Opinion
Case No. 1:06 CR 132 CDP
2021-06-02
UNITED STATES of America, Plaintiff, v. Charles WEISSINGER, Defendant.
Keith D. Sorrell, Office of US Attorney, Cape Girardeau, MO, Tiffany G. Becker, Assistant US Attorney, Office of US Attorney, St. Louis, MO, for Plaintiff. Jennifer L. Booth, Federal Public Defender, Cape Girardeau, MO, for Defendant.
Keith D. Sorrell, Office of US Attorney, Cape Girardeau, MO, Tiffany G. Becker, Assistant US Attorney, Office of US Attorney, St. Louis, MO, for Plaintiff.
Jennifer L. Booth, Federal Public Defender, Cape Girardeau, MO, for Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
Defendant Charles Weissinger initially filed a pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Appointed counsel later filed an amended emergency motion. The amended motion argues that Weissinger is at risk of contracting COVID-19 while incarcerated in the Bureau of Prisons, that his long history of smoking and potential COPD place him at enhanced risk, and that he should have already been released from prison when the governing law changed but for technicalities of filing successive habeas petitions. The government opposes the motion, arguing that defendant has misrepresented his medical condition in an attempt to be released from jail, and that the Court lacks the authority to reduce his sentence. After the government filed its opposition, Weissinger supplemented his motion with evidence of a CT scan from October 2020 that showed lung disease, specifically mild centrilobular emphysema. The CT scan was ordered after a pulmonologist provisionally diagnosed Weissinger in September 2020 with severe restrictive lung disease, based on severe restrictive patterns on pulmonary function tests.
Weissinger has shown extraordinary and compelling reasons warranting compassionate release, based on the unwarranted sentencing disparities caused by his extremely long sentence when compared with similar cases today, his medical condition, and the other sentencing factors under 18 U.S.C. § 3553(a). I will therefore grant his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) and will reduce his sentence to time served.
Background
On November 27, 2006, Weissinger entered a plea of guilty to a single-count indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The offense usually carries a maximum sentence of ten years in prison, see 18 U.S.C. § 924(a)(2), but the Armed Criminal Career Act (ACCA) increases the penalty to a fifteen-year minimum and a maximum of life imprisonment if the defendant has three prior convictions for a "violent felony." 18 U.S.C. § 924(e)(1). The indictment here specifically charged Weissinger under the ACCA, alleging that he had three prior Missouri burglary convictions. He was thus facing a mandatory minimum sentence of fifteen years.
At his guilty plea, Weissinger admitted to possessing a firearm as alleged in the indictment in that he broke into a car and stole a gun. He traded the gun to someone for cocaine, and that person later used the gun in a shooting. Weissinger also admitted that he had the three prior burglary convictions that were alleged in the indictment. The presentence report identified additional prior convictions that were possible ACCA predicates:
• A Missouri conviction for leaving the scene of an accident in 1990;
• A Missouri conviction for resisting arrest in 1990;
• An Illinois conviction for burglary (two counts) in 1993;
• An Eastern District of Missouri federal conviction for felon in possession of a firearm and possession of stolen firearms in 1995; and
• A Missouri conviction for attempted escape from confinement in 2006.
Based on the total offense level and Weissinger's criminal history, the presentence report determined the United States Sentencing Guidelines range (based on the 2006 guidelines) was 188 to 235 months. I sentenced him on February 12, 2007 to 235 months, the top of the advisory sentencing guidelines. He is currently housed at the United States Penitentiary in Yazoo City, Mississippi, with a projected release date of October 20, 2023.
The ACCA defines "violent felony" as any federal or state crime punishable by a prison term exceeding one year that "has an element the use, attempted use, or threatened use of physical force against the person of another," 18 U.S.C. § 924(e)(2)(B)(i) (the "elements clause"); or "is burglary, arson, or extortion," id. § 924(e)(2)(B)(ii) (the "enumerated offenses clause"); or "otherwise involves conduct that presents a serious potential risk of physical injury to another," id. (the "residual clause"). When Weissinger was sentenced in 2007, the burglary convictions qualified as predicate convictions under the "enumerated offenses" clause of the ACCA. The other possible predicate convictions qualified under the "residual clause."
