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finding that defendant's short disciplinary history reflected his rehabilitated character
Summary of this case from United States v. MartinezOpinion
Criminal Case No. 97-80235-1
2021-01-22
UNITED STATES of America, Plaintiff, v. John BASS, Defendant.
Michael C. Leibson, United States Attorney's Office, Detroit, MI, for Plaintiff.
Michael C. Leibson, United States Attorney's Office, Detroit, MI, for Plaintiff.
ORDER GRANTING DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. 3582( C )(1)(A)(i) [1117]
Arthur J. Tarnow, Senior United States District Judge
On August 11, 2003, a jury convicted John Bass of Conspiracy to Distribute Five Kilograms or More of Cocaine and 50 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 846, and Firearms Murder During or in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(j). Upon conviction, the Government sought, and the jury denied, a sentence of death. (ECF No. 1007). On March 11, 2004, the Court sentenced Mr. Bass to two concurrent terms of life in prison, without the possibility of release. (ECF No. 1047).
On June 29, 2020, John Bass filed a Motion to Reduce Sentence Pursuant to 18 U.S.C. 3582(c)(1)(A)(i) [1117] due to the COVID-19 pandemic. The Court appointed counsel on September 14, 2020. (ECF No. 1119). Bass filed a Supplemental Brief [1120] on October 2, 2020. The Government filed a Response [1122] on October 5, 2020. Bass filed a Reply [1124] on October 7, 2020. On October 13, 2020, the Court held a hearing on the Motion [1117] and ordered the parties to provide supplement briefs. (ECF No. 1127). Bass and the Government filed Supplemental briefs [1129] [1130] on December 10 and 11 of 2020, respectively. For the reasons stated below, the Court GRANTS Bass's Motion to Reduce Sentence [1117].
FACTUAL BACKGROUND
a. Personal Information
Mr. Bass was born in Oxnard, California and moved to Detroit with his mother and siblings at the age of four. (PSR ¶ 72). He has not had any contact with his father since he moved to Michigan. (Id. ). Bass has eight half-siblings; two are older, six are younger. (Id. ¶ 74). Growing up, Bass's mother struggled with substance abuse and often bought drugs instead of basic necessities like food and clothing. (Id. ¶ 72). This led Bass and his siblings to drop out of school early. (Id. ¶ 74). Bass's sister, Randolyn Perry, reports that Bass "was essentially the father figure to his younger siblings" and financially supported the family. (Id. ). In addition to caring for themselves, Bass and his siblings experienced significant trauma from a young age. (Id. ¶ 72). At eight years old, Bass witnessed his mother shoot and kill her partner who had abused her for years. (Id. ).
In 1992, Bass married Jenine Dortch and had three children, all of whom reside with Dortch in Atlanta. (Id. ¶ 75). He and Dortch divorced in 2000. (Id. ). Bass also had three additional children with two other women; each child resides with their mother in Detroit. (Id. ). Bass has abused heroin, cocaine, PCP, and marijuana throughout his life, however, it has now been several decades since he last used illegal substances. (Id. ¶ 79). Bass has no significant employment history apart from flipping houses from 1993-1997. (Id. ¶¶ 81-82). Prior to this offense, Bass had five convictions for arson, theft, and breaking and entering. (Id. ¶¶ 51-60). His longest prison term was for five months for receiving stolen property in 1998. (Id. ¶¶ 59-60).
b. Offense Conduct
From 1989 to 1997, Bass formed and lead a drug trafficking organization known as the "Dog Pound." (Id. ¶¶ 13-14). The exact amount of drugs distributed is unknown, but the Government claims the organization distributed in excess of fifty kilograms of crack cocaine and five kilograms of cocaine in Detroit, Pontiac, and Canton, Ohio. (Id. ). Bass controlled the organization along with several of his half-brothers, including Patrick and Cornelius Webb, and maintained several drug houses. (Id. ¶ 14).
On August 11, 2003, a jury acquitted Bass of one count of Firearms Murder During or in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(j) and convicted him of a separate count of Firearms Murder During or in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(j) and Conspiracy to Distribute Five Kilograms or More of Cocaine and 50 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 846. (ECF No. 1047). On March 11, 2004, the Court sentenced Bass to two concurrent terms of life in prison, without the possibility of release. (Id. ). He was thirty-four years old. All of Bass's twenty-one co-defendants either had their charges dismissed or have since been released from prison. See infra pp. 24-25.
(c) Medical Condition and Prison Record
Mr. Bass is now 51 years old and is in custody at Federal Correctional Institute (FCI) McKean. His medical records indicate that at 6’2" and 322 pounds, his body mass index (BMI) is over 40. (ECF No. 1120-4, PageID.815-16). Bass additionally suffers from hypertension and pre-diabetes. (ECF No. 1120-3; ECF No. 1120-7).
In prison, Bass has obtained his General Educational Development (GED) degree and participated in a long list of classes and programs including: drug education, re-entry, computer applications, building trades, and air conditioning. (ECF No. 1129-8, PageID. 1123); (ECF No. 1129-9, PageID. 1130); see infra pp. 13-14. He has become a certified life coach, facilitates re-entry classes, and works as a custodian. (ECF No. 1129-8, PageID. 1114, 1117, 1123); (ECF No. 1129-7, PageID. 1098). He has also re-committed to religion and regularly attends religious services and classes. (ECF No. 1117, PageID.788).
In his twenty-two years of incarceration, Bass has received four disciplinary citations for phone abuse, accepting money without authorization, possession of an unauthorized item, and fighting, the last of which occurred in 2017. (ECF No. 1124-1). Bass argues, however, that the 2017 fight was one of six different occasions where he was attacked for assisting the Government in a homicide investigation. The attack permanently damaged the left side of his face. (ECF No. 1120-15, PageID. 837).
