Opinion
1:14-cr-00214
11-08-2021
UNITED STATES OF AMERICA, Plaintiff, v. HARRY R. HUBBARD, Defendant.
OPINION & ORDER [RESOLVING DOC. 1285]
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
Defendant Harry R. Hubbard requests a reduced sentence under the compassionate release statute 18 U.S.C. § 3582(c)(1)(A). Defendant argues relief should be granted because of family circumstances, and because his sentence is overlong due to his status as a career offender. The Government opposes Hubbard's request. Defendant Hubbard replied.
Docs. 1285; 1296.
Id.
Doc. 1297.
Doc. 1298.
In deciding this motion, the Court must determine whether “extraordinary and compelling reasons” exist to warrant a reduction in sentence. The Court must then consider the sentencing factors set forth in 18 U.S.C. § 3553 and determine whether the reduction is warranted in whole or in part under the circumstances of the case.
18 U.S.C. § 3582(c)(1)(A); United States v. Jones, 980 F.3d 1098, 1108 (6th Cir. 2020) (holding federal judges have full discretion to define extraordinary and compelling).
18 U.S.C. § 3582(a); Jones, 980 F.3d at 1108 (internal quotation omitted).
For the following reasons, the Court DENIES Defendant Hubbard's motion for compassionate release.
I. Background
On November 26, 2014, Defendant Hubbard pled guilty to conspiracy to possess with the intent to distribute controlled substances. The parties agreed that Hubbard's base offense level was 36.
Doc. 429.
Id. at 6.
On April 1, 2015, the Court sentenced Hubbard. The Court found that Hubbard possessed a firearm during the commission of the offense and that he was a career offender. Based on that, Hubbard's offense level was raised to a 37. Hubbard received an adjustment for acceptance of responsibility and a departure. The Court set his final offense level at 30.
Doc. 718. See also Doc. 721.
Doc. 803 at 6.
Id. at 6, 15, 16.
The Court found Hubbard to be a criminal history category VI based upon his past convictions. Independently, the Court also found he qualified for a criminal history category VI because of his career offender status.
Id. at 6-7.
Hubbard's offense level and criminal history category resulted in a guideline range of 168 to 210 months' imprisonment. The Court sentenced Hubbard to 160 months imprisonment and 10 years of supervised release.
Id. at 23-24.
II. Discussion
Hubbard moves for compassionate release. He says that relief should be granted because of family circumstances, and because, if sentenced today, he would not qualify as a career offender and his sentence would be shorter. The Government opposes.
Docs. 1285; 1296 at 4.
Doc. 1297.
A. Exhaustion
The Court may modify a defendant's term of imprisonment upon a motion from a defendant once 30 days have expired since the warden of the defendant's facility received such a motion from the defendant. On June 4, 2021, Hubbard's request for compassionate release was denied by the FCI McDowell warden. Because more than 30 days have passed since Hubbard's request, he has satisfied the exhaustion requirement.
18 U.S.C. § 3582(c)(1)(A); United States v. Alam, 960 F.3d 831, 833-34 (6th Cir. 2020).
Doc. 1285-1.
B. Eligibility
Under the compassionate release statute, the Court may “reduce the term of imprisonment []and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment[].”
To grant compassionate release, the Court must first find “extraordinary and compelling reasons” warranting a reduction in sentence. The Court must then consider the sentencing factors set forth in 18 U.S.C. § 3553 and determine whether the reduction is warranted in whole or in part under the circumstances of the case. The Sixth Circuit has held that the Sentencing Commission's policy statement is not binding in considering compassionate release motions.
Id.; Jones, 980 F.3d at 1108 (holding federal judges have full discretion to define extraordinary and compelling).
18 U.S.C. § 3582(a); Jones, 980 F.3d at 1108 (internal quotation omitted).
See United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021).
Defendant Hubbard's motion raises two arguments for compassionate release: his family circumstances and his long sentence. The Government disagrees.
Doc. 1296 at 4.
Doc. 1297.
a. Family Circumstances
Defendant Hubbard argues that his need to care for his elderly, ailing mother constitutes an extraordinary and compelling reason warranting compassionate release.While under certain circumstances this Court has found that caring for an elderly parent constitutes grounds for granting a motion for compassionate release, the circumstances here do not provide that grounds.
Doc. 1296 at 4.
See United States v. Walker, No. 1:11 CR 270, 2019 WL 5268752, at *2-3 (N.D. Ohio Oct. 17, 2019) (granting compassionate release when defendant was the only available caretaker for his terminally ill mother who required expensive, non-traditional treatment due to a genetic issue and defendant had received an unusual and lucrative job opportunity based on a book he wrote that would allow him to assist with his mother's medical costs, and support himself).
Defendant's mother is 67 years old, had a 2021 knee replacement, and “had a stroke in the past.” Defendant is the only available caretaker. While this Court regrets the Defendant's mother's health condition, her knee condition is not an “extraordinary” circumstance warranting a reduction in sentence.
