Opinion
13-CR-1001-CJW-MAR
08-11-2021
UNITED STATES OF AMERICA, Plaintiff, v. RORY ZIRKELBACH, Defendant.
ORDER
C.J. WILLIAMS, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on defendant's amended motion for compassionate release filed on April 6, 2021. (Doc. 61). On April 13, 2021, the government timely filed a resistance. (Doc. 71). On April 20, 2021, defendant timely filed a reply. (Doc. 73). On June 2, 2021, defendant filed a supplement to his motion. (Doc. 74). For the following reasons, the Court denies defendant's motion.
II. RELEVANT BACKGROUND
On May 31, 2012, defendant attempted to manufacture methamphetamine on the second floor of his residence, a duplex in Dubuque, Iowa. (Doc. 28, at 4). At some point in the manufacturing process, a fire erupted. (Id.). After defendant unsuccessfully attempted to extinguish the fire, his then-girlfriend fled the residence through the front door. (Id.). Defendant's girlfriend then reentered the residence, locked the front door from the inside, and the pair of them exited through the back door. (Id.). Neither defendant nor his girlfriend attempted to alert their neighbors in the attached residence of the fire, even though the neighbor was standing on the front porch. (Id.). The neighbor was ultimately alerted to the fire by a passing bus driver. (Id.). The neighbor ran inside her half of the building to extract her sleeping two-year-old child from a second-floor bedroom, which had begun to fill with smoke. (Id.).
On September 5, 2012, police investigated a reported burglary at a hotel in Dubuque. (Id.). After searching the hotel room where defendant had been staying, police located a stolen television and evidence that defendant had manufactured methamphetamine there. (Id.). Defendant later admitted to stealing the television. (Id.). On November 19, 2012, police executed a search warrant at defendant's residence in Dubuque. (Id., at 5). This search uncovered evidence that defendant had recently manufactured methamphetamine there as well. (Id.).
On January 9, 2013, a grand jury returned an Indictment charging defendant with three counts of manufacturing and attempting to manufacture methamphetamine after having been convicted of a felony drug offense. (Doc. 2). Count 1 further alleged that the offense occurred within 1, 000 feet of a school and a playground. (Id., at 1). On January 14, 2013, defendant appeared before the Honorable Jon S. Scoles, United States Chief Magistrate Judge, pleaded not guilty to all three counts, and was detained pending trial. (Doc. 8). On January 28, 2013, defendant changed his plea to guilty to Count 1 under a plea agreement with the government. (Docs. 20 & 22). On March 15, 2013, the Court accepted defendant's plea. (Doc. 24).
On April 26, 2013, the United States Probation Officer (“USPO”) filed defendant's final presentence investigation report (“PSR”). (Doc 28). Defendant was, at that time, 43 years old. (Id., at 2). Defendant was a lifelong Dubuque, Iowa resident. (Id., at 22). Although he had earned a GED, his employment history was inconsistent, and he reported that he had been living on disability payments for the last two years. (Id., at 23-24). Defendant had two children who resided with their respective mothers. (Id., at 21-22). Defendant's younger child tested positive for methamphetamine at age two. (Id., at 22). Defendant had used methamphetamine since age 30 with a history of using the drug daily, alongside a sporadic history of using alcohol, marijuana, and cocaine. (Id., at 23). Defendant was diagnosed with Tourette syndrome at age 20, with symptoms remaining consistent through the date of his conviction. (Id. at 22). Defendant otherwise had no relevant medical conditions or health issues at that time. Defendant's criminal history was extensive. The USPO noted that defendant had been “arrested nearly every year since age 18, ” (Doc. 28-2, at 2), and had been convicted of 31 offenses, including burglary, theft, domestic abuse assault, and drug related offenses. (Doc. 28, at 8-21). Defendant committed at least 16 of those offenses while on probation or parole. (Id.).
On June 3, 2013, the Court sentenced defendant. (Doc. 32). The PSR designated defendant as a career offender under United States Sentencing Guidelines (“USSG”) Section 4B1.1 based on three prior felony convictions for controlled substance offenses: (1) a 1998 Iowa conviction for Possession With Intent to Deliver Amphetamine, (2) a 1998 Iowa conviction for Possession With Intent to Deliver Cocaine, and (3) a 2003 Illinois conviction for Unlawful Possession of Methamphetamine Manufacturing Chemicals. (Doc. 28, at 13-14, 17). Defendant was in criminal history category VI with a total offense level of 31, resulting in a guideline range of 188 to 235 months' imprisonment followed by six years to life on supervised release. (Id., at 26). The Court sentenced defendant to 235 months, at the top of the guideline range, followed by 10 years on supervised released. (Doc. 33). The Court also ordered defendant to pay restitution in the amount of $40,803.64. (Id., at 5).
