Opinion
2:97-CR-167-6
02-08-2023
UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL LEE GORDON, Defendant.
OPINION AND ORDER
JAMES L. GRAHAM, United States District Judge
Pending before the Court is Defendant Michael Lee Gordon's motion for reconsideration of compassionate release, Doc. 639.
Gordon moves in the same motion for the Court to compel the government to file a Rule 35(b) motion for sentence reduction. This alternative request will be addressed in a subsequent opinion and order.
I. Background
Following a jury trial, Gordon was convicted on seven counts of obstruction of commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and seven counts of carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Judgment was entered on May 20, 1999, imposing concurrent terms of incarceration of 151 months on the Hobbs Act counts, a consecutive sentence of 60 months on the § 924(c) charge in Count 2, and consecutive terms of imprisonment of 240 months on the 6 additional § 924(c) counts, resulting in a total sentence of 1,651 months.
Gordon previously moved for compassionate release, arguing that several conditions constitute extraordinary and compelling reason for sentence reduction. The Court reviewed each condition and concluded that they do not. Doc. 616 at 10. Gordon now asks the Court to reconsider two of the conditions on which he presents new arguments or evidence: (A) a change in § 924(c) penalties and (B) the conditions of his confinement.
Gordon mentions in passing that he desires to be released to care for his sister who has progressive chronic obstructive pulmonary disease. Doc. 703 at 5. He does not move for compassionate release on this ground or provide any support for his sister's condition. However, the Court notes that even were it to grant him compassionate release, his nineteen-year state sentence would prevent him from assisting his sister.
II. Analysis
As an initial matter, there is doubt as to whether a motion for reconsideration is the correct vehicle for Gordon's request. Some courts have found that the Federal Rules of Criminal Procedure do not provide for reconsideration motions. See United States v. Walker, No. 4:13-CR-284, 2022 WL 969461, at *1 (N.D. Ohio Mar. 31, 2022). Yet Gordon argues that a motion for reconsideration is the proper way to present newly discovered evidence. Doc. 657 at 13 (citing Macdermid Inc. v. Electrochemicals Inc., 142 F.3d 435 (Table), published in full-text format at 1998 U.S. App. LEXIS 6663, at *19, fn. 7 (6th Cir. 1998). The Court need not decide this issue because the underlying analysis is the same regardless of whether Gordon's motion is for the reconsideration of his prior motion or a new motion for compassionate release.
A. Standards for Compassionate Release
Compassionate release is appropriate under 18 U.S.C. § 3582(c)(1)(A)(i) when the Court finds that “extraordinary and compelling reasons warrant such a reduction ....” District courts have full discretion to define what constitutes an “extraordinary and compelling” reason. See United States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020). The Court must also consider the factors set forth in 18 U.S.C. § 3553(a) to the extent that they are applicable. 18 U.S.C. § 3582(c)(1)(A). If, after weighing the § 3553(a) factors, the court decides the motion is well taken, the court “may reduce the term of imprisonment ” Id. The grant of compassionate release is at the discretion of the court. United States v. Kincaid, 802 Fed.Appx. 187, 188 (6th Cir. 2020).
B. Change in § 924(c) Penalties
Gordon initially asked the Court for compassionate release because, due to a change in law, he would receive a significantly shorter sentence if sentenced today. Specifically, at the time Gordon was sentenced, the § 924(c) charge in Count 2 carried a consecutive term of 60 months imprisonment, and the § 924(c) charges in Counts 4, 6, 8, 10, 12, and 14 each carried consecutive terms of 240 months imprisonment. The First Step Act, § 402(a), amended the penalties specified in § 924(c). If defendant were sentenced today, he would face a consecutive term of 60 months imprisonment on each of the § 924(c) counts, or a total of 420 months. Doc. 616 at 3. The Court reviewed Gordon's argument and, relying on United States v. Jarvis, 999 F.3d 442 (6th Cir. 2021), concluded that the First Step Act changes to the § 924(c) penalties cannot be considered an extraordinary reason for compassionate release. Doc. 616 at 5-6.
Gordon now argues that this Sixth Circuit precedent has been upended by a recent Supreme Court opinion, Concepcion v. United States, - U.S. -, 142 S.Ct. 2389 (2022). Concepcion addressed whether a district court may consider intervening changes in law or fact when modifying a sentence under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) “empowers district courts to lower sentences imposed for crack-cocaine offenses as if” certain reduced penalties “had been the law during the original sentencing hearing.” United States v. Maxwell, 991 F.3d 685, 688 (6th Cir. 2021) (internal citation and quotation marks omitted). The Supreme Court found that if a prisoner qualifies for such a reduction, the district court may consider “intervening changes of law or fact” in deciding whether and how much to reduce the sentence. Concepcion, 142 S.Ct. at 2404.
