Allee v. Nebraska Attorney General et al

Filing 83

MEMORANDUM AND ORDER that Mr. Allee's motion to appoint counsel in both cases herein, herein, Filing No. 80 (05cv229), and 8:00cr83 (Filing Nos. 361 and 363 ) are denied. IT IS FURTHER ORDERED THAT these cases are without merit as set forth herein and are dismissed as to defendant Justin J. Allee. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JUSTIN J. ALLEE,

Petitioner,

8:05CV229
8:00CR83

vs.

NEBRASKA ATTORNEY GENERAL, and
UNITED STATES OF AMERICA,

MEMORANDUM AND ORDER

Respondents.

This matter is before the Court on the motion to appoint counsel filed by Mr. Justin
Allee, Filing No. 80 (05cv229) and Filing No. 361 and 363 (00cr83). Mr. Allee requests a
reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), both in this case and
his criminal case, (00cr83), Filing Nos. 361 and 363. He contends he is apparently now,
or has been, in solitary confinement with limited access to legal assistance. The
government opposes these requests.
BACKGROUND
Mr. Allee is serving a 619-month sentence for conspiracy to commit bank robbery
in violation of 18 U.S.C. § 371; armed bank robbery in violation of 18 U.S.C. §§ 2113(a),
(b) and (2); carjacking in violation of 18 U.S.C. §§ 2119(ii) and (2); brandishing a firearm
during the bank robbery and discharging a firearm during the carjacking in violation of 18
U.S.C. §§ 924(c)(1)(A)(ii) and (iii); and felon in possession of a firearm in violation of 18

1

U.S.C. § 922(g). His conviction was affirmed on direct appeal, United States v. Allee, 299
F.3d 996 (8th Cir. 2002). He is also serving a state sentence for murder. He has filed a
direct appeal, habeas, and successive habeas petitions. He has challenged his sentence
and underlying conviction on multiple occasions. He has lost all requests and appeals.
The government opposes Mr. Allee’s motions, as his convictions and related
conduct include carjacking, shootings, and murder by the defendant. Further, Section
403 of the First Step Act eliminated the 25-year mandatory minimum stacking provision
under § 924(c). The change is not retroactive and is applied only to those defendants
who had not been sentenced prior to December 21, 2018. Mr. Allee is seeking retroactive
application of Section 403 of the First Step Act.
DISCUSSION
The Court finds there is no basis for Mr. Allee’s request. Mr. Allee sets forth no
extraordinary circumstances such as medical conditions, age, or family responsibilities as
set forth by the Sentencing Commission. See Section 1B1.13. He likewise has not
served 75% of his term, but he has served at least 10 years. He is not 65 years of age.
There simply are no extenuating or extraordinary circumstances that would justify
compassionate release or reduction in this case. Although current law no longer requires
stacking of sentences, this law does not apply retroactively.

As stated by the Eighth

Circuit:
We need not decide whether the statute supersedes the policy statement in
this respect because the district court’s order showed that it considered the
circumstances urged by [defendant] and found them insufficient. The court
considered [defendant]’s contention that current law no longer calls for
‘stacking’ of consecutive sentences for multiple violations of 18 U.S.C. §
924(c) but explained the change in law does not apply retroactively.

2

United States v. Loggins, 966 F.3d 891, 892-893 (8th Cir. 2020). Likewise, the fact that
COVID is in the prisons, in and of itself, is not sufficient to justify compassionate release.
See United States v. Raia, 954 F.3d 594, 597 (3rd Cir. 2020) (“The mere existence of
COVID-19 in society and the possibility that it may spread to a particular prison alone
cannot independently justify compassionate release …”.) Mr. Allee has been in high
security penitentiaries during his incarceration. At the time of these filings, that facility
listed no COVID cases relative to inmates and only two positive staff employees.
THEREFORE, IT IS ORDERED THAT Mr. Allee’s motion to appoint counsel in
both cases herein, Filing No. 80 (05cv229), and 8:00cr83 (Filing Nos. 361 and 363) are
denied.
IT IS FURTHER ORDERED THAT these cases are without merit as set forth herein
and are dismissed.
Dated this 2nd day of March, 2022.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

3