On June 17, 2013, defendant timely appealed his judgment to the Eighth Circuit Court of Appeals, challenging both the application and constitutionality of the sentencing guidelines. (Doc. 36, at 2). On August 12, 2013, however, the Eighth Circuit granted defendant's motion to dismiss the appeal under Federal Rules of Appellate Procedure 42(b). (Doc. 48). On June 30, 2015, the Court sua sponte declined to reduce defendant's sentence in light of Amendment 782. (Doc. 51). The Court concluded that, because defendant was sentenced as a career offender, he was ineligible for a reduction. (Id. at 3-4).
On May 8, 2016, defendant filed a motion to vacate, set aside, or correct sentence under Title 28, United States Code, Section 2255. Zirkelbach v. United States, No. 16-CV-1015-LRR, (Doc. 1). In a subsequent motion to amend his petition, defendant explained that his initial Section 2255 motion was misinformed and, notwithstanding, he argued that this Court improperly sentenced him under the career offender enhancement. Id. (Docs. 4 & 5). Defendant relied on Mathis v. United States, 136 S.Ct. 2243 (2016), which clarified the proper application of the categorical approach used in determining predicate offenses for the career offender enhancement. Id. (Docs. 4 & 5). On October 2, 2017, the Court denied defendant's initial motion and his motion to amend on the ground that they were untimely under the limitations period of Section 2255(f). Id. (Doc. 6). The Court noted that Mathis did not recognize a new right made retroactively applicable on collateral review, and thus concluded Mathis did not overcome the limitations period of Section 2255(f). Id. On November 6, 2017, defendant timely sought a certificate of appealability from the Eighth Circuit Court of Appeals. Id. (Doc. 8). On February 8, 2018, the Eighth Circuit dismissed the appeal. Id. (Doc. 13).
On March 18, 2021, defendant filed a pro se motion for compassionate release. (Doc. 53); see also (Doc. 58). On March 23, 2021, the Court appointed counsel to defendant. (Doc. 54). On April 6, 2021, defendant filed his amended motion now before the Court. (Doc. 61). Defendant, now 52 years old, is currently incarcerated at Forrest City Medium FCI with a projected release date of October 4, 2029.
Find an Inmate., BOP, https://www.bop.gov/inmateloc.
III. COMPASSIONATE RELEASE STANDARDS
A court's ability to modify a sentence after it has been imposed is limited. Title 18, United States Code, Section 3582(c)(1)(A) allows a court to modify a sentence through “compassionate release.” A defendant may directly petition the court for compassionate release “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons [(“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.” 18 U.S.C. § 3582(c)(1)(A). Although some courts disagree, this Court holds that defendants are not required to administratively appeal a warden's denial and may satisfy Section 3582(c)(1)(A) by waiting 30 days from the date the warden receives their request before filing a motion for compassionate release in the courts. United States v. Burnside, 467 F.Supp.3d 659, 667 (N.D. Iowa 2020) (compiling cases).
A court may only reduce the defendant's sentence, however, after considering the factors set forth in Title 18, United States Code, Section 3553(a) to the extent they are applicable, and finding that:
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the [Bureau of Prisons] that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]18 U.S.C. § 3582(c)(1)(A). Defendants bear the burden of establishing eligibility for a sentence reduction. United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016).
Congress delegated authority to the Sentencing Commission to “describe what should be considered extraordinary and compelling reasons for sentence reduction.” 28 U.S.C. § 994(t). The Sentencing Commission's applicable policy statement defining “extraordinary and compelling reasons” is USSG Section 1B1.13-however, this statement is at least partly anachronistic. Section 1B1.13 predates the First Step Act of the 2018 amendments to Section 3582(c)(1)(A) which enabled defendants to bring motions for compassionate release on their own behalf. In the absence of an update by the Sentencing Commission, the Court maintains-along with a majority of the Courts of Appeals-that Section 1B1.13 is therefore not binding on motions filed by defendants after the First Step Act. See United States v. Crandall, No. 89-CR-21-CJW-MAR, 2020 WL 7080309, at *5 (N.D. Iowa Dec. 3, 2020). The Court recognizes, however, that Section 1B1.13 is still a helpful guidepost in determining whether extraordinary and compelling reasons exist to release a defendant. Id. at *6. Courts of Appeals have similarly instructed that the Policy Statement, although not binding, “may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant.” United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020) (“[W]e do not see the absence of an applicable policy statement as creating a sort of Wild West in court, with every district judge having an idiosyncratic release policy.”).
