Opinion
4:13-cr-47-CDL-MSH
12-29-2021
UNITED STATES OF AMERICA, v. SIMEON GRIFFIN, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the Court's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (ECF No. 30). For the reasons stated below, it is recommended that this motion be denied.
BACKGROUND
On July 21, 2014, Defendant pleaded guilty to one count of distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Plea Sheet 1, ECF No. 18; Indictment 1, ECF No. 1. Before sentencing, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) (ECF No. 22). The USPO calculated a Guidelines sentencing range of 151 to 188 months. PSR ¶ 59, ECF No. 22. On October 23, 2014, the Court sentenced Defendant to 151 months' imprisonment, three years of supervised release, and a mandatory court assessment of $100. Judgment 2-5, ECF No. 25.
The Court received Defendant's motion for compassionate release on June 17, 2021 (ECF No. 30). Defendant seeks compassionate release due to the risk posed by Covid-19.
Mot. for Compassionate Release 1, ECF No. 30. He further contends that the prison where he is incarcerated fails to follow CDC guidelines in combatting Covid-19. Id. at 4-5. The Government responded to Defendant's request for release on August 11, 2021 (ECF No. 33). The Court received Defendant's reply on September 14, 2021 (ECF No. 34). Defendant's motion for compassionate release is ripe for review.
Defendant also moves for compassionate release based on the First Step Act amendment to § 924(c)'s stacking provision. Mot. for Compassionate Release 1-3; Def.'s Reply 3, ECF No. 34. Defendant was sentenced, however, under §§ 841(a)(1) and 841(b)(1)(C), not § 924(c). Therefore, his argument is without merit.
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)). One circumstance is the compassionate release exception provided in 18 U.S.C. § 3582(c)(1)(A). Id. at 909-10. 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)(i). The Sentencing Commission's policy statement for compassionate release is found at U.S.S.G. § 1B1.13. Under that policy statement, a defendant must show that he “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C § 3142(g).” U.S.S.G. § 1B1.13(2). Further, a defendant must show that “extraordinary and compelling reasons warrant the reduction.” U.S.S.G. § 1B1.13(1)(A). A defendant bears the burden of proving entitlement to compassionate release. See United States v. Mantack, 833 Fed.Appx. 819, 819-20 (11th Cir. 2021) (per curiam) (citing United States v. Green, 764 F.3d 1352, 1356 (11th Cir. 2014)).
In addition to extraordinary and compelling reasons warranting a reduction, compassionate release may also be granted to a defendant who is over 70 years old and has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c). 18 U.S.C. § 3582(c)(1)(A)(ii). This provision is inapplicable to Defendant.
Defendant fails to show extraordinary and compelling reasons warranting compassionate release. The Sentencing Commission policy statement provides four circumstances that constitute extraordinary and compelling reasons for a sentence reduction. 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 a 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 and 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). Defendant is neither over the age of sixty-five, nor does he rely on family circumstances. Thus, these circumstances are inapplicable to him.
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 the courts.” United States v. Lee, 857 Fed.Appx. 556, 558 (11th Cir. 2021) (per curiam) (citing United States v. Bryant, 996 F.3d 1243, 1246-49 (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 1274-48, 1263. There is no evidence that the BOP has determined that Defendant presents an extraordinary and compelling reason for compassionate release. Therefore, the fourth circumstance does not apply to Defendant either.
As for the first circumstance, Defendant fails to show-let alone suggest-a qualifying medical condition as defined by U.S.S.G. § 1B1.13 cmt. n.1(A). Nor has he shown he has 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). Rather, Defendant relies on the general threat of Covid-19 to show extraordinary and compelling reasons justifying release. Mot. for Compassionate Release 2, 4-5. Defendant, however, has received both doses of the vaccine. Gov't Resp. 4, ECF No. 33; Def.'s Reply 2, ECF No. 34. “Although no federal court of appeal appears to have considered the question, district courts across the country . . . have held almost uniformly that a defendant's vaccination undercuts any claims of ‘extraordinary and compelling reasons' based on a high risk of infection.” United States v. Smith, Nos. 2:98-cr-00009-KJM-CKD, 2:96-cr-00450-KJM, 2021 WL 1890770, at *3 (E.D. Cal. May 11, 2021). Defendant offers no evidence that he has a medical condition that places him at “an elevated personal risk despite vaccination.” Id. at 5 (adopting “the rebuttable presumption that appears to be the emerging majority rule among federal district courts” that a vaccinated inmate cannot show an extraordinary and compelling reason for compassionate release based on the risk posed by Covid-19).
Moreover, 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 three factors listed above-which are codified at 18 U.S.C. § 3553(a)(1), (2)(A), and (2)(B)-weigh heavily against Defendant. Defendant was sentenced as a career offender. PSR ¶¶ 27, 43. His criminal history includes prior convictions for, inter alia, possession and trafficking cocaine, possession of a firearm during the commission of a crime, and driving while under the influence of alcohol. Id. ¶¶ 35, 38-40. Defendant has served just over half of his sentence. While he points to his prison record and classes to “maintain positive and constructive behavior” along with the decreased likelihood of recidivism due to such programs, these factors are insufficient to offset the countervailing considerations. Mot. for Compassionate Release 3; Def.'s Reply 3. Compassionate release or a sentence reduction for Defendant would not reflect the seriousness of the crime or criminal history, promote respect for the law, provide just punishment, or deter future criminal conduct.
The Court has also considered the need to provide Defendant “with . . . medical care . . . in the most effective manner.” 18 U.S.C. § 3553(a)(2)(D). There is no evidence that Defendant requires any medical care not presently available to him in prison. While he states he will “pursue drug and alcohol treatment” if granted compassionate release, he admits that he currently receives such treatment through the Residential Drug Abuse Program (“RDAP”). Mot. for Compassionate Release 3. Thus, Defendant is receiving appropriate medical treatment in prison.
As for the risk of 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 (Oct. 13, 2021, v.14.1), available at https://www.bop.gov/resources/pdfs/covid19vaccineguidancev1402021.pdf (last visited Dec. 28, 2021). The availability of the vaccine should greatly minimize Defendant's possible future exposure to the Covid-19 virus. As noted, Defendant has received both doses of the vaccine. Further, the BOP has implemented procedures to mitigate the risk of infection. Federal BOP, BOP Modified Operations, https://www.bop.gov/coronavirus/covid19status.jsp (updated Nov. 25, 2020). As of December 28, 2021, there were just three Covid-19 positive inmates at FMC-Lexington, where Defendant is housed. Fed. Bop, https://www.bop.gov/coronavirus (last visited Dec. 28, 2021).
Finally, the Court has considered the remaining factors in § 3553(a) and, to the extent they are applicable, 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. 30) 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.