Bass submitted a written request to the warden of FCI McKean on June 9, 2020, asking for compassionate release. (ECF No. 1120-11). The warden denied the request on June 12, 2020. (ECF No. 1120-12). ANALYSIS
The compassionate release statute states the following in relevant part.
(A) the 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.
I. Exhaustion of Administrative Remedies
Before a prisoner can move for compassionate release under 18 U.S.C. § 3582(c)(1)(A), "[t]hey must ‘fully exhaust[ ] all administrative rights’ or ... wait for 30 days after the warden's ‘receipt of [their] request.’ " United States v. Alam , 960 F.3d 831, 833 (6th Cir. 2020). Bass made a compassionate release request on June 9, 2020 and was denied on June 12, 2020. (ECF No. 1120-11); (ECF No. 1120-12). There is therefore no dispute that he has exhausted his administrative remedies.
II. Extraordinary and Compelling Reasons for Release
Under United States v. Jones , because Bass has properly exhausted his administrative remedies, the Court must proceed through the following three-step inquiry:
At step one, a court must "find[ ]" whether "extraordinary and compelling reasons warrant" a sentence reduction. 18 U.S.C. § 3582(c)(1)(A)(i). At step two, a court must "find[ ]" whether "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A) (emphasis added) .... At step three, " § 3582(c) [(1)(A)] instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by [steps one and two] is warranted in whole or in part under the particular circumstances of the case." [ Dillon v. United States , 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010).]
United States v. Jones , No. 20-3701, 980 F.3d 1098, 1107-08 (6th Cir. 2020) (first four alterations in original) (footnotes omitted). And where, as here, there is no "applicable" policy statement, "district courts have discretion to define ‘extraordinary and compelling’ on their own initiative." United States v. Elias , No. 20-3654, 984 F.3d 516, 2021 WL 50169, at *2, 2021 U.S. App. LEXIS 251 at *6 (6th Cir. Jan. 6, 2021) ("in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define ‘extraordinary and compelling’ on their own initiative.") (citing Jones , 980 F.3d at 1111 ; United States v. Ruffin , 978 F.3d 1000, 1007 (2020) ). Here, the Court finds the risk posed to Bass from his medical conditions and the spread of COVID-19 at FCI McKean constitutes extraordinary and compelling reasons for compassionate release.
The Government concedes that Bass is suffering from a serious medical condition. Bass has a BMI over 40. (ECF No. 1120-4, PageID.815). The Center for Disease Control and Prevention has recognized that people with severe obesity, defined as having a BMI of 40 and over, have an increased risk of severe illness from COVID-19. People with certain Medical Conditions, CENTERS FOR DISEASE CONTROL AND PREVENTION , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#obesity [https://perma.cc/74XX-5HS9] (last visited January 21, 2021).
Furthermore, the Court has serious concern for Bass's health and safety in FCI McKean. The prison currently has the second highest number of inmates with COVID-19: 147. COVID-19 Cases , Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ [https://perma.cc/F3HG-X8ZP] (last visited January 21, 2021). Additionally, 236 inmates have already contracted and recovered from the virus, meaning approximately 46% of its population is or has been infected. Id. ; FCI McKean , Federal Bureau of Prisons, https://www.bop.gov/locations/institutions/mck/ [https://perma.cc/R2KX-DD6R] (last visited January 21, 2021). Despite this increased risk of infection, not all prison populations are being prioritized for inoculation. Michael Balsamo, Reversing Course, Feds Say Some US Inmates Get Virus Vaccine , AP NEWS (Dec. 22, 2020), https://apnews.com/article/coronavirus-pandemic-prisons-d2c1a3013351ed42cf75a194e4661cf3 ("The Federal Bureau of Prisons says it has started to give the coronavirus vaccine to some high-risk inmates but won't say how many inmates have been vaccinated or how it selects those to receive the vaccine." (emphasis added)). Continuing to incarcerate Bass under such conditions while the virus runs rampant is a potentially deadly decision with no end in sight. See Beth Schwartzapfel et. al, 1 in 5 Prisoners in the US Has Had COVID-19, 1,700 Have Died , AP NEWS (Dec. 18, 2020), https://apnews.com/article/pandemics-race-and-ethnicity-prisons-united-states-coronavirus-pandemic-0bef0673013aa579551db5ad61b885e0 (reporting that although one in every five state and federal prisoners have tested positive for the coronavirus, "[t]hat number is a vast undercount," and that many infected prisoners become sicker than they need to be due to inadequate care); see also Danielle Ivory, "We Are Not a Hospital": A Prison Braces for the Coronavirus , N.Y. Times (March 17, 2020), https://www-nytimes-com.sw.library.ntpu.edu.tw:8443/2020/03/17/us/coronavirus-prisons-jails.html [https://perma.cc/936P-VH6H] (citing densely populated living conditions, shortage of masks, soap, and hand sanitizer, and the inability to routinely disinfect surfaces and maintain safe distances between inmates and guards as reasons prisoners are at increased risk of infection); Courtney Bublé, Federal Prisons Pose ‘Imminent Danger’ in Spreading COVID-19, Union Says , GOV'T EXEC. (April 6, 2020), https://www.govexec.com/oversight/2020/04/federal-prisons-pose-imminent-danger-spreading-covid-19-union-says/164390/ [https://perma.cc/9W22-KX9Q] (detailing a prison workers’ union complaint to OSHA complaining of "imminent danger" due to the BOP's failure to follow national safety guidelines). Accordingly, the Court finds that the risk to Bass's health is an extraordinary and compelling reason for his release.
