Opinion
CRIMINAL ACTION NO. 1:13-CR-22-AT-1
2021-03-08
UNITED STATES of America, v. Willie Vernon PARKS, Defendant.
Jenny R. Turner, Office of United States Attorney, Atlanta, GA, for United States of America. Dennis Craig O'Brien, Office of Dennis C. O'Brien, Marietta, GA, for Defendant.
Jenny R. Turner, Office of United States Attorney, Atlanta, GA, for United States of America. Dennis Craig O'Brien, Office of Dennis C. O'Brien, Marietta, GA, for Defendant. ORDER Amy Totenberg, United States District Judge
This case comes before the Court on Defendant Willie Vernon Parks' Amended Motion for Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), as amended by Section 603 of the First Step Act [Doc. 60]. The Government has filed a Response in Opposition [Doc. 66], and Mr. Parks filed his Reply [Doc. 67]. Having reviewed the record and applicable legal authority, the Court enters the following Order.
I. Background
In May 2011, Mr. Parks was arrested for operating a drug stash house in which agents found two kilograms of heroin and six firearms. (PSR ¶¶ 74, 92-97.) Later, Mr. Parks pled guilty to a conspiracy to possess heroin with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and a separate firearm trafficking charge for conspiring to buy firearms through straw purchases. (Id. ¶¶ 4, 77-84.) Mr. Parks was ultimately sentenced to serve 180 months to be followed by 5 years of supervised release, based on mandatory minimums. (Doc. 56.)
At present, Mr. Parks has been in federal prison for nearly a decade; his projected release date is March 27, 2024, in just over 3 years. He has served approximately 75 percent of his sentence, based on his anticipated date of release with good time. Currently housed in Yazoo City Low in Mississippi, which is a part of a larger complex including with Yazoo City Medium and Yazoo City USP, Mr. Parks is incarcerated in the lowest-security facility on the Yazoo City campus.
Inmate Locator, BOP ONLINE, available at https://www.bop.gov/inmateloc/ (last visited March 7, 2021).
Mr. Parks now moves for compassionate release, arguing that his drastic obesity (of a Body Mass Index ("BMI") of approximately 55), hypertension, enlarged heart, and race render him acutely vulnerable to severe illness from COVID-19. (See generally, Defendant's Amended Motion for Compassionate Release, Doc. 60; Defendant's Reply, Doc 67.) Further, Mr. Parks contends that he is no danger to the public and that the § 3553 sentencing factors weigh in favor of release, in light of his age (46), significant time already served (75% of his sentence), rehabilitation, and lack of violence in his admittedly long criminal history. (Reply at 20-21, 25-28.) The Government acknowledges that Mr. Parks' severe obesity constitutes an extraordinary and compelling reason that may support compassionate release (Gov. Response, Doc. 66 at 9) but argues that the Court should still deny his petition because he poses a danger to the community and because the § 3553 factors do not justify a sentence reduction. (Id. at 11.)
The Government here characterizes Mr. Parks' motion as requesting a four-year sentence reduction. (Id. at 11.) But his release date is anticipated to be March 27, 2024, which is approximately three years from now.
If released, Mr. Parks plans to live with his wife in McDonough, Georgia. He has received an offer of employment with a local barbershop, the owner of which is aware of Mr. Parks' situation and has confirmed to defense counsel that she has a job available for Mr. Parks. The Probation Office has confirmed the suitability of Mr. Parks' proposed living arrangement with his wife and family.
II. Legal Standard
Before the enactment of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 ("First Step Act"), compassionate release was only available if the Bureau of Prisons ("BOP") filed a motion requesting it. See 18 U.S.C. § 3582 (2002); see also U.S.S.G. § 1B1.13 ("Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce the term of imprisonment."). Now, however, the First Step Act enables a defendant to file a motion for compassionate release directly with the sentencing court, provided she has "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of [his] facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A) (2018).
Mr. Parks has provided satisfactory evidence of exhaustion. The Federal Defender's Office submitted a formal request on behalf of Mr. Parks to Warden Shaw and FCI Yazoo City Low on October 27, 2020. (Doc. 64-1.) The Warden did not respond to the request. (Doc. 64.) The Government now appears to acknowledge that Mr. Parks has exhausted his administrative remedies. (Doc. 66 at 3.)
