Opinion
CRIMINAL ACTION 18-73
07-21-2022
UNITED STATES OF AMERICA v. DAVID T. LANDIS
MEMORANDUM
GERALD J. PAPPERT, J.
David Landis seeks compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). The Court denies his motion because extraordinary and compelling reasons do not warrant his release and, in any event, the factors under 18 U.S.C. § 3553(a) counsel against granting relief.
Landis satisfied the administrative exhaustion requirement in 18 U.S.C. § 3582(c)(1)(A) because more than 30 days elapsed between his request for compassionate release to the warden at FMC Devens and his motion. (Id.) Landis submitted his request for release on March 1, 2022 (although it is dated February 2, 2022). (ECF 71 at 7.) The Warden denied it on March 16 (id. at ECF p. 9) and he filed his pro se motion on April 18. (ECF 71.)
Although Landis requests appointed counsel (ECF 71 at 6), a defendant seeking compassionate release does not have a constitutional right to an attorney. United States v. Dorsey, 520 F.Supp.3d 681, 684 (E.D. Pa. 2021). The Court must assess whether his motion “has some arguable merit in fact and law.” Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993)). It does not. Even if it did, it would not be necessary to appoint counsel considering Landis's demonstrated ability to present his own case; the complexity of the legal issues; the degree to which he was able to pursue necessary factual investigation; the limited role of credibility determinations in deciding his motion; and because there is no need for expert witness testimony. See Tabron, 6 F.3d at 155-57.
I
Landis worked with international co-conspirators to import and distribute controlled substances including U-47700 (bath salts) and furanyl fentanyl. (Gov't Resp., ECF 73 at 1.) He sent over 2,900 packages of drugs to users in the United States and elsewhere. (Id.) Some of the recipients overdosed and survived. (Id. at 2.) Others died, including seven people who fatally overdosed within two weeks of receiving Landis's packages. (Id.) He knew the consequences of his actions because he was addicted to drugs while he was importing and distributing them. (Id.) Moreover, Landis worked as a deputy sheriff for nearly a decade before his involvement in drug trafficking. (Id.)
Landis pleaded guilty to 63 controlled substance-related crimes, including conspiracy to import, conspiracy to distribute, possession with intent to distribute, distribution with use that resulted in serious bodily injury, distribution and maintaining a drug involved premises. (Id. at 2.) He cooperated with the government and testified about his co-conspirators before the grand jury. (Id.) They have been charged but have yet to be arrested. (Id.) Based in part on his cooperation, the Court sentenced Landis to 180 months in prison, a substantial reduction from the 240-month mandatory minimum sentence he faced and his sentencing guideline range of 240 to 262 months. (Id.) He has been incarcerated for around 62 months, has approximately 8 months of credit for good conduct and has served roughly 70 months of his sentence. (Id.).
Landis is 45. (Id.) He tested positive for COVID-19 on December 7, 2020 and recovered. (Id. at 5.) Since then he has received one dose of the Janssen COVID-19 vaccine and a Moderna booster. (Id.) When Landis was sentenced, he suffered from diabetes, hypertension, high cholesterol, mental health issues and substance abuse, including the use of bath salts. (Id. at 3.) He was mildly obese with a 31.9 BMI. (Id.) Landis's recent medical records show he has gained around 35 pounds since sentencing and now is obese, with a 38.4 BMI. (Id. at 4.) The records evidence his history of Type 1 diabetes, hypertension, hyperlipidemia, sleep apnea, vitamin D and B12 deficiency, post-traumatic stress syndrome, depression and anxiety. (Id.) In addition to his history of drug use, Landis smoked for 25 years. (Id.) He is housed at a BOP medical facility and his medical records show his treatable medical conditions are being controlled with medications provided by the institution, an insulin pump and a CPAP machine. (Id. at 5; see also id., Ex. A at ECF p. 21-344 (medical records).)