III. Section 3553(a) Factors
At the last step, the Court must consider whether any applicable 18 U.S.C. § 3553(a) factors warrant a sentence reduction. "[T]he deferential abuse-of-discretion standard requires district courts to supply specific factual reasons for their compassionate release decisions." Jones , 980 F.3d at 1101-02. However, " ‘as long as the record as a whole demonstrates that the pertinent factors were taken into account by the district court[,]’ a district judge need not ‘specifically articulat[e]’ its analysis of every single § 3553(a) factor." Id. at 1114 (quoting United States v. Curry , 606 F.3d 323, 330 (6th Cir. 2010) ). The § 3553(a) factors are as follows:
(a) Factors to be considered in imposing a sentence. --The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider--
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for--
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
[...]
(5) any pertinent policy statement—
[...]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553. The Government solely opposes Bass's release based on the potential danger he poses to the community. Although the Court recognizes both the merits of the Government's arguments and the severity of Bass's past crimes, the Court holds that Bass's record of rehabilitation from twenty-two years of incarnation significantly mitigates his risk of recidivism. See Pepper v. United States , 562 U.S. 476, 491, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (stating that "evidence of post sentencing rehabilitation" is "highly relevant" in evaluating the § 3553(a) factors).
There is no question that Bass's offenses were horrific. For years, the "Dog Pound" inflicted harm on its own members and members of the community alike. Yet, examining Bass's crimes through the lens of his personal history renders them sadly unsurprising. Bass was reared in abject poverty, largely without parental supervision and guidance. His age and natural leadership ability led him to raise both himself and his siblings through childhood — experiencing unaddressed household trauma along the way. See Nancy Wolff & Jing Shi. Childhood and Adult Trauma Experiences of Incarcerated Persons and Their Relationship to Adult Behavioral Health Problems and Treatment , 9 INT'L J. ENVTL. RES . & PUB. HEALTH , 1908 (2012) (detailing how childhood trauma, abuse, and abandonment "increase the risk for violent and aggressive behavior and criminality in adulthood"). Bass's own mother even admits that his childhood was cut short. (ECF No. 1129-7, PageID. 1104); see also (ECF No. 1129-7, PageID.1105) (letter from Bass's sister stating that they grew up with "no parental guidance, no food[,] ... [no] clothes[,] ... so no school sometimes, no electricity, no gas, no water, and no father"). Preoccupied with his role in the family, Bass dropped out of school in the ninth grade.
Bass's history does not excuse his crimes. However, it offers essential context for the circumstances under which they were committed — an important factor in evaluating whether a sentence reduction is appropriate. See Pepper , 562 U.S. at 488, 131 S.Ct. 1229 ("For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender") (quoting Pennsylvania ex rel. Sullivan v. Ashe , 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43 (1937) ). Here, the Court finds that the nature of Bass's crimes balanced with the circumstances under which they were committed shows that Bass's twenty-two-year incarceration is "sufficient, but not greater than necessary," to fulfill the purposes of his punishment. 18 U.S.C. § 3553(a) ; see also Pepper , 562 U.S. at 487-88, 131 S.Ct. 1229 ("[T]he punishment should fit the offender and not merely the crime") (quoting Williams v. People of State of N.Y. , 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ).
Therefore, considering that over two decades have passed since his crimes were committed, the Court evaluates Bass not as he was on the day of sentencing, but as he is today after spending years facing his past and overcoming the challenges of his upbringing. See United States v. Bryson, 229 F.3d 425, 426 (2d Cir. 2000) (per curiam ) ("[A] court's duty is always to sentence the defendant as he stands before the court on the day of sentencing [and resentencing]"); see also United States v. Core, 125 F.3d 74, 77 (2d Cir. 1997) (stating that the court, in resentencing, was "required to consider [the defendant] as he stood before the court at that time").
Bass has committed himself to taking full advantage of the rehabilitation and educational programs available to him through the BOP. He has spent over 1,000 hours in classes and training programs in life coaching, critical theory errors, re-entry, victim impact, forgiveness, GED, and drug abuse education. (ECF No. 1129-8, PageID.1114-23); (ECF No. 1129-9). Bass additionally spent over 18 months completing the Life Connections Program, which consists of classes geared toward building an inmate's character, as well as their interpersonal, cognitive, and vocational skills. (ECF No. 1129-9, PageID. 1129).
In his own words, Bass states that early on in his sentence, he understood "that prison was just a smaller world of the same environment that [he] came from." (ECF No. 1129-6). With that in mind, he consciously avoided negative influences and focused his energy on changing and "learn[ing] who [he] really was." (Id. ). Looking back at his life, Bass expresses deep remorse and shame over his lifestyle and claims prison gave him the opportunity to become "the person who [he] was meant to be." (Id. ).
Most notably, Bass has spent a considerable amount of time becoming a life coach. Under the Institute For Life Coach Training's ("Institute") instruction, Bass completed the Hope Coaching Project. (ECF No. 1129-8, PageID. 1115). The Institute aims to help students develop relationships with peers and clients to help them "bridge the gap between where they are now and where they want to be." What Is Coaching? , INST. FOR LIFE COACHING TRAINING https://www.lifecoachtraining.com/about/what_is_coaching [https://perma.cc/U4WL-MFWF] (last visited Dec. 31, 2020). After completing this course, and with the glowing recommendation of his instructors, Bass earned a full tuition scholarship to enroll in the Institute's Foundations course. (ECF No. 1129-7, PageID. 1111, 1113). This course is the Institute's cornerstone training program and is designed, through classes, assignments, and mentor coaching exercises, to launch a student's coaching career. Foundations , INSTITUTE FOR LIFE COACHING TRAINING , https://www.lifecoachtraining.com/programs/all_courses/foundations_course [https://perma.cc/U4WL-MFWF] (last visited Dec. 31, 2020). Bass's instructors’ recommendation letter for the scholarship highlighted the following:
Mr. Bass came to the Hope Coaching Project already a leader amongst his peers. His natural abilities of listening, understanding those he listens to, and making informed decisions has been enhanced due to his commitment at excelling inside, and outside the classroom. It is clear to all in the McKean Community that he will become an impressive Coach, Orator, and Author once he is exposed to the in-depth teaching of the Foundations and Practicum courses.
