Summary
denying motion for compassionate release in part because greed motivated defendant's actions
Summary of this case from United States v. WillisonOpinion
No. CR06-4030-LTS
2020-06-17
UNITED STATES of America, Plaintiff, v. Ryan Keith MATHISON, Defendant.
Forde Fairchild, Assistant U.S. Attorney, Robert A. Knief, US Attorney's Office, Sioux City, IA, Martin J. McLaughlin, US Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Forde Fairchild, Assistant U.S. Attorney, Robert A. Knief, US Attorney's Office, Sioux City, IA, Martin J. McLaughlin, US Attorney's Office, Cedar Rapids, IA, for Plaintiff.
ORDER
Leonard T. Strand, Chief Judge
I. INTRODUCTION
This case is before me on defendant Ryan Keith Mathison's motions (Doc. Nos. 608, 613) for compassionate release. The Government has filed a response (Doc. No. 616) and Mathison has filed a reply (Doc. No. 620). Oral argument is not necessary. See Local Rule 7(c).
II. BACKGROUND
On June 21, 2006, a Second Superseding Indictment was returned against Mathison and several other individuals. Doc. No. 185. It charged Mathison with seven counts: one count of continuing criminal enterprise in violation of 21 U.S.C. § 848(a) ; one count of conspiracy to distribute and possess with intent to distribute on thousand kilograms or more of marijuana, cocaine, methamphetamine and anabolic steroids in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 ; one count of conspiracy to launder money in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(h) and four counts of making a false tax return in violation of 26 U.S.C. § 7206(1). Doc. No. 185. The Second Superseding Indictment also charged Mathison's father, Robert Mathison, Sr., and brother, Ronald Mathison, among others. Id. Robert was charged with two counts: (1) conspiracy to distribute and possess with intent to distribute on thousand kilograms or more of marijuana, cocaine, methamphetamine and anabolic steroids and (2) conspiracy to launder money. Id. Ronald was charged with one count of conspiracy to launder money. Id.
United States District Judge Mark W. Bennett presided over Mathison's, Robert's and Ronald's consolidated jury trial. See Doc. No. 340. Trial began on November 6, 2006. Id. On November 14, 2006, following the first week of trial, Mathison removed his GPS monitoring transmitter unit and absconded from pretrial supervision. Doc. No. 491 at ¶ 5; Doc. No. 353. Judge Bennett ruled Mathison had voluntarily absconded and that the trial could continue. See Doc. No. 353. The Eighth Circuit Court of Appeals summarized the trial evidence as follows:
The evidence at trial showed that Mathison and his friend Shad Derby ran a drug smuggling operation, bringing anabolic steroids, marijuana, methamphetamines, and cocaine from Mexico to Sioux City, Iowa. Their business model was to use friends and family as drivers, sending the drivers with large amounts of cash to El Paso, Texas, or else meeting the drivers there with the cash. Once in El Paso, the drivers would call a phone number, and a supplier would pick up their car or truck and bring it back with bundles of drugs secreted within giant stereo speakers in the vehicle.
The drivers would drive back to Sioux City, where they would unload their cargo either at Derby's house, a shed outside of town rented by Mathison, or at Mathison's business, Stereo Town. The drivers were usually paid $50 per pound of marijuana transported. Mathison distributed the drugs around the areas of Sioux City, Iowa and Sioux Falls, South Dakota.
The evidence also showed that Mathison paid cash for at least two cars that were then registered in the names of Jennifer Urben-Potratz and Travis Olson, respectively. The Olson car was shown to have been paid for with drug money. William Sedelmeier, one of Mathison's drug customers, originally owned the car and Mathison bought it from him by paying off Sedelmeier's car loan. Sedelmeier paid off his car loan using Mathison's money; the money was the proceeds from marijuana that belonged to Mathison, but which Sedelmeier peddled for Mathison. After obtaining the car with drug proceeds, Mathison then sold the car to Travis Olson, ostensibly acting on behalf of Sedelmeier.
There was also evidence that Mathison filed income tax returns that did not show the true amount of his income for the year. Internal Revenue Service Agent James Biegger examined Mathison's financial records and testified that in the years 2000, 2001, 2002, and 2003, respectively, Mathison had income of $106,000, $234,805, $331,750, and $309,221, whereas his tax returns for those years showed income of only $27,073, $22,457, $54,179, and $78,066.
Doc. No. 509 at 2.