The Sixth Circuit has considered Concepcion's impact on its compassionate release analysis. United States v. McCall, No. 21-3400, - F.4th -, 2022 WL 17843865 (6th Cir. Dec. 22, 2022) (en banc). It found that Concepcion concerned an unrelated vehicle to reduce a sentence and “said nothing about the threshold question of whether any given prisoner has established an extraordinary and compelling reason for release.” Id. at *11. It found that to the extent Concepcion is informative, it shows merely that a court may consider changes in law or fact after it finds that the defendant meets the threshold requirements for a sentence reduction. Id. at *12. It concluded by stating in no uncertain terms that “[n]onretroactive legal developments do not factor into the extraordinary and compelling analysis. Full stop.” Id. at *15. Therefore, the nonretroactive change in § 924(c) penalties does not establish extraordinary and compelling reason for compassionate release.
C. Conditions of Confinement
Gordon previously asserted that he provided substantial assistance to the government and, as a result, was stabbed on multiple occasions. He argued that this hardship constitutes extraordinary and compelling reason for a sentence reduction. The Court rejected this argument, first explaining that “the court doubts that Congress intended [the court to value substantial assistance] in authorizing the court to grant a sentence reduction under § 3582(c)(1)(A)(i).” Doc. 616-1 at 2. Moreover, the Court concluded the record contained insufficient information to determine a value of defendant's cooperation. Id. Finally, the Court found that the BOP addressed Gordon's safety concerns by transferring him to the Iowa State Penitentiary (“ISP”). Id. at 2-3.
Gordon requests reconsideration, asserting that he now has evidence that his assistance was substantial. The Court maintains its doubt that substantial assistance can be considered in granting a sentence reduction under § 3582(c)(1)(A)(i). More importantly, the government has now determined that Gordon provided substantial assistance and filed a Rule 35(b) motion, which the Court will address in a subsequent opinion and order. The value of Gordon's assistance will be considered in the context of the Rule 35(b) motion, not his motion for reconsideration of compassionate release.
Gordon further argues that because he testified against Richardson, the conditions of his confinement have significantly worsened. He asserts that the BOP was unable to provide for his safety and so transferred him to the ISP. Doc. 657 at 8. He further claims the ISP has been forced to keep him in isolation to provide for his safety. Id. The result, he explains, is that he is allowed outside of his cell one hour each day for recreation, has no access to mental health professionals, no access to rehabilitative programming or education, no contact with the general population, and no library time. Id. In comparison, Gordon asserts that while at the BOP he had access to recreation, education, religious services, mental health services, a job, job training, college classes, the company of other inmates, and the commissary from which to purchase everyday items. Id. at 9.
The government agrees that Gordon was transferred to the ISP because of threats he received while at the BOP. Doc. 708 at 1. But it asserts that his placement in solitary confinement at the ISP is based on his behavior, not his safety. Id; Doc. 717 at 1-2. More specifically, it describes Gordon's time at the ISP as follows. Gordon was transferred to the ISP in or around February of 2021. Doc. 717 at 1. Upon his arrival, he was put into administrative segregation for two weeks, which is standard protocol for any new prisoner. Id. at 2. Gordon was then placed into general population until he began encountering disciplinary issues. Id. Gordon continued to have disciplinary issues from June 2021 to April 2022. Id. Under ISP protocol, a prisoner sentenced to disciplinary detention must go through a classification process before transitioning back into a general population unit. Id. Gordon remains in solitary confinement today because he refuses to attend his classification hearing. Id.
The government asserts that he had disciplinary issues until June of 2022. Doc. 717 at 2. However, the documents it provided in support shows the most recent disciplinary issue was resolved April 20, 2022. Doc. 717-1 at 1.
Gordon disputes that he was ever placed in general population and argues that the ISP's disciplinary infraction documents overstate the seriousness of what occurred. Doc. 718 at 1. He insists that he is in solitary confinement only for his safety.
Even if Gordon is in solitary confinement for his safety, he has not shown that the current risk to his safety is related to testifying against Richardson. In a later filing Gordon details the threats he received while at the ISP. Doc. 716. He points to two possible causes for these threats. First, he states that he has “keep separates” in the BOP from various gangs present at the ISP “because of past and ongoing altercations whereby [he] has been attacked and assaulted and stabbed[.]” Id. at 2. Second, he states that comments made by a case manager in front of other inmates portrayed him as a confidential informant. Id. Gordon mentions only one incident where he was threatened by an inmate who claimed to know that he was a confidential informant of the BOP. Id. at 4.
The comments Gordon refers to are “I cannot answer your questions, you are trying to get me into court” and “I am not talking to you you are suing me.” Doc. 716 at 2.
