Summary
finding defendant's rehabilitation efforts weighed in favor of finding extraordinary and compelling circumstances when he had only one disciplinary infraction in his first year of incarceration and no others in the following 20 years, he had participated in a wide variety of courses, and three supervisors who had witnessed his performance over at least fifteen years wrote that he was a model inmate
Summary of this case from United States v. ThompsonOpinion
Criminal Action No. 99-cr-00439-JLK-1
05-08-2020
UNITED STATES of America, Plaintiff, v. 1. Walter James JENKINS, Defendant.
ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE (ECF NO. 473)
Kane, J.
On April 20, 2020, Defendant Walter James Jenkins filed a Motion for Compassionate Release (ECF No. 473), requesting that I reduce his sentence to time served for three primary reasons. First, he claims that he would face a much shorter sentence than his original sentence if he were prosecuted today. Second, he contends that releasing him would protect him and the public as the global COVID-19 pandemic rages. And, third, he asserts that he has been a model inmate and has fully rehabilitated himself over the twenty years he has been incarcerated. Although Mr. Jenkins has already benefited from a commutation of his sentence, I find the COVID-19 pandemic and his age and medical conditions warrant a further reduction when considered alongside his efforts to improve and recover.
I. Background
From June 1998 until his arrest in December 1999, Mr. Jenkins and his girlfriend were involved in a conspiracy to distribute crack cocaine in Colorado Springs and Pueblo, Colorado. Mr. Jenkins would buy powder and crack cocaine in California, bring it back to Colorado, cook the powder cocaine into crack, and distribute it to sub-distributors as well as individual users. When officers arrested Mr. Jenkins, they found a .9 mm semi-automatic handgun and ammunition in his car and $800 cash in his pockets. A later search of his vehicle revealed crack cocaine hidden inside. At his residence, officers discovered about 40 grams of crack cocaine, digital scales, and $11,000 as well as a .45 caliber semi-automatic handgun with a loaded magazine. Additionally, Mr. Jenkins' storage unit was found to contain 292 grams of crack cocaine, approximately $15,000, five firearms, and hundreds of rounds of ammunition. At trial, multiple witnesses testified that Mr. Jenkins was regularly in possession of firearms when he was engaged in transporting and selling drugs.
A jury found Mr. Jenkins guilty of all four counts with which he was charged: conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) ; possession with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) ; and two counts of possession of firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Under the U.S. Sentencing Guidelines, which were mandatory at the time, Mr. Jenkins' offense level for the drug offenses was 42. This level was based on the sentencing judge's findings that more than 1.5 kilograms of cocaine base were involved and that Mr. Jenkins was an organizer and leader of a conspiracy involving five or more participants. Sentencing Tr. at 26:9-27:16, ECF No. 473-1. Mr. Jenkins' criminal history category was found to be V, but the sentencing judge determined that category significantly overrepresented his criminal history and departed to category IV. Id. at 27:17-28:2. With an offense level of 42 and a criminal history category of IV, the Guidelines range for the drug-related charges was 360 months' imprisonment to life. The statute of conviction for the firearms charges at that time mandated a minimum sentence of 60 months' imprisonment for the first count and 300 months' imprisonment for the second, and that both sentences be served consecutively to all other sentences. Consequently, the minimum term of imprisonment the sentencing judge could impose was 360 months for the drug-related charges plus 360 months for the firearms charges, or 720 months total. The judge considered that Mr. Jenkins "actively recruited and organized the activities of other persons involved in th[e] conspiracy, and [that he] characteristically possessed several deadly weapons during the course of his activities ...." Id. at 31:14-17. Still, the judge imposed the minimum prison sentence of 720 months, along with five years of supervised release. Id. at 31:19-32:3.