Weissinger challenged his sentence on direct appeal, arguing inter alia that his prior burglary convictions should not be considered violent felonies within the meaning of § 924(e). The Eighth Circuit affirmed Weissinger's sentence, finding no error. United States v. Weissinger , 262 Fed. Appx. 727 (8th Cir. 2008) (unpublished) (per curiam). Thereafter, in July 2008, Weissinger filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, raising a claim that counsel was ineffective for failing to contest his ACCA classification, specifically arguing that he did not have three prior violent felony convictions. See Weissinger v. United States , Case No. 1:18CV118 CDP (E.D. Mo.). I denied the motion in December 2009 and declined to issue a certificate of appealability. Id. at ECF 5, 6.
Six years later, in 2015, the United States Supreme Court held that the ACCA's residual clause is unconstitutionally vague, Johnson v. United States , 576 U.S. 591, 597-98, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which had the effect of removing Weissinger's non-burglary convictions as ACCA predicate offenses. Relying on Johnson ’s holding, Weissinger filed another pro se § 2255 motion in which he again challenged his conviction under the ACCA, arguing that his predicate convictions did not qualify as violent felonies. See Weissinger v. United States , Case No. 1:16CV175 CDP (E.D. Mo.). Because Weissinger did not first seek certification from the court of appeals under 28 U.S.C. § 2255(h) to file a second or successive motion to vacate, I transferred Weissinger's motion to the Eighth Circuit for its consideration. Id. at ECF 7. In its response filed in the Eighth Circuit, the government argued that Johnson ’s invalidation of the residual clause did not affect Weissinger's ACCA status given that his prior burglary convictions remained violent felonies under the enumerated offenses clause of the statute. See Weissinger v. United States , Case No. 16-3698 (8th Cir.). On March 17, 2017, the Eighth Circuit denied Weissinger authorization to file a second motion to vacate, without comment. E.D. Mo. Case No. 1:16CV175 CDP at ECF 11.
On April 5, 2018, the Eighth Circuit decided in United States v. Naylor , that Missouri convictions for second degree burglary under Mo. Rev. Stat. § 569.170 (1979) "do not qualify as violent felonies under the ACCA." 887 F.3d 397, 407 (8th Cir. 2018) (en banc). Given that Naylor's fifteen-year mandatory minimum sentence under the ACCA was based on his prior Missouri second-degree burglary convictions, the Eighth Circuit vacated the sentence and remanded the case to the district court for resentencing. Id. The Eighth Circuit remanded similar cases for resentencing based on its holding in Naylor . See, e.g., Cravens v. United States , 894 F.3d 891 (8th Cir. 2018) ; United States v. Bell , 719 Fed. Appx. 534 (8th Cir. 2018) (unpublished) (per curiam); United States v. Sykes , 727 Fed. Appx. 908 (8th Cir. 2018) (unpublished) (per curiam).
In view of Naylor , Weissinger again moved to vacate, set aside, or correct his sentence under § 2255 in May 2018. With the assistance of counsel, Weissinger argued in his motion that with Johnson invalidating his non-burglary convictions under the residual clause and Naylor invalidating his Missouri second-degree burglary convictions under the enumerated offenses clause, he no longer had three predicate convictions to qualify for ACCA sentencing enhancement and thus was subject to only the ten-year maximum sentence under 18 U.S.C. § 924(a)(2). See Weissinger v. United States , Case No. 1:18CV111 CDP (E.D. Mo.). As with his § 2255 motion filed in 2016, Weissinger did not first seek certification from the court of appeals to file a second motion, so I again transferred the motion to the Eighth Circuit for its consideration. Id. at ECF 2. In its response filed in the Eighth Circuit, the government did not oppose Weissinger's filing of a successive petition given the Eighth Circuit's determinations in similar cases after Naylor . See Weissinger v. United States , Case No. 18-2056 (8th Cir.). On July 17, 2018, the Eighth Circuit denied Weissinger permission to file a successive motion to vacate, without comment. E.D. Mo. Case No. 1:18CV111 CDP at ECF 4.
