Summary
finding that the defendant demonstrated extraordinary and compelling circumstances where he was sentenced to 562 months due to stacking of Section 924(c) offenses which First Step Act eliminated, and would have been sentenced to roughly 204 months if sentenced today
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Case No. 91-cr-00608-DLJ-1 (RS)
06-17-2020
UNITED STATES of America, Plaintiff, v. Keith QUINN, Defendant.
Hanni M. Fakhoury, Assistant Federal Public Defender, Northern District of California, Oakland, CA.
Hanni M. Fakhoury, Assistant Federal Public Defender, Northern District of California, Oakland, CA.
ORDER GRANTING COMPASSIONATE RELEASE
RICHARD SEEBORG, United States District Judge
I. INTRODUCTION
Defendant Keith Quinn is currently in the custody of the Bureau of Prisons ("BOP"), serving a 47-year sentence at the federal correctional institution in Mendota, California ("FCI Mendota"). Quinn, now 60 years old and in the 28th year of his sentence, moves for compassionate release under 18 U.S.C. § 3582(c), citing changes in federal sentencing law and the coronavirus pandemic as "extraordinary and compelling reasons" for a sentence reduction. The government opposes Quinn's request. For the reasons set forth below, the motion is granted.
II. BACKGROUND
In September 1991, Quinn committed two armed bank robberies in the Bay Area within two weeks of one another. Fakhoury Decl., Ex. A, Presentence Investigation Report ("PSR"), Dkt. No. 124 at 3-4. At one point during the second robbery, Quinn struck a teller in the head with his handgun, demanding she move with greater urgency. Id. Through the two robberies, Quinn stole approximately $42,700. Id.
Quinn committed the second robbery with an accomplice, who was charged as a co-defendant. Id.
In July 1992, Quinn was convicted by a jury of two counts of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and two counts of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Under the then-mandatory U.S. Sentencing Guideline ("U.S.S.G.") regime, Quinn was classified as a career offender due to prior robbery convictions under the California Penal Code. This designation caused Quinn's Guideline range to triple, from 84-105 months to 262-327 months. Furthermore, at the time, convictions on two counts of use of a firearm under § 924(c), even if charged in the same indictment , triggered a twenty-year mandatory minimum for the second offense. Ultimately, Quinn was sentenced to 562 months, or nearly 47 years, in prison, followed by a 5-year term of supervised release. Quinn is now 60 years old, and he has served 28 years, or approximately 60 percent, of his sentence. He has a projected release date of November 26, 2031, at which point Quinn will be 71 years old.
The district court originally sentenced Quinn to five-year sentences for each § 924(c) offense, but the Ninth Circuit reversed. See United States v. Quinn , 18 F.3d 1461, 1467 (9th Cir. 1994) (citing Deal v. United States , 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) ).
On May 29, 2020, Quinn submitted a motion for a sentence reduction under 18 U.S.C. § 3582(c). He claims two "extraordinary and compelling reasons" justify his immediate release: (1) significant changes in federal sentencing law since he was sentenced; and (2) the ongoing coronavirus pandemic. Asked to respond, the government opposes the motion, arguing that subsequent changes in sentencing laws cannot, as a matter of law, constitute a compelling reason for release under § 3582(c). Second, the government contends that Quinn, a 60-year-old African American male, does not fall within a group most at risk of suffering severe complications from COVID-19, according to the Center for Disease Control (CDC).
III. LEGAL STANDARD
Under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act ("FSA"), Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018), a court may modify a defendant's sentence "upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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." Upon such a motion, a court may modify a defendant's sentence if, "after considering the factors set forth in § 3553(a) to the extent applicable," it finds "extraordinary and compelling reasons warrant such a reduction" and "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A)(i).
IV. DISCUSSION
The government concedes that 30 days have elapsed since Quinn first sought relief from the Warden at FCI Mendota, so the administrative exhaustion requirement is satisfied. Therefore, to grant Quinn's motion, the Court must find: (1) "extraordinary and compelling reasons" warrant a reduction; (2) "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission;" and (3) a reduction is in accordance with the sentencing factors espoused in 18 U.S.C. § 3553(a). Id.
A. Extraordinary and Compelling Reasons
Quinn was sentenced under a far more draconian federal sentencing regime than exists today. In fact, were Quinn sentenced for identical criminal conduct today with an equivalent criminal history, instead of nearly half a century behind bars, Quinn may well have received a sentence of approximately 17 years. Since Quinn has been in custody since 1991, this means Quinn likely would have been released approximately 12 years ago, in 2008, if sentenced under today's regime. Instead, because he received an additional 30 years under the outmoded system, Quinn still has 19 years left on his sentence, with a projected release date still over a decade away.