On November 15, 2006, the jury found Mathison guilty on all counts. Doc. No. 358. He was apprehended in Juarez, Mexico, on November 27, 2006, and ultimately was returned to this district. Doc. No. 491 at ¶ 5. During his sentencing hearing on May 2, 2007, Judge Bennett calculated a sentencing guideline range of 360 months to life, based on a total offense level of 42 and a criminal history category II. Doc. No. 487. Judge Bennett denied Mathison's motion for downward variance, stating, in part:
The jury found Robert guilty on the drug trafficking conspiracy count but found Robert and Ronald were not guilty on their money laundering conspiracy counts. Doc. No. 358.
Mathison's total offense level included a two-level enhancement for obstruction of justice because he voluntarily absconded during trial. See Doc. No. 491 at ¶ 33.
The need for the sentence imposed, you know, this is not just a regular drug conspiracy, but the defendant was found guilty of operating a continuing criminal enterprise, and that's obviously an extremely serious federal offense. So reflecting the seriousness of the offense, afford adequate deterrence, protect the public from further crimes, none of those factors in my view weigh in favor of a variance.
Doc. No. 498-1 at 11. Judge Bennett sentenced Mathison to 372 months' imprisonment. Doc. No. 487. This consisted of 372 months on the continuing criminal enterprise count, 240 months on the conspiracy to launder money count and 36 months on the false tax return counts, all to run concurrently. Id. The Eighth Circuit affirmed Mathison's convictions on appeal. See Doc. No. 509. Mathison's petition for a writ of certiorari was denied by the United States Supreme Court. See Doc. No. 520.
Judge Bennett set aside the conspiracy to distribute and possess with intent to distribute count because it was a lesser-included offense of the continuing criminal enterprise count. Doc. No. 498-1 at 13.
On April 27, 2020, Mathison filed a pro se motion for compassionate release. See Doc. No. 606. I denied that motion because Mathison failed to allege that he had exhausted his administrative remedies. See Doc. No. 607. On May 7, 2020, Mathison filed another pro se motion for compassionate release, this time including an administrative request he submitted to his warden on March 29, 2020. See Doc. No. 608. The administrative request was denied on March 29, 2020. Id. On May 11, 2020, I appointed counsel to represent Mathison and file an amended motion for compassionate release on his behalf. See Doc. No. 609.
According to the online Bureau of Prisons (BOP) inmate locator, Mathison is now 51 years old and located at Elkton FCI. His projected release date is July 29, 2033.
III. COMPASSIONATE RELEASE STANDARDS
A court's ability to modify a sentence after it has been imposed is extremely limited. One way a court may modify a sentence is through "compassionate release" as outlined in 18 U.S.C. § 3582(c)(1)(A), which was recently modified by the First Step Act of 2018 (FSA). See Pub. L. No. 115-391, § 603. In the past, 18 U.S.C. § 3582(c)(1)(A) permitted a court to reduce a defendant's term of imprisonment only upon the motion of the Director of Bureau of Prisons (BOP). The FSA modified § 3582(c)(1)(A) such that a defendant may now directly petition the court "after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." See Mohrbacher v. Ponce , No. CV18-00513, 2019 WL 161727, at *1 (C.D. Cal. Jan. 10, 2019) (discussing modifications made to § 3582(c)(1)(A) by the FSA); see also United States v. Perez-Asencio , No. CR18-3611, 2019 WL 626175, at *2–3 (S.D. Cal. Feb. 14, 2019).
If a defendant fully exhausts administrative remedies, the court may, upon motion of the defendant, reduce the defendant's sentence, after considering the factors set forth in 18 U.S.C. § 3553(a) to the extent they are applicable, if the court finds that:
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission ...
18 U.S.C. § 3582(c)(1)(A). Mathison does not meet the requirements of § 3582(c)(1)(A)(ii). He is under 70 years of age and has not served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c). See Doc. No. 491 at 2. Accordingly, Mathison's only possible avenue for relief is § 3582(c)(1)(A)(i).
The starting point in determining what constitutes "extraordinary and compelling reasons" under § 3582(c)(1)(A)(i) is the Sentencing Guideline discussing compassionate release issued by the United States Sentencing Commission. See U.S.S.G. § 1B1.13 (U.S. Sentencing Comm'n 2018); see also United States v. Hall , No. CR98-7, 2019 WL 6829951, at *3 (E.D. Ky. Dec. 13, 2019) ; United States v. Rivernider , No. CR10-222, 2019 WL 3816671, at *2 (D. Conn. Aug. 14, 2019). The Guideline provides that extraordinary and compelling reasons exist in the following circumstances:
(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant 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.