The Court acknowledges the value of Gordon's testimony in the Richardson trial and that by testifying Gordon subjected himself to some level of hardship. However, the record suggests that he is in solitary confinement due to his own misbehavior and, moreover, that the threats he received at the ISP are largely unrelated to the Richardson trial. Threats are unfortunately commonplace in prison and could be prompted by any number of occurrences, including an inmate's own instigation. Gordon has not established that his placement in solitary confinement or the current risks to his safety establish extraordinary and compelling reason for compassionate release.
In sum, Gordon has failed to establish that any factors, in isolation or combination, establish extraordinary and compelling reason for compassionate release.
D. Sentencing Factors
Even if Gordon could establish extraordinary and compelling reason for compassionate release, consideration of the § 3553(a) factors weigh against release. In denying Gordon's prior motions for compassionate release, the Court found:
These were serious offenses involving seven armed robberies. According to the facts in the presentence investigation report (“PSR”), the first robbery on October 31, 1997, was orchestrated by Timothy Greathouse. The remaining robberies of Remos Pizza on November 4, 1997, the Red Brick Inn on November 17, 1997, the Beck Tavern on November 28, 1997, the Chatterbox Lounge on December 1, 1997, the Southgate Lounge on December 4, 1997, and the Diamond One and Four Saloon on January 1, 1998, were committed by defendant and Joshua McCain. Defendant provided a gun to McCain to use in these six robberies. During the robbery at the Diamond One and Four Saloon, McCain struck a patron on the
head with the butt of the gun. Property was taken from the businesses and from customers, resulting in a total loss of $8,459.75. These robberies presented a serious risk of harm to the employees and customers. Defendant received an enhancement for obstruction of justice for attempting to persuade McCain not to testify against him and to commit perjury.
As to the history and characteristics of the defendant, the PSR reported that defendant had a close relationship with his mother, but that his father was an alcoholic who physically abused his mother. Defendant has two children, and has a close relationship with his sister, Linda Diles, with whom he plans to reside if released. Defendant has a history of substance abuse, including alcohol, marijuana, LSD, cocaine and crack cocaine, and methamphetamine. His prior criminal record includes convictions for driving without a license, disorderly conduct (fighting), aggravated menacing, escape, carrying a concealed weapon and attempted carrying a concealed weapon, placing him in Criminal History Category VI.
After his conviction in this case, defendant was convicted under Case No. 01-CR-3612 in the Common Pleas Court of Franklin County, Ohio, for the offenses of felonious assault, involuntary manslaughter, and kidnapping, with firearm specifications. See https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline (last checked July 15, 2021). According to the summary of evidence contained in the decision of the Tenth District Court of Appeals in State v. Gordon, No. 03AP-281, 2004 WL 1142875 (10th Dist. Ohio App. May 24, 2004), on April 29-30, 1997, six months before the robberies in the instant case, defendant was involved in kidnapping a man and transporting him to a house in Columbus, Ohio. The victim had allegedly stolen drugs from the owner of the house. Defendant and the homeowner brutally beat the victim over a long period of time in the basement of the house, then threw the victim in a dumpster, where the victim was shot in the head. The BOP re-entry plan notes that a detainer is on file based on this state case, in which a sentence of 19 years, consecutive to the federal sentence, was imposed. Defendant's criminal history highlights the need for the sentence imposed in this case to deter similar conduct in the future and to protect the public from additional crimes by the defendant.
Defendant has served 23 years, less than 20 percent of his sentence. Based on the current record, the court is not convinced that a sentence of time served, or even the reduced a sentence of 571 months suggested by defense counsel, would be sufficient to reflect the seriousness of the offenses, promote respect for the law, provide just punishment, afford adequate deterrence and protect the public from more crimes by the defendant. The court concludes that the §3553(a) factors warrant denying defendant's motion for a reduced sentence. Even assuming, arguendo, that defendant's alleged reasons for a sentence reduction, considered in combination, are sufficient to constitute an “extraordinary and compelling reason” for a sentence reduction, that reason is outweighed by the statutory factors which militate against defendant's early release at this time.Doc. 616 at 10-12. On appeal, the Sixth Circuit held that the Court did not abuse its discretion in weighing the § 3553(a) factors. United States v. Michael Lee Gordon, No. 21-3699 (6th Cir. Feb. 15, 2022).
The only thing to change is the passage of 18 months. The severity of Gordon's crimes and the need of an appropriate sentence remain the same. The Court concurs with its prior review of the § 3553(a) factors and finds that they continue to militate against Gordon's early release.
III. Conclusion
For the above reasons, Gordon's request for reconsideration of his motion for compassionate release, Doc. 639, is DENIED.
IT IS SO ORDERED.