Opinion
91 CR 1219-5 (RJD) 21 CV 2320 (RJD)
2022-10-21
UNITED STATES of America v. George CAMPBELL, Defendant.
Benjamin A. Saltzman, United States Attorney's Office for the Eastern District, New York, NY, Michael Robotti, Erin Argo, Lindsay K. Gerdes, Government Attorneys, Lisa Klem, Adam Toporovsky, Andrew Grubin, Jennifer M. Sasso, Charles Gerber, United States Attorney's Office, Criminal Division, Brooklyn, NY, David J. Lizmi, Margaret Schierberl, Robert Marshal Pollack, Genny Ngai, DOJ-USAO, Brooklyn, NY, for United States of America in 91 CR 1219. George Campell, Otisville, NY, Pro Se.
Benjamin A. Saltzman, United States Attorney's Office for the Eastern District, New York, NY, Michael Robotti, Erin Argo, Lindsay K. Gerdes, Government Attorneys, Lisa Klem, Adam Toporovsky, Andrew Grubin, Jennifer M. Sasso, Charles Gerber, United States Attorney's Office, Criminal Division, Brooklyn, NY, David J. Lizmi, Margaret Schierberl, Robert Marshal Pollack, Genny Ngai, DOJ-USAO, Brooklyn, NY, for United States of America in 91 CR 1219. George Campell, Otisville, NY, Pro Se.
MEMORANDUM & ORDER
DEARIE, District Judge.
Before the Court are two applications by defendant George Campbell. The first is a successive motion under 28 U.S.C. § 2255 that the Second Circuit granted him leave to file. Campbell asks this Court to vacate the "stacked" sentences imposed on his seven convictions of firearms offenses under 18 U.S.C. § 924(c), which account for 125 years of his total sentence of 150 years, on the ground that the convictions are no longer supported by valid crime-of-violence predicates in light of Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ("Johnson II"), and United States v. Davis, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019)
The second, here by virtue of limited remand from the Second Circuit, is to reconsider Campbell's motion under 18 U.S.C. § 3582(c)(1)(A)(i) for a reduction in sentence on the ground that the Congressional decision to outlaw the stacking of § 924 sentences in a single prosecution, coupled with Campbell's rehabilitation, are extraordinary and compelling circumstances. This Court initially denied relief because, pursuant to an extradition treaty with Costa Rica, Campbell will serve only 50 of the 150 years imposed.
For the reasons set forth below, the Court (i) denies the § 2255 motion to vacate, and (ii) upon reconsideration, grants the § 3582(c)(1)(A)(i) motion, reducing Campbell's sentence to time served effective November 1, 2023.
BACKGROUND
Campbell was tried in 1999 and convicted, by a jury, of fifteen counts, including conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371 (count 1); three counts of armed robbery of post offices, in violation of 18 U.S.C. § 2114(a) (counts 6, 10, and 12); four counts of armed robbery of banks, in violation of 18 U.S.C. § 2113(a) and (d) (counts 8, 14, 16, and 22); and seven counts of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Three of the seven firearms counts (counts 7, 11, and 13) are predicated on the post office robberies while the other four (counts 9, 15, 17, and 23) are predicated on the bank robberies. The convictions are the result of Campbell's participation in a gang known as the Forty Thieves that committed a series of armed robberies of banks and post offices from May 1991 through October 1991. Campbell was a "core member of the gang," United States v. Campbell, 300 F.3d 202, 205 (2d Cir. 2002) (affirming conviction), cert. denied, 538 U.S. 1049, 123 S.Ct. 2114, 155 L.Ed.2d 1090 (2003), and participated actively in the violence committed. For example, during one of the postal robberies, Campbell pistol-whipped a postal vehicle driver who was later hospitalized for head and rib injuries; during several of the bank robberies, he directed an employee, at gunpoint, to open the vault; and during one bank robbery, armed with two firearms, he forced customers and employees to the floor and fired two rounds of bullets when leaving. PSR ¶¶ 31-37.
Campbell was initially arrest in Maryland in December 1991 but escaped several weeks later. See Presentence Investigation Report ("PSR") ¶41. Four other gang members were convicted in 1993 but Campbell was not arrested until 1996, in Costa Rica. Id.
