Opinion
No. 2:02-cr-20026
2020-07-14
UNITED STATES of America, Plaintiff, v. Hampton POOLE, Defendant.
Stephen P. Hall, U.S. Attorney's Office, Memphis, TN, for Plaintiff. April Rose Goode, Federal Public Defender, Memphis, TN, for Defendant.
Stephen P. Hall, U.S. Attorney's Office, Memphis, TN, for Plaintiff.
April Rose Goode, Federal Public Defender, Memphis, TN, for Defendant.
ORDER
SAMUEL H. MAYS, Jr., UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Hampton Poole's June 30, 2020 motion for compassionate release, brought under 18 U.S.C. § 3582(c)(1)(A). (ECF No. 182.) The government responded on July 7, 2020. (ECF No. 184.)
For the following reasons, the motion is GRANTED.
I. Background
In January 2002, Poole was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (ECF No. 1.) In January 2003, he proceeded to trial and a mistrial was declared. (ECF Nos. 57-60.) The government then filed a superseding indictment, adding a count of possession of cocaine base with intent to distribute, in violation of 18 U.S.C. § 841(a)(1), and a count of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). (ECF No. 67.) Those additional charges arose from the same conduct as Poole's initial § 922 charge. (See id. ) After a jury trial, Poole was found guilty on all counts and sentenced to a total term of 322 months in prison to be followed by a six-year term of supervised release. (ECF Nos. 104, 107, 111, 113, 116, 122, 125.)
Poole appealed. (ECF No. 126, 128.) The Sixth Circuit affirmed his conviction, but vacated his sentence in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). United States v. Poole, 407 F.3d 767, 777-78 (6th Cir. 2005), cert. denied, 546 U.S. 913, 126 S. Ct. 279, 163 L.Ed.2d 248 (2005). In 2005, the Court resentenced Poole to 270 months in prison to be followed by a six-year term of supervised release. (ECF Nos. 141-42.) On appeal, the Sixth Circuit affirmed. (ECF No. 151.)
Poole was sentenced to 210 months on the § 841 count, a 120-month concurrent sentence on the § 922(g) count, and a sixty-month mandatory consecutive sentence on the § 924(c) count. (ECF Nos. 141-42.)
On June 30, 2020, Poole filed a motion seeking compassionate release. (ECF No. 182.) He argues that he has diabetes, high blood pressure, a history of mini-strokes, is 67 years old, and is at a high risk of contracting COVID-19 at the facility where he is located. (See id. at 2, 7-9.) He argues that he has exhausted his administrative remedies because he filed compassionate release requests with the warden in December 2019 and twice in February 2020. (Id. at 2; No. 182-1 at 1-5.) The warden denied those requests in April 2020. (ECF No. 182-1 at 6.)
The government responded on July 7, 2020, arguing that Poole has not exhausted his administrative remedies because his compassionate release requests to the warden included only age-based arguments and not medical-or COVID-19-based arguments. (ECF No. 184 at 8-11.) The government argues that, to exhaust one's remedies under the statute properly, one must present the exact arguments to the BOP before presenting them to the Court. (See id. ) The government concedes that Poole's medical conditions satisfy the Policy Statement's medical conditions grounds for compassionate release. (See id. at 11-12.) The government argues, however, that the § 3553(a) factors weigh against release because of Poole's "life of crime, his continuing drug distribution conduct, and his refusal to accept responsibility for his actions." (Id. at 12-13.)
Poole is 67 years old. His projected release date is October 29, 2022. BOP Inmate Locator, https://www.bop.gov/inmateloc/"Hampton Poole," (last accessed July 14, 2020).
II. Standard of Review
A sentencing court does not have inherent authority to modify an otherwise valid sentence. United States v. Washington, 584 F.3d 693, 700 (6th Cir. 2009). The authority to resentence a defendant is limited by statute. United States v. Houston, 529 F.3d 743, 748-49 (6th Cir. 2008) (citing United States v. Ross, 245 F.3d 577, 585 (6th Cir. 2001) ).