We look forward to witnessing the continued growth of Mr. Bass’ knowledge and skill-set. He has the full support of the entire coaching community behind him. His success is inevitable, and it is with great pride and joy, that we look forward to congratulating him on his future accomplishments and success.
(ECF No. 1129-7, PageID. 1111). Bass completed the program in June 2019. (ECF No. 1129-8, PageID. 1114). He plans to use his coaching skills to mentor youth in his family and community. (ECF No. 1129-6). In addition, Michigan Liberation, a local non-profit dedicated to community leadership development, has offered to further support Bass outside of prison by offering him reentry coaching services. (ECF No. 1129-7, PageID. 1097); MICH. LIBERATION, https://miliberation.org/ [https://perma.cc/76Y2-PATW] (last visited Jan. 8, 2020).
Bass's transformation is not only evident to those who have worked with him in prison but also to those who knew Bass before prison and have witnessed his evolution. The Court has received letter after letter detailing Bass's remorse, ownership, and growth. Bass's wife, Katrina Bennett, writes that Bass "is very regretful and remorseful for his past criminal affinity." (ECF No. 1129-7, PageID. 1107). Bass and his mother in law, Vivian Bennet, talk on the phone almost every day. (Id. at 1107). With each call, Bennett becomes more proud of his progress. (Id. ).
Bass's 29-year-old, DaysJohn Yancy, has not seen his father since he was six years old. (Id. at 1102). Despite this, Bass has guided Yancy through some of the most difficult times of his life. In 2016, Bass helped Yancy navigate his own incarceration in federal prison, "teaching [him] to take programs such as RDAP," the residential drug abuse program. (Id. ). Yancy states that without this advice he "probably would have been in prison longer." (Id. ). After Yancy's release, Bass continued to encourage him to follow his dreams and reminded him to "stay on track so [he doesn't] end up going back down on the wrong path." (Id. ). Yancy is now manager at a Dollar Store and is starting his own entertainment company. (Id. ).
Tragically, Yancy also reports that his mother passed away from COVID-19 and left behind seven children. (Id. ). In the wake of her death, Bass has supported Yancy as he takes care of his younger siblings — a role Bass knows all too well. Yancy knows that his "father is a changed man" and looks forward to benefiting from his wisdom and love upon his release. (Id. ).
Bass's sister, Randolyn Perry, and his mother, Carolyn Webb, both corroborate Bass's desire to support his family and community upon his release. (Id. at 1104-05). Bass has shared with them that he is eager to be more active in his children's lives, help raise his grandchildren, and inspire others to be great. (Id. ).
Lastly, Bass's niece, Jasmine Webb, has never known Bass outside of prison. (Id. at 1106). Yet, she describes that Bass has been a "very active figure in [her] life," imparting advice and wisdom through the years during visits and phone calls. (Id. ). Bass's mother conclusively describes him best as "everyone's father." (Id. ). It goes without saying that each family member expresses their desire for Bass to return and their eagerness to support him in his transition.
One indicator of Bass's recidivism risk is the BOP's PATTERN score. The Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN) score measures a prisoner's recidivism rate based on factors indicating progress and regression. 18 U.S.C. § 3635 (6). Under this metric, the BOP concludes that Bass has a LOW recidivism risk, the second lowest rating on a four-point scale of minimum, low, medium, and high. (ECF No. 1129-2, PageID. 1080).
Bass's rehabilitated character is also reflected by his short disciplinary history in prison — only receiving four disciplinary citations in twenty-two years is a notable feat. See United States v. Lopez , 2020 U.S. Dist. LEXIS 200076, at *13-14 (D. Haw. October 27, 2020) (finding that "in the face of a life sentence," defendant "maintained an impressive prison record with only three minor infractions during his twenty-three years of incarceration," which "strongly support[ed] the likelihood that he would remain a rule-abiding individual if released").
Most of Bass's citations have been for minor offenses (e.g. phone abuse), however, his most recent was for fighting. The BOP incident report explains that in the dining hall on November 27, 2017, Bass and another inmate struck "each other with closed fists to the head and upper torso." (ECF No. 1129-4, PageID. 1085). Staff members then separated the inmates. (Id. ). Bass was left with "multiple lacerations on [his] face" and the other inmate was found to have a "homemade weapon" on his person directly following the fight. (Id. ); (ECF No. 1120-13, PageID.830); (ECF No. 1129-4, PageID.1087); (ECF No. 1120-15, PageID.837) (photo of Bass's facial lacerations ).
A prison officer investigated the incident by interviewing both parties and several inmates. Bass stated that the other inmate "sliced [him] up with a razor, [and he] just defended [him]self." (ECF No. 1129-4, PageID. 1086). The officer concluded that the other inmate was trying to run the prison "like a pen" and was "viewed as a problem," while Bass preferred to "live peacefully," wanted to "prevent larger issues from happening," and "was forced to defend himself." (ECF No. 1129-4, PageID. 1087). Upon his findings, the officer recommended that Bass "return to general population after disciplinary sanctions" and the other inmate "be transferred to another Medium Security Institution." (Id. ).