The Court initially sentenced Campbell to concurrent terms of thirty years on the conspiracy and seven substantive robbery counts, along with the then-mandatory consecutive terms of five years on the first 924(c) count plus twenty years on each of the other six counts, for a total sentence of 155 years. ECF No 594 (Judgment dated July 26, 2000). The Second Circuit affirmed the conviction but remanded for resentencing to account for an incorrectly calculated Sentencing Guidelines range. Campbell, 300 F.3d at 213. At resentencing, the Court modified the sentence for the seven robbery counts (imposing concurrent terms of 25 rather than 30 years) and for the conspiracy count (imposing five rather than 30 years, concurrently) but did not disturb the stacked sentences initially imposed on the firearms counts. See ECF No. 644 (Amended Judgment dated May 15, 2003). The total modified sentence was therefore 150 instead of 155 years. Id. In accordance with an extradition treaty between the United States and Costa Rica, however, Campbell will serve only fifty years, and both the original and amended judgments include language directing the Bureau of Prisons, in compliance with the treaty, to release Campbell at the fifty-year mark. See Judgment; Amended Judgment; see also Campbell, 300 F.3d at 210-12 (discussing scope of extradition treaty). That release is projected to occur on or about June 27, 2046, when Campbell would be 80 years of age.
DISCUSSION
I. The Section 2255 Motion
When granting Campbell leave to file this instant motion, the Second Circuit ruled that Campbell had made only a "prima facie showing" that his proposed motion satisfies the requirements of § 2255(h) with respect to his claim that his § 924(c) convictions predicated on § 2114 postal robberies are unconstitutional. Campbell v. United States, 16-2017 (Con.), 2021 WL 2644465, at *1 (2d Cir. Apr. 26, 2021). The Circuit's order directs this Court to "determine, in the first instance, whether § 2114 postal robbery remains a 'crime of violence' " for purposes of § 924(c) "under the modified categorical approach, that is, whether the least culpable conduct punishable under § 2114 (or, if it is divisible, its relevant component) involves 'the use, attempted use, or threatened use of physical force.' " Id. (quoting 18 U.S.C. § 924(c)(3)(A)).
A. "Crime of Violence" under 18 U.S.C. § 924(c)
Section 924(c) provides for enhanced penalties for a defendant who uses, carries or possesses a firearm "during and in relation to any crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). Formerly, the statute defined a "crime of violence" as an offense that is a felony and
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or18 U.S.C. § 924(c)(3).
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Davis, applying the principles announced in Johnson II, held that subsection (B), the so-called "residual clause," is unconstitutionally vague. 139 S. Ct. at 2336. As a result, "for purposes of § 924(c) a 'crime of violence is now defined only as a felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." United States v. McCoy, 995 F.3d 32, 52 (2d Cir. 2021) (cleaned up). "Physical force" in this context means "violent force" or "force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("Johnson I"); see also Stokeling v. United States, — U.S. —, 139 S. Ct. 544, 553, 202 L.Ed.2d 512 (2019) ("In the wake of Johnson [I], the Court has repeated its holding that 'physical force' means 'force capable of causing physical pain or injury.' ") (internal quotation omitted).
B. Modified Categorical Approach
To determine whether an offense is a crime of violence for this purpose, courts generally employ the "categorical approach," which requires that we "identify the minimum criminal conduct necessary for conviction under a particular statute by looking only to the statutory definitions—i.e., the elements—of the offense, and not to the particular underlying facts." Hylton v. Sessions, 897 F.3d 57, 60 (2d Cir. 2018) (cleaned up). Some statutes, however, as flagged in the Circuit's order granting leave here, are considered "divisible" because they "list elements in the alternative, and thereby define multiple crimes," Mathis v. United States, 579 U.S. 500, 505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), or because they list alternative offense conduct "carry[ing] different punishments." Id. at 518, 136 S.Ct. 2243. The so-called "modified categorical approach," as the Circuit's order reflects, is applied to such statutes. See Mathis, 579 U.S. at 518, 136 S.Ct. 2243; Campbell, 2021 WL 2644465, at *1. Under the modified approach, courts look beyond the statute to certain documents, such as the indictment and jury instructions or plea agreement, that signal which of the statute's offenses the defendant was charged and convicted of committing. Mathis, 579 U.S. at 505, 136 S.Ct. 2243; Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013); Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Divisibility is ordinarily determined on the face of the statute. Mathis, 579 U.S. at 518, 136 S.Ct. 2243.
