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United States v. York

United States District Court, E.D. Tennessee, Knoxville

July 18, 2019

UNITED STATES, Plaintiff,
v.
BOBBY YORK, Defendant.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's motion to reduce sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), for immediate compassionate release [No. 3:11-cr-76, doc. 101; No. 3:12-cr-145, doc. 12]. The government has responded in opposition [No. 3:11-cr-76, doc. 103; No. 3:12-cr-145, doc. 15], and filed a supplemental response in opposition [No. 3:11-cr-76, doc. 106; No. 3:12-cr-145, doc. 20]. Defendant has not replied, and the time for doing so has expired. See E.D. Tenn. L.R. 7.1(a). This matter is now ripe for the Court's review. For the reasons stated below, Defendant's motion for immediate compassionate release [No. 3:11-cr-76, doc. 101; No. 3:12-cr-145, doc. 12] will be GRANTED.

         I. BACKGROUND

         In 2011, Defendant was indicted on one count of conspiracy to distribute and possess with intent to distribute a mixture containing oxycodone (Count 1), four counts of distribution or, or possession with intent to distribute, a mixture containing oxycodone (Counts 2-5), and one count of possession of a firearm in furtherance of a drug trafficking crime (Count 6). [No. 3:11-cr-76, doc. 3]. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), Defendant pleaded guilty to Counts 1-6 of the indictment, and the parties agreed that: (1) a sentence of 46 months, at the bottom of the Guideline range, was appropriate as to Counts 1-5; (2) a sentence of 60 months was appropriate as to Count 6, to run consecutive to the sentences imposed on the other counts; and (3) a term of supervised release of five years was appropriate. [Id., doc. 33 at 1-2, 6]. As a basis for the plea, the plea agreement stated that a confidential informant had purchased oxycotin, roxycodone, and xanax pills from Defendant and his wife on multiple occasions, and, after a search warrant was executed on the home, law enforcement discovered 131 oxycotin tablets, 277 oxycodone tablets, approximately $52, 046 in U.S. currency, a camera surveillance system, numerous firearms, and a drug ledger. [Id. at 2-4].

         After Defendant pleaded guilty, but before he was sentenced, Defendant was charged by information in a separate case of one count of social security fraud. [No. 3:12-cr-145, doc. 1]. Pursuant to Rule 11(c)(1)(C), Defendant pleaded guilty to this offense, and the parties agreed that a sentence imposed concurrently with the sentences for the offenses discussed above would be appropriate. [Id., doc. 2 at 1, 5]. As a basis for the plea, the plea agreement stated that a claims representative, in the course of conducting a redetermination of Supplemental Security Income (“SSI”) for Defendant's mother, Ruby York, was informed that Ms. York was renting a house that belonged to Defendant. [Id. at 2]. Defendant confirmed that his mother was his tenant. [Id.]. Because, at the time, an SSI disability benefits recipient could own only a single property, which must be their primary residence, the claims representative searched land records and found that Defendant owned four proprieties, and obtained his second property in 2002, meaning that he had not been eligible for SSI benefits since June of 2002. [Id. at 2-4]. From June 2002 to April 2012, Defendant received $73, 567 in SSI benefits to which he was not entitled. [Id. at 4].

         The Court sentenced Defendant, consistent with the plea agreements, to a total of 106 months' imprisonment, including 46 months as to Counts 1-5 in Docket Number 3:11-CR-76 and Count 1 in Docket Number 3:12-CR-145, to be served concurrently, and 60 months as to Count 6 in Docket Number 3:11-CR-76, to be served consecutively. [No. 3:11-cr-76, doc. 45; No. 3:12-cr-145, doc. 8].

         Defendant has now filed a motion for immediate compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act. [No. 3:11-cr-76, doc. 101; No. 3:12-cr-145, doc. 12]. Defendant states that he is currently in palliative care at FMC Butner, is an amputee and wheelchair-bound, and has been diagnosed with acute on chronic decompensated congestive heart failure. [Id. at 1]. Defendant also states that he has been diagnosed with post-polio paralysis, acute kidney failure, diabetes mellitus type II, chronic airway obstruction, seizure disorder, and other medical conditions. [Id.]. Defendant notes that, during his time in prison, he has suffered multiple heart attacks due to his congestive heart failure and many complications from his diabetes. [Id. at 4]. Defendant further contends that medical recommendations by outside specialists are being ignored by the Bureau of Prisons (“BOP”), the facility is ill-equipped to handle his medical issues, and he has tolerated an ill-fitted wheelchair because the BOP states that they are unable to provide one to fit his size. [Id.].