It is clear to the Court from the prison's investigation, conclusions, and recommendations that although Bass was found guilty for fighting, the other inmate was the violent instigator in both this incident and the prison at large — a lifestyle Bass wanted nothing to do with. This is further evidenced by fact that Bass has had no other disciplinary incidents, violent or otherwise, since the fight with this inmate over three years ago. In fact, Bass has had no other violent incidents in his twenty-two-year prison tenure. (ECF No. 1124-1, PageID. 1063). Considering Bass's record, the 2017 fight appears to be random. However, Bass represents through counsel that the fight was not random at all, but the result of a targeted attack on Bass for attempting to help the Government identify and apprehend a murder suspect.
Since at least 2014, Bass has been providing information to Government agents regarding homicides in the Eastern District of Michigan. (ECF No. 1129, PageID. 1073). On September 22, 2014, Bass was even transferred to Federal Detention Center (FDC) Milan from USP Terre Haute to help the U.S. Attorney's Office in person. (Id. at 1074). Although the investigation did not result in a prosecution, Bass states that rumors of his talks with the Government circulated in FDC Milan before he left. (Id. at 1074); (ECF No. 1130, PageID. 1138); (ECF No. 1129-3, PageID. 1082). Shortly after his return to Terre Haute, Bass discovered that the rumor, along with some of the inmates from Milan, had followed, and the target on his back grew larger — evidenced by an email that his wife received from an inmate in Terre Haute who threatened to do bodily harm to Bass upon his return to the prison. (ECF No. 1129-3).
The BOP placed Bass in its Special Unit Housing pending an investigation into the threat. (Id. ). Although the prison confirmed that Bass was providing information to the Government concerning homicides, they could not determine a "specific threat" to Bass's safety and returned him to general population. (Id. ). Bass now argues that his fight in 2017 was an unprovoked attack motivated by his cooperation with the Government. The Government disputes this allegation and Bass's reliance on it as a basis for his compassionate release.
Specifically, the Government alleges Bass has not exhausted this claim for relief, because it was not raised in his initial request for compassionate release and Bass's safety in prison is not threatened by his cooperation with the Government. Both of the Government's arguments rely on the erroneous assumption that Bass proffers his cooperation agreement, and the Court interprets it, as a claim for compassionate release. The Court instead reads Bass's explanation of his cooperation as an attempt to contextualize Bass's 2017 fight, especially considering the non-violent nature of the rest of his prison term. Therefore, since it is not a claim for relief, it neither needs to fulfill the exhaustion requirement nor the "extraordinary and compelling" standard.
Bass's actions as a Government cooperator provide, first, context for the 2017 fight as a potentially targeted attack, and second, evidence of the extent of Bass's rehabilitation from and remorse over his past crimes. By placing himself in harms way to give information to the Government without personal gain, he has shown tremendous growth and dedication to helping to keep his community safe. Even assuming arguendo that the 2017 fight was in no way connected to his cooperation, the valiance and pure unselfish nature of these efforts cannot be overstated. Therefore, although it is not a basis for his release, Bass's cooperation activities shed a bright light on his character development.
What is most remarkable about Bass's rehabilitative efforts is that they are purely self-motivated. See Gall v. United States , 552 U.S. 38, 59, 128 S.Ct. 586, 169 L.Ed.2d 445, (2007) (citing 18 U.S.C. § 3553(a)(2)(B)-(C) ) (finding that defendant's "self-motivated rehabilitation" supported the conclusion that incarceration was not necessary for deterrence and public protection purposes). Facing two life sentences with no possibility of parole, short of a presidential commutation, Bass had no hope for release or any external reason to tackle his drug addiction, mentor his peers, earn his GED, learn how his crimes impacted his victims, or attempt to help the Government solve a murder. Undeterred, he dedicated his incarceration to self-reflection, building a strong moral character, restoring family ties, and developing skills that spur his peers onto realizing their best selves and full potential, rather than their worst vices.
Despite this, the Government argues that reducing Bass's sentence would be contrary to the jury's verdict of life in prison. This argument has two problems. First, by definition, a compassionate release request, when granted, reduces the sentence imposed either by a sentencing judge or a jury. This is permissible under the compassionate release statute, which states that "a sentence to imprisonment can subsequently be ... modified pursuant to the provisions of subsection (c)." 18 U.S.C. § 3582(b). It also explicitly allows this Court to "modify a term of imprisonment once it has been imposed ... in any case. " 18 U.S.C. § 3582(c) (emphasis added). Barring sentence reduction because it contradicts the original sentence, would render the statute inoperative.
Second, the Government does not present, nor has the Court found, any case law that prohibits a life sentence reduction under the compassionate release statute. In fact, the case law from around the federal judiciary presents the opposite conclusion. For example, in United States v. Lopez , the court reduced a defendant's jury-imposed life sentence to time served after twenty-three years of rehabilitation in prison. 2020 U.S. Dist. LEXIS 200076, at *20. Likewise, in United States v. Fisher , the court granted compassionate release for a defendant who has served thirty-eight years of a life sentence after he showed that his age, health, and risk of contracting COVID-19, in combination with his exceptional rehabilitation efforts, warranted release. 2020 U.S. Dist. LEXIS 188065, at *8 (S.D.N.Y. October 9, 2020); see United States v. Hope , 2020 U.S. Dist. LEXIS 86395, at *6 (S.D. Fla. April 10, 2020) (reducing a mandatory minimum life sentence due to sentence disparities, the defendant's rehabilitation, and his health risk due to COVID-19); see also United States v. Millan , 2020 U.S. Dist. LEXIS 59955, at *48 (S.D.N.Y. April 6, 2020) (granting compassionate release to defendant serving a life sentence upon evidence of his rehabilitation, remorse, and record as a "model prisoner.").