C. Section 2114(a) Armed Post Office Robbery
Section 2114 provides:
(a) Assault - A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years.18 U.S.C. § 2114(a).
Although the Second Circuit has not yet addressed whether § 2114(a) is a crime of violence for § 924(c) purposes, each of the six other federal appellate courts to reach the issue has concluded that the component of § 2114(a) relevant here—putting a life in jeopardy by the use of dangerous weapon—involves the use, attempted use, or threatened use of physical force. See United States v. Castro, 30 F.4th 240, 248 (5th Cir. 2022), cert. denied, — U.S. —, 143 S.Ct. 187, 214 L.Ed.2d 65 (2022); United States v. Buck, 23 F. 4th 919, 927 (9th Cir. 2022); Knight v. United States, 936 F.3d 495, 500 (6th Cir. 2019); United States v. Enoch, 865 F.3d 575, 581 (7th Cir. 2017), cert. denied, — U.S. —, 138 S. Ct. 1015, 200 L.Ed.2d 277 (2018); In re Watt, 829 F.3d 1287, 1289-90 (11th Cir. 2016); United States v. Bryant, 949 F.3d 168, 180 (4th Cir. 2020). Four other judges in this district have reached the same conclusion. See United States v. Board, 12-CR-1219 (DRH), 2022 WL 2079742, at *4 (June 9, 2022); Pannell v. United States, 06-CR-578 (NG), 2021 WL 3782729, at *4-5 (E.D.N.Y. Aug. 26, 2021); United States v. Lloyd, 10-CR-622 (JS), 2020 WL 4750241, at *8-9 (E.D.N.Y. Aug. 17, 2020); United States v. McCullough, 14-CV-1920 (AMD), 2020 WL 869118, at *4 (E.D.N.Y. Feb. 21, 2020).
Board involved one of Campbell's codefendants and is the third of three decisions issued by Judge Hurley involving other codefendants. All three contain the same analysis of the § 2114 issue. See United States v. King, 91-CR-1219 (DRH), 2022 WL 1488654, at *4-5 (E.D.N.Y. May 11, 2022); United States v. Williams, 91-CR-1219 (DRH), 2022 WL 1488695, at *4-5 (E.D.N.Y. May 11, 2022).
As the first step in the analysis, as these decisions reflect, § 2114(a) is consistently considered "divisible" because it lists both a base offense carrying a ten-year penalty and an aggravating offense carrying a more severe penalty. See, e.g., Buck, 23 F. 4th at 925 ("The basic and aggravated offenses in § 2114(a) are plainly different crimes with different punishments, making these two sets of offenses divisible from each other"); Knight, 936 F.3d at 498-99 (§ 2114(a) is "divisible" because it "sets out a separate aggravated offense"); Enoch, 865 F.3d at 580 ("The portion of the statute before the semi-colon . . . constitutes a different crime than the part of the statute after the semi-colon."); Board, 2022 WL 2079742, at *3 (§ 2114(a) is "divisible" because it lists both "aggravated" and "non-aggravated" postal robbery); Pannell, 2021 WL 3782729, at *4 (same).
On the face of the statute, both the basic offense and aggravating offense are also divisible into separate offenses because each lists multiple "elements in the alternative." Mathis, 579 U.S. at 505, 136 S.Ct. 2243. The base offense may be violated either by (1) assault with intent to rob or by (2) robbery or attempted robbery, see, e.g., Pannell, 2021 WL 3782729, at *4 (concluding, for this reason, that "the base offense is itself divisible"), while the aggravated offense may be violated either by (1) wounding the victim, or (2) putting the victim's life in jeopardy by use of a dangerous weapon, or (3) having previously violated the statute. See, e.g., Buck, 23 F.4th at 927, 926 (concluding that "the aggravated offense under § 2114(a) is further divisible into three separate aggravating offenses" that "concern[ ] different conduct and involve[e] different proof"); Board, 2022 WL 2079742, at *3 (same).