Eighteen U.S.C. § 3582(c)(1)(A) allows a court to modify a term of imprisonment where "extraordinary and compelling reasons warrant [modification]." Motions under that section have been called "motions for compassionate release." United States v. McCann, No. 13-cr-52, 2020 WL 1901089, at *1 (E.D. Ky. Apr. 17, 2020). "The compassionate release provisions were ... intended to be a ‘safety valve’ to reduce a sentence in the ‘unusual case in which the defendant's circumstances are so changed, such as by terminal illness, that it would be inequitable to continue the confinement of the prisoner.’ " United States v. Ebbers, 432 F.Supp.3d 421, 430 (S.D.N.Y. 2020) (citing S. Rep. 98-225, at 121 (1983)).
In the First Step Act, Congress amended 18 U.S.C. § 3582(c)(1)(A) to allow a prisoner to file a motion for compassionate release on his own behalf. Before the First Step Act, a motion for compassionate release could be brought only by the Director of the Bureau of Prisons (the "BOP"). United States v. York, Nos. 3:11-cr-76, 3:12-cr-145, 2019 WL 3241166, at *4 (E.D. Tenn. July 18, 2019) (citing 18 U.S.C. § 3582(c)(1)(A) (2017) ). The First Step Act modified § 3582(c)(1)(A) with the intent of "increasing the use and transparency of compassionate release." Pub. L. No. 115-391, 132 Stat. 5194, 5239 (capitalization omitted); see also Ebbers, 432 F.Supp.3d at 430-31.
Section 3582(c)(1)(A) now provides that:
[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that --
(i) extraordinary and compelling reasons warrant such a reduction ...
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission ....
Congress directed the United States Sentencing Commission, "in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, [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) ; see also 28 U.S.C. § 994(a)(2)(C). In the United States Sentencing Commission Guidelines Manual (the "U.S.S.G."), the Sentencing Commission has published a policy statement addressing the standards for compassionate release. See U.S.S.G. § 1B1.13 (the "Policy Statement"). That Policy Statement reiterates that a court may reduce a term of imprisonment under § 3582(c)(1)(A) if "extraordinary and compelling reasons warrant the reduction" and "after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable." Id. The Policy Statement also directs courts to determine that "the defendant is not a danger to the safety of any other person or to the community," before reducing a term of imprisonment under § 3582(c)(1)(A). Id.
The Application Notes to the Policy Statement describe four categories of "extraordinary and compelling reasons" that may justify compassionate release under § 3582(c)(1)(A) : (A) the medical condition of the defendant; (B) the age of the defendant; (C) family circumstances; and (D) other reasons. See U.S.S.G. § 1B1.13, cmt. n.1(A)-(D); United States v. Dusenbery, No. 5:91-cr-291, 2019 WL 6111418, at *2 (N.D. Ohio Nov. 18, 2019). The "medical condition of the defendant" category allows compassionate release if the defendant is "suffering from a serious physical or medical condition ... 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." Id. cmt. n.1(A). The "other reasons" category allows compassionate release if, "[a]s determined by the Director of the Bureau of Prisons, there exists ... an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)." U.S.S.G. § 1B1.13, cmt. n.1(D). The Application Notes to the Policy Statement do not give examples or provide more guidance for situations that might fall within the "other reasons" category. Courts have interpreted the "[a]s determined by the Director of the Bureau of Prisons" language to "include any ‘other reasons’ defined by the Bureau of Prison's Program Statement 5050.[50] (‘BOP Statement’)" on compassionate release. See United States v. Hansen, No. 07-cr-00520, 2020 WL 1703672, at *6 (E.D.N.Y. Apr. 8, 2020). One "other reason" in the BOP Statement is an "age-only" category, where a reduction in sentence may be entertained for "[i]nmates age 65 or older who have served the greater of 10 years or 75% of the term of imprisonment to which the inmate was sentenced." BOP Statement § 5050.50(4)(c); see also Hansen, 2020 WL 1703672, at *6 ; United States v. Gutierrez, No. 05-cr-0217, 2019 WL 2422601, at *3 (D.N.M. June 10, 2019).