Doc. 1301-2.
Doc. 1298 at 2. Defendant Hubbard is an only child, and his mother has reported that she has no one else to care for her.
See United States v. Ingram, No. 2:14-cr-40, 2019 WL 3162305, at *2 (S.D. Ohio July 16, 2019) (finding the need to care for elderly parents alone is not an “extraordinary” circumstance because “[m]any, if not all inmates, have aging and sick parents.”).
b. Career Offender Status
Defendant Hubbard argues he should not have been classified as a career offender because his instant offense is not a crime of violence or a controlled substance offense.
Doc. 1296 at 4.
A defendant qualifies as a career offender if (1) he was eighteen or older at the time he committed the instant offense; (2) the instant offense was a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense.
USSG § 4B1.1(a).
In United States v. Havis and its progeny the Sixth Circuit held that federal drug conspiracy offenses cannot serve as the basis for career offender status.
United States v. Uminn, 820 Fed.Appx. 353, 359 (6th Cir. 2020) (citing United States v. Havis, 927 F.3d 382, 386-87 (6th Cir. 2019) (en banc), recon, denied929 F.3d 317; United States v. Stephens, 812 Fed.Appx. 356, 356 (6th Cir. 2020); United States v. Butler, 812 Fed.Appx. 311, 314-15 (6th Cir. 2020).
After being indicted for a large number of heroin distribution counts and after admitting he committed those heroin distributions, Hubbard pled guilty to one count of conspiracy to sell drugs. Likely because it did not foresee Havis and because real-offense sentencing applied, the Government moved to dismiss Hubbard's distribution counts.
Doc. 721 at 1. Defendant Hubbard pled guilty to 21 U.S.C §§ 846, 841(b)(1)(A) & 841(a)(1) Conspiracy to Possess with Intent to Distribute and to Distribute Heroin, Cocaine Base and Cocaine.
The Sixth Circuit has further clarified, however, that its decision in Havis is not retroactively applicable and cannot serve as the basis for collateral relief. Courts in this Circuit have therefore declined to view Havis-and the fact that a defendant convicted of a federal drug conspiracy offense in the past might not be eligible for career offender status under current law-as an extraordinary and compelling reason for compassionate release.
Bullard v. United States, 937 F.3d 654, 657 (6th Cir. 2019).
See, e.g., United States v. McKinnie, No. 1:16CR304, 2020 WL 5087058, at *3 (S.D. Ohio Aug. 27, 2020) ((“[T]he Court holds that the Sixth Circuit's recent decision in United States v. Havis . . . cannot serve as an ‘extraordinary and compelling reason[ ]' under § 3582(c)(1)(A)....[T]he Sixth Circuit has previously determined that the same argument that Defendant advances cannot support relief on a collateral attack. It makes little sense therefore to allow Defendant to circumvent that decision by using a different statute to attack the length of his sentence.”); United States v. Greene, No. 2015709, 2020 WL 3118645, at *1 (E.D. Mich. June 11, 2020) (“The Sixth Circuit's decision[ ] in ... Havis do[es] not fall within any of the limited circumstances where courts are empowered to modify a defendant's sentence under § 3582(c).”).
Further, even if Havis did constitute an extraordinary and compelling reason for individuals sentenced as career offenders for a federal drug conspiracy conviction, it would not benefit Defendant Hubbard. Hubbard was originally charged with multiple counts of heroin distribution. Hubbard admitted to possession with intent to distribute and the distribution of controlled substances in his plea colloquy. Any of these distribution counts would have resulted in the appropriate application of the career offender designation. Therefore, this intervening change in law does not constitute an extraordinary and compelling reason warranting a sentence reduction in this case.
Doc. 1.
Doc. 429 at ¶ 48.
c. 18 U.S.C. § 3553(a) Factors
Once a Court has identified an extraordinary and compelling reason warranting a sentence reduction, the Court must consider any applicable 18 U.S.C. § 3553 factors and determine whether the reduction is warranted under the circumstances of the case.
18 U.S.C. § 3582(a); 18 U.S.C. § 3553; Jones, 980 F.3d at 1108 (internal quotation omitted). Such sentencing factors include, inter alia, “the nature and circumstances of the offense and the history and characteristics of the defendant;” “the need for the sentence imposed” to “reflect the seriousness of the offense” and to “protect the public from further crimes of the defendant”.
In this case, the Court has not identified any extraordinary and compelling reason warranting a sentence reduction. Even if it had, the § 3553 factors would weigh against granting the motion for compassionate release. Prior to this offense, Defendant Hubbard had multiple felony convictions for large quantities of drugs. Hubbard also had a prior manslaughter conviction. Further, he was a high-level leader in the instant drug conspiracy. A sentence reduction is not warranted.
Doc. 803 at 22.
Id.
Id. at 21.
III. Conclusion
For the foregoing reasons, the Court DENIES Defendant Hubbard's motion for compassionate release.
IT IS SO ORDERED.