Opinion
4:13-CR-24-CDL-MSH
03-06-2024
UNITED STATES OF AMERICA, v. LORENZO HICKSON, Defendant.
REPORT AND RECOMMENDATION
Pending before the Court is federal prisoner Lorenzo Hickson's third motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1) (ECF No. 152). For the reasons stated below, it is recommended that his motion be denied.
BACKGROUND
On February 20, 2014, Hickson pleaded guilty under a superseding indictment to a single count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2. Superseding Indictment 1, ECF No. 37; Change of Plea, ECF No. 60. The plea was conditioned upon Hickson's right to appeal the Court's Order (ECF No. 51) denying his motion to suppress (ECF Nos. 11, 12). Plea Agreement 8, ECF No. 61. Following Petitioner's guilty plea, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) (ECF No. 73). Because the amount of crack cocaine attributable to Hickson was at least 280 grams but less than 840 grams, USPO calculated a base offense level of 32 based on the drug quantity table, U.S.S.G. § 2D1.1(c), in effect at the time. PSR ¶ 19, ECF No. 73. USPO then added two levels because of Hickson's obstruction of justice during the traffic stop leading to his arrest. Id. ¶¶ 14, 23. This resulted in an adjusted offense level of 34.
Hickson, however, qualified as a career offender based on at least two prior felony convictions of either a crime of violence or a controlled substance. Id. ¶ 25. Hickson's prior crimes included: (1) a 1991 DeKalb County, Georgia conviction for aggravated assault and criminal attempt to commit armed robbery, (2) a 1999 Fulton County, Georgia conviction for possession of cocaine with intent to distribute, and (3) a 1999 Fayette County, Georgia conviction for sale of cocaine. Id. ¶¶ 26, 35, 39, 40. As the statutory maximum sentence for Hickson's offense was life, his offense level was enhanced to 37. Id. ¶¶ 25-26; 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii); U.S.S.G. § 4B1.1(b)(1). He was then given a three level reduction for acceptance of responsibility and entering a guilty plea in a timely manner, reducing his offense level to 34. PSR ¶¶ 27-29. Hickson's criminal history score was 11, and had he not been a career offender, this would have placed him in criminal history category V. Id. ¶ 44. As a career offender, however, his criminal history category was automatically VI, resulting in a Guideline sentencing range of 262 to 327 months. Id. ¶¶ 44, 63. On May 20, 2014, the Court sentenced Hickson to 295 months imprisonment followed by 5 years supervised release. Judgment 2-3, ECF No. 77. The sentence was ordered to run consecutive to any state court sentences for parole violation. Id. at 2; PSR ¶¶ 39-40.
As permitted by the plea agreement, Hickson appealed the denial of his motion to suppress (ECF No. 79). On January 19, 2016, the United States Court of Appeals for the Eleventh Circuit affirmed the Court's order denying the motion to suppress. Order 2, United States v. Hickson, No. 14-12365 (11th Cir. Jan. 19, 2016), ECF No. 97. The Eleventh Circuit issued its mandate on April 6, 2016 (ECF No. 98). Hickson then moved to vacate his sentence on ineffective assistance of counsel grounds (ECF Nos. 101, 104). The Court denied his motion on February 26, 2019 (ECF No. 121). On May 26, 2020, the Court received Hickson's first motion for compassionate release (ECF No. 138). In this motion, he argued that he should be released because of the risk of contracting Covid-19 and his underlying health conditions, including hypertension, diabetes, chronic kidney disease, and end-stage renal failure. 1st Mot. for Compassionate Release 1, ECF No. 138. This motion was denied on June 29, 2020 (ECF No. 139).