(B) Age of the Defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.—
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, 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.
This Guideline predates the FSA and has "not been amended to reflect that, under the FSA, a defendant may now move for compassionate release after exhausting administrative remedies." Rivernider , 2019 WL 3816671, at *2. Courts are split on whether the policy statement is binding because it predates the FSA's changes to 18 U.S.C. § 3582(c)(1)(A). A number of district courts have concluded that Guideline § 1B1.13 cmt. n.1 does not restrain a court's assessment of whether extraordinary and compelling reasons exist to release a defendant. See, e.g., United States v. Rodriguez , 424 F.Supp.3d 674, 681-82 (N.D. Cal. 2019) ; United States v. Urkevich , No. CR03-37, 2019 WL 6037391, at *3 (D. Neb. Nov. 14, 2019) ; United States v. Brown , 411 F.Supp.3d 446, 451-52 (S.D. Iowa 2019) ; United States v. Fox , CR14-03, 2019 WL 3046086, at *3 (D. Me. July 11, 2019) ; United States v. Beck , 425 F.Supp.3d 573, 579-80 (M.D.N.C. 2019) ; United States v. Cantu , 423 F.Supp.3d 345, 350-52 (S.D. Tex. June 17, 2019). Other courts have concluded that extraordinary and compelling reasons exist only if they are included in the Guideline. See, e.g., United States v. Lynn , No. CR89-0072, 2019 WL 3805349, at *4 (S.D. Ala. Aug. 13, 2019).
As I have previously stated, I agree with those courts that have found that although the Guideline provides helpful guidance on what constitutes extraordinary and compelling reasons, it is not conclusive given the recent statutory changes. See United States v. Schmitt , No. CR12-4076-LTS, 2020 WL 96904, at *3 (N.D. Iowa Jan. 8, 2020) ; see also Rodriguez , 424 F.Supp.3d at 681-82 (Congress knew that the BOP rarely granted compassionate release requests prior to the FSA, and the purpose of the FSA is to increase the number of compassionate release requests granted by allowing defendants to file motions in district courts directly even after the BOP denies their request); Brown , 411 F.Supp.3d at 450-51 (same).
IV. DISCUSSION
A. Exhaustion of Administrative Remedies
On March 29, 2020, Mathison submitted an administrative request for compassionate release to his BOP Unit Team and the warden at FCI Elkton. Doc. No. 608 at 3. The request stated, in part, "Please request and prepare a compassionate release request on my behalf due to the COVID-19 pandemic. I have multiple health issues identified by the CDC (adopted in the federal guidelines)." Id. The BOP denied the request on the same day, simply writing, "DENIED." Id. Mathison filed his pro se motion on May 7, 2020, more than 30 days after his administrative request was submitted and received. See Doc. No. 608. The Government does not contest that Mathison has exhausted his administrative remedies as required by 18 U.S.C. § 3582(c)(1)(A).
The Government points out that a few district courts have held that a defendant can file a motion for compassionate release 30 days after his warden receives his administrative request only if the warden does not respond. Doc. No. 616 at 10 n.4. If the warden does respond, these cases hold that a defendant must fully exhaust administrative remedies within the BOP and cannot file in court after 30 days. Id. ; see also United States v. Mattingley , No. 6:15-cr-00005, 2020 WL 974874, at *5 (W.D. Va. Feb. 28, 2020) ; United States v. Bolino , No. 06-cr-0806 (BMC), 2020 WL 32461, at *1 (E.D.N.Y. Jan. 2, 2020). The Government does not raise the issue, only stating that "[b]ecause defendant's motion should be denied on its merits, the Court need not reach this issue." Doc. No. 616 at 10 n.4.