Mr. Jenkins appealed, and the Tenth Circuit affirmed his convictions and sentences. See United States v. Jenkins, 313 F.3d 549, 560 (10th Cir. 2002). He has since filed a number of motions challenging his convictions and sentence under 28 U.S.C. §§ 2241 and 2255 and 18 U.S.C. § 3582(c), all of which have been denied or dismissed for lack of jurisdiction. On January 19, 2017, however, former President Barack Obama commuted Mr. Jenkins' sentence to 322 months' imprisonment, leaving intact his original five-year term of supervised release. Exec. Grant Clemency at 5, ECF No. 464. Mr. Jenkins is due to be released on October 14, 2022, when he will have served almost 23 years.
In 2005, Mr. Jenkins' first § 2255 motion to vacate, set aside or correct his sentence was denied by Judge Sparr, who originally presided over this case and sentenced Mr. Jenkins. See 9/22/05 2255 Order, ECF No. 349. In 2006, the Tenth Circuit denied Mr. Jenkins' request to file a second or successive motion, see 9/27/06 COA Order, ECF No. 362, and in 2007, it dismissed as untimely his appeal of the order denying of his first § 2255 motion, see 5/24/07 COA Order, ECF No. 373. Then, in 2008, Mr. Jenkins filed a motion under Federal Rule of Civil Procedure 60(b), which was construed as a § 2255 motion, transferred to the Tenth Circuit, and terminated, see 6/5/08 COA Order, ECF No. 409. He also filed his first motion under 18 U.S.C. § 3582(c)(2) in 2008. I denied that motion finding that Amendment 706 to the Sentencing Guidelines did not change his Guidelines range. See 11/24/08 3582 Order, ECF No. 413. Mr. Jenkins followed that motion with an application for a writ of habeas corpus under 18 U.S.C. § 2241, filed as a separate civil case, and the district court denied it. See Jenkins v. Wilner , No. 09-cv-01842-BNB, 2009 WL 3710708, *3 (D. Colo. Nov. 4, 2009). In 2014, Mr. Jenkins filed another § 2255 motion, which I dismissed for lack of jurisdiction, and the Tenth Circuit denied a certificate of appealability, see United States v. Jenkins , 578 F. App'x 785, 786 (10th Cir. 2014) (unpublished). In 2016, the Tenth Circuit again denied Mr. Jenkins' request to file a second or successive § 2255 motion. See 10/1/14 COA Order, ECF No. 457. Months later, he filed another § 2255 motion, which I again dismissed for lack of jurisdiction. See 6/27/16 2255 Order, ECF No. 461. And, most recently, he filed a Motion for a Reduction of his Sentence, claiming that his Sentencing Guidelines range had been lowered, but I again found it had not been. See 5/17/17 3582 Order, ECF No. 468.
At this point, Mr. Jenkins has been incarcerated for twenty years and four months. During that time, he has incurred only a single disciplinary infraction—in July 2000. Disciplinary Rec. at 1, ECF No. 473-2. Early on, he participated in Alcoholics Anonymous and Narcotics Anonymous programs. He has since taken a wide variety of courses focused on future employment, including job interviewing, computer concepts, obtaining a commercial driver's license, working as a sewing operator, and real estate essentials. Reentry Plan at 1, ECF No. 473-4. Mr. Jenkins is currently housed at the Federal Correctional Institution in Englewood, Colorado (FCI Englewood). For over two and a half years, he has worked at the UNICOR textiles factory there. His foreman at the factory provides the following reference:
Mr. Jenkins has been a model inmate, with a great work ethic; he gets along with his fellow inmates in his work area, treats all staff in a respectful manner. Mr. Jenkins is a dedicated worker who takes pride in his work assignments, training, he follows the rules/policy, guidelines and instructions from all staff he encounters.
Schonter Letter at 1, ECF No. 473-5. Mr. Jenkins was previously an electrical worker at FCI Englewood, and his foreman for that job writes:
Mr. Jenkins was an inmate at three institutions that I worked the same time from 2005 – current (USP Florence, FCI Florence and FCI Englewood). He progressed down from USP Florence Penitentiary (high) to a FCI Florence (medium) to his current location at FCI Englewood (Low). At all three institutions, Mr. Jenkins has been a model inmate, great worker, got along with fellow inmates and staff very well, dedicated himself to work assignments, training, followed the rules/policy, guidance
and instructions from all staff he encountered.
