Opinion
1:14-CR-427
12-10-2020
UNITED STATES of America v. Kenshaun Jerrell ROYSTER, Defendant.
Kyle D. Pousson, U.S. Attorney's Office, Greensboro, NC, for United States of America.
Kyle D. Pousson, U.S. Attorney's Office, Greensboro, NC, for United States of America.
ORDER
CATHERINE C. EAGLES, UNITED STATES DISTRICT JUDGE
The defendant-inmate, Kenshaun Royster, has filed a motion for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A), asking the Court to reduce his sentence. He contends that his chronic health conditions place him at a heightened risk of serious illness if he contracts COVID-19. His motion will be granted. Procedural History
On February 6, 2015, Mr. Royster pled guilty to distributing heroin. Minute Entry 2/06/2015; Doc. 11. On May 12, 2015, the Court sentenced Mr. Royster to 132 months of imprisonment followed by three years of supervised release. Doc. 16. After remand, Mr. Royster was resentenced to 108 months, largely because of the positive strides he had made since his original sentencing. Docs. 47, 48.
On April 15, 2020, Mr. Royster asked the warden at his facility whether he could file for "the care release act under the compassionate release." Doc. 54-2. On May 21, 2020, Mr. Royster filed a motion for compassionate release, Doc. 51, which the Court denied without prejudice to a renewed motion properly supported by evidence and after exhaustion of his administrative remedies. Doc. 52. On October 27, 2020, Mr. Royster's lawyer emailed the warden, seeking to supplement his initial compassionate release request, Doc. 54-3, and on November 6, 2020, Mr. Royster submitted another request for compassionate release with the warden. Doc. 55-3. The warden finally denied his request on November 13, 2020. Doc. 55-4. On November 19, 2020, Mr. Royster filed this emergency motion for compassionate release. Doc. 54. The Court ordered the government to respond and set out a briefing schedule. Text Order 11/20/2020. Briefing is complete and the motion is ripe for review.
Background
Mr. Royster has a long criminal history, beginning at age sixteen with a conviction for possessing with intent to manufacture, sell, and deliver cocaine. Doc. 14 at ¶ 25. He went on to commit numerous misdemeanors for driving-related offenses, assault on a female, larcenies, drug-related crimes, and resisting an officer. See generally id. at ¶¶ 26–55. In 2008, his probation for another drug felony and for felony forgery was revoked, and he went to prison. Id. at ¶¶ 42, 56. Shortly after his release in October 2009, Mr. Royster committed numerous additional misdemeanor offenses, see id. at ¶¶ 57–59, 62; felony possession of heroin, id. at ¶ 60; and felony breaking and entering and larcenies. Id. at ¶¶ 61, 63.
The Court adopted the pre-sentence report without change. Doc. 17.
After his release in February 2014, he began selling heroin, which led to this offense. Id. at ¶ 7. Specifically, Mr. Royster sold heroin to a confidential informant on four different occasions between May and June 2014. Id. at ¶¶ 3–6. When law enforcement agents interviewed him in December 2014, Mr. Royster admitted to selling one gram of heroin per day from April through June 2014. Id. at ¶ 7.
As a result of his prior convictions for felony possession with intent to sell and deliver cocaine and felony breaking and entering, Mr. Royster qualified for career offender status under the sentencing guidelines, which increased his guideline range from 63–78 months to 151–188 months. Id. at ¶ 19. Because his predicate convictions were not violent and the instant offense did not involve a large quantity of drugs, the Court varied down, Doc. 17, and imposed a sentence of 132 months of imprisonment. Doc. 16. At his resentencing hearing in 2018, the Court did not change its determination that Mr. Royster attained career offender status, and the applicable guideline range did not change. See Doc. 35 (adopted at Doc. 48). But after considering Mr. Royster's positive adjustment in the Bureau of Prisons, the Court determined that an additional variance to 108 months was appropriate. Doc. 50 at 12; Doc. 47; Doc. 48 at 3. Since his resentencing, Mr. Roster has committed no infractions, completed over 26 education courses ranging from parenting to finance classes, and completed drug rehabilitation programs, including the 500-hour Residential Drug Abuse Program. See Doc. 54-4. In total, he has been in incarcerated for approximately six years and is expected to be released from BoP custody in August 2021. Id. at 2.
At the time he was sentenced, Mr. Royster suffered from asthma, Crohn's disease, and seizures. Doc. 14 at ¶ 83. He is now 39 years old, and according to recent BoP medical records, he is obese and has prediabetes. Doc. 54-1; Doc. 54 at 27–31. According to the CDC, people who are obese are at an increased risk of severe illness should they contract COVID-19, and people with moderate to severe asthma "might" be at an increased risk of severe illness from COVID-19. People with Certain Medical Conditions , CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Dec. 9, 2020). Mr. Royster's asthma is well-controlled, Doc. 58-1 at 5, and it is not clear that this alone places him at higher risk of complications. Mr. Royster has presented credible evidence which the Court accepts for purposes of this motion that his prediabetes status does place him at higher risk of complications and a worse prognosis, particularly when considered together with his obesity. Doc. 58-1 at 4–5.
If released, Mr. Royster plans to live with his wife and five children in Graham, North Carolina. Doc. 54 at 35; see also Doc. 54-4. His family is facing many challenges, including the alcoholism and recent involuntary commitment of the biological mother of his two youngest children, Doc. 54-7, and legal troubles of his oldest son. He has a job waiting for him with Trials and Tribulations Construction Co., a construction company based near his home. Doc. 54-6.