B. Extraordinary and Compelling Reasons
Mathison argues that the threat the COVID-19 pandemic poses to him, in light of his particular health issues, constitutes extraordinary and compelling reasons. See Doc. No. 614 at 8–10. Dr. Samantha Alonso reviewed Mathison's BOP medical records and prepared a report, at the request of Mathison's counsel, summarizing Mathison's health conditions and giving her opinion on the risk COVID-19 poses to Mathison. Doc. No. 614-1. Dr. Alonso is an assistant professor at the Emory University School of Medicine and a board-certified internal medicine physician. Doc. No. 614-2. Dr. Alonso summarized Mathison's health history:
From review of clinical encounter and laboratory data since 2008, it appears Mr. Mathison's main chronic medical conditions include coronary artery disease with history of heart attack, diabetes, high blood pressure, debilitating low back pain after surgical spinal fusion, and morbid obesity. Potentially due to his family's medical history, Mr. Mathison is predisposed to multiple premature medical conditions as indicated by early onset of high blood pressure and cholesterol in his 30s, a heart attack requiring emergency intervention at 41 years old, and diabetes following closely thereafter at age 46.
The after-effects of his heart attack included ongoing atypical chest pain five years after the event, warranting a stress test and an echocardiogram (cardia ultrasound) in 2015. While his stress test was normal and reassuring against ongoing ischemia (poor blood flow to the heart depriving the heart of oxygen), his echocardiogram was concerning for early heart failure. Heart failure is a condition that weakens the heart's ability to
pump blood and deliver oxygen to the rest of the body. His heart's noted ejection fraction (pump function) was 40-45% on the ultrasound with normal being > 55%. Though it may initially be asymptomatic, heart failure can be progressive and cause shortness of breath, chest pain, and leg swelling among many other signs and symptoms, making activities of daily living difficult. Aside from ankle swelling noted on a problem list, it is not evident from the clinical notes that Mr. Mathison is currently symptomatic for heart failure. However, there does not appear to have been a repeat echocardiogram to assess the pumping function of his heart since 2015. Though he is on appropriate goal-directed medical therapy for early heart failure already, if his ejection fraction were to drop below 35% from his last noted 40-45% in 2015, he is a candidate for further life-saving medical therapy such as a cardia defibrillator.
While medications have helped manage his high cholesterol, he still has intermittently uncontrolled high blood pressure despite four blood pressure medications. His diabetes, which was initially diet-controlled, has now required initiation of medication due to steadily rising A1c to 7.5% (A1c is a laboratory measurement of the average blood glucose levels in the body over the span of 3 months; the target goal for most individuals should be < 7%). These chronic medical conditions are progressive and for the most part incurable, making them difficult to control, but they are furthermore compounded by his 84-pound weight gain over the past 12 years (last noted weight from 12/2019).
It is unclear whether Mr. Mathison's morbid obesity is due to difficulty with exercise secondary to severe low back pain or if his progressive low back pain is from rapid weight gain; regardless, both conditions are very likely related and exacerbating each other. Despite corrective spinal surgery in his 20s and 30s, Mr. Mathison continues to suffer from debilitating low back pain with shooting nerve pain. Noted on physical exams from his clinic encounters and physical therapy sessions, he appears to have both weakness and difficulties with range of motion. This type of spinal disease is only bound to become more progressive and debilitating as Mr. Mathison ages.
While imaging of his back shows stable disease, it is suggestive of osteoporosis of his spine. There does not appear to be a bone-density scan available for review to confirm diagnosis of osteoporosis, but Mr. Mathison would benefit from one to dictate whether or not he would benefit from bisphosphonates, a class of medications meant to prevent further bone loss and lower risk of bone fractures. He has been given several courses of high-dosed prednisone for his back pain, a medication that can cause or worsen osteoporosis, weight gain, and diabetes. Glucocorticoids such as prednisone also increase risk of fractures and should be avoided in people like Mr. Mathison, who already has difficulties with weight control and diabetes.
Doc. No. 614-1 at 2–3.
Dr. Alonso gave the following medical opinion on Mathison's COVID-19 risk:
Mr. Mathison is a man with several premature, incurable, and progressive medical conditions. While he is on appropriate medical therapy for most of his many medical conditions, he continues to be at risk for further severe outcomes such as more heart attacks, worsening heart failure, or strokes. Additionally, current data from the CDC regarding the COVID-19 pandemic suggests Mr. Mathison is also at higher risk of serious illness if infected with COVID-19 given
his serious heart conditions, diabetes, and morbid obesity nearing a BMI of 40.... There is thus legitimate concern that Mr. Mathison could become infected and get seriously ill, if not die, from this contagious virus. In my medical opinion, Mr. Mathison warrants consideration for compassionate release, as his clinical history and social circumstances place him at significant risk of not only continued progression of his multiple incurable comorbidities, but also of succumbing to an acute illness such as COVID-19.