Applying the modified categorical approach, the Court now turns to the Superseding Indictment and jury instructions to discern which § 2114(a) offense is the basis of Campbell's conviction. Counts 6, 10, and 12 charge that Campbell violated § 2114(a) in that he did "knowingly and willfully rob United States Postal Service employees of . . . United States currency, which belonged to the United States and which was in the charge, control and custody of said employee, and in effecting such robbery did put in jeopardy the lives of the said United States Postal Service employees by use of a dangerous weapon." ECF No. 60 at 9 (count 6), 11 (count 10), and 12 (count 12). The Superseding Indictment did not charge the alternative base-offense element of assault nor the alternative aggravated-offense elements of wounding or prior conviction.
The Court's instruction to the jury follows the language of the Superseding Indictment. It states that to find Campbell guilty of violating § 2114(a) as charged in counts 6, 10, and 12, the jury had to find, in relevant part, that he "took, or aided and abetted the taking, of mail, money or other property of the United States," that "the taking was done with intent to rob, steal or purloin such property," and that, "in carrying out the robbery, the defendant or an accomplice put in jeopardy, by use of a dangerous weapon, the person or persons having control of the mail matter, money or property." ECF No. 785 at 11-13. The Court further instructed that " 'to rob' means the unlawful taking or obtaining of property from a person or persons against his or her will, by means of actual or threatened force, or violence, or fear of injury . . . to his person or property." Id. at 14. Accordingly, the § 2114 offense for which Campbell was convicted is robbery of a post office that put a life in jeopardy by use of a dangerous instrument.
The Court also instructed that "[a] dangerous weapon or device includes anything capable of being use[d] to inflict serious bodily harm or injury upon another person," and that "[t]o jeopardize another person is to threaten or attempt to inflict physical harm on that person by the immediate use of a dangerous weapon." Id. at 15-16.
The Court readily concludes that this offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another and so qualifies as a crime of violence under § 924(c). Although, as will be discussed, the focus of the cited appellate cases is the putting-a-life-in-jeopardy-by-use-of-a-dangerous-weapon element, in this Court's view the robbery component itself suffices. In Stokeling, the Supreme Court held that the elements clause of the definition of "violent felony" in the Armed Career Criminal Act, § 924(e)(2)(B)(i)—almost identical to the elements clause of 924(c)'s definition of "crime of violence"—"encompasses robbery offenses that require the criminal to overcome the victim's resistance." 139 S. Ct. at 550. As noted, the jury instruction on robbery at Campbell's trial included this requirement. See ECF No. 785 at 14 (" '[T]o rob' means the unlawful taking or obtaining of property from a person or persons against his or her will"). Stokeling explains that "robbery that must overpower a victim's will—even a feeble or weak-willed victim—necessarily involves a physical confrontation and struggle," and that "[t]he altercation need not cause pain or injury or even be prolonged." Id. Therefore, the Supreme Court concluded, "the force necessary to overcome a victim's physical resistance is inherently 'violent' in the sense contemplated by Johnson." Id. Courts in this District, citing Stokeling, have concluded that the robbery component of § 2114(a) involves the use, attempted use, or threatened use of physical force against the person or property of another. See, e.g., Board, 2022 WL 1488654, at 4; Pannell, 2021 WL 3782729, at 4 ("After Stokeling . . . there can be no doubt that armed postal robbery under § 2114(a) qualifies as a predicate crime of violence under § 924(c)").
Under the elements clause of § 924(c), as discussed, an offense is a crime of violence if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." The elements clause of the ACCA's definition of "violent felony" is identical except that it does not include the final words "or property." See 18 U.S.C. § 924(e)(2)(B)(i).
The Court further noted that "Johnson itself relied on a definition of 'physical force' that encompassed robbery," id. and that "[r]obbery thus has always been within the 'category of violent, active crimes' that Congress included" in the ACCA. Id. (cleaned up).