Although Weissinger surmises that the Eighth Circuit's decision was likely based on its holding in Walker v. United States , 900 F.3d 1012 (8th Cir. 2018), that required a movant filing a successive challenge under Johnson to show by a preponderance of the evidence that he was sentenced under ACCA's residual clause rather than the enumerated clause, I note that Walker was decided on August 20, 2018, one month after the court denied Weissinger permission to file a successive § 2255 motion.
In response to Weissinger's motion for compassionate release here, the government agrees that if Weissinger were to be sentenced today on the felon-in-possession charge to which he plead guilty in 2006, he would not qualify for ACCA enhancement but rather would be subject to a maximum sentence of ten years’ imprisonment. The government argues, however, that a mere change in a sentencing statute is insufficient by itself to justify a reduction in sentence; and that because Weissinger does not suffer a debilitating health condition or otherwise satisfy the § 3553(a) factors, he is not eligible for compassionate release under the First Step Act. For the following reasons, I disagree.
Discussion
A court can reduce a final sentence only under the very limited circumstances listed in 18 U.S.C. § 3582(c). Before the passage of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018), a defendant could not file a motion for compassionate release directly with the court. Instead, only the Bureau of Prisons could request compassionate release. See, e.g., United States v. Mills, No. 1:10-CR-117 CAS, 2014 WL 3845441 (E.D. Mo. Aug. 5, 2014) ; Brown v. Inch, Case No. 18-CV-221 JNE/LIB, 2018 WL 2108254 (D. Minn. March 29, 2018). The First Step Act changed that so that a defendant may now file a direct motion with the court "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[.]" 18 U.S.C. § 3582(c)(1)(A).
Under § 3582(c)(1)(A), compassionate release may be granted if the court finds, "after considering the factors set forth in section 3553(a) to the extent they are applicable," that "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). The statute also provides—as it did before the passage of the First Step Act—that any reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A).
The government argues that compassionate release may only be granted if to do so is consistent with U.S.S.G. § 1B1.13 cmt. n.1(A)-(D), which contains specific reasons that could qualify a defendant for compassionate release. As I noted in United States v. Littrell , however, the guideline has not been amended to reflect the changes wrought by the First Step Act. I therefore concluded that because the Sentencing Commission has not provided guidance for compassionate release motions made directly to a court, there is no "applicable policy statement" that limits a court's discretion in considering what constitutes "extraordinary and compelling reasons" to support such a motion. 461 F. Supp. 3d 899, 904-05 (E.D. Mo. 2020). Accordingly, while the guidelines provision and its application note provide helpful guidance, this court is not limited in the factors that can be considered in determining whether compassionate release should be granted. Id. Numerous district courts and several courts of appeals have agreed with this conclusion. See United States v. Aruda , 993 F.3d 797, 801-02 (9th Cir. 2021) ; United States v. McGee , 992 F.3d 1035, 1043-45 (10th Cir. 2021) ; United States v. McCoy , 981 F.3d 271, 281-82 (4th Cir. 2020) ; United States v. Gunn , 980 F.3d 1178 (7th Cir. 2020) ; United States v. Jones , 980 F.3d 1098, 1111 (6th Cir. 2020) ; United States v. Brooker , 976 F.3d 228 (2d Cir. 2020) ; accord United States v. Adams , No. 4:18-CR-93 RLW, ––– F.Supp.3d ––––, –––– – ––––, 2021 WL 126797, at *4-6 (E.D. Mo. Jan. 11, 2021) (collecting cases).
The United States Sentencing Commission has not had a quorum since passage of the First Step Act.
Turning to the merits of Weissinger's motion, Weissinger can obtain relief under § 3582(c)(1)(A)(i) only if I find, "after considering the factors in section 3553(a) to the extent they are applicable," that "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). "Extraordinary and compelling reasons" may include circumstances where, as here, the defendant would receive a significantly lower sentence than the one he is currently serving if sentenced today for the same conduct. See United States v. Hope , No. 90-CR-06108-KMW-2, 2020 WL 2477523, at *2-4 (S.D. Fla. Apr. 10, 2020) (collecting cases).
