Opinion
CRIMINAL ACTION 19-00146-01
11-02-2021
UNITED STATES OF AMERICA v. KENTRELL DEMARCIA TURNER
HORNSBY MAGISTRATE JUDGE
MEMORANDUM RULING
S. MAURICE HICKS, JR., CHIEF JUDGE
Before the Court is Petitioner Kentrell Demarcia Turner's ("Turner") Motion for Compassionate Release (Record Document 56; see also Record Document 57). The Government has opposed Turner's motion. See Record Document 62. For the reasons set forth below, Turner's Motion for Compassionate Release is hereby DENIED.
The Government's response was untimely in light of the deadlines set forth in the Standard Procedural Order. See Record Document 58. However, within its discretion, the Court hereby grants leave for such filing and will consider the Government's opposition in deciding Turner's Motion for Compassionate Release.
BACKGROUND
On February 20, 2020, Turner pled guilty to possession of cocaine with intent to distribute and possession of a firearm in furtherance of drug trafficking. See Record Documents 34 & 36. Turner was sentenced on September 8, 2020 to 27 months as to the possession of cocaine with intent to distribute charge and 60 months as to the possession of a firearm in furtherance of drug trafficking charge, for a total of 87 months imprisonment. See Record Documents 48 & 50. His imprisonment shall be followed by three years of supervised release. See id.
Turner is presently serving his sentence at Oakdale I FCI. His projected release date is June 27, 2025. 1
LAW AND ANALYSIS
Turner seeks compassionate release due to certain medical conditions, specifically obesity, diabetes, and hypertension. See Record Document 56 at 3. Turner believes he is particularly vulnerable to becoming seriously ill should he contract COVID-19 in prison. See id. at 3-8.
A judgment of conviction, including a sentence of imprisonment, "constitutes a final judgment and may not be modified by a district court except in limited circumstances." Dillon v. United States, 560 U.S. 817, 824, 130 S.Ct. 2683, 2690 (2010). Title 18, United States Code, Section 3582(c) provides that the Court "may not modify a term of imprisonment once it has been imposed," except in three circumstances:
(1) upon a motion by the Bureau of Prisons or the defendant for reduction of sentence under 18 U.S.C. § 3582(c)(1)(A);
(2) "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure," 18 U.S.C. § 3582(c)(1)(B); or
(3) where the defendant was sentenced based on a retroactively lowered sentencing range, 18 U.S.C. § 3582(c)(2).
In this case, Turner moves to modify his sentence pursuant 18 U.S.C. § 3582(c)(1)(A). Under this section, the Court may reduce a sentence "if it finds that extraordinary and compelling reasons warrant such a reduction" and "that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A).
Prior to 2018, only the Director of the BOP could file Section 3582(c)(1)(A) motions, also known as compassionate release motions. In 2018, Congress passed, and President Trump signed the First Step Act, which among other actions, amended the compassionate release process. Under the First Step Act, Section 3852(c)(1)(A) now allows prisoners to directly petition courts for compassionate release. However, before 2 filing compassionate release motions, prisoners must exhaust their administrative remedies in one of two ways:
(1) prisoners may file a motion with the court after fully exhausting all administrative rights to appeal the BOP's decision not to file a motion for compassionate release, or
(2) prisoners may file a motion with the court after requesting release and there has been "the lapse of 30 days from the receipt of such request by the warden of the defendant's facility, whichever is earlier."18 U.S.C. § 3582(c)(1)(A). There is no dispute that Turner has exhausted his administrative remedies and the Court will proceed to the merits.
Subject to considerations of 18 U.S.C. § 3553(a), Section 3582(c)(1)(A) permits a reduction in Turner's term of imprisonment if the Court determines that extraordinary and compelling reasons warrant a reduction. The reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). Previously, a district court was confined to the policy statements set forth in U.S.S.G. § 1B1.13 to determine whether a compelling reason existed to grant release. However, the Court of Appeals for the Fifth Circuit recently vacated this restricted examination finding that the policy statements contained under U.S.S.G. § 1B1.13 are only binding on the Court when the motion for compassionate release is brought on the prisoner's behalf by the BOP. See U.S. v. Shkambi, No. 20-40543, 2021 WL 1291609, at*3(5thCir. 04/07/2021).