The Court received Hickson's second motion for compassionate release on December 15, 2020 (ECF No. 142). At the time, he had not contracted Covid-19. 2d Mot. for Compassionate Release 3, ECF No. 142. He noted, however, that he was likely to contract Covid-19 due to the conditions at his place of confinement-the United States Medical Center for Federal Prisoners in Springfield, Missouri (“Springfield MCFP”). Id. at 2-3. He argued that due to his underlying medical conditions, he was at high risk of becoming extremely ill or dying if he contracted the disease. Id. at 2. These underlying conditions included chronic kidney disease, type-II diabetes, and hypertension. Id. at 1. Hickson also argued that his end-stage renal disease was a terminal illness and that he would die without a kidney transplant. Id. He was not yet on dialysis, however, and he claimed that Federal Bureau of Prisons (“BOP”) policies did not allow kidney transplants unless the prisoner was on dialysis. Id. at 4. Further, according to Hickson, BOP was not approving transplants due to the pandemic. 2d Mot. for Compassionate Release 4. Hickson asserted that his family members had met and concluded that “if [he] had truly changed [his] life,” “most” of them were willing to be evaluated to see if they could be kidney donors. Id. Finally, Hickson argued that he was not a danger to the community if released. Id. at 5. He noted that he was fifty years old and that during his eight years of incarceration, his mother had died from diabetes-related complications and his father had died of a drug overdose. Id. He stated that this, along with the willingness of his family members to be organ donors, had motivated him to want to lead a better lifestyle. Id. at 5-6. Hickson stated that if he is released, he would live with his fiance in Lawrenceville, Georgia. Id. at 6.
Hickson supplemented his second motion for compassionate release on January 3, 2021. Suppl. to 2d Mot. for Compassionate Release 2, ECF No. 144. By that time, there had been significant developments in his health condition. He had contracted Covid-19, which led to development of a 104-degree fever and hospitalization. Id. at 1. He underwent surgery to allow access for emergency dialysis, and upon return to Springfield MCFP general population, he required a walker to ambulate. Id. He stated that he had other significant complications resulting from Covid-19, including respiratory problems, extreme diarrhea, and insomnia. Id. He also argued that he faced the risk of re-exposure to Covid-19. Id.
On April 29, 2021, the Court issued a recommendation that Hickson's second motion for compassionate release be denied. Order & R. 11, ECF No. 146. In the Court's recommendation, it concluded Hickson had met his burden of showing extraordinary and compelling reasons warranting compassionate release based on his medical condition. Id. at 8. The Court noted a “marked” decline in Hickson's health following his contraction of Covid-19 in December 2020, including the need for dialysis, diagnosis of end-stage renal disease, and the fact he had suffered a stroke. Id.
Nevertheless, the Court concluded Hickson was not entitled to compassionate release after considering the factors set forth in 18 U.S.C. § 3553(a). Id. at 9-11. In doing so, the Court observed that although his conviction was for a non-violent offense, his conduct during his arrest had endangered the lives of arresting officers. Id. at 10. The Court cited the fact that while officers were searching his car, Hickson entered the car and attempted to drive off on an interstate highway while he and an officer were struggling for control of the vehicle. Id. (citing PSR ¶ 11). The car travelled 100 yards before the officer pulled his weapon and made Hickson stop. Order & R. 10., Apr. 29, 2021 (citing PSR ¶ 11). The Court also pointed to Hickson's status as a career offender, including a conviction for aggravated assault and criminal attempt to commit armed robbery. Id. (citing PSR ¶ 35). During the course of the attempted robbery, the victim was fatally shot. Id. Hickson was originally charged with murder but allowed to enter a plea to the less-serious charges. Id. The Court also noted Hickson's condition had improved since he had supplemented his motion, with medical records showing Hickson was able to ambulate without assistance and independently administer his dialysis. Order & R. 10-11, Apr. 29, 2021. Finally, the Court noted Hickson's receipt of the Covid-19 vaccine. Id. at 11. The Court's recommendation was adopted by the District Judge on June 30, 2021. Order, ECF No. 150.
The Court received Hickson's third motion for compassionate release on November 14, 2023 (ECF No. 152). The Government responded on January 16, 2024, and Hickson filed a reply brief (ECF Nos. 157, 160). Hickson's latest motion for compassionate release is ripe for review.
