Opinion
4:95-CR-30-CDL-MSH
08-02-2021
UNITED STATES OF AMERICA, v. PIERRE CANNON, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
Defendant Pierre Cannon has filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (ECF No. 137) and an amended motion for compassionate release (ECF No. 143). For the following reasons, it is recommended that the motions be denied.
BACKGROUND
On June 22, 1995, a federal grand jury returned an indictment charging Defendant with ten counts: four counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 (Counts 1, 3, 5, 9), five counts of use of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c) (Counts 2, 4, 6, 8, 10), and one count of carjacking in violation of 18 U.S.C. § 2119 (Count 7). Indictment 1, ECF No. 4. On September 19, 1995, a jury found Defendant guilty on all ten counts. Jury Verdict, ECF No. 17.
Before sentencing, the United State Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) (ECF No. 111) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). Based on a criminal history category of III and a total offense level of 36, Defendant's Guidelines sentencing range was 210 to 240 months imprisonment on counts one, three, five, and nine and 235 to 293 months imprisonment on count seven. PSR ¶ 133, ECF No. 111. At the time of sentencing, 18 U.S.C. § 924(c) provided that a defendant convicted of a “second or subsequent” § 924(c) offense was subject to a minimum consecutive sentence of twenty years imprisonment even if the convictions for the first and second or subsequent § 924(c) offenses were obtained in the same case. See Deal v. United States, 508 U.S. 129, 130-34 (1993); PSR ¶¶ 124, 126, 128, 130, 132. When a defendant was charged with multiple § 924(c) offenses in a single proceeding-as was the case here-the first § 924(c) count carried a minimum consecutive sentence of five years and each additional § 924(c) count carried a minimum consecutive sentence of twenty years “stacked” on top of one another. Id. Thus, the Guidelines sentence on the firearms charges was a mandatory consecutive sentence of five years on count 2 and mandatory consecutive sentences of twenty years each on counts 4, 6, 8, and 10. PSR ¶ 133. The Guidelines supervised release range was 3 to 5 years. PSR ¶¶ 136-56.
On January 9, 1996, the Court sentenced Defendant to (1) 293 months for carjacking, (2) 240 months for each of the four Hobbs Act robbery charges to be served concurrently, (3) 60 months for his first § 924(c) charge to be served consecutively, (4) 240 months on each of his four remaining § 924(c) charges to be served consecutively, and (5) 60 months supervised release. Judgement 1-5, ECF No. 20. The total sentence amounted to 1313 months confinement. Defendant appealed (ECF No. 21), and the United States Court of Appeals for the Eleventh Circuit affirmed (ECF No. 25) his conviction and sentence on May 6, 1997. See United States v. Cannon, 112 F.3d 1172 (11th Cir. 1997).
On May 30, 2008, Defendant filed a motion to reduce sentence (ECF No. 39) under 18 U.S.C. § 3582(c)(2) based on the enactment of Amendment 599 to the Sentencing Guidelines in 2000, which applied retroactively. On January 13, 2009, the Court granted Defendant's motion and entered an amended judgment reducing Defendant's sentences for carjacking and the four Hobbs Act robbery counts to 151 months each, which reduced his total sentence to 1, 171 months confinement followed by five years supervised release. Am. Judgment 1-4, ECF No. 45. Defendant appealed (ECF No. 46) the amended judgment to the Eleventh Circuit on October 21, 2009. On November 20, 2009, the Eleventh Circuit vacated and remanded (ECF No. 53) for the Court to consider and explain its sentence in light of the 18 U.S.C. § 3553(a) factors. See United States v. Cannon, 349 Fed.Appx. 526, 528528 (11th Cir. 2009) (per curiam).
On February 5, 2010, the Court issued an Order (ECF No. 56) imposing the same 1, 171 month sentence after considering the § 3553(a) factors. The Court issued a second amended judgment (ECF No. 57) accordingly. Defendant then filed a motion to compel, asking the Court to compel the Government to file a motion to reduce sentence under Federal Rule of Criminal Procedure 35 because Defendant alleged he provided substantial assistance to the Government. Mot. to Compel 1-6, ECF No. 62. The Court denied (ECF No. 68) Defendant's motion to compel, Defendant appealed (ECF No. 69), and the Eleventh Circuit affirmed (ECF No. 76-1) the decision on December 22, 2011.