A restriction, however, is that "rehabilitation ... is not, by itself, an extraordinary and compelling reason for" release under the "other reasons" category. U.S.S.G. § 1B1.13, cmt. n.3.
Section 3582(c)(1)(A) also requires a defendant to exhaust his administrative remedies with the BOP before seeking judicial relief. United States v. Alam, 960 F.3d 831, 832-34 (6th Cir. 2020). A defendant may exhaust his administrative remedies in one of two ways: (1) by exhausting his "administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf," or (2) on "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). The defendant bears the burden of showing he has exhausted his administrative remedies and is entitled to compassionate release. See Ebbers, 432 F.Supp.3d at 426-27 (citing United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992) ). Because this exhaustion requirement is a mandatory claim-processing rule, it is subject to waiver and forfeiture. See Alam, 960 F.3d at 834-35 (citing United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) ).
III. Analysis
Poole seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A). (ECF No. 182.) He asks that the "Court requir[e] home confinement for the period equal to the remaining term of incarceration he would serve without this Court's modification order." (Id. at 9.) The Court does not have authority under § 3582(c)(1)(A) to place a prisoner in home confinement. Miller v. United States, No. 16-cr-20222, 453 F.Supp.3d 1062, 1064–66, (E.D. Mich. Apr. 9, 2020) (collecting cases). Therefore, the Court construes Poole's request as one for a reduction in sentence or immediate release.
A. Exhaustion
Section 3582(c)(1)(A) requires a defendant to exhaust his administrative remedies with the BOP. Alam, 960 F.3d at 832-34. Poole submits proof that, in December 2019 and February 2020, he requested, and was later denied, compassionate release by the BOP. (ECF No. 182-1 at 1-6.) The government argues that, although Poole has previously requested compassionate release, he has not exhausted his administrative remedies because he makes arguments to the Court that he has not made to the BOP. (ECF No. 184 at 8-11.) The government argues that Poole's request to the BOP was "solely based on his claim of being elderly," and that "Poole should present a new request to BOP to satisfy the exhaustion requirement with respect to his compassionate release claim and being vulnerable due to COVID-19." (Id. at 9.)
There is a split among district courts about whether a defendant has exhausted his administrative remedies as required by § 3582(c)(1)(A) when the defendant requests relief from the Court based on grounds not directly raised to the BOP. Compare United States v. Parker, No. 2:98-cr-00749-CAS-1, 461 F.Supp.3d 966, 976–77, (C.D. Cal. May 21, 2020) (surveying cases rejecting the argument that an inmate must first raise COVID-19 in a request to the warden in order to raise COVID-19 in a motion seeking release by the court), with United States v. Jeffers, No. CR13-3033-LTS, 466 F.Supp.3d 999, 1005–06, (N.D. Iowa June 11, 2020) (collecting cases finding that that COVID-19 must be raised in defendant's request to the BOP); United States v. Jenkins, No. 4:15-CR-3079, 2020 WL 1872568, at *1 (D. Neb. Apr. 14, 2020) ("[T]he Court does not view the administrative exhaustion of an initial request for compassionate release as serving to discharge that requirement for subsequent requests based on different evidence and argument.").
The government argues that exhaustion requires a defendant to make the same arguments to the Court that he made to the BOP. The plain language of the statute includes no such requirement. The statute provides that: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility ...." 18 U.S.C. § 3582(c)(1)(A) (emphases added). That language establishes that exhaustion requires a "request" to the BOP to "bring a [compassionate release] motion on the defendant's behalf." Id. The statute contains no language requiring that a court consider only arguments raised first to the BOP or requiring a defendant to raise each ground for relief to the BOP. See Jeffers, 466 F.Supp.3d at 1005, ("No issue exhaustion exists in the text of § 3582(c)(1)(A)"); United States v. Brown, No. 4:05-CR-00227-1, 457 F.Supp.3d 691, 697, (S.D. Iowa Apr. 29, 2020) ("[I]ssue exhaustion is inappropriate because § 3582 contains no such requirement ....").