Kemena Letter at 1, ECF No. 473-6. When Mr. Jenkins was at USP Florence, he worked as a recreation orderly. His supervisor in that position similarly holds him in high regard, stating:
During his time at the USP, Mr. Jenkins was given duties of increasing responsibility without any issues in regard to behavior or task completion. Upon his arrival to this institution, I proposed that the Recreation Department hire him because of his work ethic, and his positive influence amongst the institutional population. I have always known Mr. Jenkins to be respectful to staff and inmates. The absence of a discipline history and superior work evaluations amongst his work supervisors are testament to his character.
Walker Letter at 1, ECF No. 473-7.
Mr. Jenkins is now 61 years old. In 2014, he suffered a transient ischemic attack (TIA), known as a "mini-stroke," which makes him more susceptible to future strokes. See Evan L. Thacker et al., Short-Term and Long-Term Risk of Incident Ischemic Stroke After Transient Ischemic Attack, 41 Stroke 239, 242 (Dec. 2009), available at https://www.ahajournals.org/doi/10.1161/STROKEAHA.109.569707. Additionally, he suffers from migraines and has a body mass index that qualifies him as obese. See generally Med. Recs., ECF No. 480.
Based on the medical records that were submitted, it appears doctors were unable to definitively confirm that Mr. Jenkins had a TIA with the imaging performed. Med. Recs., ECF No. 480 at 29-31, 35. However, they continued to treat him as if he had and concluded that at the very least he suffered from vasculitis. Id. , ECF No. 480 at 2, 10, 12-13, 18-19, 29-31, 33, 36-37.
Not only is Mr. Jenkins incarcerated with these chronic conditions, but we are in the midst of a pandemic. I need not belabor the shocking statistics on the global spread of COVID-19. But, for certain individuals—those over the age of 60 and those with preexisting conditions, the threat of serious complications or death from contracting COVID-19 is great. See Groups at Higher Risk for Severe Illness , Ctrs. for Disease Control & Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last visited May 8, 2020). Intuitively, prison populations are also at a substantial risk. Laura Hawks, Steffie Woolhandler, and Danny McCormick, COVID-19 in Prisons and Jails in the United States , JAMA Internal Med. (Apr. 28, 2020), https://jamanetwork.com/journals/jamaintern almedicine/fullarticle/2765271 (last visited May 8, 2020) ("Prior viral epidemics have wrought havoc in carceral settings .... When [jails and prisons] are unable to adhere to measures needed to contain and mitigate a viral epidemic, incarcerated persons, staff, and the wider community are endangered.").
The Bureau of Prisons has taken numerous actions to protect inmates. The Government advises that, at this time, those actions include the following:
• Securing all inmates in their assigned cells or quarters for a period of at least 14 days;
• Limiting group gathering and promoting social distancing to the extent possible;
• Severely restricting the movement of inmates and detainees among facilities;
• Cancelling all official staff travel;
• Issuing face masks to all staff and inmates and strongly encouraging them to cover their faces when social distancing cannot be achieved;
• Screening staff members for symptoms in areas with sustained community transmission;
• Restricting contractor access to facilities to only those performing essential services or necessary maintenance;
• Suspending social visits beginning March 13, 2020; and
• Permitting legal visits on a case-by-case basis only after the attorney has been screened for symptoms.
In addition, since the Attorney General issued a Memorandum to the Bureau of Prisons instructing it to prioritize home confinement as an appropriate response to the COVID-19 pandemic, 2,257 inmates have been placed on home confinement. Memo. from the Attorney General on Prioritizing Home Confinement (Mar. 26, 2020), available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf; COVID-19 Coronavirus , Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited May 8, 2020).
Unfortunately, however, as of the date of this Order, 3,237 inmates and 522 staff members have tested positive for COVID-19, and 44 inmates have died. Id. At FCI Englewood, where Mr. Jenkins is located, a staff member has tested positive. Id.