In any event, as the many cited appellate courts have reasoned in this context, "robbery requires at least some use of force or threatened force, and the use of a dangerous weapon to put the victim's life in jeopardy transforms the force into violent physical force" within the meaning of Johnson I. Knight, 936 F.3d at 500 (Sixth Circuit holds that robbery or assault that includes putting the victim's life in jeopardy through use of a dangerous weapon is a crime of violence under the elements clause of § 924(c)); see also Castro, 30 F.4th at 248 (Fifth Circuit holds that § 2114(a) element of "putting the lives of . . . victims in jeopardy by use of a handgun . . . easily satisfies the elements clause" of § 924(c)); Bryant, 949 F.3d at 179-180 (Fourth Circuit "joins those circuits that have held that § 2114(a)'s requirement that the defendant use a dangerous weapon to put the victim's life in jeopardy ensures that at least the threat of physical force is present") (cleaned up); Buck, 23 F.4th at 927 (Ninth Circuit "agree[s] with the Sixth Circuit's explanation [in Knight] for why aggravated postal robbery through use of a dangerous weapon under § 2114(a) meets the 'force' requirement"). The Eastern District decisions are in accord. See, e.g., Board, 2022 WL 2079742, at *4 ("[T]he minimum conduct sufficient to satisfy § 2114(a)'s 'life in jeopardy' aggravated postal robbery is a crime of violence"); Pannell, 2021 WL 3782729, at *4 ("The use of a dangerous weapon to place a victim's life into an objective state of danger in the course of a robbery thus requires the intentional use, attempted use, or threatened use of physical force."); Lloyd, 2020 WL 4750241, at *8 (same) McCullough, 2020 WL 869118, at *4 ("[P]utting persons' lives in jeopardy by the use of a dangerous weapon while robbing the United States Postal Service" is "a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A)").
The Fourth Circuit made clear that it was not reaching the question of whether either the basic or aggravated offense was divisible based on the type of offense charged, but rather that it "find[s] that the additional life-in-jeopardy-with-a-dangerous-weapon element that warrants the enhancement is capable of transforming any of the basic offenses enumerated in the first clause . . . into a crime of violence." Id. at n.10.
In sum, § 2114 armed postal robbery that puts the life of another in jeopardy through the use of a dangerous instrument has as an element the use, attempted use, or threatened use of physical force and thus is a categorical crime of violence for purposes of § 924(c)(3)(A). Campbell's three § 924(c) convictions predicated on his violations of § 2114(a)—counts 7, 11, and 13—are therefore constitutionally valid. His request to vacate those three counts is denied.
D. Section 2113(a) Armed Bank Robbery
Liberally construed, Campbell's motion papers seeking leave to file the instant successive § 2255 motion also raise a Davis challenge to the constitutionality of his § 924(c) convictions predicated on § 2113(a) armed bank robbery, but the Circuit expressly declined to reach that claim. See Campbell, 2021 WL 2644465, at *1 (Circuit "did not reach any conclusions regarding other claims" or "adopt any specific arguments" that Campbell raised).
To the extent this claim is before this Court, it fails to present a basis for § 2255 relief. Counts 8, 14, 16, and 22 of the Superseding Indictment charge Campbell with armed bank robbery in violation of subsection 2113(a), which provides:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or18 U.S.C. § 2113(a).
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—Shall be fined under this title or imprisoned not more than twenty years, or both.
Subsection 2113(a) is divisible because it "delineates two methods of committing the crime of bank robbery: (1) 'by force and violence, or by intimidation,' or (2) 'by enter[ing] or attempt[ing] to enter' a federal financial institution 'with intent to commit . . . any felony affecting' such financial institution 'and in violation of any statute of the United States, or any larceny.' " United States v. Moore, 916 F.3d 231, 238 (2d Cir. 2019).
Campbell was indicted for committing § 2113(a) bank robbery by the first method. See ECF No. 60 at pp. 10-11, 13, 14, 17-18 (Counts 8, 14, 16, and 22 charge, in relevant part, that Campbell "did knowingly, by force violence and intimidation, take" currency "from the person and presence" of certain banks); ECF 522-1 at 28 (Court's instructions state, in relevant part, that jury must find that Campbell "took money . . . by force, violence, or intimidation"). The Second Circuit has squarely held that robbery by this method is categorically a crime of violence for § 924(c) purposes. United States v. Hendricks, 921 F.3d 320, 327 (2d Cir. 2019) ("We therefore must determine whether credit union robbery 'by force and violence, or by intimidation' categorically constitutes a 'crime of violence.' Perhaps unsurprisingly, we conclude that it does."), cert. denied, — U.S. —, 140 S. Ct. 870, 205 L.Ed.2d 502 (2020).