Where the exhaustion requirement is satisfied, the First Step Act authorizes a court to modify a term of imprisonment "after considering the factors set forth in section 3553(a) to the extent they are applicable, if it finds that—(i) extraordinary and compelling circumstances warrant a reduction . . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. The Sentencing Commission's policy is found in § 1B1.13 of the Guidelines and that section's accompanying Application Notes. This policy statement provides that a court may reduce a term of imprisonment "if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent they are applicable, the court determines that (1)(A) extraordinary and compelling reasons warrant the reduction; . . . (2) the defendant is not a danger to the safety of any other person or to the community as provided in 18 U.S.C. § 3142(g); and (3) the reduction is consistent with this policy statement." U.S.S.G. § 1B1.13. Application Note 1 to this section lists three circumstances that would qualify as "extraordinary and compelling:" (1) medical condition; (2) advanced age; and (3) family circumstances. Id. § 1B1.13 cmt. n.1. Application Note 1 also includes a residual clause whereby the Director of the BOP may determine "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons" set out above. Id.
The Sentencing Commission has not updated this policy statement since the passage of the First Step Act. Section 1B1.13 therefore does not reflect the change in the procedural requirements for compassionate release. See United States v. Ebbers, 432 F. Supp. 3d 421, 427 (S.D.N.Y. 2020). Courts across the country—including this Court—still rely on § 1B.1.13 for guidance as to the "extraordinary and compelling reasons" that may warrant a sentence reduction. See United States v. Drummond, No. 1:97-cr-0019, Doc. 118 at 5 (N.D. Ga. Sept. 27, 2019) (viewing § 1B.1.13 as "non-binding guidance"); see also United States v. Solis, No. 16-015-CG-MU, 2019 WL 2518452, at *2-3 (S.D. Ala. June 18, 2019).
However, the Court is not limited to the technical requirements set forth in § 1B1.13 in assessing whether a defendant's application for compassionate release provides "extraordinary and compelling reasons" for a sentence reduction under § 3582(c)(1)(A)(i). See, e.g., United States v. Maria Ullings, No. 1:10-cr-406-MLB, Doc. 34 at 6 (N.D. Ga. May 12, 2020) (citing United States v. Perez, 451 F. Supp. 3d 288, 293-94 (S.D.N.Y. 2020)); United States v. Beck, 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019) ("While the old policy statement provides helpful guidance, it does not constrain the Court's independent assessment of whether 'extraordinary and compelling reasons' warrant a sentence reduction under § 3582(c)(1)(A)(i)."); United States v. Beard, No. 1:16-CR-285-SCJ, Doc. 176 at 6-7, 10 (N.D. Ga. June 25, 2020); United States v. Hill, No. 1:05-CR-0081-LMM, Doc. 45 at 4 (N.D. Ga. June 10, 2020); United States v. Noble, No. 1:09-CR-315-MHC, Doc. 58 at 3-6 (N.D. Ga. Nov. 24, 2020); United States v. Evans, No. 1:07-CR-119-CAP-1, Doc. 219 at 5 (N.D. Ga. Oct. 13, 2020) ("Stated otherwise, the court finds it is 'authorized to consider the enumerated circumstances, as well as circumstances other than, or in combination with, the enumerated circumstances.' ") (citing United States v. Kowalewki, No. 2:13-CR-45-RWS, Doc. 251 at 10 (N.D. Ga. Apr. 30, 2020)).
III. DISCUSSION
A. Extraordinary and Compelling Reasons
Mr. Parks relies first and foremost on his exceptionally severe obesity as an extraordinary and compelling reason meriting early release. (Reply at 3-7.) The Government accepts that Mr. Parks' obesity constitutes an extraordinary and compelling reason that may support release (Gov. Response at 9); this issue is therefore not in contention. Yet, the rarity and extremity of Mr. Parks' obesity — and the dire danger it poses to him were he to contract COVID-19 — demands further detail.
Mr. Parks has a BMI of 55. Less than six percent of adults in the country have a BMI above 40, and those with a BMI of 55 or higher die an average of 13.7 years earlier than most. The Centers for Disease Control ("CDC") defines obesity as a BMI over 30, and has provided guidance that "[h]aving obesity, defined as a body mass index (BMI) between 30 kg/㎡ and <40 kg/㎡ or severe obesity (BMI of 40 kg/㎡ or above), increases your risk of severe illness from COVID-19." According to the CDC, people with severe obesity (like Mr. Parks) are 4.5 times more likely to be hospitalized for COVID-19 than those who are not obese.
Cari M. Kitahara, et al., Association between Class III Obesity (BMI of 40-59 kg/m2) and Mortality: A Pooled Analysis of 20 Prospective Studies, PLOSMEDICINE (July 8, 2014), available at https://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1001673 (last visited March 5, 2021).
Centers for Disease Control, People with Certain Medical Conditions, updated Nov. 2, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited March 5, 2021).
Centers for Disease Control, COVID-19 Associated Hospitalization Related to Underlying Medical Conditions, August 8, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/downloads/covid-data/hospitalization-underlying-medical-conditions.pdf (last visited January 6, 2021).
