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concluding that the defendant's medical conditions amounted to "extraordinary and compelling reasons," in part, because they substantially diminished his ability to care for himself in a correctional setting
Summary of this case from United States v. FreemanOpinion
CRIMINAL NO. 2:96cr90
2021-06-21
UNITED STATES of America, v. Lamarr Edgar MUMFORD, Defendant.
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Defendant's Motion for Compassionate Release ("Motion"), filed pro se on November 16, 2020. ECF No. 76. In the Motion, the Defendant requests that his sentence be reduced because of "his serious medical conditions in concert with the presence of the COVID-19 virus at" his facility. Id. at 1.
The Defendant filed nearly identical versions of the Motion on March 1, 2021, and March 12, 2021. ECF Nos. 82, 89. The court also received filings from the Defendant on March 4, 2021, and March 9, 2021. ECF Nos. 83, 91.
I. Procedural History
On June 10, 1996, the Defendant pleaded guilty to Counts Two, Four, Five, Six, Eight, Nine, and Ten of a thirteen-count criminal Indictment. ECF No. 16. Counts Two, Four, Six, Eight, and Ten charged the Defendant with Armed Bank Robbery, in violation of 18 U.S.C. § 2113. Counts Five and Nine charged the Defendant with Use of a Short-Barreled Shotgun During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1). On September 24, 1996, the court sentenced the Defendant to a term of imprisonment of four hundred sixty-eight (468) months, and five (5) years of supervised release. ECF No. 41.
The Defendant's sentence consisted of one hundred eight (108) months on Counts Two, Four, Six, Eight, and Ten, all to run concurrently; a one hundred twenty (120) month sentence on Count Five, to run consecutively; and a sentence of two hundred forty (240) months on Count Nine, to run consecutively. ECF No. 24. The court was required by statute to impose a two hundred forty (240) month sentence on Count Nine because that conviction was a "second or successive" conviction under 18 U.S.C. § 924(c).
The United States filed a response in opposition to the Motion on April 28, 2021. ECF No. 102. The Defendant filed a reply, subject to defect, on May 27, 2021.
The reply was filed subject to defect because it was untimely and there was no certificate of service. With the reply, the Defendant also filed a motion requesting that the court consider the reply despite the defects or, alternatively, to grant an extension of time to file the reply. ECF No. 107. For good cause shown, the motion, ECF No. 107, is GRANTED. The court LIFTS the defect on the reply and directs the Clerk to file the reply and forward a copy to the United States Attorney.
II. Exhaustion of Remedies
Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the court may modify a term of imprisonment, if it finds that "extraordinary and compelling reasons warrant such a reduction." Before the court may consider such a motion, however, the defendant must have "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf," or there must have been a "lapse of 30 days from the receipt of such a request by the warden of the defendant's facility." Id. § 3582(c)(1)(A).
On March 1, 2021, the Defendant submitted documentation showing that he twice requested a compassionate release from the warden of his facility; that the warden denied these requests on March 12, 2020, and April 16, 2020; that the Defendant appealed the warden's decision to the Regional Director of the Bureau of Prisons ("BOP"); and that the BOP denied the Defendant's appeal. ECF No. 82-1. The court therefore concludes that the Defendant has exhausted his administrative remedies as required under 18 U.S.C. § 3582(c)(1)(A).
III. Merits of the Motions for Compassionate Release
The court now considers whether the Defendant has shown "extraordinary and compelling reasons" that justify a reduction in his sentence. Any reduction under § 3582(c)(1)(A) must be "consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A) ; see United States v. McCoy, 981 F.3d 271, 276 (4th Cir. 2020). In McCoy, the Fourth Circuit held that "there currently exists no ‘applicable policy statement’ " because the Commission has not issued a policy statement since the passage of the First Step Act. Id. at 281. Therefore, until the Sentencing Commission issues an updated policy statement, "district courts are ‘empowered to consider any extraordinary and compelling reason for release that a defendant might raise.’ " Id. at 284 (alteration omitted) (quoting United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020) ).