II. Legal Standard
Fearful of the current risk to his health and having served a significant sentence, Mr. Jenkins seeks immediate release under 18 U.S.C. § 3582(c)(1). That statute authorizes the court to reduce a defendant's term of imprisonment "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." 18 U.S.C. § 3582(c)(1)(A). When presented with the requisite motion, section 3582(c)(1) permits the court to grant the sentence reduction if, "after considering the factors set forth in section 3553(a) to the extent that they are applicable," the court finds that "extraordinary and compelling reasons warrant such a reduction" and that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1).
Mr. Jenkins submitted a request for compassionate release to his warden on April 8, 2020. Warden Letter at 1, ECF No. 474. To my knowledge, there has been no response to that request. That matters not, however, because 30 days have passed, rendering Mr. Jenkins' Motion proper under § 3582(c)(1). To determine if the relief requested in that Motion is warranted, I must (1) consider the factors set forth in 18 U.S.C. § 3553(a), (2) determine whether extraordinary and compelling reasons exist to grant the requested sentence reduction, and (3) ensure that any reduction is consistent with the applicable Sentencing Commission policy statement.
Section 3553(a) mandates that the court "impose a sentence sufficient, but not greater than necessary," taking into account the following factors:
(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 ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ...;
(5) any pertinent policy statement ... issued by the Sentencing Commission ...;
(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.
Considering these factors, I must determine whether extraordinary and compelling reasons warrant reducing Mr. Jenkins' sentence to time served. Congress left it to the Sentencing Commission to "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). The Sentencing Commission's Policy Statement pertaining to sentence reductions under 18 U.S.C. § 3582(c)(1) is found in U.S.S.G. § 1B1.13. It includes the requirements set forth in the statute that there be extraordinary and compelling reasons and that any sentence reduction be consistent with the Policy Statement, and additionally, it obliges the court to find that "[t]he defendant is not a danger to the safety of any other person or to the community." U.S.S.G. § 1B1.13. In the commentary to § 1B1.13, is the Sentencing Commission's take on what constitutes extraordinary and compelling reasons. Four categories are enumerated: (1) the defendant is suffering from a terminal illness; (2) the defendant is suffering from some other chronic health problem "that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover"; (3) the need for the defendant to serve as a caregiver for his or her minor child or partner; and (4) other extraordinary and compelling reasons as determined by the Bureau of Prisons. U.S.S.G. § 1B1.13, cmt. n.1(A)-(D). While the second category regarding chronic health problems could arguably apply to Mr. Jenkins' circumstances, a catchall "other" category seems a better fit for a devastating pandemic that subjects particular individuals to grave outcomes. But pursuant to the text of that category, a qualifying extraordinary and compelling reason must be "determined by the Director of the Bureau of Prisons." U.S.S.G. § 1B1.13, cmt. n.1(D). Section 1B1.13 was last amended on November 1, 2018, and mirrors the prior version of 18 U.S.C. § 3582(c) that only permitted sentence reductions upon motion by the Bureau of Prisons. The First Step Act, which was enacted on December 21, 2018, amended 18 U.S.C. § 3582(c) to authorize such reductions upon motions by defendants as well as the Bureau of Prisons. See First Step Act of 2018, Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239. I find, as many other courts have, that the language of the Policy Statement is vestigial and does not constrain my authority to reduce Mr. Jenkins' sentence for extraordinary and compelling reasons other than those specifically identified by the Sentencing Commission. See, e.g. , United States v. Maumau , No. 2:08-cr-00758-TC-11, 2020 WL 806121, at *4 (D. Utah Feb. 18, 2020) ("[T]his court joins the majority of other district courts that have addressed this issue in concluding that it has the discretion to provide [the defendant] with relief, even if his situation does not directly fall within the Sentencing Commission's current policy statement."). Therefore, I ensure that my conclusions are consistent with the Sentencing Commission's views but independently assess whether Mr. Jenkins has presented extraordinary and compelling reasons.
Mr. Jenkins has experienced a TIA, suffers from migraines, and has been diagnosed with obesity. Because of these chronic health problems, it could be found that he is unable to care for himself properly within the environment of a correctional facility at this time, as proper care would entail self-isolation and additional measures to protect against contracting COVID-19.