         Defendant contends that his medical conditions constitute “extraordinary and compelling reasons” under the First Step Act that warrant a sentence reduction. [Id. at 2]. Defendant requests that his sentence be reduced to time served and his conditions of supervised release be modified to accommodate his release plan, which involves Defendant living with his stepson in Lafollette, Tennessee. [Id.]. Specifically, Defendant requests that his conditions of supervised release be modified to allow him to live in the Eastern District of Tennessee, to report to the probation officer by telephone, and to be excused from the employment requirement. [Id. at 5-6].

         Along with his motion, Defendant has submitted documentation indicating that he has requested compassionate release from the BOP on two occasions, which were denied in August 2016 and June 2018 respectively. [No. 3:11-cr-76, doc. 101-1; No. 3:12-cr-145, doc. 12-1]. Additionally, Defendant submits documentation from the BOP which lists his current health problems, which include: (1) late effects of acute poliomyelitis; (2) hypothyroidism; (3) diabetes mellitus, type II (adult-onset); (4) hypercholesterolemia, pure; (5) anxiety state; (6) other chronic pain (lower back); and (7) paralysis. [No. 3:11-cr-76, doc. 101-2 at 5-6; No. 3:12-cr-145, doc. 12-2 at 5-6]. The records indicate that Defendant has been to numerous doctor visits about each of these conditions. [Id.].

         A discharge summary from Duke Regional Hospital, on January 19, 2018, indicates that Defendant was diagnosed with “Angina pectoris, unstable (CMS-HCC), Coronary artery disease involving native coronary artery of native heart with unstable angina pectoris (CMS-HCC), abnormal ECG, Diabetes mellitus type 2, insulin dependent (CMS-HCC), Seizure disorder (CMS-HCC), [and] Morbid obesity with BMI of 40.0-44.9 (HCC).” [Id. at 4]. The discharge report stated that Defendant would “need dual anti-platelet therapy for life.” [Id.].

         A clinical encounter administrative note from March 20, 2018, indicated that Defendant had “[u]nstable [a]ngina with un-intervenable LCx occlusion” and was “taken to the cath lab emergently.” [Id. at 3]. The note diagnosed Defendant with “Acute on chronic, decompensated congestive heart failure, ” and stated that Defendant “[w]ill require aggressive diuresis[.]” [Id.]. Another administrative note from March 25, 2018, indicates that Defendant presented with breathing problems. [Id. at 2]. He was diagnosed with acute kidney failure, angina pectoris, cellulitis, and heart failure. [Id.]. A third administrative note, from March 29, 2018, indicates that, on March 19, 2018, Defendant “underwent a Ca[r]diac cath, ” and Defendant “had required a BIPAP due to heart failure.” [Id. at 1]. The assessor noted that Defendant had suffered a prior heart attack in 2015. The note also stated that there were several difficulties in treating Defendant's heart failure, and recommended “a pacemaker when EF is <35%” as well as adding new medication. [Id.].

         Defendant also submits an e-mail from March 19, 2018, which indicates that Defendant wrote to the physical therapy department at the BOP requesting a paraplegic wheelchair. [No. 3:11-cr-76, doc. 101-3; No. 3:12-cr-145, doc. 12-3]. Defendant stated that he “hurt all the time pain level is 9” because of his current wheelchair. He also stated that his back was hurting “24 hours a day.” Ms. Hall from the physical therapy department responded that Defendant was “provided with a new wheelchair ~ 1.5 years ago that is appropriate for [his] condition.” Ms. Hall continued to inform Defendant that “paraplegic wheelchairs do not come in the width that you need as they are made for smaller and more active individuals.” [Id.].

         The government responds that Defendant has twice requested relief from the BOP, which was denied both times, and, to the extent Defendant believes his medical conditions have worsened, he should submit a new request to the BOP before presenting it to the Court. [No. 3:11-cr-76, doc. 103 at 1; No. 3:12-cr-145, doc. 15 at 1]. The government argues that Defendant has failed to exhaust his remedies with the BOP, and therefore, this Court lacks authority to consider his request. [Id. at 2]. The government states that it does not dispute that congestive heart failure can be a terminal medical condition constituting an “extraordinary and compelling” reason under U.S.S.G. § 1B1.13, but contends that immediate release would unduly minimize the severity of Defendant's offense conduct. [Id.]. The government emphasizes that Defendant has served only 73 months in custody, meaning that he has served only 13 months beyond the 60-month statutorily mandated minimum sentence for his firearms offense. [Id. at 3]. The government contends that a 13-month sentence for Defendant's drug-related offenses is inconsistent with the 18 U.S.C. § 3553(a) factors. [Id.].