Id. at 3–4.
As Dr. Alonso notes, the Centers for Disease Control and Prevention (CDC) lists nine categories of people who might be at higher risk from severe illness from COVID-19. Mathison is in at least three of those categories. He has a serious heart condition (coronary heart disease ), diabetes and is severely obese with a BMI very close to 40.
People Who Are at Higher Risk for Severe Illness , Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited June 16, 2020).
The Government does not dispute Dr. Alonso's report and opinion that Mathison is at a high risk of serious illness from COVID-19 because of his medical conditions. The Government also concedes that if a defendant has a chronic medical condition that has been identified by the CDC as elevating his risk of serious illness from COVID-19, then that condition may constitute extraordinary and compelling reasons. Doc. No. 616 at 15. The Government does, however, argue that Mathison does not satisfy Guideline § 1B1.13, cmt. n.1(A)(ii), which provides that extraordinary and compelling reasons exist if a defendant is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of a correctional facility and from which he is not expected to recover. Id. at 17. The Government argues that Mathison's medical conditions have not substantially diminished his ability to provide self-care within the environment of a correctional facility. Id.
The Government states that none of Mathison's medical conditions, singularly or in combination, substantially diminishes his ability to provide self-care within Elkton FCI. Dr. Alonso notes that Mathison suffers from debilitating low back pain with shooting nerve pain that appears to cause him some discomfort and weakness. BOP records indicate that Mathison is unable to lift more than 20 pounds, climb, run and participate in physical activities such as softball, football, basketball and handball. See Doc. No. 616-2 at 1. But his back pain does not substantially diminish his ability to provide self-care. There is no indication that Mathison requires an assistive device to walk, nor is there evidence that he requires assistance to bathe, eat, operate a phone or computer or perform other basic activities. However, Mathison's ability to provide self-care is not the end of the analysis. As I noted above, I am not constrained by the Guidelines in determining whether Mathison has established extraordinary and compelling reasons.
The Government also argues that Mathison's "sizable medical records adequately demonstrate [his] various medical issues, both minor and serious in nature have been and can be managed in federal prison." Doc. No. 616 at 18. In support of this assertion the Government generally cites all of Mathison's medical records (which consist of hundreds of pages) and cites nothing specific. Dr. Alonso agrees that Mathison is on appropriate medical therapy. However, Dr. Alonso suggests that Mathison would benefit from a repeat echocardiogram to assess the pumping function of his heart. She notes that Mathison's blood pressure is only intermittently controlled. She also states that he would benefit from a bone-density scan and expresses concern that a medication he takes for back pain could cause or worsen osteoporosis, weight gain and/or diabetes.
Mathison's 2010 heart attack while in BOP custody demonstrates an instance when his medical issues were not adequately managed. See Mathison v. Moats , 812 F.3d 594 (7th Cir. 2016). Mathison had told prison staff he was experiencing symptoms indicative of a heart attack but the BOP did not have him evaluated by medical staff until five hours later. Id. at 596. When he finally was seen by BOP medical staff, he was transported by ambulance to the nearest hospital emergency room and then immediately taken to a different hospital to have heart surgery. Id. Mathison later brought a civil lawsuit against the prison staff who failed to assist him during his heart attack. Id. at 597. The Seventh Circuit, in reversing the district court's grant of summary judgment in favor of the defendants, called the BOP's treatment of Mathison's heart attack "incompetent." Id. The BOP settled the case for a "substantial sum." See Doc. No. 615-5 at 1.
While I appreciate that the BOP has taken many measures to prevent the transmission of COVID-19 among its inmate population, the virus has nonetheless spread through many BOP facilities, including Elkton FCI. See United States v. Brant , No. 2:18-CR-20155-TGB-MKM-1, 2020 WL 2850034, at *2 (E.D. Mich. June 2, 2020) ("Whatever FCI Elkton is doing, events are conspiring so that it is not working."). On April 29, 2020, at about the time I denied Mathison's first pro se motion for compassionate release, the BOP reported that 49 inmates and 48 staff members at Elkton FCI had tested positive for COVID-19, and 7 inmates had died. See Doc. No. 607 at 1. It was apparent at that time that positive cases at Elkton FCI were being underreported because of a lack of testing. See id. at 1 n.1. As of June 15, 2020, 614 inmates have tested positive, representing approximately 27 percent of Elkton FCI's inmate population. Of those who tested positive, 565 have recovered and 9 have died. Thus, COVID-19 is present at Elkton FCI and Mathison is at risk of contracting it. Mathison's health conditions, when viewed in the context of the current COVID-19 pandemic, arguably constitute an extraordinary and compelling reason for release. Thus, I will consider whether the remaining factors support granting Mathison's motion.