Although the policy statement in U.S.S.G. § 1B1.13 is no longer binding on this court after the Fourth Circuit's decision in McCoy, the court finds certain of its provisions useful in addressing the instant Motion. For example, the court will still consider "the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable," U.S.S.G. § 1B1.13, and whether "[t]he defendant is ... a danger to the safety of any other person or to the community," id. § 1B1.13(2), because these considerations remain highly relevant to whether a reduction in sentence is warranted in this case.
A. Extraordinary and Compelling Reasons
In the Motion, the Defendant states that he suffers from end-stage renal disease, Type I diabetes, and hypertension. ECF No. 76 at 5. The Defendant requires hemodialysis three times per week, and his renal disease is "a terminal illness with an end-of-life trajectory" of five (5) to ten (10) years. Id. Citing the Defendant's medical records filed under seal, ECF No. 104, the United States concedes that the Defendant's medical conditions constitute an extraordinary and compelling reason for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A)(i). The court agrees with this assessment. The Defendant's medical conditions clearly "substantially diminish[ ] [his] ability ... to provide self-care within the environment of a correctional facility." U.S.S.G. § 1B1.13 Application Note 1(A)(ii)(I). Moreover, the Defendant "is not expected to recover" from his current medical conditions. Id. Accordingly, the court finds that the Defendant has shown extraordinary and compelling reasons under 18 U.S.C. § 3582(c)(1)(A)(i).
The BOP states that the Defendant "ha[s] a condition with an end-of-life trajectory." ECF No. 82-1. However, the BOP does not consider the Defendant's condition to be "terminal" because the Defendant does not have "a life expectancy of 18 months or less." Id. In its response, the United States does not contest the Defendant's argument that he has a condition with an end-of-life trajectory. ECF No. 102.
Although the United States concedes that the Defendant's medical conditions are extraordinary and compelling, it opposes any reduction in sentence because, it asserts, the Defendant "has not shown any particularized risk of contracting [COVID-19] at his prison facility." ECF No. 102 at 10 (quotation marks omitted). This argument misses the mark, however, because the Defendant's medical conditions are extraordinary and compelling in and of themselves, irrespective of the Defendant's susceptibility to COVID-19. That said, the court also concludes that the Defendant is particularly susceptible to severe complications from COVID-19 because of his underlying medical conditions, and this further supports the court's finding that the Defendant has shown extraordinary and compelling reasons under 18 U.S.C. § 3582(c)(1)(A)(i).
B. Section 3553(a) Factors
This conclusion does not automatically entitle the Defendant to a reduction in his sentence because "a district court may not grant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) without ‘considering the factors set forth in section 3553(a) to the extent that they are applicable.’ " See United States v. Kibble, 992 F.3d 326, 329-32 (4th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A) ).
The court begins its consideration of the § 3553(a) factors with a discussion of the Fourth Circuit's decision in United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). In McCoy, the defendants were each convicted of multiple offenses under 18 U.S.C. § 924(c). Id. at 277-79. At the time of their sentencing hearings, § 924(c)(1)(C) required a so-called "stacked" sentence for a "second or successive conviction" under § 924(c) -- that is, an enhanced mandatory minimum sentence of twenty-five years for a second or successive § 924(c) conviction. See id. Pursuant to then-applicable case law, "a conviction was treated as ‘second or successive,’ triggering the 25-year minimum sentence, even if the first § 924(c) conviction was obtained in the same case." Id. at 275. The First Step Act "ended this practice ... by clarifying that the 25-year mandatory minimum applies only when a prior § 924(c) conviction arises from a separate case and already has become final." Id. (emphasis added).
Although this provision of the First Step Act does not apply retroactively, the defendants in McCoy filed motions for compassionate release, requesting that they be resentenced without the stacked sentences they had each received. Id. at 274. The district courts granted the motions, reducing the sentences to time served. Id. The United States appealed, and the Fourth Circuit affirmed, holding that courts are empowered, when deciding a motion for compassionate release, to consider "the length of the defendants’ sentences and the fact that those sentences would be dramatically shorter today." Id. at 285.
