule 12(b)(6).
direct appeal of plaintiff's criminal case, the U.S.
Court of Appeals for the Seventh Circuit summarized
plaintiff's convictions as follows:
Not too long after the Seventh Day, two brothers, Cain and
Abel, were in a field. Cain attacked Abel-and killed him.
Although life today is different than it was a generation
removed from Eden, some things remain the same. In this case,
Robert Levine hired an assassin to kill his brother, Donald
Levine, and to kill Donald's family. The assassin killed
Donald and his wife Marsha, and tried to kill Donald's
son Mark. Robert Levine was convicted of one count of
conspiring to use interstate commerce to effect murder for
hire and of four counts of using interstate commerce to
effect murder for hire. 18 U.S.C. §§ 371, 1958.
States v. Levine, 5 F.3d 1100, 1102 (7th Cir. 1993).
Plaintiff is serving multiple life sentences imposed by the
U.S. District Court for the Northern District of Indiana on
October 18, 1991. See Defs.' Ex. 1 [Dkt. #
January 8, 2014, at age 72, plaintiff asked BOP to file a
motion in the sentencing court to reduce his prison sentence
pursuant to 18 U.S.C. § 3582(c), the so-called
compassionate release statute. The statute provides in
(c) Modification of an imposed term of imprisonment.--The
court may not modify a term of imprisonment once it has been
imposed except that-
(1) in any case-
(A) the court, upon motion of the Director of the Bureau of
Prisons, may reduce the term of imprisonment (and may impose
a term of probation or supervised release with or without
conditions that does not exceed the unserved portion of the
original term of imprisonment), after considering the factors
set forth in section 3553(a) to the extent that they are
applicable, if it finds that-
(i) extraordinary and compelling reasons warrant such a
(ii) the defendant is at least 70 years of age, has served at
least 30 years in prison, pursuant to a sentence imposed
under section 3559(c), for the offense or offenses for which
the defendant is currently imprisoned, and a determination
has been made by the Director of the Bureau of Prisons that
the defendant is not a danger to the safety of any other
person or the community, as provided under section
3142(g);and that such a reduction is consistent with
applicable policy statements issued by the Sentencing
March 7, 2014, BOP denied plaintiff's request as follows:
This is in response to your Inmate Request to Staff dated
January 8, 2014, wherein you are requesting to be considered
for early release pursuant to 18 U.S.C. 3582 (C)(1)(A). You
state you are eligible for a Compassionate Release/Reduction
in Sentence because you are 72 years old and have completed
22 years of your Life sentence. You state your age related
chronic/serious medical conditions are the following: heart