In deciding a sentence reduction, the § 3533(a) factors and notions of equal justice implore the Court to not only look to this defendant's prison term and conduct, but also to sentence disparities that may exist between this defendant and his co-defendants. Bass had twenty-one co-defendants. Each one was charged with a mix of drug conspiracy distribution, intentional killing, and felony murder for their efforts in furthering their joint criminal enterprise. But among the 11 charged with intentional killing and/or felony murder — Bas alone was sentenced to serve the rest of his life in prison. Including his time in pretrial detention, which began on October 30, 1998, Bass has spent just over twenty-two years in prison, while the murder charges of nine his co-defendants were dismissed altogether. (PSR ¶ 4); (ECF No. 372); (ECF No. 686); (ECF No. 696); (ECF No. 714); (ECF No. 724); (ECF No. 740); (ECF No. 741); (ECF No. 789); (ECF No. 826); (ECF No. 851). Only one other co-defendant, Cornelius Webb, was convicted and sentenced for murder. After his federal charges were dropped, Webb was convicted of second-degree murder in Michigan state court and sentenced to 25-45 years in prison. (ECF No. 1129-5). On February 4, 2020, after serving over eighteen years, Webb was released parole. (Id. ). Bass alone remains in prison. Other courts have found that sentencing disparity indicates that the defendant has served "an adequate punishment for his crimes." United States v. Alexander , No. 1:04 CR 529, 2020 WL 6268136, at *4, 2020 U.S. Dist. LEXIS 198264 at *10 (N.D. Ohio Oct. 26, 2020) ; see United States v. McClellan , No. 1:92 CR 268, 2020 WL 2933588, at *, 2020 U.S. Dist. LEXIS 97136 at *8 (N.D. Ohio June 3, 2020). This Court decides the same.
The gravity of releasing a defendant serving a life sentence is not lost on this Court. Such a decision must be approached with extraordinary care and only be granted in cases of transformational redemption. This is such a case. Bass is, quite simply, a BOP success case. An exemplary inmate and man who has turned the pain and darkness of his former life on the streets into a light for those still lost in its grips. At the time of his sentencing, Bass was thirty-four years old, had an eighth-grade education, and six children he was leaving behind. Now, Bass is fifty-one years old, has a GED, is a certified life coach, and a true father and guide to his fellow prisoners and family alike. He has proven that he has more than enough self-motivation to continue his rehabilitation journey outside of the confines of prison.
The Court has additionally reviewed and approved of Bass's re-entry plan. Upon release, Bass will reside with his wife in Eastpointe, MI. (ECF No. 1129-7, PageID.1100-01). A probation officer has spoken to his wife and verified the suitability of this placement. Bass hopes to help uplift his community by rehabilitating homes and starting a non-profit that mentors the youth. (Id. at 1098-99). Through sharing the perils of a life of crime, imploring them to learn from his mistakes, and encouraging them to dream bigger than their surroundings, Bass is eager for his life to be a cautionary tale. (Id. ). Two business owners have also represented to the Court that they have a job waiting for Bass upon his return. (Id. at 1109-10). There is no doubt that Bass will be enveloped by a large and supportive community.
As the Court frequently remarks during hearings, it has no crystal ball. It can only base its decisions on the careful weighing of all the evidence from both parties and the applicable law. After this review, the Court determines that Mr. Bass is an appropriate candidate for compassionate release. Bass writes, "if given the chance, my future accomplishments will help me put my past behind me, or even prove that that chapter of my life does not define me." (ECF No. 1129-7, PageID. 1099). Today, the Court gives Bass a well-earned, second chance.
CONCLUSION
IT IS ORDERED that Petitioner's Motion for Reduced Sentence is GRANTED .
IT IS FURTHER ORDERED that BOP officials at FCI McKean IMMEDIATELY RELEASE JOHN BASS (25435-039).
IT IS FURTHER ORDERED that upon his release, Bass will serve a three-year term of supervised release.
SO ORDERED .
ATTACHMENT
Signed 02/08/2021
NOTICE AND CLARIFICATION AS TO ORDER [1133] OF JANUARY 22, 2021
The following statement provides notice of a clerical error in the Court's January 22, 2021 Order [1133] regarding John Bass's term of supervised release. It also clarifies the Court's understanding of its role in deciding compassionate release motions. In short, this role is analogous to that traditionally exercised by a parole board. The Court looks to the record of the person seeking release, including their personal history, criminal history, sentence, conduct in prison, present circumstances, as well as the factors set forth by Congress in 18 U.S.C. § 3553(a). Implicit in the consideration of these variables is the question of public safety.
PROCEDURAL BACKGROUND
On August 11, 2003, a jury convicted John Bass of Conspiracy to Distribute Five Kilograms or More of Cocaine and 50 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 846, and Firearms Murder During or in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(j). Upon conviction, the Government sought, and the jury denied, a sentence of death, and imposed a sentence of life without parole as to the capital count. (ECF No. 1007). On March 11, 2004, the Court sentenced Bass to two concurrent terms of life in prison. (ECF No. 1047).