Image materials not available for display. Id. Additional research highlights just how serious a risk obesity is in connection with COVID-19. A study from the University of North Carolina explains that "[f]rom COVID-19 risk to recovery, the odds are stacked against those with obesity," finding that individuals who have a BMI over 30 are a greatly increased risk for hospitalization (113%), more likely to be admitted to the intensive care unit (74%), and had a higher risk of death (48%) from COVID-19. Another major study in the United States found that more than 60 percent of people whose illnesses were severe enough to require hospitalization were obese. Dr. Leora Horwitz, the director of the Center for Healthcare Innovation and Delivery Science at NYU Langone, and a senior author of a study identifying obesity as a prominent risk factor in COVID-19 hospitalizations, explains that "[o]besity is more important for hospitalization than whether you have high blood pressure or diabetes . . . and it's more important than coronary disease or cancer or kidney disease, or even pulmonary disease." This increased risk stems from the reality that "[p]eople with obesity are more likely to have higher resistance in their airways, lower lung volumes, and weaker respiratory muscles, which are critical in the defense against COVID-19. These factors make an individual more likely to develop pneumonia, and they place additional stress on the heart."
See, Obesity linked with Higher Risk for COVID-19 Complications, The University of North Carolina at Chapel Hill Health and Medicine, August 26, 2020, available at: https://www.unc.edu/posts/2020/08/26/obesity-linked-with-higher-risk-for-covid-19-complications/ (last visited March 5, 2021).
Safiya Richardson, et al., Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized with COVID-19 in the New York City Area, J.AMER.MED.ASS'N (April 22, 2020), available at https://jamanetwork.com/journals/jama/fullarticle/2765184 (last visited March 5, 2021).
Roni Carin Rabin, Obesity Linked to Severe Coronavirus Disease, Especially for Younger Patients, N.Y.TIMES (April 16, 2020), available at https://www.nytimes.com/2020/04/16/health/coronavirus-obesity-higher-risk.html (last visited March 5, 2021).
Eleanor Bird, Latest Evidence on Obesity and COVID-19 , MEDICAL NEWS TODAY (May 6, 2020), available at https://www.medicalnewstoday.com/articles/latest-evidence-on-obesity-and-covid-19 (last visited March 5, 2021).
Obesity involves a buildup of fat, or adipose tissue, "around the rib cage and abdomen and in the visceral cavity," the interior of the abdomen, where vital organs are found. This buildup inhibits bodily functions, including those of the respiratory system; specifically, the increase in tissue reduces lung capacity, so that the lungs of an obese person contain less air after exhaling. Id. This reduced lung capacity increases the risk of airway closure. Id. at 5 n. 18. Further, obesity can cause shortness of breath, even where there is no obvious respiratory illness, and "stiffen" the respiratory system, thereby "increase[ing] the mechanical work needed for breathing." Id. As COVID-19 is a disease that often results in pneumonia and acute respiratory distress, it thus poses an incredible danger to an obese individual.
Cheryl M. Salome et al., Physiology of Obesity and Effects on Lung Function, 108 J. APPLIED PHYSIOLOGY 206, 206 (2010), available at: https://journals.physiology.org/doi/pdf/10.1152/japplphysiol.00694.2009 (last visited March 5, 2021).
Panagis Galiatsatos, What Coronavirus Does to the Lungs, JOHNS HOPKINS MEDICINE, Apr. 13, 2020, available at: https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-does-to-the-lungs (last visited March 5, 2021).
In addition, research has also shown that receptors for the particular protein (ACE2) that serves as the entry point for SARS-CoV-2 (the virus that causes COVID-19) may be more numerous in adipose (fat) tissue than in other types of tissue. For this reason, as Mr. Parks' counsel explains, "[s]imply put, the more obese a person is, the more adipose tissue he carries, and the more portals through which COVID-19 can enter his body and invade other organs." (Reply at 5-6.)
Mahmoud Gheblawi, et al., Angiotensin-Converting Enzyme 2: SARS-CoV-2 Receptor and Regulator of the Renin-Angiotensin System: Celebrating the 20th Anniversary of the Discovery of ACE2 (April 8, 2020), available at https://pubmed.ncbi.nlm.nih.gov/32264791/ (last visited March 5, 2021).