Landis complains that breakthrough COVID-19 cases are on the rise (Def's. Mot. at ECF p. 8) and that with new virus variants, vaccinations no longer stop COVID's spread. (Def.'s Reply, at ECF p. 3.) He also complains that he is not being treated for his ADD because FMC Devens does not offer Vyvanse, his previous medication, or any substitute stimulant medication. (Def.'s Mot. at ECF p. 8.) He maintains he is not being adequately treated for his diabetes because the institution will not provide a continual glucose monitor and because he no longer receives the weight control benefits associated with his ADD medication. (Def.'s Reply at ECF p. 2.) In addition, Landis complains about receiving cognitive behavioral therapy (CBT) for his PTSD while he is in prison instead of eye movement desensitization and deprocessing (EMDR) treatment which he believes is superior. (Id.)
II
A district court may reduce an inmate's sentence as a form of compassionate release only if it finds that (1) extraordinary and compelling reasons warrant such a reduction; (2) the sentencing factors set forth in § 3553(a), to the extent they are applicable, warrant a reduction; and (3) the reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A). Relevant § 3553(a) factors a court must consider include the nature and circumstances of the offense, the history and characteristics of the defendant, and the “need for the sentence imposed - to reflect the seriousness of the offense, . . . promote respect for the law, . . . provide just punishment for the offense” and “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1), (2)(A), (C). The applicable Sentencing Commission policy statement requires a court to determine a defendant “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. 3142(g)” prior to release. U.S.S.G. § 1B1.13.
III
A
Landis presents no extraordinary and compelling reasons for a reduction of his sentence. Even with his underlying medical conditions, he has not shown that continued exposure to the COVID-19 virus puts him at risk of serious harm. He previously contracted and recovered from COVID-19. Garrett v. Murphy, 17 F. 4th 419, 433 (3d Cir. 2021) (holding an inmate could not show an imminent risk of serious physical injury from continued exposure to COVID-19 after he contracted the virus and was “[p]rotected by natural immunity”); see also United States v. Viteri, No. 19-00044, 2020 WL 3396804, at *4 (D.N.J. June 19, 2020) (“[A]ffliction with various medical conditions alone is insufficient to justify compassionate release.”). Moreover, he since has been vaccinated and boosted against the virus. Landis offers no argument why vaccines that have been shown to reduce adverse outcomes will not adequately protect him against severe complications from COVID-19 or its newer variants. See United States v. Riddick, No. 95-73-1, 2022 WL 138074, at *4 (E.D. Pa. Jan. 14, 2022) (finding no extraordinary circumstances where “[t]he current vaccines are also expected to protect against severe illness, hospitalization and deaths due to infection with the newer Omicron variant”);
Landis's other complaints about inadequate medical care for his PTSD, ADD and diabetes do not rise to the level of extraordinary and compelling circumstances. His medical records show he is receiving appropriate and sufficient care for his diabetes and PTSD and they do not show he has ever received an ADD diagnosis. His desire to receive other treatments not provided at FMC Devens is not a basis for release. See Viteri, 2020 WL 3396804, at *5 (holding a defendant needed to support his compassionate release motion with more than his “own statements” that his medical conditions could not be adequately managed in prison); see also Lasko v. Watts, 373 Fed.Appx. 196, 203 (3d Cir. 2010) (“[A] prisoner has no right to choose a specific form of medical treatment,” so long as the treatment provided is reasonable.).
B
Even if Landis did present extraordinary and compelling reasons, release would not be warranted based on the § 3553(a) factors. See United States v. Pawlowski, 967 F.3d 327, 331 (3d Cir. 2020) (affirming denial of compassionate release for at-risk inmate because “the § 3553(a) factors weigh[ed]” against release). The Court imposed Landis's sentence because of his key role in a dangerous and destructive drug trafficking conspiracy that distributed thousands of packages of deadly drugs, leading to multiple deaths and more overdoses. He joined the conspiracy to support his own drug addiction and did so despite his previous experience as a law enforcement officer. Landis already received a significant reduction in the time he might have otherwise received for his crimes because of his cooperation. To release him now - just over five years into his fifteen-year sentence - would overlook the nature, circumstances and seriousness of his offenses, his history and characteristics and would fail to promote respect for the law or provide just punishment. See 18 U.S.C. § 3553(a).
An appropriate Order follows.