Defendant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 81) on January 27, 2014, and an amended motion to vacate (ECF No. 89) on January 20, 2015, raising grounds for relief including (1) ineffective assistance of counsel regarding prosecutorial misconduct; (2) actual innocence; (3) violation of due process given that his sentence exceeded the statutory minimum; (4) actual innocence of recidivism; (5) the Court's failure to merge or make his sentences concurrent; (6) violation of his due process right to a new presentence report and resentencing; and (7) ineffective assistance of counsel. Br. in Supp. of Mot. to Vacate 3-33, ECF No. 81-1. The Court denied (ECF No. 94) his motion on April 24, 2015. Defendant appealed (ECF No. 96), and the Eleventh Circuit denied a certificate of appealability (ECF No. 101) on November 5, 2015.
On June 23, 2016, Defendant filed a second motion to vacate, claiming that his convictions and sentences pursuant to 18 U.S.C. § 924(c) are invalid. 2d Mot. to Vacate 2, ECF No. 108. The Eleventh Circuit denied (ECF Nos. 112, 113) his application for leave to file a second or successive motion to vacate. Thus, on August 26, 2016, the Court dismissed (ECF No. 117) Defendant's second motion to vacate. Defendant again applied for leave to file a second or successive motion to vacate, but the Eleventh Circuit denied his applications (ECF No. 123, 124) on July 29, 2019, and October 15, 2019.
Defendant filed his first motion for compassionate release (ECF No. 129) on July 14, 2020. In this motion, he argued that he should be released due to extraordinary and compelling reasons, but he did not specify any reasons. 1st Mot. for Compassionate Release 5, ECF No. 129. The motion was denied (ECF No. 131) on September 29, 2020.
The Court appointed counsel (ECF No. 133) on November 2, 2020. Defendant, through counsel, filed his second motion for compassionate release on December 21, 2020. 2d Mot. for Compassionate Release 2, ECF No. 137. His first ground for compassionate release was the risk posed by Covid-19. Id. at 3-5. At the time, he did not report having contracted COVID-19. Id. at 3. However, he expressed concern that he would likely contract COVID-19 due to the high positivity rate at the Federal Correctional Institution in Jesup, Georgia (“FCI Jesup”). Id. at 4. Defendant argued that due to his pulmonary hypertension, he was at a high risk of serious illness or death if he contracted COVID-19. Id. at 3-4. He remained untreated, however, and he claimed that none of the most common treatments-vasodilators-were found in the Bureau of Prisons (“BOP”) formulary. Id. at 3.
Defendant's second ground for compassionate release was the “stacking” of his five 18 U.S.C. § 924(c) convictions, which he contended qualified as an extraordinary and compelling reason under 18 U.S.C. § 3582(c)(1)(A)(i). 2d Mot. for Compassionate Release 5-9. Defendant noted that the mandatory stacking provision was eliminated pursuant to the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221-22 (2018). Id. at 6. This provision was not made retroactive. First Step Act, Pub. L. No. 115-391, § 403 (b), 132 Stat. 5194, 5222 (2018). Nevertheless, Defendant argued that the Court has broad authority under § 3582(c)(1)(A)(i) to determine that his “disparate” sentence justifies a sentence reduction and compassionate release. 2d Mot. for Compassionate Release 8. He also asserted that the 18 U.S.C. § 3553(a) factors favored his release. Id. at 9-10.
Defendant amended his second motion for compassionate release (ECF No. 143) on January 14, 2021. Defendant re-asserted his medical grounds but added that he had tested positive for COVID-19 on December 1, 2020. Am. 2d Mot. for Compassionate Release 2, ECF No. 143. Since contracting the illness, he claimed he had experienced shortness of breath, chest pain, and fatigue. Id. at 3. Additionally, he asserted that he faced the risk of re-exposure to COVID-19, particularly because his prison occupation involved the cleaning of hazardous biological materials. Id. at 5.
The Government responded (ECF No. 149) to Defendant's amended motion on February 4, 2021, Defendant replied (ECF No. 157) on May 3, 2021, and the Government filed supplemental authority (ECF No. 158) on June 23, 2021. Defendant's motions are ripe for review.
DISCUSSION
A district court “‘may not modify a term of imprisonment once it has been imposed except' under certain circumstances.” United States v. Harris, 989 F.3d 908, 909 (11th Cir. 2021) (quoting 18 U.S.C. § 3582(c)). Defendant relies on the compassionate release exception provided in 18 U.S.C. § 3582(c)(1)(A). Under that section, a prisoner may obtain compassionate release if, “after considering the factors set forth in [18 U.S.C. § 3553(a)], ” the district court finds that “extraordinary and compelling reasons warrant such reduction . . . and that such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). Thus, the statute requires a district court to conduct a two-step process. First, it must determine whether “extraordinary and compelling reasons” warrant compassionate release. Second, if the district court determines that there are extraordinary and compelling reasons, it must decide whether compassionate release is appropriate after considering the factors set forth in 18 U.S.C. § 3553(a).