With a BMI hovering near 55, it is beyond doubt that Mr. Parks is in even more danger of perilous illness from COVID-19 than most individuals with obesity. While acknowledging that Mr. Parks' obesity is serious, the Government asks the Court to follow the rulings of other courts, not in this district, that have denied compassionate release to inmates with obesity. But these cases all involve situations markedly different from that of Mr. Parks. In nearly every case upon which the Government relies, the defendant had served a far smaller portion of his sentence, had a significant amount of time remaining, and/or had been sentenced for a physically violent offense. See e.g. United States v. Mack, 460 F. Supp. 3d 411, 417 (S.D.N.Y. 2020) (noting that defendant was only 5 months into a 3-year sentence, equivalent to less than 15 % of his sentence); United States v. Le, 2020 WL 6262102, at *2 (E.D. Pa. Oct. 22, 2020) (explaining that defendant had 191 months - 16 years — left on his sentence for crimes that included armed robberies); United States v. Hogan, 2020 WL 4347378, at **5-6 (M.D. Pa. July 29, 2020) (noting that defendant had completed less than 40% of his sentence and had violated bond in the case by committing new firearm and drug crimes); United States v. Evans, 2020 WL 3542231, at *1, **4-5 (D.D.C. June 30, 2020) (explaining that defendant had only served 22% of his sentence, had a lower BMI of 37.1 and threatened a government witness); United States v. Zubiate, 2020 WL 3127881, at **1-2 (S.D.N.Y. June 12, 2020) (explaining that defendant had served only 25% of his sentence); United States v. Oliver, 2020 WL 2768852, at *7 (E.D. Mich. May 28, 2020) (noting that defendant was only 2.5% into a 10-year sentence); United States v. Green, 2020 WL 3913498, at *4, *6 (N.D. Iowa, July 10, 2020) (defendant was serving life sentence for violent offense and had recent prison disciplinary history).
In contrast, defense counsel has provided the Court with a comprehensive list of cases in which judges in this district have granted compassionate release based at least in part on obesity in circumstances more comparable to that of Mr. Parks. (Reply at 7-8) (collecting at least 25 cases):
| ORDERS GRANTING COMPASSIONATE RELEASE NORTHERN DISTRICT OF GEORGIA | |
|---|---|
| Case name & citation | Grounds for relief & notable facts/holdings |
| United States v. Acuna, No. 1:04-CR-571-CAP-1, Doc. 555 (N.D. Ga. Nov. 17, 2020) | Morbid/extreme obesity, sleep apnea/nasal surgery, hypertension, and he is a long-time smoker |
| United States v. Arnon, No. 1:18-CR-496-AT-1, Doc. 44 (N.D. Ga. Jan. 27, 2021) | Obesity, hyperlipidemia, African-American; plus only 36 percent through the sentence and only 25 years old. |
| United States v. Barrett, No. 1:18-CR-225-TWT-1, Doc. 49 (N.D. Ga. Sept. 4, 2020) | Chronic kidney disease, extreme obesity, sleep apnea, aortic dissection (heart condition), and hypertension. |
| United States v. William Brown, No. 1:18-CR-33-LMM-2, Doc. 52 (N.D. Ga. Oct. 30, 2020) | Obesity, diabetes, and major depressive disorder; FMC Lexington. |
| United States v. Butler, No. 1:17-CR-207-CAP-2, Doc. 481 (N.D. Ga. Dec. 4, 2020). | Extreme obesity and hypertension; getaway driver in bank robbery; served just shy of 50 percent of his sentence with a sterling disciplinary history. |
| United States v. Collier, No. 1:15-CR-107-MHC-1, Doc. 249 (N.D. Ga. Dec. 16, 2020) | Obesity (BMI 50+), hypertension, and diabetes. |
| ORDERS GRANTING COMPASSIONATE RELEASE NORTHERN DISTRICT OF GEORGIA | |
|---|---|
| Case name & citation | Grounds for relief & notable facts/holdings |
| United States v. de la Vaca, No. 1:07-CR-370-MLB-3, Doc. 101 (N.D. Ga. Nov. 20, 2020) | Mental health issues (depression and anxiety), obesity, hypertension, high cholesterol, Vitamin C deficiency. |
| United States v. Evans, No. 1:07-CR-119-CAP-1 (N.D. Ga. Oct. 13, 2020) | Diabetes, obesity, hypertension, and HIV; less than 50 percent of sentence. |
| United States v. Guerrero-Martinez, No. 1:07-CR-279-CAP-2, Doc. 2365 (N.D. Ga. Dec. 17, 2020) | Obesity, diabetes, hyperlipidemia, and Latinx. |
| United States v. Hardman, No. 1:10-CR-505-SCJ-1, Doc. 121 (N.D. Ga. Jan. 15, 2021) | Obesity, hypertension, long period in solitary confinement. |
| United States v. Hoard, No. 1:16-CR-383-LMM-4, Doc. 146 (N.D. Ga. Jan. 5, 2021) | Extreme obesity (BMI 43), diabetes, hypertension, depression, African-American. |