         The government later filed a supplemental response in opposition, stating that it has obtained information from the BOP that Defendant submitted an incomplete request for compassionate release to the BOP earlier this year, but when a prison official met with him to determine the nature of his request and warn him that it was incomplete, Defendant chose to withdraw the request. [No. 3:11-cr-76, doc. 106 at 1; No. 3:12-cr-145, doc. 20 at 1]. The government contends that, based on this, Defendant has not satisfied the requirements of 18 U.S.C. § 3582(c)(1)(A), and the Court lacks authority to consider the motion. [Id.]. The government also contends that it has received some of Defendant's recent medical records, which weigh against Defendant's assertion that his medical condition constitutes an “extraordinary and compelling” reason that would justify immediate release. [Id. at 2].

         The government attaches a copy of a request that Defendant filed with the BOP on April 2, 2019, stating that he would like to be considered for compassionate release because he was over 60 years of age, had completed over 2/3 of his sentence, and had “extraordinary medical conditions.” [No. 3:11-cr-76, doc. 106-1; No. 3:12-cr-145, doc. 20-1]. An administrative note dated June 6, 2019 indicates that a BOP official met with Defendant about his request and Defendant was unsure about various criteria for his request. [No. 3:11-cr-76, doc. 106-2; No. 3:12-cr-145, doc. 20-2]. Defendant stated that he had attorneys working on his release and therefore he “would withdraw his request and let his attorneys proceed.” [Id.].

         The government also submits a consultation report from April 30, 2019, which recounts Defendant's “very complex past cardiac history.” [No. 3:11-cr-76, doc. 106-3 at 7; No. 3:12-cr-145, doc. 20-3 at 7]. The doctor indicated that Defendant had several interventions and Defendant “reports that he is feeling much better. He has had no further angina and feels that his breathing is better.” [Id.].

         A clinical encounter report from May 21, 2019, indicates that Defendant was being seen in the “Pharmacy Diabetes Management Clinic, ” and reported that his “BG” has been higher lately, but he knew that it was due to the foods that he was eating. [Id. at 1]. The provider concluded that Defendant's diabetes was “moderately controlled on insulin and metformin[.]” [Id. at 3].

         II. DISCUSSION

         18 U.S.C. § 3582(c), as amended by the First Step Act, Pub. L. 115-391, 132 Stat. 5194, provides in relevant part:

[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, 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 ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission....

18 U.S.C. § 3582(c)(1)(A) (emphasis added). Prior to the First Step Act, a motion for compassionate release could only be brought by the BOP Director, not the defendant. See 18 U.S.C. § 3582(c)(1)(A) (2017). The First Step Act amended § 3582(c)(1)(A) to allow a defendant to file a motion for compassionate release with the court, after filing a request for the BOP to file such a motion on his behalf, and being denied. United States v. Beck, 1:13-cr-186-6, 2019 WL 2716505, at *5 (M.D. N.C. June 28, 2019). Beyond this change, the statute still applies the same statutory requirements to a defendant's motion for compassionate release as previously applied to motions by the BOP Director. Id.

         The Sentencing Commission has promulgated a policy statement regarding compassionate release under § 3582(c), which is contained in U.S.S.G. § 1B1.13 and the accompanying Application Notes. United States v. McGraw, 2:02-cr-18, 2019 WL 2059488, at *3 (S.D. Ind. May 9, 2019). While that particular policy statement has not yet been updated to reflect that defendants (and not just the BOP) may move for compassionate release, courts have universally turned to U.S.S.G. § 1B1.13 to provide guidance on the “extraordinary and compelling reasons” that may warrant a sentence reduction. Id. (citing United States v. Casey, No. 1:06-cr-71, 2019 WL 1987311, at *1 (W.D. Va. 2019); United States v. Gutierrez, No. CR 05-0217, 2019 WL 1472320, at *2 (D.N.M. 2019); United States v. Overcash, 3:15-cr-263, 2019 WL 1472104, at *2-3 (W.D. N.C. 2019)). Moreover, the Court has no reason to believe that the identity of the movant (either the defendant or the BOP) should have any impact on the factors the Court should consider. See id. (concluding likewise).

         As provided in § 1B1.13, consistent with the statutory directive in § 3582(c)(1)(A), the compassionate release analysis requires several findings. First, the Court must address whether “[e]xtraordinary and compelling reasons warrant the reduction” and whether the reduction is otherwise “consistent with this policy statement.” U.S.S.G. § 1B1.13(1)(A), (3). Second, the Court must determine whether Defendant is “a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. ...


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