According to the BOP's website, those measures have included limiting inmate movement within each facility and between facilities, suspending visits, suspending staff training and travel, screening staff and inmates for COVID-19 symptoms and modifying operations to maximum social distancing to the extent possible. BOP Implementing Modified Operations , Federal Bureau of Prisons, https://www.bop.gov/coronavirus/covid19_status.jsp (last visited June 16, 2020).
On April 22, 2020, the United States District Court for the Northern District of Ohio entered a preliminary injunction directing the BOP and Elkton to (1) evaluate each subclass member's eligibility for transfer out of Elkton FCI by any means, including compassionate release, parole or community supervision, transfer furlough or non-transfer furlough within two weeks, (2) transfer those deemed ineligible for release to another BOP facility where testing was available and physical distancing was possible and (3) not allow those transferred to return to Elkton until certain conditions were met. See Wilson v. Williams , 455 F. Supp. 3d 467, 480 – 81, No. 4:20-cv-00794, (N.D. Ohio Apr. 22, 2020). The BOP identified Mathison as an inmate who may be eligible for transfer out of FCI Elkton. See Doc. No. 614 at 10. However, on June 9, 2020, the United States Court of Appeals for the Sixth Circuit vacated the injunction. See Wilson v. Williams , 961 F.3d 829, 845-46, No. 20-3447, (6th Cir. June 9, 2020).
Covid-19 Cases , Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited June 16, 2020). 53 staff members have also tested positive, of which 46 have recovered. Id.
C. Section 3553(a) Factors and Danger to Community
Guideline § 1B1.13(2) provides that compassionate release is appropriate only where "the 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) [.]" Section § 3582(c)(1)(A) requires a court to consider the factors set forth in 18 U.S.C. § 3553(a) before granting a motion for compassionate release. Section 3553(a) requires that I consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines [issued by the Sentencing Commission ...;]
(5) any pertinent policy statement [issued by the Sentencing Commission ...
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
Mathison acknowledges that he has served only about 164 months of his 372-month sentence. See Doc. No. 614 at 13; see also Doc. No. 491 at ¶ 5. He also acknowledges the aggravation in his offense conduct and in his conduct during trial. Doc. No. 614 at 14. However, he argues that he has an extremely limited criminal history. Id. He points out that he has completed a number of adult continuing education classes while incarcerated. Id. ; see Doc. No. 615-7. He argues that he has a suitable residence at which to reside if he were released. Doc. No. 614 at 15; see Doc. No. 615-8.
Mathison has also filed a letter from Jared Kosoglad, the attorney who handled Mathison's civil lawsuit against BOP staff members resulting from his 2010 heart attack. See Doc. No. 615-5. Kosoglad writes, in part:
I represent several incarcerated individuals, and Mr. Mathison, over others, struck me as especially cooperative, pleasant, mature, regretful, and eager to move his life in a new direction. I have not spoken to Mr. Mathison since dealing with his case and I have not and would not write a letter this strongly in support of any of my other clients....
I cannot possibly imagine the difficulty of the choice faced by the Court in the present circumstances, and I do not want to make such decisions myself. However, to the extent my opinion of Mr. Mathison means anything, I would say that, amongst all of my clients, he is among the most worthy of release. My knowledge of his medical situation and
the current pandemic leaves me with no serious doubt that he is at a heightened risk from the virus, and after dealing with him over a significant and recent period of time, I would feel confident that he would use the opportunity of his release to move his life in a new and better direction. I, for one, would look forward to hearing from him and supporting him in his new life, in any way I can.
Id. at 1–2.
The Government argues that Mathison's § 3553(a) factors weigh against compassionate release. See Doc. No. 616 at 19. The Government states that Mathison "was involved in egregious offense conduct which included not only substantial drug trafficking of methamphetamine, marijuana, cocaine and steroids involving organized trips to acquire drugs in Texas and Mexico but also elements of management/supervision of several co-conspirators, significant money laundering, obstruction of justice and a tax loss of between $200,000 to $400,000." Id. The Government argues that Mathison engaged in obstructive conduct pre-trial in the attempted contact and/or threatening of a potential witness. Id. at 20. It also notes that he engaged in obstructive conduct by absconding to Mexico during his jury trial and has been disciplined several times while in BOP custody. Id.