Defendant fails to show extraordinary and compelling reasons warranting compassionate release. The compassionate release provision of § 3582(c)(1)(A) requires that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” The Sentencing Commission's policy statement for compassionate release is found at U.S.S.G. § 1B1.13. Under the policy statement, a defendant must show one of four circumstances to establish an extraordinary and compelling reason for compassionate release. U.S.S.G. § 1B1.13 cmt. n.1. The first is a qualifying medical condition. U.S.S.G. § 1B1.13 cmt. n.1(A). A medical condition qualifies if “[t]he defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory).” U.S.S.G. § 1B1.13 cmt. n.1(A)(i). A defendant need not show a “probability of death within a specific time period, ” and “[e]xamples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.” Id. In the alternative, a defendant's medical condition qualifies if he or she is:
(I) suffering from a serious physical or medical condition, (II) suffering from a serious functional or cognitive impairment, or (III) experiencing deteriorating physical or mental health because of the aging process that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility from which he or she is not expected to recover.U.S.S.G. § 1B1.13 cmt. n.1(A)(ii).
The second and third circumstances qualifying as extraordinary and compelling reasons are the defendant's age and family circumstances. U.S.S.G. § 1B1.13 cmt. n.1(B), (C). Here, Defendant is neither over the age of sixty-five, nor does he rely on family circumstances, so these circumstances are inapplicable to him. Id. The fourth circumstance is “other reasons, ” which is where “[a]s determined by the Director of the [BOP], there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).” U.S.S.G. § 1B1.13 cmt. n.1(D). “‘[O]ther reasons' are limited to those determined by the [BOP], not by courts.” United States v. Lee, No. 20-13911, 2021 WL 2072164, at *1 (11th Cir. May 24, 2021) (per curiam) (citing United States v. Bryant, 996 F.3d 1243, 1247-48 (11th Cir. 2021)). Therefore, a district court lacks the authority to determine if a defendant's circumstances qualify as an “other reason” under U.S.S.G. § 1B1.13 cmt. n.1(D). Bryant, 996 F.3d at 1263. There is no evidence that the BOP has determined that Defendant presents an extraordinary and compelling reason for compassionate release. Thus, the fourth circumstance does not apply to him either.
As for the first circumstance, Defendant's medical records do not show a qualifying medical condition as defined by U.S.S.G. § 1B1.13 cmt. n.1(A). First, Defendant is not suffering from a terminal illness. U.S.S.G. § 1B1.13 cmt. n.1(A)(i). Though Defendant has been diagnosed with pulmonary arterial hypertension, he suffers only from a mild form of the condition. Med. Rec. 69, ECF No. 149-2. Defendant argues that because of his condition, he is at a greater risk of developing a serious illness from a COVID-19 reinfection. Am. 2d Mot. for Compassionate Release 4. Defendant's hypertension, however, does not rise to the level of severity required by the Sentencing Guidelines, even in light of the current COVID-19 pandemic. See United States v. Thompson, 984 F.3d 431, 434 (5th Cir. 2021) (affirming the denial of compassionate release in light of COVID-19 risks and noting that “nearly half of the adult population in the United States suffers from hypertension”).
Second, Defendant does not have a serious medical condition that “substantially diminishes” his ability to provide self-care in the prison and from which he is not expected to recover. U.S.S.G. § 1B1.13 cmt. n.1(A)(ii). Defendant is currently untreated for his hypertension, but his condition is mild. Med. Rec. 69. And Defendant's medical records show that prison medical staff have successfully treated him for various ailments. See Id. at 29-30, 60-61. Further, although Defendant tested positive for COVID-19 on December 1, 2020, the medical records indicate that he was asymptomatic. Id. at 1-2, 39. Thus, Defendant fails to show an extraordinary and compelling reason as defined by U.S.S.G. § 1B1.13 cmt. n.1.
Despite the explicit directive of 18 U.S.C. § 3582(c)(1)(A), however, Defendant contends that the Court is not bound by U.S.S.G. § 1B1.13. Am. 2d Mot. for Compassionate Release 6-10. In support, he cites cases from the Second, Fourth, Sixth, and Seventh Circuits, along with various district court decisions. Id. These courts concluded that U.S.S.G. § 1B1.13 is not binding on district courts when a defendant-as opposed to the BOP-files a motion for compassionate release because the Sentencing Commission did not update the policy statement following passage of the First Step Act to account for defendant-filed motions. See, e.g., United States v. Jones, 980 F.3d 1098, 1109 (6th Cir. 2020) (concluding that until such update occurred, “district courts have full discretion in the interim to determine whether an ‘extraordinary and compelling' reason justifies compassionate release when an imprisoned person filed a § 3582(c)(1)(A) motion”). Defendant contends that the Court is authorized to find that Defendant's “disparate” sentence due to § 924(c) stacking is an “extraordinary and compelling” reason for compassionate release. Am. 2d Mot for Compassionate Release 9.