The Eighth Circuit has thus far avoided directly addressing the issue in several recent cases: United States v. Gater, No. 20-2158, 2021 WL 2069968, at *2 (8th Cir. May 24, 2021) (“We need not decide whether the statute supersedes the list of circumstances set forth in the policy statement.”); United States v. Rodd, 966 F.3d 740, 747 (8th Cir. 2020) (“We need not determine whether the district court erred in adhering to the policy statements in §1B1.13”); United States v. Loggins, 966 F.3d 891, 892 (8th Cir. 2020), reh'g denied (Nov. 2, 2020). See United States v. Long, 997 F.3d 342, 355 (D.C. Cir. 2021); United States v. Brooker, 976 F.3d 228, 234-37 (2d. Cir. 2020); United States v. McCoy, 981 F.3d 271, 281-84 (4th Cir. 2020); United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021); United States v. Jones, 980 F.3d 1098, 1109-11 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178, 1181 (7th Cir. 2020); United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021); United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021). But see United States v. Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021) (holding that section “1B1.13 is still an applicable policy statement for a Section 3582(c)(1)(A) motion, no matter who files it.”).
CDC, OlderAdults, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/older-adults.html. The “extraordinary and compelling” standard under Section 3582(c)(1)(A) carries the same meaning whether brought by the BOP or by a defendant. See United States v. Ebbers, 432 F.Supp.3d 421, 427 (S.D.N.Y. 2020) (“[T]here is no indiN8" NAME="ftn.FN8">8]
Section 1B1.13 provides that extraordinary and compelling reasons exist when the defendant is (1) suffering from a terminal illness; (2) suffering from a serious physical or medical condition, a functional or cognitive impairment, or physical or mental deterioration due to aging which substantially diminishes the defendant's ability to care for themselves within the facility and from which the defendant is not expected to recover; (3) at least 65 years old, experiencing serious deterioration due to age, and has served at least 10 years or 75 percent of their sentence; (4) experiencing a change in family circumstances, namely the death or incapacitation of the caregiver of the defendant's minor child or the incapacitation of the defendant's spouse who now requires the defendant's care; or (5) experiencing some other extraordinary and compelling reason as determined by the BOP. USSG § 1B1.13 cmt. n.1.
IV. DISCUSSION
A. Exhaustion of Administrative Remedies
Defendant submitted his request for compassionate release to the warden of his facility on August 1, 2020. (Doc. 61-5, at 3). On December 22, 2020, the warden denied this request. (Id., at 1-2). The Court finds defendant has fulfilled the exhaustion requirement of Section 3582(c)(1)(A) because 30 days have lapsed from the date the warden received his request. See Burnside, 467 F.Supp.3d at 665-67 (holding a defendant has met the exhaustion requirement if 30 days have passed since the defendant's request regardless of whether the warden denies the request).
B. Extraordinary and Compelling Reason
In asserting an extraordinary and compelling reason for a sentence reduction, defendant cites two separate bases. First, defendant argues his current medical conditions and corresponding vulnerability to COVID-19 compel a sentence reduction. (Doc. 66, at 4-19). Second, defendant argues that his current term of incarceration is the result of a misapplication of the sentencing guidelines under the applicable law at the time of his original sentence, resulting in a disparate and excessive sentence. (Id. at 19-30); see also (Doc. 73, at 2-5). The Court will address both bases in turn.
1. COVID-19 and Defendant's Health Conditions
Defendant first argues an extraordinary and compelling reason for release is present because, even though he already contracted and recovered from COVID-19 and is now fully vaccinated against the virus, his various long-term health conditions put him at high risk of death if he is reinfected with the COVID-19 virus or a variant. (Doc. 66, at 5-19). The government argues these grounds are insufficient, emphasizing that defendant's vaccination and the declining threat of COVID-19 in the BOP substantially mitigate the risk defendant faces while incarcerated. (Doc. 71, at 5-18).