DISCUSSION
I. Motion for Sentence Reduction
Although Hickson's motion is designated as one for compassionate release under 18 U.S.C. § 3582(c)(1)(A), it includes a short paragraph requesting a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). 3d Mot. for Compassionate Release 1, ECF No. 152 Under this provision, a district court may reduce a sentence where a defendant has been “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The Sentencing Commission policy statement governing sentence reductions under 18 U.S.C. § 3582(c)(2) is found at U.S.S.G. § 1B1.10. Under the commentary to this policy statement, a reduction in sentence under an amendment is not authorized if “the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision.” U.S.S.G. § 1B1.10, cmt. n.1(A).
Although not specified by Hickson, he is presumably relying on Amendment 782, which went into effect on November 1, 2014, and lowered the base offense levels in the drug quantity table by two levels across all drug types. U.S.S.G. app. C, Amendment 782 (Nov. 1, 2014); see United States v. Maiello, 805 F.3d 992, 994-95 (11th Cir. 2015) (discussing the adoption of Amendment 782). It applies retroactively. U.S.S.G. app C, Amendment 788 (Nov. 1, 2014); see Maiello, 805 F.3d at 995 (noting retroactive applicability of Amendment 782). Thus, under Amendment 782, Hickson's base offense level for his cocaine conviction would be 30 instead of 32, and his adjusted offense level would be 32 instead of 34. See U.S.S.G. 2D1.1(c)(5); PSR ¶¶ 19, 24.
Here, reduction of Hickson's sentence is not authorized because Amendment 782 would not have the effect of lowering the applicable guideline range. Hickson's guideline range was determined by the career offender provision of U.S.S.G. §4B1.1(a), not by the drug quantity table of U.S.S.G. § 2D1.1(c). PSR ¶¶ 25-26. Even with a base offense level of 30 and an adjusted offense level of 32, Hickson would still be subject to the career offender enhancement resulting in an offense level of 37 and total offense level-following a three level reduction for acceptance of responsibility and timely guilty plea-of 34. Therefore, Hickson is not eligible for relief under Amendment 782. See United States v. Joseph, No. 21-14095, 2022 WL 1719063, at *1 (11th Cir. May 27, 2022) (per curiam) (affirming denial of sentence reduction under Amendment 782 where the offense level was determined by the career offender enhancement of U.S.S.G. §4B1.1 and not by the drug quantity table of § 2D1.1).
II. Motion for Compassionate Release
A. Compassionate Release Standard
A district court “‘may not modify a term of imprisonment once it has been imposed except' under certain circumstances.” United States v. Harris, 989 F.3d 908, 909 (11th Cir. 2021) (quoting 18 U.S.C. § 3582(c)). One circumstance, as discussed above, is where a sentencing range has been lowered. Another is the compassionate release exception provided in 18 U.S.C. § 3582(c)(1)(A). Id. at 909-10. Under that section, a prisoner may obtain compassionate release if, “after considering the factors set forth in [18 U.S.C. § 3553(a)],” the district court finds that “extraordinary and compelling reasons warrant such reduction . . . and that such reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]” 18 U.S.C. § 3582(c)(1)(A)(i). The Sentencing Commission's policy statement for compassionate release is found at U.S.S.G. § 1B1.13. Under the policy statement, a defendant must show that he “is not 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. § 1B1.13(a)(2). Further, a defendant must show that “extraordinary and compelling reasons warrant the reduction.” U.S.S.G. § 1B1.13(a)(1)(A). A defendant bears the burden of proving entitlement to compassionate release. See United States v. Mantack, 833 Fed.Appx. 819, 819-20 (11th Cir. 2021) (per curiam) (citing United States v. Green, 764 F.3d 1352, 1356 (11th Cir. 2014)).
In addition to extraordinary and compelling reasons warranting a reduction, compassionate release may also be granted to a defendant who is at least 70 years old and has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c). 18 U.S.C. § 3582(c)(1)(A)(ii). This provision is inapplicable to Hickson.