The Government filed a motion to revoke Mathison's pretrial release, alleging that he had attempted to contact and threaten a potential witness. See Doc. No. 129. Judge Zoss denied the motion, finding that the Government failed to prove Mathison violated his conditions of release. See Doc. No. 142. Because the Government failed to prove the alleged conduct, I do not consider it here.
I agree with the Government. Assuming Mathison has satisfied the "extraordinary and compelling reason" standard for compassionate release, the § 3553(a) factors do not come close to supporting his release at this time, having served less than half of his lengthy sentence. As Judge Bennett explained, Mathison's was not a "regular" drug conspiracy. Instead, Mathison led a large-scale drug-trafficking operation. The PSR attributed to him 2,880 kilograms of marijuana, 4 kilograms of cocaine and 150 grams of methamphetamine. Doc. No. 491 at ¶ 29. Mathison used his family members to traffic drugs. Doc. No. 498-1 at 11. Further, Mathison's actions were not driven by addiction but, as he acknowledged during his allocution, by greed. Id. at 9-10. Trial testimony revealed that during the offense conduct Mathison devoted extensive resources to gambling in Las Vegas and elsewhere. Doc. No. 491 at ¶ 27. Witnesses also testified that Mathison rarely, if ever, consumed alcohol or the drugs he distributed. Id. Accordingly, the nature and circumstances of the present offense are extremely aggravating.
I recognize that Mathison's criminal history is limited. He has a 1990 conviction for damage to property, a 2001 conviction for exhibition driving and a 2003 conviction for impersonation to deceive law enforcement. Id. at ¶¶ 71–73. However, the fact that Mathison fled during his trial, and absconded to Mexico, is an extremely aggravating characteristic that outweighs his minor criminal history. This showed complete disregard for the law and an intent to avoid the consequences of his criminal actions.
Moreover, Mathison has incurred seven disciplinary reports while in BOP custody. See Doc. No. 616-1. On February 24, 2009, he admitted to possessing intoxicants found in his cell. Id. at 3. On August 19, 2009, he was disciplined for fighting with another person. Id. at 2. On March 11, 2010, he lied to a staff member after being in an unauthorized area. Id. On November 24, 2013, he was found guilty of tattooing or self-mutilation. Id. On March 8, 2015, he admitted to trying to circumvent the mail out procedure. Id. at 1. On April 16, 2016, he was found guilty of possessing a homemade water pipe/bong. Id. On February 17, 2017, he was sanctioned for being unsanitary or untidy. Id. These incidents, while not all recent, show that Mathison has continued to flout the rules when so inclined and further demonstrate the need to ensure that Mathison serves a sufficient sentence. See Pepper v. United States , 562 U.S. 476, 493, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (holding, in the context of a resentencing following reversal by a higher court, that post-sentencing developments, whether favorable or unfavorable to the defendant, bear directly on the court's duty to impose a sentence that is sufficient, but not greater than necessary, to serve the purposes of sentencing).
Releasing Mathison now, after having served less than half of the very lengthy sentence the sentencing court deemed necessary, would undermine the need for the sentence imposed, including the need to reflect the seriousness of the offense, afford adequate deterrence and protect the public from further crimes. It could also result in a significant disparity with others sentenced for this type of very serious drug crime. While I appreciate that Mathison has serious concerns for his health in light of the COVID-19 pandemic, "the relief he seeks is an inappropriate remedy in these circumstances." See United States v. Garcia , No. 16-cr-719 (RJS), 2020 WL 2539078, at *3 (S.D.N.Y. May 19, 2020) ; see also United States v. Ebbers , 2020 WL 91399, at *7, 432 F.Supp.3d 421, 431 (S.D.N.Y. 2020) (acknowledging that compassionate release should not "undermine the goals of the original sentence"). Having considered the factors set forth in 18 U.S.C. § 3553(a), I will deny Mathison's motion for compassionate release.
V. CONCLUSION
For the foregoing reasons, Mathison's motions (Doc. Nos. 608, 613) for compassionate release are denied. The Clerk's office is directed to provide a copy of this order to the institution where Mathison is incarcerated.