govinfo:USCOURTS-laed-2_13-cr-00286-17

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
 
UNITED STATES OF AMERICA 
 
 CRIMINAL ACTION 
VERSUS 
 
 NO. 13-286 
ANTHONY ELLIS 
 
 SECTION “R” (1) 
 
 
ORDER AND REASONS 
 
 
 Before the Court are defendant’s motions to reduce his sentence 
pursuant to the First Step Act1 and to correct a clerical error.2  Both motions 
are opposed.3  For the following reasons, the Court denies both motions.  
 
 
I. BACKGROUND 
 
On April 20, 2015, An thony Ellis pleaded guilty to one count of 
conspiracy to commit sex trafficking in violation of  18 U.S.C. § 371 and one 
count of transportation for prostitution in violation of 18 U.S.C. § 2421.4  On 
June 8, 2016, Ellis was sentenced to 180 months’ imprisonment, consisting 
of 60 months as to the first count and 120 months as to the second count, to 
 
1  R. Doc. 580. 
2  R. Docs. 191 & 169. 
3  R. Docs. 585 & 593. 
4  R. Doc. 375.  
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be served consecutively. 5  In calculating Ellis’s sentence under the United 
States Sentencing Guidelines, the Court increased his criminal history 
category from IV to VI under the career offender provision, U.S.S.G. 
§ 4B1.1(b).6   
Ellis subsequently moved to vacate his sentence und er 28 U.S.C. 
§ 2255 on various grounds, including that the career offender enhancement 
was unconstitutional as applied to him on the basis of the Supreme Court’s 
decisions in Johnson v. United States, 576 U.S. 591  (2015) and Mathis v. 
United States , 579 U.S. 500  (2016).7  The Court denied the motion and 
declined to issue a certificate of appealability. 8  Thereafter, Ellis filed a 
motion for relief from the Court’s judgment denying his motion, 9 which the 
Court denied.10  Ellis then filed a motion to red uce his sentence under the 
First Step Act, 11 which the Court denied. 12  Ellis filed a motion for 
compassionate release,13 which the Court denied.14  Ellis filed two motions to 
 
5  R. Doc. 361. 
6  R. Doc. 469 at 2. 
7  R. Doc. 427-1. 
8  R. Doc. 469. 
9  R. Doc. 499. 
10  R. Doc. 505. 
11  R. Doc. 511. 
12  R. Doc. 528. 
13  R. Doc. 534. 
14  R. Doc. 537. 
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reopen his §  2255 proceedings, 15 and each was dismissed for lack of 
jurisdiction as a successive habeas petition.16  
Ellis now moves  again for a sentence reduction under the First Step 
Act, arguing that he may receive credit for programs taken and that “new 
law” renders him ineligible for the career offender enhancement under the 
Sentencing Guidelines.17  The Government argues that Ellis is ineligible for a 
sentence reduction because he has not exhausted his administrative 
remedies and is ineligible to obtain time credits because of his conviction 
under 18 U.S.C. §  1591.18  The Government further argues that Ellis’s claim 
that he was “over -sentenced” fails because his sentence was below the 
guideline range and less than the statutory maximum , he has already 
litigated the propriety of his sentence, and he has not exhausted his 
administrative remedies.19  Ellis also moves the Court to “correct a clerical 
error,” alleging that  it is error for  his judgment to reference 18 U.S.C. 
§ 1591(a), the substantive statute he was convicted of conspiring to violate.20 
The Court considers the motions below. 
 