Prior to enactment of the First Step Act, compassionate release was available only upon a motion from the Director of the BOP. The First Step Act authorized prisoners to move directly for a sentence reduction in district court after exhausting all administrative remedies. Pub. L. No. 115-391, § 603(b)(1), 132 Stat. 5194, 5239. There is no dispute in this case that Defendant properly exhausted his administrative remedies. Def's Ex. A, ECF No. 143-1.
An Eleventh Circuit panel, however, broke from other circuits and concluded in a published opinion that the Sentencing Commission's policy statement found at U.S.S.G. § 1B1.13 applies to defendant-filed motions for compassionate release despite the Sentencing Commission's failure to update the policy statement following enactment of the First Step Act. Bryant, 996 F.3d at 1248, 1262. Therefore, binding circuit precedent now forecloses Defendant's argument. Moreover, even if the Court was free to determine what constitutes an extraordinary and compelling reason for compassionate release, it does not believe that Defendant's “stacked” § 924(c) sentence qualifies. Congress explicitly decided that the amendment enacted in 2018 under the First Step Act was not retroactive. Thus, even if the Court was not constrained by U.S.S.G. § 1B1.13, it would reject Defendant's argument.
Finally, even assuming there are extraordinary and compelling reasons-whether as defined by U.S.S.G. § 1B1.13 cmt. n.1 or otherwise-compassionate release is inappropriate after considering the factors set forth in 18 U.S.C. § 3553(a). These factors include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.United States v. Macli, 842 Fed.Appx. 549, 552 n.1 (11th Cir. 2021) (per curiam) (citing 18 U.S.C. § 3553(a)).
The first four factors listed above weigh heavily against Defendant. He has served only approximately 25 percent of his sentence. Releasing him with over 70 years left on his sentence would not promote respect for the law and would undermine the need to impose a sentence reflecting the seriousness of the crimes. When Defendant committed the offenses in this case, he was still on probation for state convictions of robbery and aggravated assault. PSR ¶ 92. Thus, his prior conviction clearly did not adequately deter him from committing additional offenses. Moreover, since Defendant has been in prison, he has engaged in violent activity, including a fight in which he used a lock within a sock and a broom as weapons. Gov't Ex. 3, at 1, ECF No. 149-3. Releasing Defendant with a history of both violent offenses and subsequent violent prison conduct does not support the need to protect the public.
The Court has also considered the need to provide Defendant “with needed . . . medical care . . . in the most effective manner.” 18 U.S.C. § 3553(a)(2)(D). In this regard, the medical records show that Defendant receives good medical care in prison. As for the risk of re-infection posed by Covid-19, the BOP has implemented its COVID-19 Vaccine Guidance and has begun administering vaccines to inmates housed in its facilities. Fed. BOP Clinical Guidance, COVID-19 Vaccine Guidance (Mar. 11, 2021 v.11.0), available at https://www.bop.gov/resources/pdfs/covid19vaccineguidance20210311.pdf (last visited July 29, 2021). The vaccine should greatly minimize Defendant's possible future exposure to the Covid-19 virus. Further, the BOP has implemented procedures to mitigate the risk of infection. Federal Bureau of Prisons, BOP Modified Operations, https://www.bop.gov/coronavirus/covid19status.jsp (updated Nov. 25, 2020). As of July 28, 2021, there were no Covid-19 positive inmates or staff at FCI Jesup, where Defendant is housed. Fed. BOP, https://www.bop.gov/coronavirus (last visited July 29, 2021).
The Court has also considered Defendant's argument pertaining to his stacked firearm offenses under 18 U.S.C. § 924(c) to address “the need to avoid unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(6). Although Congress lowered the mandatory penalty, it did not apply the change retroactively. Thus, there is no disparity in Defendant's sentence when compared to other inmates convicted of multiple § 924(c) convictions prior to the enactment of the First Step Act.
Finally, although Defendant has cooperated with law enforcement as an informant on multiple occasions, the Court has considered the remaining factors in § 3553(a) and, to the extent they apply, finds that none of them provide sufficient weight to justify Defendant's release. Thus, as an additional and alternative ground for denial of Defendant's motion for compassionate release, the Court finds that even if Defendant established extraordinary and compelling reasons, release is not warranted after consideration of the § 3553(a) factors.
CONCLUSION
For the foregoing reasons, it is recommended that Defendant's motion for compassionate release (ECF No. 137) and amended motion for compassionate release (ECF No. 143) be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.