I am aware of the Tenth Circuit's Order and Judgment in United States v. Saldana , No. 19-7057, 2020 WL 1486892, at *2 (10th Cir. Mar. 26, 2020) (unpublished), and find its consideration of the BOP Program Statement under the "other" category does not undermine my conclusion.
III. Discussion
I look first then to whether such reasons exist. I find the COVID-19 pandemic along with Mr. Jenkins' age and medical conditions constitute extraordinary and compelling reasons. So I proceed to consider whether reducing his sentence to time served is appropriate under the § 3553(a) factors. Due to Mr. Jenkins' significant rehabilitation efforts, 20 years of incarceration, age, and current health circumstances, I conclude that it is.
A. Extraordinary and Compelling Reasons
Though not specifically contemplated as a ground for reducing a defendant's sentence under 18 U.S.C. § 3582(c), being at heightened risk of severe illness or death due to a world-halting pandemic certainly must amount to extraordinary and compelling reasons. I agree that "the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering [the Bureau of Prisons'] statutory role, and its extensive and professional efforts to curtail the virus's spread." United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020). But Mr. Jenkins does not rely solely on the existence of COVID-19 in society. He persuasively explains how he is more likely to experience severe illness because of his age, history of a TIA and migraines, and obesity.
Although the CDC only classifies individuals over the age of 65 as "older adults" at higher risk for severe illness, see Groups at Higher Risk for Severe Illness, supra , Mr. Jenkins' age of 60 still increases his risk significantly, see, e.g. , Imair Irfan and Julia Belluz, Why Covid-19 is so dangerous for older adults , Vox.com (March 13, 2020), https://www.vox.com/2020/3/12/21173783/coronavirus-death-age-covid-19-elderly-seniors (last visited May 8, 2020) (including a graph with data from China showing the case fatality ratio for individuals age 60 to 69 was 4.6%). In fact, data gathered by the CDC shows that individuals between 50 and 64 years old are hospitalized at a rate of three times that of younger adults. COVIDView , CDC (May 1, 2020), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html (last visited May 8, 2020) (finding the hospitalization rate for adults aged 50 to 64 years to be 63.7 per 100,000 population and for adults aged 18 to 49 years to be 20.6 per 100,000). And the World Health Organization reports that "[i]ndividuals at highest risk for severe disease and death include people aged over 60 years ...." Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) , at 12 (Feb. 16-24, 2020), available at https://www.who.int/docs/default-source/corona viruse/who-china-joint-mission-on-covid-19-final-report.pdf.
In addition to his age, Mr. Jenkins has previously experienced a TIA and suffers from chronic migraines. Not only is he at greater risk for future strokes, but strokes are now being linked to COVID-19. See, e.g. , Thomas J. Oxley et al., Large-Vessel Stroke as a Presenting Feature of Covid-19 in the Young , NEJM.org (April 28, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2009 787?amp/= (last visited May 8, 2020). And, according to preliminary CDC data, individuals with neurologic disorders such as stroke and migraine are more likely to require hospitalization after contracting COVID-19. See CDC COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020 , 69 Morbidity & Mortality Weekly Rep. 382, 384 (Apr. 3, 2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm.
Mr. Jenkins has also been diagnosed with obesity, putting him at an even greater risk of severe complications from COVID-19. See, e.g. , Norbert Stefan et al., Obesity and impaired metabolic health in patients with COVID-19 , Nature Revs. Endocrinol. (Apr. 23, 2020), https://www.nature.com/articles/s41574-020-0364-6 (last visited May 8, 2020) (hypothesizing based on preliminary data that "a high BMI might be an important risk factor for a severe course of disease"). Researchers in France have concluded that the severity of COVID-19 illness increases with body mass index and warned that "[p]atients with obesity and especially those with severe obesity should take extra measures to avoid COVID-19 contamination by enforcing prevention during the current pandemic." Arthur Simmonet et al., High prevalence of obesity in severe acute respiratory syndrome coronavirus-2 (SARS-CoV-2) requiring invasive mechanical ventilation , Obesity (Apr. 9, 2020), https://doi.org/10.1002/oby.22831 (last visited May 8, 2020). In New York City, researchers have reached similar conclusions. Petrilli et al., Factors associated with hospitalization and critical illness among 4,103 patients with COVID-19 disease in New York City , medRxiv (Apr. 11, 2020), https://www.medrxiv.org/content/10.1101/2020.04.08.20057794v1.full.pdf+html (last visited May 8, 2020) ("[T]he chronic condition with the strongest association with critical illness was obesity, with a substantially higher odds ratio than any cardiovascular or pulmonary disease.").