On August 27, 2020, the Clerk's office docketed a letter from Bass dated June 28, 2020 requesting compassionate release in light of his health conditions and the COVID-19 pandemic. (ECF No. 1117). On September 14, 2020, the Court appointed counsel and, at the Government's request, set an extended briefing schedule. (ECF No. 1119). Following a hearing on October 13, 2020, the Court ordered the parties to submit additional briefing addressing Bass's re-entry plan, recidivism level calculation, rehabilitation efforts, and cooperation with the Government from prison. (ECF No. 1127). Those briefs were submitted in mid-December. (ECF No. 1129; ECF No. 1130). On January 22, 2021, after significant deliberation, the Court granted Bass's Motion to Reduce Sentence [1117]. (ECF No. 1133).
On January 29, 2021, the Government appealed the Court's Order [1133] to the U.S. Court of Appeals for the Sixth Circuit and sought an emergency stay, which was granted on February 5, 2021. United States v. Bass , No. 21-1094, 843 Fed.Appx. 733, 738 (6th Cir. Feb. 5, 2021). Through the Court of Appeals’ Order and the underlying briefing, the Court became aware of an error as to Bass's term of supervised release, about which it now provides notice. The Court also takes this opportunity to provide clarification as to how it views its role in compassionate release cases. These clarifications are not intended to expand, modify, or in any way alter the Court's Order [1133] at this time.
NOTICE OF MISTAKE AS TO THE SUPERVISED RELEASE TERM
The Order from the Court of Appeals stated that "the district court reduced [Bass's] term of supervised release (which applied only to his conspiracy charge) from five years to three years." Bass , 843 Fed.Appx. at 737. The Court agrees that its Order [1133] did, indeed, reduce Bass's term of supervised release, however, it did so inadvertently. The Court intended to keep the same term of supervised release specified in its original Judgment. (ECF No. 1047, PageID.336). Its failure to do so was a clerical error.
CLARIFICATION
Congress's implementation of the compassionate release statute came shortly after it abolished the United States Parole Commission. "In the Sentencing Reform Act of 1984, Congress abolished federal parole and forbade the federal courts from ‘modify[ing] a term of imprisonment once it has been imposed[.]’ " United States v. Jones , 980 F.3d 1098, 1103-04 (6th Cir. 2020) (alterations in original) (citing Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 212(a), 98 Stat. 1837 (1998) (enacting 18 U.S.C. § 3582(c) )). Congress did, however, recognize that there may be "cases in which an eventual reduction in the length of a term of imprisonment is justified by changed circumstances." S. REP. NO. 98-225, at 55 (1983). It accordingly carved out an exception for those cases that came to be known as compassionate release. Jones , 980 F.3d at 1103. "These would include cases of severe illness, cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence, and some cases in which the sentencing guidelines for the offense of which the defendant was convicted have been later amended to provide a shorter term of imprisonment." S. REP. NO. 98-225, at 55-56 (1983).
Despite this, the Parole Commission, a three-member panel in Washington D.C. with hearing examiners in each region, argued that it should be retained to ultimately decide each defendant's release date after he or she was sentenced by a judge. See S. REP. NO. 98-225, at 52-53 ; ISAAC FULWOOD , U.S. DEP'T OF JUSTICE , U.S. PAROLE COMM'N , HISTORY OF THE FEDERAL PAROLE SYSTEM , at 1 (2003). Congress "strongly disagree[d] with the Parole Commission" and firmly established that "the better view is that sentencing should be within the province of the judiciary." S. REP. NO. 98-225, at 53-54. In doing so, Congress rejected maintaining the "expensive and cumbersome Parole Commission" to determine if early release was appropriate and "provide[d] instead [via] 18 U.S.C. 3583(c) for court determination ... of the question whether there is justification for reducing a term of imprisonment." Id. at 56. Effectively, through 18 U.S.C. 3583(c), Congress placed the sentencing judge in the shoes of the now defunct Parole Commission.
Today, compassionate release is widely understood as a means of protecting defendants from suffering harm due to unforeseen changed circumstances during their sentence. See U.S. DEP'T OF JUST. , FED. BUREAU OF PRISONS , PROGRAM STATEMENT 5050.50: COMPASSIONATE RELEASE/REDUCTION IN SENTENCE , at § 571.60 (2015) ("The Bureau uses 18 U.S.C. 4205(g) and 18 U.S.C. 3582(c)(1)(A) in particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing."); see also William W. Berry III, Extraordinary and Compelling: A Re-examination of the Justifications for Compassionate Release , 68 MD. L. REV. 850, 860-61 (2009) (explaining that this approach " ‘keeps the sentencing power in the judiciary where it belongs, yet permits later review of sentences in particularly compelling situations’ " (citing CRIM. DIV. , U.S. DEP'T OF JUST. , PROSECUTORS HANDBOOK ON SENTENCING GUIDELINES AND OTHER PROVISIONS OF THE SENTENCING REFORM ACT OF 1984, at 121 (1987))). This is more true than ever now, in light of the passage of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, the spread of COVID-19, and the emerging consensus among the Courts of Appeals that "district courts need not consider [ U.S.S.G. § 1B1.13 ] when ruling on [defendant-filed compassionate release] motions." United States v. Elias , 984 F.3d 516, 519 (6th Cir. 2021).
In practice, this system works better than state and federal parole boards, because rather than being placed at the mercy of a decentralized body of arbiters, defendants are instead evaluated by the same judicial officer that has seen their case from arraignment, to trial, to sentencing: the judge. C.f. The Parole Consideration Process , MICH. DEP'T OF CORRECTIONS , https://www.michigan.gov/corrections/0,4551,7-119-1435_11601-22909--,00.html [https://perma.cc/VG5Z-J65C] (last visited February 7, 2021) ("Decisions for [Michigan] prisoners serving a life sentence are made by majority vote of all ten members of the Parole Board."); FULWOOD , supra , at 1. This transfer of release power also fulfills Congress's intention that sentencing not "be imposed in a mechanistic fashion," but rather that the judge "consider all the relevant factors in a case[,] ... impose a sentence outside the guidelines in an appropriate case," and "thoughtful[ly] impos[e]" an "individualized sentence[ ]." S. REP. NO. 98-225, at 53 (1983).