This assumes Quinn still would have received a sentence at the low end of the guidelines range, as he did in 1992.
This is without factoring in good time credits, even though, as discussed below, Quinn has avoided any serious disciplinary issues during his 28 years in prison.
There are two primary reasons for this 30-year disparity. First, at the time of Quinn's sentencing, the "stacking" of multiple § 924(c) charges in the same indictment was mandatory; a sentencing court had no choice but to impose consecutive 5-year and 20-year mandatory minimums for two § 924(c) charges in the same indictment. See Deal v. United States , 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) ; see also United States v. Quinn , 18 F.3d 1461, 1467 (9th Cir. 1994) (reversing district court's attempt to impose only 5-year sentences for each § 924(c) offense). Second, the Guidelines defined "crime of violence" broadly, such that Quinn's criminal history resulted in him being classified as a "career offender," which significantly increased his Guidelines sentence. Lastly, at the time, the Guidelines were considered mandatory, so courts lacked discretion to deviate from the strictures of the Guidelines range, even in exceptional circumstances.
Since the early 1990s, the winds of federal sentencing policy have shifted. Relevant here, as part of the FSA, Congress amended § 924(c) to eliminate "stacking" sentences in this way. See FSA § 403(a). The phrase "second or subsequent conviction" was replaced with "violation of this subsection that occurs after a prior conviction under this subsection has become final. " See id. (emphasis added). Under the amended statute, a defendant like Quinn would only receive a 10-year mandatory minimum for two § 924(c) convictions, as opposed to a 30-year minimum.
Likewise, in August 2016, the U.S. Sentencing Commission substantially narrowed the Guidelines' definition of "crime of violence." See U.S.S.G., Supp. Appx. C, Amend. 798 (Aug. 1, 2016). Under this more restrictive definition, Quinn's criminal history would not have earned him the "career offender" enhancement which tripled his Guidelines range for the bank robbery convictions. See United States v. Bankston , 901 F.3d 1100, 1103-04 (9th Cir. 2018).; United States v. Wesley , 753 F. App'x 510, 511 (9th Cir. 2019) (reversing federal bank robbery sentence because California Penal Code robbery convictions could not be used to support career offender Guidelines enhancement). Moreover, the Supreme Court declared in 2005 that the Guidelines are merely advisory, such that a district court may now impose a sentence outside the prescribed range if warranted by the § 3553(a) factors. United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
In light of these subsequent changes to federal sentencing, Quinn, like many others, now finds himself in a state of sentencing purgatory; that is, he long ago completed a sentence which Congress and the U.S. Sentencing Commission in the present day consider sufficient and proportionate to his misconduct, yet he faces additional decades behind bars because these adjustments in policy came too late and were not made categorically retroactive.
To put this 30-year discrepancy between Quinn's 47-year sentence and the sentence he likely would have received under the current system in context, this additional term of imprisonment dwarfs the median sentences imposed for even the most heinous crimes. For instance, in 2019, the median sentence for murder was 20 years, for sexual abuse 15 years, for kidnapping 10 years. See 2019 Annual Report and Sourcebook of Federal Sentencing Statistics , U.S. Sentencing Comm'n, at 64 (Mar. 23, 2020), available at https://www.ussc.gov/research/sourcebook-2019. Without downplaying the severity of Quinn's serious misconduct in 1991, it seems unnecessarily cruel and unproductive to allow Quinn to languish an additional 11 years in prison, despite his having already served an additional decade behind bars, over and above the punishment which Congress and the Sentencing Commission would now consider adequate.
The government is correct that it is Congress, not the judicial branch, who decides whether sentencing changes have retroactive effect. Indeed, in the case of the amendment to § 924(c), Congress decided against retroactivity. See FSA § 403(b); see also United States v. Melvin , 777 F. App'x 652, 653 (4th Cir. 2019) (per curiam) ("Although the [FSA] altered the circumstances under which 18 U.S.C. § 924(c) offenses are subject to enhanced mandatory minimum sentences ... Congress expressly limited the retroactivity of that provision to offenses for which sentence was not yet imposed as of the First Step Act's date of enactment ....") (citations omitted). As numerous district courts have concluded, however, this does not end the inquiry for purposes of compassionate release. The fact that changes to § 924(c) were not categorically made retroactive "does not prohibit the court from considering this legislative change in deciding whether to reduce [a defendant's] sentence." United States v. Decator , No. 95-cr-0202, 452 F.Supp.3d 320, 325–26, (D. Md. Apr. 6, 2020). Rather "[i]t is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis." United States v. Maumau , No. 08-cr-00758, 2020 WL 806121, at *7 (D. Utah Feb. 18, 2020) (emphasis in original); accord United States v. Urkevich , No. 03-cr-37, 2019 WL 6037391, at *1, 4 (D. Neb. Nov. 14, 2019).