Mr. Royster is currently housed at FCI Beckley, Doc. 54 at 4, which reports that 55 inmates and 17 staff are presently positive, and that 157 inmates and 16 staff have recovered. See COVID-19 Coronavirus , FED. BUREAU OF PRISONS , https://www.bop.gov/coronavirus/ (last visited Dec. 9, 2020). This is an alarming outbreak. While it appears that the BoP is making progress in containing the spread of the virus, it continues to have a significant presence at the facility.
Discussion
Courts do not have unfettered jurisdiction or discretion to modify criminal sentences. United States v. Goodwyn , 596 F.3d 233, 235–36 (4th Cir. 2010). A court may modify a sentence only when a provision in the Federal Rules of Criminal Procedure or a statute expressly permit it to do so. See 18 U.S.C. § 3582(c).
Section 3582(c)(1)(A), the "compassionate release" provision, is one such statutory provision. In order for a sentence reduction under § 3582(c)(1)(A) to be appropriate, the statute requires by its terms that the movant has exhausted his administrative remedies, that extraordinary and compelling reasons exist for a sentence reduction, and that the reduction is consistent with applicable policy statements issued by the Sentencing Commission. See United States v. Redd , 444 F. Supp. 3d 717, 722 (E.D. Va. 2020). In addition, the Court must consider the relevant § 3553(a) factors. Id. Mr. Royster made his initial request to the warden in the spring, and the warden took no action. He filed a renewed request in November, which the warden denied, and then he filed this emergency motion. Mr. Royster has satisfied the exhaustion requirement.
The Sentencing Commission has not yet adopted any policy statement applicable to motions filed directly by defendants. The Court has considered the old policy statement applicable to motions brought by BoP as helpful but non-binding guidance. See United States v. McCoy , No. 20-6821, 981 F.3d 271, 282–83, (4th Cir. Dec. 2, 2020).
Ordinarily, Mr. Royster would be ineligible for a sentence reduction under § 3582(c)(1)(A). His medical records show regular care for his chronic conditions, which do not seriously interfere with his ability to provide self-care while incarcerated. And the mere existence of the pandemic is not, by itself, an extraordinary and compelling reason for a sentence reduction. United States v. Raia , 954 F.3d 594, 596–97 (3d Cir. 2020). But there is a consensus in the district courts that certain medical conditions, when combined with a serious risk of contracting COVID-19, can constitute extraordinary and compelling reasons for a sentence reduction. When consistent with the § 3553(a) factors, a sentence reduction in these circumstances is appropriate.
See United States v. Williams , No. 1:13-CR-370-4, 2020 WL 5097490, at *3 n.4 (M.D.N.C. Aug. 28, 2020).
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Here, Mr. Royster has multiple risk factors that place him at risk of serious complications and illness should he contract the virus. After months of dealing with the pandemic, the virus remains in wide circulation at FCI Beckley. Mr. Royster's risk factors combined with the significant ongoing circulation of COVID-19 at FCI Beckley, constitute extraordinary and compelling reasons for a sentence reduction.
A sentence reduction is also consistent with the § 3553(a) factors. As discussed supra , Mr. Royster has a terrible criminal record. See Doc. 14 at ¶¶ 26–61. But he is now 39 years old, and the risk of recidivism generally declines with age. See United States v. Howard , 773 F.3d 519, 533 (4th Cir. 2014) ("[T]he risk of recidivism is inversely related to an inmate's age."). This is by far the longest sentence that Mr. Royster has ever served, and he has taken advantage of programs ranging from a demanding long-term drug rehabilitation program to money management and parenting classes to improve his life and reduce the likelihood he will commit new crimes upon release. Doc. 54 at 4. His family circumstances should provide additional motivation not to commit any new offenses. He will be on supervised release for 3 years, which also reduces the risk to the community and ensures any criminal activity will be swiftly detected and an appropriate sanction entered.
Moreover, Mr. Royster's guideline range was driven by his career offender status, Doc. 14 at ¶ 67, due to his earlier felony convictions for selling cocaine, id. at ¶ 42, and breaking and entering. Id. at ¶ 61. If he were sentenced today, his conviction for breaking and entering would not meet the definition of "crime of violence" under U.S.S.G. § 4B1.2(a) because the United States Sentencing Commission amended the guideline in 2016 to delete "burglary of a dwelling" from the list of enumerated offenses. See U.S.S.G. § 4B1.2(a), amend. 798. Thus, the career offender enhancement would not apply and he would face a guideline range of 63–78 months based on a total offense level of 19 and a criminal history category of VI rather than the career-offender-driven guideline range of 151–188 months.
The change in the way breaking and entering is viewed for career offender purposes under the guidelines is not enough by itself to warrant a sentence reduction, especially since the Court accounted for the severity of the enhancement in relation to Mr. Royster's criminal record when it originally sentenced Mr. Royster. And a sentence without the enhancement would have been inadequate in view of Mr. Royster's extensive criminal history and the failure of previous incarcerations to deter his criminal conduct. But it is nonetheless appropriate to consider "unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" as one factor among many in the § 3553(a) evaluation. The Court has taken this change in the guidelines into account as weighing to a limited extent in Mr. Royster's favor.
There is little to be gained by keeping Mr. Royster in custody for another eight months when he faces the possibility of severe illness if he is infected with a virus that the BoP has been unable to control at FCI Beckley. His post-conviction record is exemplary, and he has a good release plan. Weighing the § 3553(a) factors, Mr. Royster's risk of severe illness with the significant ongoing circulation of COVID-19 at FCI Beckley, his continuing positive progress while incarcerated, his age, his family situation, the changes in sentencing guidelines, and his release plan, the Court concludes in its discretion that a sentence reduction here is appropriate.
It is ORDERED that the defendant's motion for compassionate release, Doc. 54, is GRANTED and that Mr. Royster is sentenced to time served. Execution of this order is stayed for 12 days to give the Bureau of Prisons and Probation time to plan for his release.