Opinion
CRIMINAL CASE NO. 3:16-CR-211-L-1
2021-04-20
UNITED STATES of America v. Gary BUSBY, #54319-177, Defendant.
Kate Rumsey, Assistant US Attorney, United States Attorney's Office, Dallas, TX, for United States of America.
Kate Rumsey, Assistant US Attorney, United States Attorney's Office, Dallas, TX, for United States of America.
ORDER
Sam A. Lindsay, United States District Judge Before the court is Defendant's Motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A) due to extraordinary and compelling reasons and the COVID-19 Pandemic (Doc. 127). The Government opposes Defendant's motion (Doc. 129). Defendant has filed a reply (Doc. 132). Having considered all the relevant pleadings and applicable law, the court finds Defendant's motion should be and is hereby granted .
I.
In 2017, a jury found Defendant guilty of conspiracy to manufacture firearms without a license and four counts of structuring transactions to evade reporting requirements and the court sentenced him to combined terms of 78 months’ imprisonment and a two-year term of supervised release. Crim. Doc. 93. The court also entered a forfeiture money judgment against him for $236,488. Id. On May 27, 2020, the United States Court of Appeals for the Fifth Circuit affirmed his conviction. Crim. Doc. 123.
Defendant now seeks compassionate release due to a serious chronic health condition, Chronic Lymphocytic Leukemia. This is his second bout with cancer. Defendant was confined within the Federal Bureau of Prisons ("BOP") until December 2020, when the BOP designated him for home confinement under the CARES Act. By this motion, Defendant seeks release from BOP supervision, reduce his 78-month sentence to time served, and begin his two-year term of supervised release. The Government opposes compassionate release on the sole ground that Defendant's motion is moot. Defendant rebuts the Government's mootness argument. Because Defendant is serving his sentence under BOP supervision, the court overrules the Government's mootness argument and finds, in its discretion, that Defendant meets the requisite standard for compassionate release.
II.
A district court lacks inherent authority to modify a defendant's sentence after it has been imposed. See 18 U.S.C. § 3582(c). Under Section 3582(c)(1)(A), as amended by the First Step Act of 2018, however, "[a] court, on a motion by the BOP or by the defendant after exhausting all BOP remedies, may reduce or modify a term of imprisonment, probation, or supervised release after considering the factors of 18 U.S.C. § 3553(a), if ‘extraordinary and compelling reasons warrant such a reduction.’ " United States v. Chambliss , 948 F.3d 691, 692-93 (5th Cir. 2020) (quoting § 3582(c)(1)(A)(i) ); see id. at 693 n.1. "The district court ... is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a)." United States v. Shkambi , No. 20-40543, 993 F.3d 388, 393 (5th Cir. Apr. 7, 2021).
As previously noted, the government opposes compassionate release only on mootness grounds, asserting that Defendant's designation to home confinement moots his compassionate release request. The government's argument is unavailing. First, the cases on which the government relies do not stand for the proposition that home-confinement designation in-and-of-itself renders moot a request for compassionate release. Second, the cases are distinguishable as aptly pointed out in Defendant's reply. More importantly, the remaining portion of Defendant's 78-month custodial sentence remains intact. The BOP's home-confinement designation only means that Defendant is permitted to serve the remaining portion of his 78-month sentence at home under the supervision of the BOP. Still, should he violate the terms of his home confinement, the BOP could rescind the designation and reincarcerate him. The court rejects therefore the government's mootness argument.
After considering all the information surrounding Defendant's Chronic Lymphocytic Leukemia, his advanced age (68) and unique circumstances, and the elevated risk caused by the COVID-19 Pandemic, should the BOP end his home-confinement designation and reincarcerate him, the court finds that Defendant has shown extraordinary and compelling circumstances that justify a reduction in sentence under Section 3582(c)(1)(A). The court also finds that Defendant's release from imprisonment would not pose a danger to the safety of any other person or the community and that the Section 3553(a) factors, as considered in the specific context of Defendant's case, support a reduction in Defendant's sentence and do not undermine the statutory purposes of sentencing.
III.
Accordingly, Defendant's Motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A) due to extraordinary and compelling reasons and the COVID-19 Pandemic (Doc. 127) is granted , and the remainder of his 78-month sentence is modified to time served . This decision does not affect any other term of Defendant's sentence, including his term and conditions of supervised release. The Bureau of Prisons shall process Defendant according to standard release protocols applicable to him. This order is stayed pending completion of the release protocols.
The clerk of the court shall fax or e-mail a copy of this order to the San Antonio RRM, which is presently managing Defendant, fax number (210) 472-6224. E-mail address: CSA-CCM@bop.gov.
It is so ordered this 20th day of April, 2021.