Mr. Jenkins' age and medical conditions, taken as a whole, make him more vulnerable to severe illness and even death from COVID-19. But, while he is incarcerated, he is unable to protect himself as he could on the outside. For instance, Mr. Jenkins represents that he will live with his daughter upon his release and will have his own bedroom and bathroom where he will be able to self-isolate.
I do not ignore the extensive efforts the Bureau of Prisons has undertaken to curtail the spread of COVID-19. But, as the Government concedes, its challenge to keep every inmate from contracting the virus is unsurmountable. See Gov't Resp. at 8, ECF No. 478 ("[S]ome inmates have become ill, and more likely will in the weeks ahead."). My colleague Magistrate Judge Neureiter has aptly described the problem:
Dr. Anthony Fauci's specific expert advice to elderly persons with underlying health conditions: "no large crowds no long trips. And above all, don't get on a
cruise ship." [Kati Blocker, Older Adults advised to ‘stay home as much as possible’ during coronavirus outbreak , UC Health Today (March 10, 2020), https://www.uchealth.org/today/older-adults-coronavirus-can-be-more-serious/]. Unfortunately, from a hygienic perspective, there are close parallels between the conditions on a cruise ship and conditions in jail. Inmates find themselves in close proximity to one another, sharing cells, sinks and toilets, sharing space in the chow line, and sharing the air they breathe. "Social distancing" is effectively an impossibility in jail.
United States v. Lopez , No. 19-cr-00429-WJM (D. Colo. Mar. 23, 2020), Order on Def.'s Mot. for Emergency Release at 2, ECF No. 89. The risk in prisons could also be compared to that for individuals in nursing homes or long-term care facilities. See Situation Summary , CDC (updated April 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (last visited May 8, 2020) (stating that persons in nursing homes or long-term care facilities are at higher risk for severe illness). Correctional facilities—like cruise ships and long-term care facilities—simply are not designed for inmates to practice social distancing. That includes FCI Englewood, where Mr. Jenkins reports that he shares a bunk bed with a cellmate and must navigate crowded common areas in order to take a shower, use the telephone, or do other common tasks.
An editorial in The Washington Post by medical professionals and experts describes how the COVID-19 coronavirus spread rapidly in Chinese correctional facilities, advising that, even if the flow of staff, new inmates, attorneys, and visitors "is limited to the extent possible, correctional facilities remain densely populated and poorly designed to prevent the inevitable rapid and widespread dissemination of this virus." Josiah Rich, Scott Allen, and Mavis Nimoh, We must release prisoners to lessen the spread of coronavirus , The Washington Post (March 17, 2020), https://www.washington post.com/opinions/2020/03/17/we-must-release-prisoners-lessen-spread-coronavirus/ (last visited May 8, 2020). The Government relies on the Bureau of Prisons' screening of staff members and necessary visitors, but part of the intractable nature of the disease is that individuals can spread it days before they show symptoms, see Wycliffe E. Wei et al., Presymptomatic Transmission of SARS-CoV-2 — Singapore, January 23–March 16, 2020 , 69 Morbidity & Mortality Weekly Rep. 411, 412, available at http://dx.doi.org/10.15585/mmwr.mm6914e1 ("The potential for presymptomatic transmission underscores the importance of social distancing, including the avoidance of congregate settings, to reduce COVID-19 spread."). Some have opined that "the most effective way to avoid an imminent outbreak, is ... to drastically reduce the populations of jails and prisons." Hawks, Woolhandler, and McCormick, supra. Medical professionals have urged officials to release "as many people as possible, focusing on those who are least likely to commit additional crimes, but also on the elderly and infirm ...." Matthew J. Akiyama, Anne C. Spaulding, and Josiah D. Rich, Flattening the Curve for Incarcerated Populations—Covid-19 in Jails and Prisons , New Eng. J. of Med. (Apr. 2, 2020), https://www.nejm.org/doi/10.1056/NEJMp 2005687 (last visited May 8, 2020). Yet the Bureau of Prisons is not pursuing and likely cannot pursue that route in full. See COVID-19 Coronavirus , Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited May 8, 2020) (indicating 2,257 inmates have been placed on home confinement, while 140,369 remain in Bureau of Prisons-managed institutions).