| United States v. Holden, No. 2:16-CR-9-RWS-8, Doc. 560 (N.D. Ga. Aug. 18, 2020) | Extreme obesity, asthma, sleep apnea, hypertension, and heart arrhythmia. |
| United States v. Hunnicutt, No. 1:17-CR-418-SCJ-1, Doc. 62 (N.D. Ga. Dec. 30, 2020) | Obesity and hypertension. |
| United States v. Jones, No. 1:18-CR-273-JPB-1, Doc. 21 (N.D. Ga. Oct. 7, 2020) | Diabetes, obesity, African-American. |
| United States v. Jordan, No. 1:12-CR-206-TCB-1 (N.D. Ga. Jan. 19, 2021) | Asthma and obesity. |
| United States v. Marshall, No. 1:16-CR-352-RWS-1, Doc. 337 (N.D. Ga. Dec. 4, 2020) | Obesity, asthma, and more. |
| United States v. Medina, No. 1:09-CR-191-TCB-4, Doc. 403 (N.D. Ga. Nov. 20, 2020) | Diabetes, obesity, kidney disease, and hypertension. |
| ORDERS GRANTING COMPASSIONATE RELEASE NORTHERN DISTRICT OF GEORGIA | |
|---|---|
| Case name & citation | Grounds for relief & notable facts/holdings |
| United States v. Breanna Noble, No. 1:18-CR-319-AT-1, Doc. 25 (N.D. Ga. Jan. 8, 2021) | Depression, PTSD, anxiety disorder, asthma, HTN, pre-diabetes, and obesity (BMI 34); African-American. |
| United States v. William Bert Noble, No. 1:09-CR-315-MHC-1, Doc. 58 (N.D. Ga. Nov. 24, 2020) | Obesity, pre-diabetes, hypertension, and the fact that he is Black. |
| United States v. Pace, No. 2:16-CR-32-RWS-3, Doc. 149 (N.D. Ga. Oct. 20, 2020) | Obesity, diabetes, hypertension. |
| United States v. Richards, No. 1:07-CR-412-CAP-18, Doc. 1122 (N.D. Ga. Nov. 16, 2020) | Obesity, HTN. |
| United States v. Samuda, No. 1:11-CR-484-MLB-1, Doc. 64 (N.D. Ga. Dec. 15, 2020) | Heart disease (myocardial eschemia), diabetes, obesity, and HTN. Plus, he is Black. |
| United States v. Sims, No. 1:09-CR-249-TWT-1, Doc. 63 (N.D. Ga. Dec. 23, 2020) | Obesity (BMI 34), HTN, pre-diabetes, steroid shots in knee and triamcinolone (strong corticosteroid) for feet, African American. |
| United States v. Ullings, No. 1:10-CR-406-MLB-1, Doc. 34 (N.D. Ga. May 12, 2020) | Age (66 years old), obesity, hypertension. |
| United States v. Wright, No. 1:14-CR-280-CAP-1, Doc. 32 (N.D. Ga. Sept. 21, 2020) | Diabetes, asthma, hypertension, obesity, depression, mild intellectual disability, African-American. |
On top of his extreme obesity, Mr. Parks relies on two other medical concerns: hypertension and a congenital heart condition. Mr. Parks' medical records evidence that his blood pressure falls within the definition of "high blood pressure (hypertension), Stage 1," as defined by the American Heart Association. As seen in the below chart, an individual is categorized as having high blood pressure (hypertension) Stage 1 if his systolic mm Hg is between 130 and 139 or his diastolic mm Hg is 90 or higher:
HEART.ORG, available at https://www.heart.org/en/health-topics/high-blood-pressure/high-blood-pressure-toolkit-resources (last visited March 5, 2021).
Image materials not available for display. Though taken over a year and a half ago, Mr. Parks' last two blood pressure readings - at 131/77 in June 2019 and 130/84 in July 2019 — fall within the American Heart Association's definition of hypertension. (Reply, Attachment A at 4,6,8; Gov. Response at 9 n. 4.) The Government discounts Mr. Parks' high blood pressure because it has not been diagnosed or confirmed with a medical professional. (Gov. Response at n. 4.) Yet, as defense counsel suggests, Mr. Parks may not even be aware that his blood pressure is high enough for him to pursue obtaining an official hypertension diagnosis within BOP in the last 18 months. Further, he does not have control over whether or when an appropriate medical professional within the BOP would make such a diagnosis, particularly during the last 12 months of emergency COVID-19 conditions. (Reply at 12-13.) Since Mr. Parks' blood pressure has not been taken in over 18 months, it is unclear whether it remains elevated at similar levels, has lowered, or is in fact higher that it was a year and a half ago. The CDC advises that "adults of any age with [hypertension or high blood pressure] might be at increased risk for severe illness from the virus that causes COVID-19." Data also shows that "nearly half of the patients who died [from COVID-19] had high blood pressure" and that "hypertension doubles the risk that a person will die from the coronavirus." On its own, Mr. Parks' hypertension would likely not constitute an extraordinary and compelling reason, but under his specific medical circumstances, it is a relevant factor in the calculus and lends additional weight to his primary rationale for release, his extreme obesity.