This reading of § 3582 is consistent with Congress's intent. The purpose of empowering courts to consider and grant compassionate release is to make the process easier and to increase its use. See Pub. L. No. 115-391, 132 Stat. 5194, 5239 (amendments to § 3582 titled "increasing the use and transparency of compassionate release") (capitalization omitted); see also Alam, 960 F.3d at 834–35 ("[The First Step Act] amended § 3582(c) to allow prisoners to move for compassionate release on their own behalf. No one contests that Congress made this change to increase access to compassionate release."). By providing a 30-day limitation, Congress intended to expedite review, not present bureaucratic obstacles to it. 164 Cong. Rec. S7314-02, 2018 WL 6350790 (Dec. 5, 2018) (statement by Senator Cardin, co-sponsor of the First Step Act, noting that two of the purposes behind the First Step Act's changes to § 3582 were to "expand[ ] compassionate release" and "expedite[ ] compassionate release applications"). Contrary to Congress's intent, the government's position invites an extended cycle of review and remand as circumstances change and new arguments arise.
Some courts have applied a restricted form of traditional issue-exhaustion analysis in denying relief. United States v. Seifert, No. 06-cr-6111, ECF No. 39 at 2 (W.D.N.Y. Apr. 20, 2020) ("The whole point of the exhaustion requirement is to give the [Bureau of Prisons] the opportunity to consider the merits of a case specific request for compassionate release."); United States v. Valenta, No. 15-cr-161, 2020 WL 1689786, at *1 (W.D. Pa. Apr. 7, 2020), reconsideration denied, No. 15-cr-161, 2020 WL 1984319 (W.D. Pa. Apr. 27, 2020) ("One of the purposes for requiring prisoners to exhaust their administrative remedies before bringing a claim in federal court is to give the BOP an opportunity to address the issue.") (citing Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) ). As broad propositions of law, these statements are unexceptionable. However, to the extent courts apply them to support repeated reviews by the BOP, they misconstrue the nature of compassionate release and misapply traditional exhaustion analysis.
Compassionate release is unique. A review of the statute and Congressional intent demonstrates that it is. Even applying traditional exhaustion analysis, however, the government's argument fails. Supreme Court precedent addressing administrative issue exhaustion cuts against it. "[T]he desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding." Sims v. Apfel, 530 U.S. 103, 109, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). When "an administrative proceeding is not adversarial, we think the reasons for a court to require issue exhaustion are much weaker." Id. at 110, 120 S.Ct. 2080. The BOP's compassionate release review process (or, as the BOP calls it, reduction in sentence ("RIS") review) is not an adversarial proceeding:
Indeed, there [is] no proceeding[ ]. Rather, a prisoner makes a request, and the warden decides whether to release the prisoner. The warden marshals the facts and weighs each side. Federal prosecutors and the prisoner do not have representatives or make arguments. The warden ... may not even respond to the prisoner's request.
Brown, 457 F.Supp.3d at 697, .
The BOP's review process is not a normal exhaustion regime. McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (in determining whether exhaustion is required, courts should look at "both the nature of the claim presented and the characteristics of the particular administrative procedure provided"). A court may address a defendant's motion even without a determination by the BOP (e.g., "upon lapse of 30 days from the receipt of such a request by the warden"). 18 U.S.C. § 3582(c)(1)(A). If a court can address a motion without an administrative determination, it can address a motion after one, even if the merits differ. Review of compassionate release motions requires a totality of the circumstances analysis, in which circumstances may change quickly and presentation to the BOP may be impractical. United States v. Resnick, No. 14 CR 810 (CM), 451 F.Supp.3d 262, 269, (S.D.N.Y. Apr. 2, 2020) ("If the Government is suggesting that this court ... cannot take into account things that have occurred since [defendant filed his motion with the BOP] — things that render [defendant's] situation even more parlous than it was a month ago, because he has not "exhausted" those grounds, I am again constrained to disagree. I am considering [defendant's] situation today. I would be a fool not to consider what has happened in this country in the 35 days since [defendant] originally applied for compassionate release."). Requiring each argument to be presented to the BOP also raises line-drawing problems. See United States v. Coker, No. 3:14-cr-085, 2020 WL 1877800, at *3 (E.D. Tenn. Apr. 15, 2020) ("While it is true that the present motion discusses COVID-19 at length, it does so to illustrate the increasing danger presented by the defendant's previously cited health conditions. The defendant's prior application was based on emphysema, COPD, and her nearly 24 hour per day reliance on oxygen and a wheelchair. The instant motion is based on those very same conditions."); Miller, 453 F.Supp.3d at 1065, (rejecting argument that defendant had not exhausted when his compassionate release motion raised new COVID-19 arguments, but he had raised a "myriad of serious health conditions" in his request to the BOP).