In fact, the FSA's amendments to the compassionate release process were explicitly aimed at empowering district courts to do just that—namely to conduct an individualized assessment of a defendant's case and approve a sentence reduction when warranted. The Act's broader purpose is likewise consistent with allowing courts to consider such gross sentencing disparities, rather than forcing judges to interpret lack of retroactivity as a complete bar to relief based on subsequent changes to sentencing. See United States v. Redd , No. 97-cr-00006, 444 F.Supp.3d 717, 727–28, (E.D. Va. Mar. 16, 2020) ; see also United States v. Brown , 411 F. Supp. 3d 446, 448 (S.D. Iowa 2019) (noting the FSA of 2018 "amends numerous portions of the U.S. Code to promote rehabilitation of prisoners and unwind decades of mass incarceration") (citing Cong. Research Serv., R45558, The [FSA] of 2018: An Overview 1 (2019)).
Lastly, "granting compassionate release on the basis of the amended § 924(c) is not obviously contrary to congressional intent. The portion of the First Step Act amending § 924(c) is titled ‘Clarification of Section 924(c), ... suggesting that Congress never intended the statute to result in a ‘stacked’ sentence" like Quinn's. Decator , 452 F.Supp.3d at 324–25, ; see also Deal , 508 U.S. at 146, 113 S.Ct. 1993 (Steven, J., dissenting) (disagreeing with the majority's "unwarranted and unnecessarily harsh construction of [the prior version of] § 924(c)"); United States v. Neal , 976 F.2d 601, 603 (9th Cir. 1992) (Fletcher, B., dissenting) ("The majority's interpretation drains the statute of its intended impact on the offender."). Although this "clarification" cannot explain the amendment's lack of retroactivity, it nonetheless bolsters the argument that unnecessarily harsh results under the prior version can, on a case-by-case basis, be grounds for a reduction.
Consistent with numerous other courts to have confronted similar situations since the FSA, this decision turns on the enormous sentencing disparity created by subsequent changes to federal sentencing law which constitutes an "extraordinary and compelling reason" for Quinn's compassionate release. See, e.g., Urkevich , 2019 WL 6037391, at *8 ("A reduction ... is warranted by extraordinary and compelling reasons, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed."); Maumau , 2020 WL 806121, at *7 ("[T]he changes in how § 924(c) sentences are calculated is a compelling and extraordinary reason to provide relief on the facts present here."); United States v. Chan , No. 96-cr-00094, 2020 WL 1527895, at *5 (N.D. Cal. Mar. 31, 2020) ("[W]hen the Court considers the record presented by Chan regarding his rehabilitation efforts in combination with the amendments to Section 924(c)'s stacking provisions, the Court concludes he has demonstrated extraordinary and compelling reasons to reduce his sentence").
Because the significant changes in federal sentencing law since Quinn was sentenced are deemed "extraordinary and compelling reasons" for his release, this Order need not reach Quinn's alternative argument that the coronavirus pandemic entitles him to a sentence reduction. It is worthy to note, however, that as a 60-year-old man, Quinn is at greater risk than the average inmate.
B. Applicable U.S. Sentencing Commission Policy Statement
Compassionate release is only permissible if "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A)(i). In fact, Congress explicitly delegated to the Commission responsibility for defining what might constitute "extraordinary and compelling reasons" for a sentence reduction. See 18 U.S.C. § 994(t). The relevant policy statement is located at U.S.S.G. section 1B1.13, which sets out four "extraordinary and compelling reasons" that warrant a sentence reduction. The first three reasons pertain to the medical condition of the defendant, age of the defendant, and family circumstances, none of which applies to Quinn. U.S.S.G. § 1B1.13, app. note 1(A)-(C). The fourth is a "catch-all" provision entitled "Other Reasons," which provides that "[a]s determined by the Director of the [BOP], there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)." Id. , app. note. 1(D) ("Subdivision D"). The relevant BOP publication, Program Statement, 5050.50, does not include post-sentencing developments as valid grounds for compassionate release. See United States v. Saldana , 807 Fed. Appx. 816, 819–20, (10th Cir. Mar. 26, 2020).
