Opinion
1:97-cr-00056-SEB-DML-01
08-25-2022
UNITED STATES OF AMERICA v. RICHARD DURRAND ROBINSON
ORDER ON MOTIONS FOR SENTENCE REDUCTION UNDER 18 U.S.C. § 3582(c)(1)(A) (COMPASSIONATE RELEASE)
SARAH EVANS BARKER, JUDGE United States District Court
Upon motions of [X] the defendant [ ] the Director of the Bureau of Prisons for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A), and after considering the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission, IT IS ORDERED that the motions are:
[X] DENIED.
[ ] DENIED WITHOUT PREJUDICE.
[ ] OTHER:
[X] FACTORS CONSIDERED: See attached opinion.
ORDER
Defendant Richard Durrand Robinson seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A). For the reasons explained below, Mr. Robinson's motions are denied.
Mr. Robinson also refers to the possibility of release to home confinement. Dkt. 22 at 1. Mr. Robinson also references home confinement and the CARES Act. Dkt. 618 at 2. Pursuant to statute, the location of a prisoner's confinement is the sole province of BOP, and its placement decisions are "not reviewable by any court." 18 U.S.C. § 3621(b). Likewise, the CARES Act expands the powers of the Attorney General and the Director of the Bureau of Prisons to place inmates on home confinement, but it does not expand the courts' ability to do so. See Pub. L. No. 116-136, 134 Stat. 281, 516 (2020) (CARES Act § 12003(b)(2)). The Court therefore does not have the authority to order the remainder of Mr. Robinson's sentence to be served on home confinement. See United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021) (district court lacks authority to order transfer to home confinement). Instead, in accordance with § 3582(c)(1)(A), the Court considers whether to reduce Mr. Robinson's sentence to time served. See United States v. Millbrook, 840 Fed.Appx. 25, 27 (7th Cir. 2021) (finding no error when district court failed to discuss defendant's alternative request for transfer to home confinement because the court had no authority to grant the request under § 3582, which authorizes only sentence "reductions").
I. Background
In 1997, a jury found Mr. Robinson guilty of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (count 1) and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (count 2). Dkt. 1. Mr. Robinson also pled guilty to another count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (count 3), and one count of use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Id. The Court sentenced Mr. Robinson to an aggregate sentence of 420 months in prison, representing 120 months of imprisonment on Counts 1 and 3 to be served concurrently; a consecutive term of 60 months of imprisonment on Count 2; and another consecutive term of 240 months of imprisonment on Count 4. Id. The Court also imposed 5 years of supervised release.
Mr. Robinson initially filed his motion for compassionate release pro se. Dkt. 11. The Court appointed counsel, dkt. 16, and appointed counsel filed an amended motion on Mr. Robinson's behalf, dkt. 22. In his submissions, Mr. Robinson argues that he establishes extraordinary and compelling reasons for compassionate release because he is at risk of severe illness should he contract COVID-19 due to his underlying medical condition (obesity). Dkt. 22. Mr. Robinson also argues that, due to changes in the First Step Act, if he were sentenced today, he would likely receive a shorter sentence. Mr. Robinson further argues that his family needs his help and that he has substantially rehabilitated himself while in prison. The United States filed a brief in opposition, dkt. 24, and Mr. Robinson filed a pro se reply, dkt. 25. Thus, the motions are now ripe.
II. Discussion
The general rule is that sentences imposed in federal criminal cases are final and may not be modified. 18 U.S.C. § 3582(c). Yet, under one exception to this rule, a court may reduce a sentence "after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable," if it finds that there are "extraordinary and compelling reasons" that warrant a reduction. 18 U.S.C. § 3582(c)(1)(A)(i). The Seventh Circuit has held that a court has broad discretion in determining what constitutes "extraordinary and compelling reasons" under the statute. United States v. Gunn, 980 F.3d 1178, 1180-81 (7th Cir. 2020). The court must "consider[] the applicant's individualized arguments and evidence," United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022), but ultimately, "[t]he movant bears the burden of establishing 'extraordinary and compelling reasons' that warrant a sentence reduction." United States v. Newton, 996 F.3d 485, 488 (7th Cir. 2021).
Mr. Robinson's first reason for requesting a sentence reduction-the risk to his physical health presented by COVID-19, particularly in light of his medical condition-is not an extraordinary and compelling reason to release him, either alone or in combination with any other reason. "[F]or the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer far more relief than a judicial order....[F]or the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an 'extraordinary and compelling' reason for immediate release." United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021). Mr. Robinson is fully vaccinated, dkt. 22 at 4, and he has presented no evidence that he is unable to receive or benefit from the vaccine. Additionally, Mr. Robinson "has not presented any evidence establishing that he is more at risk for an adverse outcome in prison than he would be if released." United States v. Barbee, 25 F.4th 531, 533 (7th Cir. 2022). Specifically, he has not presented "data showing that vaccinated prisoners are at materially greater risk of breakthrough infections than other vaccinated persons." United States v. Avila, No. 21-2383, dkt. 19 (7th Cir. Feb. 15, 2022); United States v. Hoskins, No. 21-2912, 2022 WL 2187558, at *1 (7th Cir. June 16, 2022) (emphasizing that a defendant needs individualized evidence of why, despite his vaccination, his medical risks are extraordinary compared to the general population). As a result, Mr. Robinson has not carried his burden to show that the risk he faces from the COVID-19 pandemic is an extraordinary and compelling reason for relief under § 3582(c)(1)(A). Barbee, 25 F.4th at 533.