The Sentencing Commission policy statement provides six circumstances that constitute extraordinary and compelling reasons for a sentence reduction. U.S.S.G. § 1B1.13(b). These are 1) a qualifying medical circumstance of the defendant, 2) the age of the defendant, 3) family circumstances of the defendant, 4) the defendant was the victim of abuse by an individual with custody or control over the defendant, 5) other circumstances that are similar in gravity to the circumstances described in paragraphs 1-4, and 6) the defendant is serving an unusually long sentence and a change in the law would produce a “gross disparity” in that sentence and the one that would likely be imposed at the time the defendant's motion was filed. Id.
B. Hickson's Third Motion for Compassionate Release
In Hickson's third motion for compassionate release, he relies on 1) his medical condition, which he claims is worsening; 2) the continuing threat posed by Covid-19; 3) his continued efforts at rehabilitation; and 4) his contention that there is a great disparity between the sentence he received and what he would receive if sentenced today. 3d Mot. for Compassionate Release 3-7. None of these grounds are sufficient to change the outcome from Hickson's previous motions.
Since Hickson filed his second motion for compassionate release, the Sentencing Commission amended U.S.S.G. § 1B1.13(b) to expand the circumstances constituting extraordinary and compelling reasons for a sentence reduction. See U.S.S.G. app. C, Amend. 814 (Nov. 1, 2023). But satisfying one of the six circumstances for compassionate release is not the issue for Hickson. Even under the stricter pre-amendment version of U.S.S.G. § 1B1.13(b), the Court concluded Hickson established a qualifying circumstance for compassionate release. Order & R. 8, Apr. 29, 2021 The Court denied Hickson's motion, however, because after considering the factors set forth in 18 U.S.C. § 3553(a), it concluded release was not appropriate. Id. at 9-11, Apr. 29, 2021. The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.United States v. Macli, 842 Fed.Appx. 549, 552 n.1 (11th Cir. 2021) (per curiam) (citing 18 U.S.C. § 3553(a)). In its previous denial of compassionate release, the Court noted Hickson's violent criminal history and his conduct during his arrest for the sentencing offense, which endangered the lives of arresting officers. Order & R. 10. In addressing the need to provide medical care to Hickson, the Court also pointed to the care Hickson was receiving in prison, including dialysis and vaccination against any further exposure to Covid-19. Id. at 10-11.
Nothing in Hickson's recent motion alters the Court's previous conclusion that compassionate release is not warranted. Because he had to first serve his state sentence, Hickson did not being serving his federal sentence until 2018, and he is roughly 69 months into his 295 month sentence. Gov't Ex. 3, ECF No. 157-3; Gov't Ex. 4, ECF No. 157-4. Further, while Hickson alleges his health has deteriorated, he continues to receive medical care for his condition, and during an October 23, 2023, clinical encounter, Hickson reported his energy level and appetite were good and he exercised regularly by walking. Gov't Ex. 2, ECF No. 157-2. Moreover, while Hickson praises his rehabilitation efforts, he omits the fact he had two prison infractions in 2023-one for possessing a dangerous weapon and another for being in an unauthorized area. Gov't Ex. 1, ECF No. 157-1.
Hickson also argues if he was sentenced today, he would receive a much lesser sentence, relying on a December 2022 memo from the Attorney General to prosecutors regarding the treatment of crack cocaine versus powder cocaine offenses. 3d Mot. for Compassionate Release 7. Sentencing disparity can be a consideration both when determining whether an extraordinary and compelling circumstance for compassion release exists and when weighing the § 3553(a) factors. U.S.S.G. § 1B1.13(b)(6); 18 U.S.C. § 3553(a)(6).