The four bank robbery counts further charge that, "in the commission" of the robberies Campbell "did assault and place in jeopardy the lives of said bank employees as well as the lives of other persons present by the use of a dangerous weapon," in violation of subsection 2113(d). Although the Circuit did not address subsection (d) in Hendricks, it is well-established that an element of that subsection is the use, attempted use, or threatened use of physical force against the person or property of another. See Thomas v. United States, 13-CR-158 (ARR), 2018 WL 3094936, at *3 (E.D.N.Y. June 22, 2018) ("every federal court of appeals to explicitly rule on the issue since [Johnson II] has held that § 2113(a) and § 2113(d) are crimes of violence under 924(c)'s force clause") (collecting cases from Third, Fourth, Seventh, Eighth, Ninth and Eleventh Circuits).
Subsection 2113(d) provides:
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.18 U.S.C. § 2113(d).
In sum, armed bank robbery under subsections 2113(a) and (d) that puts the life of another in jeopardy through the use of a dangerous instrument has as an element the use, attempted use, or threatened use of physical force and thus is a categorical crime of violence for purposes of § 924(c)(3)(A). Campbell's four § 924(c) convictions predicated on his violations of § 2113(a) and (d)—counts 9, 15, 17, and 23—are therefore constitutionally valid. His request to vacate those four counts is denied.
II. The Compassionate Release Motion
A. Background
Campbell's motion under § 3582(c)(1)(A)(i) is here on limited remand from the Second Circuit, ECF No. 806 (2d Cir. Mandate Feb. 14, 2022), following this Court's denial of relief. ECF No. 754 (Mem. & Order Dec. 9, 2020).
On his initial motion, Campbell's position was that if sentenced today he would receive a sentence of 60 rather than 150 years. See ECF No. 754 at 3. The arithmetic was that, unstacked, each of the seven gun counts would carry only five years, for a total of 35 years; that figure, added to the concurrent terms of 25 years previously imposed on the conspiracy and robbery counts, would total 60 years. Id. The Court therefore concluded that the Congressional decision to outlaw § 924(c)'s stacking practice was not an extraordinary and compelling circumstance in this case because the extradition treaty already caps the time he will serve at 50 years. Id.
As the Circuit's mandate reflects, however, Campbell raised a new argument on appeal, namely, that if he were to be resentenced today, he could also benefit from intervening changes in the law other than the unstacking of § 924(c) sentences, including United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which made the Sentencing Guidelines advisory, and United States v. Brown, 935 F.3d 43 (2d Cir. 2019), in which the Second Circuit interpreted Dean v. United States, 581 U.S. 62, 137 S. Ct. 1170, 197 L.Ed.2d 490 (2017), to mean that "a sentencing judge, selecting a sentence for a predicate offense, is not prohibited from considering the severity of a mandatory consecutive minimum sentence"). 935 F.3d at 46 (cleaned up). See ECF No. 806 (2d Cir. Mandate) at 3. Campbell argued, and the Second Circuit agreed, that "the impact of these cases is that the court today would be free to impose an overall term of imprisonment as low as 35 years for the seven § 924(c) convictions, and would not be required to impose any additional prison time"—or as little as one day—"for the underlying robbery and conspiracy convictions, none of which carry a mandatory minimum prison term." Id. The Circuit "conclude[d] that it is appropriate to remand for reconsideration of Campbell's motion to ensure the district court's denial was not based on a misunderstanding of the law." Id. at 4 The Mandate, therefore, "grants a limited remand for the district court to consider the effect, if any, Booker, Dean and Brown may have on its consideration of the requested sentence reduction." Id.
Neither the armed robbery statute, 18 U.S.C. § 2113, the postal robbery statute, 18 U.S.C. § 2114, nor the conspiracy-against-the-United-States statute, 18 U.S.C. § 371, contains a mandatory minimum sentence.