Mr. Robinson contends that the sentencing disparity between the sentence he received and the sentence he might receive if he was sentenced today establishes an extraordinary and compelling reason to release him. Seventh Circuit precedent holds to the contrary. See United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021) (holding that non-retroactive change to statutory mandatory minimum sentence was not extraordinary and compelling reason for relief under § 3582(c)(1)(A)(i)); see also United States v. Carr, No. 21-3108, 2022 WL 1421441, at *1 (7th Cir. May 5, 2022) ("Changes in sentencing law are not extraordinary and compelling reasons for compassionate release."); United States v. Herbert, No. 21-3321, 2022 WL 1791964, at *2 (7th Cir. June 2, 2022) (non-retroactive changes to the guidelines are not grounds for compassionate release); United States v. Watts, No. 21-2867, 2022 WL 2208517, at *1 (7th Cir. June 21, 2022) (The court "lack[s] discretion under § 3582(c)(1)(A)(i) to reduce a statutory-minimum sentence asserted to be unfairly long. The appropriate path for prisoners to contest the length of their sentences is set forth in 28 U.S.C. § 2255.") (internal citation omitted). But Mr. Robinson claims that such precedent was recently overruled by the United States Supreme Court in Concepcion v. United States, 142 S.Ct. 2389, 2404 (2022), which held that "the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act." Dkt. 27. Thus, he invites the Court to find an extraordinary and compelling reason for a sentence reduction based on the fact that he would likely receive a shorter sentence if sentenced today.
Defendant's argument is not well-taken. Concepcion addressed a different portion of the First Step Act-§ 404, which allows a district court to resentence a defendant in certain situations. It has no bearing on Mr. Robinson's motion, which falls under § 603 of the Act. As recently explained by the Seventh Circuit in a binding opinion:
That the First Step Act did multiple things-lowering sentences for some cocaine cases, enabling prisoners to seek compassionate release on their own motions, and more-does not mean that every decision about any aspect of the First Step Act applies to every potential question under that statute. The First Step Act did not create or modify the "extraordinary and compelling reasons" threshold for eligibility; it just added prisoners to the list of persons who may file motions. We take the Supreme Court at its word that Concepcion is about matters that district judges may consider when they resentence defendants. So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an "extraordinary and compelling reason for release."United States v. King, 40 F.4th 594, 596 (7th Cir. 2022). As a result, the Seventh Circuit reiterated that "[t]here's nothing 'extraordinary' about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal of collateral review under 28 U.S.C. § 2255." Id. at 594. Thus, under controlling Seventh Circuit precedent, Mr. Robinson cannot establish extraordinary and compelling reasons warranting relief under § 3582(c)(1)(A) based on changes in caselaw or his statute of conviction, even if those changes mean that Mr. Robinson might receive a shorter sentence if he were sentenced today.
Mr. Robinson's desire to be released so he can help with his "family situation" is also not an extraordinary and compelling reason to grant him release, alone or in conjunction with any other reason. At the outset, Mr. Robinson does not provide any further information on his family's need. Nevertheless, while it is admirable that Mr. Robinson would like to be there for his family in their time of need, there is no evidence his relatives have no other available caregivers. Moreover, even if there were no other available caregivers, the Court would not find this to be a valid reason for granting Mr. Robinson compassionate release. Many inmates have aging and sick parents and family members whom they might like to support. The desire to care for an elderly or ill relative, however, is not an extraordinary and compelling reason warranting a sentence reduction. Cf. United States v. Trice, No. 1:13-cr-222-TWP-DML-1, Dkt. 114 at 5 (S.D. Ind. Aug. 4, 2020) (collecting cases about defendants requesting compassionate release to care for elderly or ill parent); United States v. Ingram, 2019 WL 3162305, at *2 (S.D. Ohio July 16, 2019) ("Many, if not all inmates, have aging and sick parents. Such circumstance is not extraordinary.").
That leaves Mr. Robinson with one potentially extraordinary and compelling reason for a sentence reduction-his rehabilitation. While the strides Mr. Robinson has made in prison are admirable, rehabilitation alone cannot be an extraordinary and compelling reason to reduce his mandatory minimum sentence. See United States v. Peoples, 41 F.4th 837 (7th Cir. 2022) ("We cannot read § 3582(c) to permit good prison conduct and rehabilitation alone to override Congress's determinate sentencing scheme."). The Court does not find that Mr. Robinson's rehabilitation, whether considered alone or in conjunction with any other reason, is an extraordinary and compelling to grant him compassionate release.
Given the determination that Mr. Robinson has not shown extraordinary and compelling reasons to justify his release, the Court need not address whether he is a danger to the community and whether the sentencing factors listed in 18 U.S.C. § 3553(a) weigh in favor of his release.
III. Conclusion
For the reasons stated above, Mr. Robinson's motions for compassionate release, dkts. [11] and [22], are denied.
IT IS SO ORDERED.