Compassionate release is unique and was intended to be so. Poole has exhausted his administrative remedies.
B. Extraordinary and Compelling Reasons
Eighteen U.S.C. § 3582(c)(1)(A) allows a court to modify a term of imprisonment where "extraordinary and compelling reasons warrant [modification]." The Application Notes to the Policy Statement describe a "medical condition" category of "extraordinary and compelling reasons" that may justify compassionate release. See U.S.S.G. § 1B1.13, cmt. n.1(A). The "medical condition of the defendant" category allows compassionate release if, inter alia, the defendant is "suffering from a serious physical or medical condition ... 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." Id. cmt. n.1(A).
The government concedes that, during the COVID-19 pandemic, Poole's "cited medical conditions," including his medical history of diabetes, high blood pressure, hypertension, and mini-strokes, satisfy the Policy Statement's "medical condition" category because his conditions "are or can become chronic medical conditions that present ‘a serious physical or medical condition ... 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.’ " (ECF No. 184 at 11-12) (citing U.S.S.G. § 1B1.13 cmt. n.1(A)(ii)(I)). The Centers for Disease Control and Prevention ("CDC") confirms that Poole's medical conditions put him at a "higher risk of serious complications from COVID-19." Coronavirus Disease 2019 (COVID-19), People Who Need Extra Precautions – People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html.
Poole is at a high risk of contracting COVID-19 at FCI Forrest City Low, the facility where he is located. Six hundred forty-nine inmates and three staff members have tested positive for the virus. COVID-19 Cases, Forrest City Low FCI, Inmates and Staff Recovered, https://www.bop.gov/coronavirus/ (last accessed July 14, 2020). Twenty-eight inmates and two staff members are currently positive. Forrest City Low FCI, Inmates and Staff Positive, https://www.bop.gov/coronavirus/ (last accessed July 14, 2020). Poole's age is a consideration. The CDC recognizes that older adults are at a higher risk of contracting COVID-19. Coronavirus Disease 2019 (COVID-19), People Who Need Extra Precautions, Older Adults, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.
The "other reasons" category of the Policy Statement provides for relief if, "[a]s determined by the Director of the Bureau of Prisons, there exists ... an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)." U.S.S.G. § 1B1.13, cmt. n.1(D). Courts have interpreted the "[a]s determined by the Director of the Bureau of Prisons" language to "include any ‘other reasons’ defined by the Bureau of Prison's Program Statement 5050.[50] (‘BOP Statement’)" on compassionate release. See Hansen, 2020 WL 1703672, at *6. One "other reason" in the BOP Statement is an "age-only" category, where a reduction in sentence may be entertained for "[i]nmates age 65 or older who have served the greater of 10 years or 75% of the term of imprisonment to which the inmate was sentenced." BOP Statement § 5050.50(4)(c).
Poole is 67 years old. He has served more than 202 months of a 270-month sentence (i.e., 74.8%). Although that is .2% lower than the BOP Statement's requirement of 75%, his age, "in combination with" his medical and health conditions, weighs in favor of relief.
Poole's rehabilitation is a consideration. During his time in prison, Poole has had no incident reports and has made strong rehabilitation efforts. (See ECF No. 182-1 ¶¶ 7-8.) This weighs in favor of relief. United States v. Rodriguez, No. 2:03-cr-00271-1, 451 F.Supp.3d 392, 405, (E.D. Pa. Apr. 1, 2020) ("[R]ehabilitation alone would not constitute an extraordinary and compelling reason. But the qualifier ‘alone’ implies that rehabilitation can contribute to extraordinary and compelling reasons."); United States v. Brown, 411 F. Supp. 3d 446, 449 (S.D. Iowa 2019) ("[A]lthough ‘rehabilitation ... is not, by itself, an extraordinary and compelling reason,’ the Commission implies that rehabilitation may be considered with other factors.") (quoting U.S.S.G. § 1B1.13 cmt. n.3) (emphasis in original).