In Campbell's post-remand submissions, he affirms his view that if sentenced today, his mandatory minimum would be 35 years. ECF No. 807 at 3. But he also argues that, on a motion for sentence reduction, the Court could reduce his sentence to a term below that mandatory minimum and to as little as time served. Id. at 4. On the subject of this Court's authority to order such relief, Campbell emphasizes that, under United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), this Court is "free[ ] . . . to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before [it] in motions for compassionate relief." Id. at 237. Brooker also makes clear that the only statutory limit on what a court may consider is that "[r]ehabilitation . . . alone shall not be considered an extraordinary and compelling reason." Id. at 238. In short, under Brooker, "a district court's discretion in this area—as in all sentencing matters—is broad." Id. at 237; see also United States v. Rose, 837 Fed. App'x 72, 73-74 (2d Cir. 2021) (mem.) (on a motion for sentence reduction, district court "may look to, but is not bound by, the mandatory minimums that the defendant would face if being sentenced for the first time under revised guidelines or statutes").
B. "Extraordinary and Compelling" Circumstances
Revisiting whether extraordinary and compelling circumstances are present in the context of this limited remand and the revised sentencing arithmetic on which it is premised, the Court now concludes that the Congressional decision to outlaw stacked § 924(c) sentencing does constitute an extraordinary and compelling circumstance in this case. See generally United States v. Haynes, 456 F. Supp. 3d 496,514 (E.D.N.Y. 2020). The troubling nature of a 90-year disparity—between the cumulative 125 years of stacked time initially imposed and today's 35-year mandatory minimum—speaks for itself. There is also a stark sentencing disparity between Campbell and codefendant Craig Williams, who was convicted after trial of eight stacked sentences (one more than Campbell), initially sentenced to 140 years, and recently granted a reduction to 40 years. Arguably, the length of Campbell's sentence, in these circumstances, suffices to trigger this Court's authority to grant relief under Section 3582 (c)(1)(A)(i). See Brooker, 976 F.3d at 237 (vacating the denial of compassionate relief motion where the defendant's' "primary complaint" was "that his sentence was too long in the first place").
See King, 2022 WL 1488654, at *9. Another codefendant who went to trial, Darryl Board, received two stacked sentences in a total sentence of 56 years and 8 months. See ECF No. 364. Judge Denis R. Hurley denied Board's motion for compassionate release without prejudice to renew upon submission of evidence that he exhausted his administrative remedy. Board, 2022 WL 2079742, at *7.
Rehabilitation, however, also enters into Campbell's compassionate release equation. The Court has reviewed Campbell's initial filing of more than 150 pages, EFC No. 807, Mar. 16, 2022, plus his two supplemental submissions, ECF Nos. 811 (May 9, 2022) and 821 (Sept. 9, 2022). The Court has also read the government's letter opposing any reduction in sentence, ECF No. 810, and a report from the Department of Probation on Campbell's adjustment to incarceration. Based on these materials, the Court believes that Campbell has indeed substantially rehabilitated himself during the 25-plus years he has spent behind bars without any realistic prospect of release before reaching the extradition treaty's fifty-year cap, when he would be 80 years of age. Campbell's submissions include, inter alia, more than 75 certifications documenting an impressive range and quantity of vocational, technical, therapeutic, and liberal-arts coursework; Bureau of Prison records showing that he was gainfully employed throughout much of his incarceration and was recently promoted from Unicor Grade 4 to Grade 2; letters from his wife, daughter and other family members attesting that Campbell is a supportive, encouraging father-figure and family man, and stating their willingness to support Campbell upon release; letters from former inmates (who themselves received sentence reductions) reporting that Campbell, through his mentorship, changed the direction of their lives; a detailed report by the Federal Defenders' social work intern assessing Campbell's re-entry prospects as sound and noting that Campbell's wife, daughter, and cousin have each offered to house him; and a letter from Campbell himself, addressed to the Court, acknowledging the gravity of his crimes, accepting full responsibility for them, and expressing deep remorse, embarrassment, shame and regret. In his letter, Campbell also writes: "As long as I have breath in my lungs I will choose Right [sic] above any thought of wrong." ECF No. 805 at 3.