People with Certain Medical Conditions, CDC ONLINE (Feb. 3, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited March 5, 2021).
Erik Greb, COVID-19: Hypertension Tied to Twofold Increase in Mortality, MEDSCAPE (June 15, 2020), available at https://www.medscape.com/viewarticle/932377 (last visited March 5, 2021).
Likewise, Mr. Parks' enlarged heart (cardiomegaly) is not irrelevant. The Government argues that "Mr. Parks's BOP medical records repeatedly state that he has no cardiovascular issues." (Gov. Response at 9, n. 3.) But Mr. Parks' enlarged heart is undisputedly referenced in his PSR ¶ 184. ("He was born with an enlarged heart.") The Government acknowledges that his mother confirmed this diagnosis. (Gov. Response at 8-9 n. 3.) The PSR also details that Mr. Parks' father suffered six heart attacks, the last of which was fatal, and his mother suffers from congestive heart failure. (PSR ¶ 181.) According to the Mayo Clinic, an enlarged heart "isn't a disease, but rather a sign of another condition." That "other condition" could include "coronary artery disease, heart valve problems, or abnormal heart rhythms" and complications could involve "heart failure, blood clots, heart murmur, cardiac arrest, and sudden death." Id. Defendant argues that Mr. Parks may have a perfectly healthy heart, or, "his cardiac risks [may] hide in plain sight, waiting for a precipitating event [to] come along—an event, say, like the COVID-19 pandemic." (Reply at 14.) Due to the lack of medical records available that might show a diagnosis of any cardiac disease, the Court cannot rely on Mr. Parks' enlarged heart as any significant basis for release. That being said, his apparent condition is not entirely irrelevant to his circumstances, particularly in light of his family history.
Enlarged Heart, MAYO CLINIC (Jan. 16, 2020), available at https://www.mayoclinic.org/diseases-conditions/enlarged-heart/symptoms-causes/syc-20355436 (last visited March 5, 2021).
Mr. Parks also highlights rulings from other district courts detailing the well-established but nevertheless deeply disturbing danger COVID-19 poses to incarcerated individuals, captive inside prison walls. See e.g. United States v. Propst, No. 1:08-CR-187-CAP-1, Doc. 252 at 6 (N.D. Ga. Jan. 5, 2021) ("Already 'tinderboxes for infectious disease,' prisons now are even more dangerous than we typically accept."); United States v. Scparta, No. 1:18-CR-578-AJN-1, Doc. 69 at 18 (S.D.N.Y. Apr. 19, 2020) ([T]he COVID-19 pandemic presents an extraordinary and unprecedented threat to incarcerated individuals" and "each day, perhaps each hour, that elapses threatens incarcerated defendants with greater peril."). At the time of this Order, the situation at the Yazoo City complex was as follows:
At the time of Mr. Parks' reply brief, the BOP reported 2,205 inmates and 1,729 staff with active COVID-19 cases. Further, at this time, the BOP reported as recovered 44,182 inmates and 4,497 staff; however, Mr. Parks suggests that some inmate deaths have been reported as recoveries. This is deeply troubling to the Court.
COVID-19 Cases, BOP, available at https://www.bop.gov/coronavirus (last visited March 5, 2021).
| Facility | Active inmate infections | Active staff infections | Inmate recoveries | Staff recoveries | Inmate deaths |
| Yazoo City Medium FCI | 24 | 6 | 145 | 10 | 0 |
| Yazoo City USP | 12 | 7 | 227 | 12 | 1 |
| Yazoo City Low | 2 | 5 | 82 | 9 | 3 |
Cases have stayed about the same over the past two weeks and are still very high. The number of hospitalized Covid patients has fallen in the Yazoo County area. Deaths have remained at about the same level. The test positivity rate in Yazoo County is high, suggesting that cases may be undercounted.Thus, while the situation in the Yazoo facilities is not as dire as within some other prisons, it is inescapably true that the spread of COVID-19 poses "unique and grave risk" to incarcerated individuals and "prison cannot be made safer than a home environment." United States v. Briseno-Valdez, No. 1:02-CR-339-TWT-1, Doc. 146 at 4 (N.D. Ga. Sept. 10, 2020).
Updated March 5
Tracking Coronavirus in Yazoo County, Miss., N.Y.TIMES (March 5, 2021), available at https://www.nytimes.com/interactive/2021/us/yazoo-mississippi-covid-cases.html (last visited March 5, 2021).
