Magistrate judge recommends denial of Kent’s motion to vacate, set aside or correct his sentence

Former U.S. District Judge Samuel B. Kent’s effort to get his 33-month sentence vacated, set aside or corrected isn’t looking very good after a recent report and recommendation issued by a federal magistrate. On October 20, U.S. Magistrate Judge Miles Davis of the Northern District of Florida signed a report and recommendation that Kent’s motion to vacate, set aside or correct his sentence should be denied. “After a careful review of the record and the argument presented, it is the opinion of the undersigned that defendant has not raised any issue requiring an evidentiary hearing . . . and that the motion should be denied,” Davis wrote in a 17-page report. Davis also found that in the event of an appeal, a certificate of appealability should be denied. In a motion filed on Aug. 2 asking that his sentence be vacated, set aside or corrected, Kent alleged his sentence should be reviewed on three grounds: the U.S. Bureau of Prisons ignored the sentencing judge’s intent by denying Kent admission to the Residential Drug Abuse Program (RDAP); he was subjected to “conditions tantamount to psychological and physical torture” since he began serving his sentence in June 2009; and his sentence violated due process. On Sept. 15, in an opposition in United States v. Samuel B. Kent, the government urged U.S. District Judge Roger Vinson of the Northern District of Florida, who sentenced Kent while sitting on assignment, to deny Kent’s motion. “The motion lacks even the barest factual support, and all but one of the motion’s claims are procedurally barred, because they must be brought in a civil rights lawsuit, not a petition,” the government alleged in the opposition. Sean Buckley, a lawyer at DeGuerin & Dickson in Houston who represents Kent, says Kent’s lawyers are deciding what to do in the wake of Davis’ report and recommendation. “Judge Kent is not being subjected to these abusive conditions currently, so we have no immediate complaint,” he says. However, Buckley says they remain concerned about the “substantive difference” between Vinson’s intent when sentencing Kent and how the former Galveston federal judge has been treated by the BOP. Peter Ainsworth, a prosecutor at the U.S. Department of Justice in Washington, D.C. who prosecuted Kent, did not return a telephone message seeking comment about Davis’ recommendation. On May 11, 2009, Vinson sentenced Kent to 33 months in prison after the former Galveston federal judge earlier had pleaded guilty to one count of obstruction of justice as part of a plea deal. Vinson recommended that Kent participate in the BOP's substance abuse treatment program (RDAP), which, if successfully completed, would give Kent a 12-month credit on his sentence. However, Kent alleged in his motion that the BOP has “officially denied Kent admission into RDAP” because he was sober during the 12 months preceding his arrest. Kent is currently scheduled for release from prison in November 2011, according to the BOP website.

-- Brenda Sapino Jeffreys

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