Poole's reasons for relief are extraordinary and compelling. 18 U.S.C. § 3582(c)(1)(A).
C. Section 3553(a) Factors
In reviewing a motion for compassionate release under § 3582(c)(1)(A), a court must consider the § 3553(a) factors, "to the extent that they are applicable," 18 U.S.C. § 3582(c)(1)(A), and must determine whether the defendant is "a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)," U.S.S.G. § 1B1.13(2). Section 3553(a) requires a court to consider, inter alia, the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence imposed to reflect the seriousness of the offense, to provide just punishment, to afford adequate deterrence, and to protect the public from further crimes. 18 U.S.C. § 3553(a)(1)-(2). Section 3142(g) requires consideration of similar criteria, but includes the consideration of the nature and seriousness of the danger to any person or the community that would be posed by the person's release. See 18 U.S.C. § 3142(g)(4).
The government argues that the § 3553(a) factors weigh against Poole. (ECF No. 184 at 12-13.) The government argues that his criminal history includes convictions for armed robbery, possession of cocaine with intent to sell, and three separate convictions for selling cocaine. (Id. at 12.) The government argues that Poole's "record and offense conduct shows that he remains a danger to the public and likely to engage in further criminal conduct ... [and] [r]elease from the facility at this point would depreciate the seriousness of the offense and diminish the deterrent value of the original sentence imposed by this Court." (Id. at 12-13.)
The § 3553(a) and the § 3142(g) factors weigh in favor of release. The Court presided at both of Poole's trials and sentenced him twice. Poole's criminal history and the nature of his crimes are serious. However, Poole's PATTERN RISK SCORE is "Minimum." (ECF No. 182-1 at 7.) Poole was 49 years old when he committed the underlying offenses. (ECF No. 182-1 ¶ 5.) He is now 67. The Sentencing Commission has found that recidivism rates among elderly offenders are substantially lower than among younger offenders. Only 13.4% of offenders age 65 or older are rearrested. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207_Recidivism-Age.pdf.
Poole has spent almost 17 years in prison. (ECF No. 182-1 ¶ 14.) He has served almost 75% of his sentence. His rehabilitation efforts are commendable. He has not had a single incident report while incarcerated. (Id. ¶¶ 7-8.) He has taken multiple drug and alcohol courses and represents that he is clean. (Id. ¶ 6.) His prior convictions occurred almost 20 years ago. PSR ¶ 11. The drug quantity in one of them was small (2.6 grams). Id. Congress has subsequently amended the penalties for that offense. United States v. Beamus, 943 F.3d 789, 792 (6th Cir. 2019) (per curium) ("[Defendant's] enhanced sentence was still set by § 841, and the penalties for it were legislatively modified by the Fair Sentencing Act.") Poole represents that he will live with a family member on release and will attempt to maintain gainful employment. (ECF No. 182-1 ¶¶ 12-13.)
The seriousness of the underlying offenses and of Poole's criminal history have been mitigated by time. His personal characteristics, as demonstrated by his record while incarcerated, are admirable. The time Poole has spent is sufficient to reflect the seriousness of the offense and to provide just punishment. It also serves to afford adequate deterrence. Based on his rehabilitation, there is no need to protect the public from further crimes by this defendant. Poole is not a danger to the safety of any other person or to the community. His release would not pose a danger to any person or the community. The § 3553(a) and § 3142(g) factors favor release.
IV. Conclusion
For the foregoing reasons, Poole's motion is GRANTED. Poole's term of imprisonment is reduced to TIME SERVED. All other terms of Poole's sentence, including his supervised release term, remain unchanged.
Poole's pending Motion to Reduce Sentence Pursuant to the First Step Act, (ECF No. 169), is DENIED as moot.
So ordered this 14th day of July, 2020.