United States District Court, E.D. Tennessee, Knoxville
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE
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.
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].
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].
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].
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.].
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
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.].
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.].
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.].
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.].
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.
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
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.].
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.”
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].
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
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.
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).
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. ...