Despite the touting of information to the contrary, this is not a problem that will resolve itself in short order. Experts indicate we are just beginning our war against COVID-19. See, e.g. , Testimony of Tom Frieden before House Appropriations Subcommittee at 3 (May 6, 2020), available at https://docs.house.gov/meetings/AP/AP07/20200506/110747/HHRG-116-AP07-Wstate-FriedenT-20200506.pdf ("[A]s bad as this has been so far, we're just at the beginning.").
Consequently, I find extraordinary and compelling circumstances exist. The basic meanings of the words "extraordinary" and "compelling" underscore my conclusion. The most relevant definition for "extraordinary" in Black's Law Dictionary is "[b]eyond what is usual, customary, regular, or common." Extraordinary , Black's Law Dictionary (11th ed. 2019). The COVID-19 pandemic is exactly that—beyond the usual. And being at a higher risk for an outcome is by its nature uncommon. Black's contains no definition for "compelling" or "compelling reason" but defines "compelling need" as a "need so great that irreparable harm or injustice would result if it is not met." Compelling Need , Black's Law Dictionary (11th ed. 2019). Severe complications or death from COVID-19 would unquestionably be irreparable harm, and being forced to endure an even greater risk would be unjust. This battle for lives is "[b]eyond what is usual, customary, regular, or common" and, in Mr. Jenkins' case, implicates "irreparable harm or injustice."
B. Section 3553(a) Factors
As explained above, that determination is not sufficient; I must also take into account the factors set forth in 18 U.S.C. § 3553(a) in deciding whether reducing Mr. Jenkins' sentence to time served is warranted. While I consider all of the factors, most significant to my analysis are the nature and circumstances of Mr. Jenkins' offenses, his history and characteristics, and the need for the sentence imposed. These factors lead me to conclude that releasing Mr. Jenkins now will leave him with a sentence that is "sufficient, but not greater than necessary." 18 U.S.C. § 3553(a).
If Mr. Jenkins were prosecuted today, he would face a Guidelines range of 480 months' imprisonment to life. The Guidelines are now advisory, however, and as I find here, there would likely be grounds to vary under the remaining § 3553(a) factors.
He would be subject to the same range of 360 months to life on his drug-related convictions due to the sentencing judge's findings that 20.388 kilograms of cocaine base were involved in his offenses and he was a leader and organizer of the conspiracy. See U.S.S.G. § 2D1.1(c)(2). On his firearms convictions, the minimum sentence would be 60 months' imprisonment plus another 60 months, to run consecutively to each other and the drug-related sentence. See 18 U.S.C. § 924(c). Thus, the total range would be 480 months to life.
Mr. Jenkins' original criminal conduct was undoubtedly serious. Officers recovered seven firearms from him, including five semi-automatic handguns and stocks of ammunition. He was the "mastermind" of a drug ring that wreaked havoc on two Colorado cities. See Sentencing Tr. at 25:16. Yet, as Mr. Jenkins emphasizes, he was convicted of non-violent crimes, and 20 years have passed since the offenses were committed.