15  R. Docs. 546, 566, & 570. 
16  R. Docs. 567 & 576. 
17  R. Doc. 580. 
18  R. Doc. 585 at 3. 
19  Id. at 3-4. 
20  R. Doc. 590. 
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II. DISCUSSION 
 
A. Motion to Reduce Sentence 
 
Ellis styles his motion as a motion to reduce his sentence under the 
First Step Act on the basis of time credits earned and an unlawful sentence.  
The only provision of the First Step Act that provides a mechanism for Ellis 
to move to reduce his sentence is found in 18 U.S.C. § 3582(c)(1).  Under that 
provision, a court may reduce the term of imprisonment “after the defendant 
has exhausted all administrative rights . . . [and] after considering the factors 
set forth in section 3553(a) .  . . if it finds that .  . . extraordinary and 
compelling reasons warrant such a reduction; or .  . . to the extent otherwise 
expressly permitted.”  18 U.S.C. § 3582(c)(1).  Here, Ellis has not offered any 
evidence that he has exhausted his administrative remedies.   This creates a 
“glaring roadblock” to his motion for compassionate release. United States 
v. Raia, 954 F.3d 594, 597 (3d Cir. 2020).    
Even assuming his administrative remedies were exhausted , Ellis has 
not pointed to any “extraordinary and compelling” reasons warranting such 
a reduction.  While not binding, the phrase “extraordinary and compelling 
reasons” is clarified by a policy statement promulgated by the United States 
Sentencing Commission that outlines four categories of extraordinary and 
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compelling reasons: (1) medical conditions, (2)  age, (3)  family 
circumstances, and (4) other reasons.  See United States v. Cooper, 996 F.3d 
283, 287 (5th Cir. 2021) ; U.S.S.G. §  1B1.13.  Ellis has not pointed to any 
medical conditions or family circumstances that would justify early release, 
and is currently under sixty -five years old .  Ellis puts forward no “other 
reasons.”  Accordingly, the Court finds that there are no extraordinary and 
compelling reasons justifying early release. 
Further, the Court does not find that the § 3553(a) factors support such 
a reduction.   When determining whether to modify a sentence under 
§ 3582(c)(1)(A), the Court must “consider[] the factors set forth in section 
3553(a).”  18 U.S.C. §  3582(c)(1)(A).  Here, the “seriousness of the offense” 
militates against early release.  See id. § 3553(a)(2)(A).  Ellis was sentenced 
for a sex-trafficking conspiracy.21  The factual basis, the truth of which Ellis 
has attested to, recounts incidents of Ellis abusing women in order to force 
them to continue prostitution.22  The need “to afford adequate deterrence to 
criminal conduct” and “to protect the public from further crimes of the 
defendant” also weigh against early release.  Ellis has a lengthy criminal 
history, including a violent crime ,23 and Ellis’s instant offenses are sex 
 
21  R. Doc. 345. 
22  See R. Doc. 193. 
23  See R. Doc. 345 at 29-34. 
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crimes, including a conspiracy to commit sex trafficking that lasted over a 
year.24 
To the extent that Ellis challenges the legality of his sentence, his  
motion must be recharacterized as a motion to vacate, set aside, or correct 
his sentence under 28 U.S.C. §  2255.  See Castro v. United States , 540 U.S. 
375, 381-82 (2003); United States v. Shoupe, 477 F. App’x 269, 271 (5th Cir. 
2012).  Additionally, Ellis has already litigated the application of the career 
offender provision to his case in his first § 2255 motion.25  Given that Ellis’s 
petition raises arguments that he already made, or could have made, during 
his initial collateral proce edings, his petition is “second or successive.”  See 
Leal Garcia v. Quarterman , 573 F.3d 214, 220 (5th Cir. 2009) (“[W]e 
define[] a ‘second’ or ‘successive’ petition as one that ‘1) raises a claim 
challenging the petitioner’s conviction or sentence that wa s or could have 
been raised in an earlier petition; or 2) otherwise constitutes an abuse of the 
writ.’” (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998))).   
Under § 2255, “[a] second or successive motion must be certified .  . . 
by a panel of the app ropriate court of appeals.”  28 U.S.C. §  2255(h).  This 
requirement “acts as a jurisdictional bar to the district court’s asserting 
 
24  R. Doc. 193. 
25  See R. Doc. 427-1. 
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jurisdiction over any successive habeas petition until this court has granted 
the petitioner permission to file one.”  United States v. Key , 205 F.3d 773, 
774 (5th Cir. 2000) (per curiam).  Here, there is nothing in the record that 
indicates Ellis sought authorization from the Fifth Circuit to file this 
successive petition.  Consequently, this Court lacks jurisdiction to review  
Ellis’s petition.  The Court therefore denies Ellis’s motion to reduce his term 
of imprisonment on the basis of an unlawful sentence .  See United States v. 
Mason, 116 F. App’x 469, 470 (5th Cir. 2004) (holding that, without 
authorization from the Fifth Ci rcuit, the “district court would have been 
required to dismiss [defendant’s] motion for lack of jurisdiction”); United 
States v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015) (“[A] district court may 
dispose of applications lacking authorization through dismissal.”). 
 