Courts have "wide latitude" to exercise discretion in determining extraordinary and compassionate reasons to grant a compassionate release. United States v. Morris , No. 20-1669, 2020 U.S. App. LEXIS 29874, at *5 (6th Cir. Sep. 17, 2020); see Elias , 984 F.3d at 519 ; see also United States v. Kincaid , 805 F. App'x 394, 395 (6th Cir. 2020) ("[D]istrict courts have ‘broad discretion to determine what sentence will serve [ § 3553(a) ’s] statutory objectives.’ " (alteration in original) (quoting United States v. Kontrol , 554 F.3d 1089, 1093 (6th Cir. 2009) )). Rightfully so, as the sentencing judge is often the only judicial officer who has seen a defendant's case from beginning to end. See Jones , 980 F.3d at 1114 (referencing "the ‘common scenario’ where ‘the district judge who sentenced the defendant is the same judge who considers the defendant's reduction-of-sentence motion’ " (quoting United States v. Keefer , 832 Fed. App'x 359, 363 (6th Cir. 2020) )).
At least seven different Assistant U.S. Attorneys have been assigned to Bass's case through its pre-trial, trial, post-conviction, compassionate release, and appellate stages. Likewise, all but one of Bass's five trial, post-conviction, and compassionate release attorneys are different from one another. This Court stands alone with the institutional memory of John Bass, not just as a case, but as a person.
This Court presided over Bass's three-week trial, during which witness after witness recounted his horrifying crimes. This Court sentenced Bass to two concurrent life terms upon the jury's verdict. This Court denied Bass's requests for relief under 28 U.S.C. § 2255. This Court, considering the severity of Bass's crimes, believed even at the compassionate release hearing that he had "earned" his original sentence. (ECF No. 1134, PageID. 1323) ("So, again, so now I qualify as a trial Judge to repeat myself a third time. Mr. Bass earned his original sentence."). And this Court, using its unique perspective, carefully evaluated and ultimately decided that Bass had presented extraordinary and compelling reasons to be released. In doing so, it honored the weight of what Congressional intent and statutory interpretation in sentencing — from the Sentence Reform Act through United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) — has bended toward: building a system that empowers judges to treat people like people. See United States v. Weakley , No. 20-5070, 2020 U.S. App. LEXIS 26814, at *3 (6th Cir. Aug. 21, 2020) ("[D]istrict courts have an obligation ‘to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.’ " (quoting Pepper v. United States , 562 U.S. 476, 487, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) )).
As this Court often reminds the attorneys who appear before it in compassionate release hearings, its goal in proceeding through the § 3553(a) analysis is to evaluate defendants, not as they were at the time of their original sentencing, but as they are now. From a policy standpoint, looking to evidence of post-sentencing conduct incentivizes good behavior and disincentivizes bad behavior in prison. And ultimately, there is "no better evidence" when assessing the § 3353(a) factors than the defendant's post-sentencing conduct. Pepper , 562 U.S. at 491, 131 S.Ct. 1229 (Melloy, J., concurring) (quoting United States v. McMannus , 496 F.3d 846, 853 (8th Cir. 2007) ). Indeed, the Supreme Court has recognized that evidence of "rehabilitation may ... critically inform a sentencing judge's overarching duty under § 3553(a) to ‘impose a sentence sufficient, but not greater than necessary ’ to comply with the sentencing purposes set forth in § 3553(a)(2)." Id. (emphasis added). That is what took place here.
The Court, after presiding over Bass's trial, sentencing him to life in prison, and denying his successive habeas petitions, was acutely aware of, and indeed, has spent years wrestling with, the depravity of Bass's crimes. It did not rehash every detail of those crimes because their severity was painfully clear from the record. Instead, based on nearly twenty-three years of experience with John Bass, the Court affirmed its belief that his crimes were "horrific," but that on balance, the § 3553(a) factors favored release. (ECF No. 1133, PageID. 1277). The Court remains unaware of any caselaw requiring it to acknowledge in writing the weight it attributes every single piece of evidence considered in its § 3553(a) inquiry. In fact, the opposite is true. See United States v. Navarro , No. 20-5640, 2021 WL 287756 at *2, 2021 U.S. App. LEXIS 2409 at *6 (6th Cir. Jan. 28, 2021) ("[A] ‘judge need not provide a lengthy explanation’ for reducing a defendant's sentence ‘if the "context and the record" make clear that the judge had "a reasoned basis" for reducing the defendant's sentence.’ " (quoting Chavez-Meza v. United States , ––– U.S. ––––, 138 S. Ct. 1959, 1965, 201 L.Ed.2d 359 (2018) )).
CONCLUSION
Since the COVID-19 pandemic began, forty-two individuals in fear for their lives have moved this Court for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1). As of the time the Court of Appeals issued its Order, thirty-two of those motions had been granted, two had been denied, and eight remained pending.
In passing the Sentencing Reform Act and the First Step Act, Congress transferred to district courts the discretionary power once held by the Parole Commission. As noted, Congress preferred release decisions to be placed within the judiciary, largely because the mechanical nature of the Parole Commission's release decisions failed to consider the individual circumstances of each petitioner. Accordingly, in reviewing requests for compassionate release, this Court has attempted to bring humanity to the process by conducting a hearing for every motion and evaluating petitioners as they are, not only as they were.