As noted above, if sentenced today Weissinger would face only a ten-year maximum sentence, rather than the fifteen-year to life statutory range he faced in 2007. Based on Johnson and Naylor , Weissinger did not have the requisite number of predicate violent felonies to bring him within the ACCA. And with the Eighth Circuit holding that Illinois burglary is likewise not a violent felony under the ACCA, see Cravens , 894 F.3d at 893 (citing United States v. Byas , 871 F.3d 841, 844 (8th Cir. 2017) (per curiam)), Weissinger in fact has no prior prior convictions that would today be considered violent felonies under the ACCA. As a result, Weissinger's sentence is almost double the maximum he would have received if sentenced today. This passage of time and the procedural rules regarding successive motions to vacate under 28 U.S.C. § 2255 have resulted in an unwarranted sentencing disparity when Weissinger is compared to persons with much more serious prior histories who are sentenced today for the same crime.
Consideration of additional § 3553(a) factors supports my determination to reduce Weissinger's sentence. Weissinger has been in prison on this conviction for more than fourteen years. He has shown through his good behavior during this time that he is no longer a danger to the community. He has made efforts at rehabilitation by completing substance abuse programs; taking classes in HVAC, electrical maintenance, and dog training; and acquiring thousands of hours in vocational apprenticeships. 18 U.S.C. § 3553(a)(2)(D). This post-sentencing conduct and positive prison record "provides the most up-to-date picture of [his] ‘history and characteristics.’ " Pepper v. United States , 562 U.S. 476, 492, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (citing 18 U.S.C. § 3553(a)(1) ). Although Weissinger's crime of being a felon in possession of a firearm was serious, it was not a crime of violence. A sentence of time served, which currently totals more than fourteen years, recognizes the seriousness of the crime and is more than sufficient to meet the sentencing objectives of the statute, see 18 U.S.C. § 3553(a)(2)(A). In addition, Weissinger is significantly older now, which reduces his risk of recidivism and the Probation Office has informed me that Weissinger has an acceptable home plan if he is released. (ECF 61.)
As to Weissinger's health concerns, I note that although his centrilobular emphysema was diagnosed as "mild," this impairment is nevertheless a long-term, progressive lung disease considered to be a form of COPD. And, according to the Centers for Disease Control and Prevention, persons with COPD (including emphysema ) are more likely to get severely ill from COVID-19. Data provided by the Bureau of Prisons, however, shows that there are currently no active cases of COVID-19 among the inmates or staff at USP Yazoo City. As of February 12, 2021, Weissinger had tested negative for COVID-19 on several occasions, and the most recent Probation Office report indicates that he has recently received both doses of a COVID-19 vaccine. On this information, it appears that Weissinger faces reduced risks from the virus.
Annamarya Scaccia, What is Centrilobular Emphysema and How is it Treated? , Healthline (updated Feb. 7, 2017), https://www.healthline.com/health/copd/centrilobular-emphysema (last visited June 2, 2021).
COVID-19, Medical Conditions , Centers for Disease Control and Prevention (updated May 13, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last June 2, 2021).
Federal Bureau of Prisons, Covid-19 Coronavirus , Bureau of Prisons, https://www.bop.gov/coronavirus (last visited June 2, 2021).
Nevertheless, the extraordinary and compelling circumstances resulting from the change in sentencing law, together with Weissinger having served in excess of what today would be the statutory maximum for the offense of conviction, his exemplary prison conduct and demonstrated rehabilitation, his stable home plan, and his chronic lung impairment, justifies my reducing his sentence to time served even if his risk of contracting COVID-19 is currently reduced. Therefore, upon consideration of the sentencing factors listed in 18 U.S.C. § 3553(a), I conclude that it is appropriate to reduce Weissinger's sentence to time served.
Accordingly,
IT IS HEREBY ORDERED that defendant Charles Weissinger's motions for compassionate release under the First Step Act [56] [59] are GRANTED , and defendant's sentence of imprisonment is reduced to time served.
An Amended Judgment complying with this Memorandum and Order is entered separately today.