The Court has previously held that the threat of COVID-19 infection at a defendant's specific facility or within the BOP generally may constitute an extraordinary and compelling reason for compassionate release if the defendant is particularly susceptible to COVID-19 due to their age or underlying health conditions. See Burnside, 467 F.Supp.3d at 667-71 (compiling cases). More recently, however, the Court recognized the waning threat COVID-19 poses within the BOP:
Even if defendant's diabetes were serious or uncontrolled enough to raise concern about the complications it may pose vis-à-vis COVID-19, the Court would still deny release because the threat posed to prisoners by the virus has substantially diminished in recent months. The BOP has gone to great lengths to contain the virus and is administering vaccines throughout its facilities. Every indication is that the spread within the BOP-particularly at defendant's facility-is now minimal. The risk posed to defendant by COVID-19 is therefore minimal.United States v. Saeed, 15-CR-2005-CJW-MAR-2, (Doc. 214) (Mar. 18, 2021). The “vast majority” of courts have concluded that an inmate's vaccination significantly diminishes the possibility that COVID-19 conditions will constitute an extraordinary and compelling reason warranting compassionate release. United States v. Singh, No. 4:15-CR-00028-11, 2021 WL 928740, at *3 (M.D. Pa. Mar. 11, 2021) (denying release for inmate with obesity and Type II diabetes when inmate had received both doses of the Moderna vaccine); see also United States v. Peel, No. 14-cr-00192 KJM CKD, 2021 WL 2875658 (E.D. Cal. July 8, 2021) (denying relief to an inmate in his seventies suffering from hypertension, chronic obstructive pulmonary disease, benign hypertrophy of prostate, chronic viral hepatitis C, and malignant neoplasm of prostate, ultimately because he received a vaccine); United States v. Hardaway, No. CR 15-60(2) ADM/BRT, 2021 WL 2680245, at *2 (D. Minn. June 30, 2021) (“Any risk of [defendant] becoming reinfected and seriously ill from COVID-19 has been substantially reduced because he is now fully vaccinated.”); United States v. Williams, No. 16-251 (DWF/KMM), 2021 WL 1087692, at *3 (D. Minn. Mar. 22, 2021) (same); United States v. Godoy-Machuca, No. CR-16-01508-001-PHX-DJH, 2021 WL 961780, at *2 (D. Ariz. Mar. 15, 2021) (denying relief to defendant with Type II diabetes, hypertension, obesity, and other ailments because defendant was fully vaccinated and had already once contracted and recovered from COVID-19); United States v. McGill, No. SAG-15-0037, 2021 WL 662182, at *5 (D. Md. Feb. 19, 2021) (same); United States v. Wakefield, No. 1:19-cr-00095-MR-WCM, 2021 WL 640690, at *3 (W.D. N.C. Feb. 18, 2021) (same).
The Centers for Disease Control and Prevention (“CDC”) states that the “[r]isk of SARS-CoV-2 infection is minimal for fully vaccinated people.” Specifically, the CDC indicates that the Moderna vaccine is highly and widely effective, preventing 94.1% of infections in clinical trials across diverse demographics. Furthermore, even without vaccination, “[c]ases of reinfection with COVID-19 have been reported, but remain rare.”
Defendant asserts, and his medical records confirm, that he is 52 years old and suffers from several long-term physical health conditions-type II diabetes, obesity, hypertension, and hyperlipidemia. See (Doc. 66, at 9-19). He argues these conditions increase his vulnerability to COVID-19. (Id.). Defendant has at least two health conditions which are known risk factors relevant to COVID-19 (type II diabetes and obesity) and one potential risk factor (hypertension). Hyperlipidemia is not identified by the CDC as being relevant to COVID-19. The Court also notes defendant's age.Defendant's medical records also indicate, however, that he already contracted COVID-19 in December 2020, remained asymptomatic, and recovered without complications. (Doc. 72-2, at 21-22, 120). Further, defendant is now fully vaccinated against COVID-19, having received his second dose of the Moderna vaccine on March 30, 2021. (Doc. 72-3).
In light of the information available to the Court at this time with respect to the COVID-19 pandemic taken with the facts here, this ground for release is unavailing. First, defendant's concerns about a disproportionate risk of contracting the virus are unfounded. Defendant asserts the BOP struggled to manage the virus at his facility during the height of the pandemic. (Doc. 66, at 6-8). Even so, there is now only one active case of COVID-19 among the inmates at Forrest City Medium FCI. The COVID-19 vaccine has been accessible to inmates for months, and many inmates at defendant's facility have taken the vaccine. The waning of the pandemic generally and at Forrest City Medium FCI specifically-attributable to the ongoing efforts of the BOP to safely manage its facilities and administer vaccines-strongly militates against the threat that defendant will again be exposed to the virus.
COVID-19, BOP, https://www.bop.gov/coronavirus.
BOP statistics indicate that 1, 572 inmates between Forrest City Medium FCI and Forrest City Low FCI (together “Forest City FCC”) are currently inoculated against COVID-19. COVID-19, BOP, https://www.bop.gov/coronavirus. There are currently 1, 415 inmates incarcerated at Forrest City Medium FCI and 1, 448 at Forrest City Low FCI. Statistics, BOP, https://www.bop.gov/about/statistics. Thus, in total, the BOP has inoculated roughly 55 percent its 2, 863 inmates within the Forrest City FCC.