In his initial motion, Mr. Parks also argues that he is particularly susceptible to severe illness from COVID-19 because he is Black. (Am. Mot. for Compassionate Release at 2, 18-19.) Data has shown that racial and ethnic minorities, with or without underlying comorbidities, are at higher risk for severe COVID-19 illness.
Centers for Disease Control, COVID-19 Cases, Hospitalizations, and Deaths, by Race/Ethnicity, November 30, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/downloads/covid-data/hospitalization-death-by-race-ethnicity.pdf (last visited March 5, 2021).
Image materials not available for display. Id. This reality adds to the pile of reasons that Mr. Parks may be increasingly susceptible to severe illness from COVID-19. See United States v. de la Vaca, No. 1:07-CR-370, Doc. 101 at 2 (N.D. Ga. Nov. 20, 2020) ("As a racial minority, Defendant is also more likely to die or suffer severe problems from the coronavirus than [her] white counterparts."); United States v. Butler, No. 1:17-CR-207-CAP-2, Doc. 481 (N.D. Ga. Dec. 4, 2020) (explaining that defendant with obesity and hypertension was particularly susceptible to COVID-19 because he is Black).
Considering all of the relevant circumstances, Mr. Parks has shown that he is at acute risk of severe illness from COVID-19, primarily because of his extreme obesity but also due to his hypertension, race, and apparent heart condition and family cardiac disease history, and has therefore established extraordinary and compelling reasons for release.
As noted above, Section 3582 requires the Court to consider any applicable factors within 18 U.S.C. § 3553(a). See 18 U.S.C. § 3852(c)(1)(A). Section 3553(a) requires that the Court "shall impose a sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing identified in paragraph 2 of the statute, The Section 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--
(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;"
18 U.S.C. § 3553 (2018); and see United States v. Chambliss, 948 F.3d 691, 693-94 n.3 (5th Cir. 2020) (quoting 18 U.S.C. § 3553(a)).
(3) the sentencing guidelines;
(4) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct;" and
(5) "the need to provide restitution to any victims of the offense."
The Government argues that Mr. Parks is a threat to the community and that the § 3553(a) factors do not support reducing Mr. Parks' sentence to time served. (Gov. Response at 12-14.) As noted supra, the Government's argument rests in part on an inaccurate calculation of Mr. Parks' remaining time to serve. While the Government twice argues that Mr. Parks has four years left to serve (id. at 14), his calculated release date is March 27, 2024—just over three years from now.
As to his danger to the community, the Government recounts the gravity of Mr. Parks' crimes. Mr. Parks was one of 30 defendants charged in a drug trafficking conspiracy; he was a drug distributor who maintained a stash house, filled with drugs and guns. (PSR ¶¶ 38, 74, 93-97, 101-103.) When he was arrested, approximately 2 kilograms of heroin and six firearms were seized. (Id. ¶¶ 95, 97.) Mr. Parks also pled to a separate conspiracy involving having straw purchasers illegally purchase eleven firearms on his behalf. (Id. ¶¶ 4, 77-84.) The Government also points to Mr. Parks' lengthy criminal history. (Id. ¶¶ 132-151.)
Mr. Parks acknowledges his long criminal history but urges the Court to look to the details rather than the length, explaining:
His record is long, to be sure, but the first eleven convictions were all misdemeanors and occurred by the time Mr. Parks was 21 years old. The next round of convictions include felonies for possession of marijuana, possession of cocaine, possession of a firearm by a convicted felon, and possession of marijuana with the intent to distribute—none of which is remotely violent.(Reply at 20) (citing PSR ¶¶ 133-143, 144-147.) The "final batch" are also non-violent misdemeanors. (PSR ¶¶ 148-152.) Of consequence, Mr. Parks reiterates that he has never used or threatened violence against anyone, with or without a firearm. (Reply at 21.)
