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Levine v. Federal Bureau of Prisons

United States District Court, District of Columbia

March 27, 2017

ROBERT M. LEVINE, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS et al ., Defendants.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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).

         I. BACKGROUND

         In the 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.

         United 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. # 10-2].

         On 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 relevant part:

(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 reduction; or
(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 Commission[.]

         On 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 condition, ...

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