The Sentencing Commission's policy statement states extraordinary and compelling reasons exist where 1) a defendant received an unusually long sentence, 2) the defendant has served at least 10 years of the term of imprisonment, 3) there has been a change in the law-other than a non-retroactive amendment to the Guidelines-that results in a “a gross disparity” between the sentence being served and the sentence that likely would be imposed now, and 4) the Court has fully considered the defendant's “individualized circumstances.” U.S.S.G. § 1B1.13(b)(6). This provision, however, is inapplicable to Hickson for a few reasons. First, he has not served at least ten years for his federal conviction. Gov't Ex. 4. Second, Hickson's guideline sentencing range would be the same today as it was at the time he was originally sentenced. This is because his guideline sentencing range was not determined by the drug quantity table of U.S.S.G. § 2D1.1 but by the career offender provisions of U.S.S.G. §4B1.1(a). PSR ¶¶ 25-26. Third, the Attorney General's directive regarding charging policies does not constitute a “change in the law” as set forth in U.S.S.G. § 1B1.13(b)(6). See United States v. Sterling, No. 2:05-CR-20061-01, 2023 WL 2804902, at *3 (W.D. La. Apr. 4, 2023) (“[T]he Garland memo does not reflect a change to current law. Instead, it is an internal policy document for the Department of Justice.”); United States v. McCullers, --F.Supp.3d--, No. 4:07cr49, 2023 WL 8251591, at *3-4 (E.D. Va. Nov. 29, 2023) (rejecting the defendant's contention that the Attorney General's memo constituted a change in the law for purposes of U.S.S.G. § 1B1.13(b)(6)). Finally, even if Hickson's sentence qualified as an extraordinary and compelling circumstance under U.S.S.G. § 1B1.13(b)(6)-which it does not-the Court would still find compassionate release not warranted after considering the § 3553(a) factors.
Sentencing disparity is also a factor for a district court to consider under § 3553(a). Specifically, district courts are instructed to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6) While Hickson cites the disparity in sentencing between convictions involving cocaine base versus powder cocaine, though, he does not cite any disparities with other defendants with similar records to his convicted of conduct similar to his. See United States v. Oliver, No. 1:00-cr-157-21 (RCL), 2021 WL 2913627, at *8 (D.D.C. July 12, 2021) (rejecting argument based on general disparity between crack and powder cocaine sentences, noting they “fundamentally misunderstand the nature of the Court's inquiry on this § 3553(a) factor” and pointing out that defendants sentenced for crack cocaine offenses do not all have similar records and have not all been found guilty of similar conduct).
In summary, as it did in response to Hickson's previous motion for compassionate release, the Court concludes that compassionate release is not warranted after weighing the § 3553(a) factors. It would not reflect the seriousness of Hickson's crime or his criminal history, promote respect for the law, provide just punishment, or deter future criminal conduct.
Finally, the Court adds an additional ground for denying compassionate release. The Government argues Hickson fails to show he would not be a danger to any person or the community if released. Gov't Resp. to 3d Mot. for Compassionate Release 6-10, ECF No. 157. Under the policy statement, a defendant must show he “is not 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. § 1B1.13(a)(2). “Factors to consider in determining the danger a defendant poses include: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the individual; (3) the history and characteristics of the individual; and (4) the nature and seriousness of the danger that would be posed by the individual's release.” United States v. Vazquez, No. 20-14390, 2021 WL 3027137, at *2 (11th Cir. July 19, 2021) (per curiam) (citing 18 U.S.C. § 3142(g)).
Here, the Government cites Hickson's conduct during the offense, his long criminal history-including violent crimes-and his prison infractions as evidence Hickson poses a danger, and the Court agrees. Gov't Resp. to 3d Mot. for Compassionate Release 8-10. Therefore, as a separate and independent ground for denying his motion for compassionate release, the Court also finds Hickson has failed to show he does not pose a danger to the safety of any other person or to the community if released.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Lorenzo Hickson's third motion for compassionate release (ECF No. 152) be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), a party may serve and file written objections to a magistrate judge's recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the recommendation to which objection is made. All other portions of the recommendation may be reviewed for clear error.
Defendant is notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.