In those 20 years, Mr. Jenkins has endeavored to rewrite his story. He has avoided disciplinary problems, has proved himself to be an exceptional worker, and has taken numerous classes to better himself, even though he had no realistic prospect of ever being released until his sentence was commuted in 2017. Mr. Jenkins' most serious prior criminal convictions involved misdemeanor weapons offenses, which is concerning, but like the conduct in this case, they occurred decades ago. Moreover, as the United States Sentencing Commission has stated, "[o]lder offenders [are] substantially less likely than younger offenders to recidivate following release." U.S. Sentencing Comm'n, The Effects of Aging on Recidivism Among Federal Offenders at 3 (Dec. 2017), available at https://www.ussc.gov/sites/default/files/pdf/research-and-public ations/research-public ations/2017/20171207_Recidivism-Age.pdf.
With regard to the need for the sentence imposed, I ask: What more could be accomplished by incarcerating Mr. Jenkins for another two years and five months? And I conclude: Very little. Mr. Jenkins has served a significant sentence that reflects the seriousness of his offenses, promotes respect for the law, and is just. Even though his original sentence was 60 years, 20 years in prison cannot be viewed as lenient. Furthermore, there is no indication that he or others would be deterred to a greater extent by forcing him to remain incarcerated. Taking into account his age and his rehabilitation, I find he is not likely to commit additional crimes during the next two plus years. Additionally, COVID-19 provides a significant incentive to Mr. Jenkins to self-isolate such that criminal activity cannot easily be carried out. And his five-year term of supervised release provides further motivation for him to walk the straight and narrow.
All that being said, I recognize that it is not the opportune time to be released after a long sentence and to start afresh; finding employment, reuniting with family, and obtaining services may all be made extremely difficult. Mr. Jenkins represents that he will live with his daughter upon his release, so I anticipate he will have support and stability at the outset. Nevertheless, a formal release plan has yet to be finalized for Mr. Jenkins. I find it necessary and beneficial to Mr. Jenkins to give the Bureau of Prisons and Probation Office time to put one in place.
As I have tried to make clear in this Order, my conclusion is limited to this case based on the confluence of factors involved. It should not be read to endorse the release of any other defendants or to condemn the efforts of the Bureau of Prisons to secure its inmates.
IV. CONCLUSION
Accordingly, Mr. Jenkins' Motion for Compassionate Release (ECF No. 473) is GRANTED. Mr. Jenkins' sentence of imprisonment on all counts of conviction is reduced to time served. As stated in the Executive Grant of Clemency, his five-year term of supervised release remains intact. The Bureau of Prisons may delay Mr. Jenkins' release until his release plan can be approved by the Probation Office. This delay shall not exceed 14 days from today's date unless the Court orders otherwise.
From Mr. Jenkins' March 4, 2020 Individualized Reentry Plan (ECF No. 473-3), it appears that his daughter lives in Las Vegas, Nevada. If he intends to live with her there, the Probation Office in the District of Nevada will need to accept a transfer of his supervision. My understanding is that this relocation can be processed speedily. If, however, the transfer cannot be realized within 14 days from the date of this Order and it is necessary, I will add a special condition of supervised release that Mr. Jenkins be released to a residential reentry center here in Colorado for up to six months or until his supervision is transferred. I appreciate the prompt cooperation of the Probation Office in this matter.
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In addition to the standard conditions of supervision originally imposed, the following special conditions shall be imposed:
• Mr. Jenkins must participate in a cognitive behavioral treatment (CBT) program approved by the probation officer and must follow the rules and regulations of such program. The probation officer, in consultation with the treatment provider, will supervise his participation in the program as to modality, duration,
and intensity. Mr. Jenkins must pay for the cost of treatment based on his ability to pay.
• Mr. Jenkins shall not leave his residence for any reason for 14 days after he is released, unless it is with prior approval of the Probation Office.
• Mr. Jenkins shall submit to screening for COVID-19 as directed by the Probation Office. Should he exhibit symptoms consistent with the disease, he shall remain in quarantine or isolation as directed by the Probation Office.
• During the period of supervised release, Mr. Jenkins shall comply with national, state, and local public-health orders regarding COVID-19.
And, although it is most likely unnecessary, I remind Mr. Jenkins of the condition of his supervised release prohibiting him from owning a firearm and that he is now a felon and may not possess a firearm for that reason as well.