Of note, Campbell rose from the level of participant to co-facilitator of several prisoner rehabilitation programs, including the Victim Impact 5 Week Orientation Workshop and Intensive 16 Week Program, Doing Time in the Right Mind, and the Positive Mental Attitude groups.
Representative of the letters from prisoners he helped are the remarks of Samuel Kelly, recently released from a life sentence. Kelly writes that Campbell was "an amazing mentor" who "used his life story to help others" not make the same mistakes he made and who ultimately inspired Kelly himself to mentor, in turn, at Youth Detention Centers for young men and women. ECF No. 807, Ex. F at 9.
To be sure, Campbell's disciplinary record is not without blemish, but despite more than 25 years of incarceration, he has been the subject of only ten disciplinary incidents, and only four within the last twenty years. The Federal Defenders elected to address in some detail the one infraction that would appear to be serious —a very recent (2021) incident described by Probation as "possessing a dangerous weapon" and "fighting with another person." See ECF No. 821. The letter reports that a younger inmate started the incident by first striking Campbell (then 60 years old) in the head with a metal cane and that Campbell defended himself by throwing a nearby plastic chair and dustpan (the "dangerous" weapons) at the attacker. The letter further reports that Campbell required treatment at a local hospital as a result, that a year later he continues to have pain and a nodule where he was struck, and that his appeal of the infraction is pending. Id. at 1-2.
When ordering the limited remand, the Second Circuit also held that this Court did not abuse its discretion when "ruling that [Campbell's] asthma, hypertension, and obesity, which cause an increased risk of severe COVID-19, do not constitute extraordinary and compelling circumstances." ECF No. 807 at 3. Campbell continues to argue, however, that even if they are not extraordinary and compelling circumstances, his significant medical problems combine to limit his life expectancy and should be considered, along with other factors, in deciding whether a reduced sentence is appropriate.
C. The Section 3553(a) Factors
"[E]xtraordinary and compelling reasons are necessary—but not sufficient—for a defendant to obtain relief under § 3582(c)(1)(A)." United States v. Jones, 17 F. 4th 371, 374 (2d Cir. 2021). A district court "must also consider the factors set forth in section 3553(a) before granting relief." Id.
Many of the applicable 3553(a) factors are incorporated in the Court's discussion of extraordinary and compelling circumstances, but the nature of Campbell's crimes does bear separate remark. Independent of the harshness of the former § 924(c) regime, Campbell committed very serious crimes warranting a sentence that reflects their seriousness and that justly punishes him. See 18 U.S.C. § 3553(a)(2) (the purposes of a sentence are, inter alia, "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense"). Campbell also impeded and obstructed justice, having absconded to Costa Rica after his release on bail in December 1991, and having remained a fugitive for almost six years until his arrest and extradition. He also continuously denied that he was Mr. Campbell throughout the investigation and trial, causing a significant hindrance to the prosecution. See PSR ¶ 42.
Still, there can be no serious dispute, today, that the sentence of 150 years imposed upon Campbell is longer than necessary to achieve § 3553(a)'s sentencing objectives. But because of the extradition treaty's 50-year cap, as a practical matter the question before the Court is whether to reduce Campbell's sentence to a term of less than fifty years. Having considered the seriousness of Campbell's offense conduct, all of the circumstances collectively deemed extraordinary and compelling in the above discussion, and the totality of § 3553(a) factors, the Court finds that a sentence of time served effective November 1, 2023, is sufficient, but not greater than necessary, to satisfy the statutory sentencing objectives in this case.
CONCLUSION
For all the foregoing reasons, (i) defendant George Campbell's motion under 28 U.S.C. § 2255 (ECF No. 775) is denied, and because he has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), no certificate of appealability will issue; and (ii) Campbell's motion under 18 U.S.C. § 3582(c)(1)(A) for a reduction in is granted, and his sentence is reduced to time served effective November 1, 2023. SO ORDERED.
Campbell presented his motion for sentence reduction through a series of pro se submissions and a supplemental letter by counsel. ECF Nos. 729, 736, 741, 742, 743, 745, 752. The Circuit's remand directing reconsideration is docketed at ECF No. 806.