The Fifth Circuit instructed that a district court considering a motion for compassionate release brought by the prisoner himself "is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a)." Id. at *4. Shkambi did not, however, render § 1B1.13 irrelevant with respect to defendant-filed motions under Section 3582(c)(1)(A), as the Fifth Circuit has long recognized that although not 3 dispositive, the commentary to § 1B1.13 informs the district court's analysis as to what reasons may be sufficiently extraordinary and compelling to necessitate compassionate release. See U.S. v. Robinson, No. 3:18-CR-00228-01, 2021 WL 1723542 (W.D. La. 04/30/2021), citing U.S. v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021). While not binding, § 1B1.13 suggests that the following are deemed extraordinary and compelling reasons warranting a sentence reduction: (1) the defendant's medical conditions; (2) the defendant's age; (3) family circumstances; or (4) other reasons. See U.S.S.G. § 1B1.13, cmt. n.1; see also Thompson, 984 F.3d at 433.
"In general, the defendant has the burden to show circumstances meeting the test for compassionate release." U.S. v. Stowe, No. H-11-803(1), 2019 WL 4673725 at *2 (S.D. Tex. Sept. 25, 2019); see also U.S. v. Ennis, No. EP-02- CR-1430-PRM-1, 2020 WL 2513109, at *4 (W.D. Tex. May 14, 2020) ("[T]he defendant has the burden to show circumstances meeting the test for compassionate release."); U.S. v. Wright, No. 16-214-04, 2020 WL 1976828, at *6 (W.D. La. Apr. 24, 2020) (Petitioner has the "burden of showing the necessary circumstances, or a combination of circumstances, that would warrant relief under the compassionate release statute."). In certain instances, the COVID-19 outbreak may affect whether an inmate can show extraordinary and compelling reasons warranting compassionate release under Section 3582(c)(1)(A)(i). If an inmate has a chronic medical condition that has been identified by the Centers for Disease Control ("CDC") as elevating the inmate's risk of becoming seriously ill from COVID-19, that condition, in light of the pandemic, may rise to the level of "extraordinary and compelling reasons" under Section 3582(c)(1)(a). In other words, some conditions that would not have previously constituted an "extraordinary and compelling reason" now fall into this category because of the risk of COVID-19. 4
Tuner argues his obesity, diabetes, and hypertension are extraordinary and compelling reasons for release. However, BOP records indicate that Turner has been fully vaccinated against COVID-19. See Record Document 63 (sealed) at 1. According to the Centers for Disease Control and Prevention, the COVID-19 vaccines available in the United States are highly effective at preventing COVID-19 and may also reduce the risk of serious illness in the case of a COVID-19 infection. See Benefits of Getting a COVID-19 Vaccine, Centers for Disease Control and Prevention, medical conditions, (IMAGE OMITTED) (last visited September 23, 2021). Thus, even with his medical conditions, there is no extraordinary and compelling reason supporting compassionate release in light of Turner's vaccination status. See generally U.S. v. Robinson, No. 3:18-CR-00228-01, 2021 WL 1723542 (W.D. La. 04/30/2021); U.S. v. Jones, No. 14-154, 2021 WL 1172537 (E.D. La. 03/29/2021); U.S. v. White, No. 11-287, 2021 WL 3021933 (W.D. La. 07/16/2021).
Notwithstanding, even if this Court were to find that Turner had extraordinary and compelling reasons for compassionate release, granting such release in this case would not comport with the factors enumerated in Section 3553(a). See 18 U.S.C. § 3582(c)(1)(A). The Presentence Investigation Report demonstrates that Turner has a lengthy criminal history involving drug possession and drug distribution. See Record Document 40 (PSR) at ¶¶ 40-42, 49-50, 54. The instant offense involved a large amount of cocaine and Turner possessed a loaded handgun. See id. at ¶¶ 10-18. It is this Court's belief that a reduced sentence in this case simply would not reflect the seriousness of the offense, would not promote respect for the law, would not afford adeguate deterrence to criminal conduct, and would not protect the public from further 5 crimes of this Defendant. A reduced sentence would also create disparity with respect to defendants with similar criminal records who have engaged in similar criminal conduct.
CONCLUSION
Based on the foregoing reasons, Turner's Motion for Compassionate Release (Record Document 56) be and is hereby DENIED.
An order consistent with the terms of the instant Memorandum Ruling shall issue herewith.
THUS DONE AND SIGNED. 6