The crimes involved here were very serious and Mr. Parks was no small fish in the drug organization. The Court also notes that Mr. Parks' criminal history indicates that he had been immersed in unlawful conduct for some time. On the other hand, the conduct at issue occurred nearly a decade in the past and Mr. Parks has never been charged with any conduct involving physical violence towards another person. Mr. Parks is now 46 years old; at this age, defendants pose a lower risk of re-offending than their younger counterparts. In addition, Mr. Parks' post-sentencing history reflects that he has taken at least 11 education courses since being in prison, (Amended Motion, Doc. 60 at 41), although there have not been any classes offered since March 2020. (Id. at 43.) Of special note, the BOP has placed Mr. Parks in the lowest security facility at Yazoo City, and Mr. Parks' "Overall Male Pattern Risk Level" is classified as "Low." (Id. at 45.) At this juncture, Mr. Parks has served approximately 75 % of his sentence. "[T]he case for release becomes more compelling . . . for a defendant with a very small fraction of his sentence left . . . because the benefits of keeping him in prison for the remainder of his sentence are minimal, and the potential consequences of doing so are extraordinarily grave." United States v. Byse, No: 1:08-CR-379-RWS, Doc. 56 at 13 (N.D. Ga. Aug. 28, 2020) (citing United States v. Clark, 467 F.Supp.3d 684, 692 (S.D. Iowa 2020)) (quoting United States v. Perez 451 F. Supp. 3d 288, 293-294 (S.D.N.Y. Apr. 1, 2020)). On top of these factors, Mr. Parks has supplied a viable re-entry plan which includes a verified offer of employment with a local barbershop, the owner of which is fully aware of his circumstance and is intent on providing Mr. Parks a real opportunity for lawful employment. Additionally, the Court has considered in this evaluation what procedures it can order in conjunction with Probation to ensure that precautionary measures are implemented in conjunction with Mr. Parks' release. Taking all of these relevant factors into account, the Court determines that the § 3553(a) factors support granting compassionate release and that Mr. Parks' release can be handled in a properly supervised manner so that he does not pose a risk of danger to the public.
Mr. Parks also argues that ten years in prison is no less sufficient deterrence than 13 years, in light of the Department of Justice's recognition that "[i]ncreasing the severity of punishment does little to deter crime." Five Things About Deterrence U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, (May 2016), https://www.ncjrs.gov/pdffiles1/nij/247350.pdf#:~:text=% 20% 20% 20Title% 20% 20% 20Five% 20Things,Created% 20Date% 20% 20% 205% 2F24% 2F2016% 201% 3A34% 3A15% 20PM% 20 (last visited March 5, 2021).
See The Effects of Aging on Recidivism Among Federal Offenders, United States Sentencing Commission, Dec. 2017, available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207 Recidivism-Age.pdf (last accessed March 5, 2021) (concluding that older offenders are substantially less likely to recidivate following release compared to younger cohorts, a pattern consistent across age groups).
IV. Conclusion
It is hereby ORDERED that Defendant's Motion and Amended Motion for Compassionate Release [Docs. 58, 60] are GRANTED. Accordingly, Defendant's term of imprisonment is REDUCED to TIME SERVED. Defendant shall quarantine within the Yazoo City Low facility for ten (10) days, to begin no later than Wednesday March 10, 2021. Upon completion of the 10-day quarantine, Mr. Parks' wife may retrieve him from FCI Yazoo City. The BOP is DIRECTED to communicate with defense counsel as to the exact date Mr. Parks begins his quarantine so that his wife can pick him up at the appropriate time.
Upon release from custody, Willie Vernon Parks is HEREBY ORDERED to commence serving the previously imposed 5-year term of supervised release and shall abide by all of the mandatory, standard, and special conditions of supervised release previously imposed (See Doc. 56), as well as the following additional special conditions:
Mr. Parks shall be placed on HOME DETENTION for a period of one year and shall reside at the home of his wife in McDonough, Georgia. Mr. Parks shall be subject to location electronic monitoring for a period of 120 days and must abide by all program rules and requirements. The type of location monitoring technology will be at the discretion of the probation officer. The probation officer is authorized to shorten or extend the 120-period based on Mr. Parks' conduct.
During the first four-month period of home detention, Mr. Parks shall be authorized to leave the house solely based on a probation officer approved schedule and arrangements for: (1) employment; (2) mental health counseling or drug treatment; (3) medical and legal appointments; (4) 75 minutes of daily exercise outside the house or comparable family activity, within a perimeter of 7 miles of his home; (5) attendance at religious services; and (6) any other activities pre-approved by the probation officer. After completion of the four-month period, Probation may modify and further loosen or heighten these conditions and restrictions based on Mr. Parks' compliance with these terms, or recommend the termination of home confinement, subject to other conditions.
Mr. Parks is DIRECTED to contact Mr. Chris Colquitt with the Probation Department of the Northern District of Georgia at 404-215-1952 within 72 hours of his release to make arrangements for meeting or conversing with a Probation Department Officer relative to managing his supervised release and electronic monitoring.
In no event shall Mr. Parks be confined within the Bureau of Prisons beyond March 20, 2021. The Clerk is DIRECTED to provide a copy of this Order to the United States Probation Office. The Assistant United States Assistant Attorney in this matter or her designee is DIRECTED to contact the Bureau of Prisons immediately on this date (March 8, 2021) to notify an appropriate representative of the issuance of this Order and its requirements.
IT IS SO ORDERED this 8th day of March, 2021.