Congress does, however, caution that "[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." Id.
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Under the terms of the Sentencing Commission's statement, then, the large sentencing disparity caused by later changes to federal sentencing policy would not constitute an "extraordinary or compelling reason" for release, for Quinn or anyone else. However, this policy statement predated the FSA's substantial changes to the compassionate release process in 2018, designed to expand the use of compassionate release and remove the BOP as the exclusive gatekeeper of the process. See Redd , 444 F.Supp.3d at 725–26, . The Sentencing Commission has not yet "harmonized its policy statements" with the FSA, which permits defendants to file compassionate release motions without the BOP's backing. Chan , 2020 WL 1527895, at *4 (internal quotations omitted).
There is a split of authority on whether the policy statement still governs. Some courts believe they are still constrained by the statement, even though it presupposes the prior system. See, e.g., United States v. Willingham , No. CR113-010, 2019 WL 6733028, at *2 (S.D.). The better course is to follow "the growing number of district courts" that have concluded the Sentencing Commission's policy statement no longer binds district courts after the First Step Act; instead, courts are free to determine "whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)–(C) warrant compassionate release." United States v. Rodriguez , 424 F. Supp. 3d 674, 681-82 (N.D. Cal. 2019) ; see also United States v. Marks , No. 03-cr-6033, 455 F.Supp.3d 17, 22–23, (W.D.N.Y. Apr. 20, 2020) (joining the "growing consensus" of courts that have concluded they are "no longer bound by the specific categories identified by the Sentencing Commission prior to the enactment of the [FSA]"). Therefore, because there is no longer a Sentencing Commission policy statement on point, this factor does not undo the finding here of "extraordinary and compelling reasons" for Quinn's release.
C. Section 3553(a) Factors
Quinn's release is also consistent with 18 U.S.C. § 3553(a). This statute entrusts courts with imposing sentences "sufficient but not greater than necessary," and emphasizes "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Id. § 3553(a)(6). A court must also impose a sentence that "reflect[s] the seriousness of the offense, ... promote[s] respect for the law, and ... provide[s] just punishment for the offense." Id. § 3553(a)(2)(A). In this case, to force Quinn to finish out the remainder of his 47-year sentence would be to enforce a sentence that, by modern standards, is "greater than necessary." He has already served 28 years, a term which reflects the seriousness of his crimes and will afford adequate deterrence. Id. § 3553(a)(2)(B). To deny compassionate release in this unique circumstance would be to sanction the very sort of "unwarranted sentence disparities" for similar conduct that Congress tasked the courts with avoiding.
D. Risk to the Community
Lastly, consideration must be given to whether Quinn's release will present an excessive risk to the community. See 18 Id. § 3553(a)(2)(3) ; U.S.S.G. § 1B1.13(2). Quinn does have a troubling criminal history, with serious, violent crimes prior to the two armed robberies discussed above. See PSR, Dkt. No. 124 at 8-15. However, Quinn committed the bulk of these acts when he was under 20 years of age; roughly 40 years ago. More recently, Quinn has apparently shown himself to be a model inmate; over his 28 years in prison, Quinn has not engaged in any violent conduct. See Dkt. No. 122-2, Ex. D, BOP Discipline Record. He has only had six infractions since 2004, and none in the last three years.
Even ignoring his recent record of rule-abiding behavior, as a 60-year-old man, Quinn statistically presents a low risk of recidivism. Nor will Quinn simply be turned loose as a result of this Order; rather, Quinn will still have to complete five years of supervised released as originally imposed. This will assist Quinn in his "transition to community life" and will "fulfill[ ] rehabilitative ends." United States v. Johnson , 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). Therefore, beyond the low risk that Quinn now presents, whatever risk there is can be further mitigated by supervised release. In short, Quinn's release from custody will not present a significant risk to the public.
V. CONCLUSION
For the reasons set forth above, Quinn's motion for compassionate release is granted. His sentence of imprisonment is modified to time served. Quinn shall now begin a five-year term of supervised release, consistent with his original sentence. Before an order of release will issue, however, Quinn must create and submit to the Court a plan for his reentry, perhaps with the help of the Probation Office. This plan should describe where Quinn will reside upon release, and it must also explain how Quinn will be transported from BOP custody to his new living arrangement. An order of release will issue assuming the reentry plan is acceptable. Otherwise, the Court will issue an order explaining how the plan must be revised before Quinn can be released. The government shall serve a copy of this order on the Warden at FCI Mendota forthwith.