Turning to this case, the Defendant was convicted of violating § 924(c) in Counts Five and Nine of the Indictment, and he received an enhanced twenty (20) year consecutive sentence for the second of those convictions. If the First Step Act's provision against sentence stacking had been in effect at the time of the Defendant's sentencing, however, the Defendant's minimum sentence on Count Nine would have been ten (10) years consecutive, rather than twenty (20). See McCoy, 981 F.3d at 275. As a result, the Defendant's Guideline sentence would have been three hundred forty-eight (348) months, rather than four hundred sixty-eight (468), if the Defendant had not been subject to the sentence stacking provisions of 18 U.S.C. § 924(c).
At the time of the Defendant's sentencing hearing, the enhanced mandatory minimum sentence for a second or successive § 924(c) conviction was twenty (20) years. See 18 U.S.C. § 924(c) (1996). The Defendants in McCoy received twenty-five (25) year stacked sentences because Congress later increased the penalty. See P.L. 105-386, 112 Stat. 3469 (Nov. 13, 1998).
A change to the statutory minimum sentence for the Defendant's second conviction under § 924(c) would change the Guidelines calculation because "the guideline sentence [for a violation of § 924(c) ] is the minimum term of imprisonment required by statute." U.S.S.G. § 2K2.4(b).
In weighing the § 3553(a) factors, the court must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). The court finds very significant that the Defendant's sentence is ten (10) years longer than "the sentence[ ] Congress now believes to be an appropriate penalty for the [Defendant's] conduct." McCoy, 981 F.3d at 285. Nothing in the record of this case satisfies the court that the Defendant should serve a substantially longer sentence as compared to an identical defendant who committed the same crimes subsequent to the passage of the First Step Act. The PSR contains "no information ... which would warrant a[n] [upward] departure from the prescribed sentencing guidelines." PSR ¶ 84.
A similarly situated defendant today would not receive a stacked sentence and would have the opportunity to argue for a below-Guideline sentence on the underlying bank robbery convictions. Because the Guidelines were mandatory at the time of the Defendant's sentencing, he could not argue for sentences below one hundred eight (108) months on the bank robbery convictions. See generally United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Next, the United States argues that the seriousness of the Defendant's offenses weighs heavily against release and that the Defendant's release would pose a danger to the community. ECF No. 102 at 12-13. There is no doubt that the Defendant's offense conduct is particularly serious and requires a severe punishment. Still, § 3582(c)(1)(A) "permits a district court to reduce a sentence in ‘any case’ -- not just cases where a sentence has been substantially served; not just in cases involving low-level or non-violent offenses." Kibble, 992 F.3d at 334 (Gregory, C.J., concurring). The Defendant has been incarcerated for more than twenty-five (25) consecutive years, since April 29, 1996. See PSR at 1. He has been in prison for more than half of his life, and almost all of his adult life. Additionally, the Defendant's exceptionally poor health, and his extensive efforts at rehabilitation while incarcerated, substantially mitigate against any future risk of danger to the community. Considering the lengthy period of incarceration that the Defendant has already faced, reducing the Defendant's sentence in no way diminishes the seriousness of the offenses.
IV. Conclusion
In light of the Defendant's poor health, the First Step Act's limitation on sentence stacking for § 924(c) convictions, the § 3553(a) factors, and the record of this case, the court concludes that a sentence of time served is sufficient but not greater than necessary to reflect the seriousness of the Defendant's offenses, to promote respect for the law, to provide just punishment, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the Defendant. 18 U.S.C. § 3553(a)(2)(A)-(C). The Motion for Compassionate Release, ECF Nos. 76, 82, 89, is GRANTED . The court REDUCES the Defendant's sentence to TIME SERVED as of July 30, 2021. Prior to release, the United States and the BOP shall verify the Defendant's residence and ability to procure needed medical care, and the establishment and/or verification of a release plan, all to ensure the Defendant's safe release. Other than this sentence reduction, the judgment entered on October 2, 1996, remains in full force and effect.
In the reply and in a document submitted by the Defendant to the BOP, the Defendant provided the address and phone number of the residence at which he plans to live upon his release; how he will support himself and pay for medical expenses; and where he will receive continued health treatment. ECF Nos. 102-1, 106.
The Clerk is DIRECTED to forward a copy of this Memorandum Order to the Defendant, the United States Attorney at Norfolk, the BOP, and the United States Probation Office at Norfolk.