 
B. Motion to Correct Clerical Error 
 
As this Court held in ruling on a nearly identical motion by Ellis’s 
codefendant Duane Phillips, “[t]he judgment clearly indicates that 
[defendant] pleaded guilty only to . . . conspiracy to commit sex trafficking,” 
not the substantive offense.26  Ellis was convicted of violating 18 U.S.C. § 371, 
the general federal conspiracy statute, and 18 U.S.C. §  2421, the 
 
26  R. Doc. 588. 
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transportation for prostitution  statute.27  The third superseding bill of 
information, the operative charging document for Ellis, brought two 
charges.28  Count one charged Ellis with conspiracy under 18 U.S.C. § 371.29  
The object of the conspiracy was to commit sex trafficking in violation of 18 
U.S.C. §§ 1591(a)(1) and (2).30  Count two charged Ellis with transporting an 
individual in interstate commerce with the intent that such individual engage 
in prostitution under 18 U.S.C. § 2421.31 
Ellis pleaded guilty to both counts.  The plea agreement states that the 
Ellis would be pleading guilty to one “violation of 18 U.S.C. § 371 conspiracy 
to commit 18 U.S.C. §  1591, and of 18 U.S.C. §  2421.”32  The Court, at Ellis’s 
sentencing, characterized the charges as “one count of conspiracy to commit 
sex trafficking, in violation of [18 U.S.C. § 1591(a)(1) and (2),] all in violation 
of [18 U.S.C. §  371]; and one count of interstate transportation of a person 
for the purpose of prostitution, in violation of [18 U.S.C. § 2421].”33   
Ellis is thus correct that the only statute he was convicted of violating 
is 18 U.S.C. §  371.  Although Ellis conspired to violate §  1591, he was not 
 
27  R. Doc. 375. 
28  R. Doc. 169. 
29  Id. 
30  Id. 
31  Id. 
32  R. Doc. 192. 
33  R. Doc. 425 at 57:10-16. 
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convicted of violating that statute.  No correction of the record is warranted 
in this case because the record contains no error as to Ellis’s conviction.  The 
presentence investigation report describes the offense as “Conspiracy to 
Commit Sex Trafficking,” and lists 18 U.S.C. §§ 371, 1591(a)(1), and (a)(2).34  
Sections 1591(a)(1) and (a)(2) are not conspiracy statutes.   The substantive 
statutes are listed only to describe which statutes Ellis conspired to violate.  
Their inclusion does not mean that Ellis was convicted of both committing 
the underlying substantive offense and conspiring commit it. 
The judgment reflects that Ellis was convicted on two counts: 
conspiracy to commit sex trafficking and transportation for prostitution. 35  
Nowhere does the judgment list 18 USC §  1591 as a count of conviction.   As 
this Court noted in ruling on Phillips’s identical motion,  quoting United 
States v. Warren, 5 F.4th 1078, 1079 (9th Cir. 2021), the defendant has “the 
opportunity to present to the BOP this opinion, which  construes the 
judgment to reflect that [d]efendant committed a single offense under 18 
U.S.C.” § 371, as opposed to  two offenses under both  18 U.S.C. §§  371 and 
1591.  The same is true here. 
 
III. CONCLUSION 
 
34  R. Doc. 345 at 2. 
35  R. Doc. 375. 
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For the foregoing reasons, the Court DENIES defendant’s motions. 
 
 
 
New Orleans, Louisiana, this _____ day of November, 2023. 
 
 
_____________________ 
SARAH S. VANCE 
UNITED STATES DISTRICT JUDGE 
13th
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