Opinion
2:15-CR-00107-DCLC-CRW
02-07-2023
UNITED STATES OF AMERICA, Plaintiff, v. MISTY MUNSEY-KILLIAN, Defendant.
FILED UNDER SEAL
MEMORANDUM OPINION AND ORDER
Clifton L. Corker United States District Judge
This matter is before the Court on Defendant Misty Munsey-Killian's pro se Motion for Compassionate Release [Doc. 568]. Federal Defender Services of Eastern Tennessee (“FDS”) filed a supplement in support of Defendant's motion [Doc. 572]. The United States (the “government”) responded in opposition [Doc. 573]. This matter is now ripe for resolution. For the reasons stated herein, Defendant's Motion [Doc. 568] is DENIED.
I. BACKGROUND
In April 2016, Munsey-Killian pleaded guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine (Count 2) and conspiracy to commit money laundering (Count 4) [Docs. 156, 183]. On July 25, 2017, this Court sentenced Munsey-Killian to a below-guidelines term of 235 months' imprisonment and a ten-year term of supervised release [Doc. 471]. Munsey-Killian's projected release date is May 7, 2032 [Doc. 573-1]. On July 23, 2022, Munsey-Killian submitted a request for compassionate release [Doc. 568, pg. 5]. On August 26, 2022, Munsey-Killian filed a pro se Motion for Compassionate Release under the First Step Act because of changes in controlling law that allegedly create a sentencing disparity for her convictions [See generally id.]. The government opposes Munsey-Killian's motion and argues that she does not meet the requirements for sentence reduction [Doc. 573].
II. LEGAL STANDARD
“A district court may modify a defendant's sentence only as provided by statute.” United States v. Johnson, 564 F.3d 419, 421 (6th Cir. 2009). The First Step Act of 2018, Pub. L. No. 115 391, 132 Stat. 5194, amended 18 U.S.C. § 3582(c)(1)(A) to provide district courts with the authority to modify a defendant's sentence and grant compassionate release
upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant 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, may reduce the term of imprisonment.. .after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that.extraordinary and compelling reasons warrant such a reduction.and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(1)(A).
The statute includes a separate basis for compassionate release which requires, among other prerequisites, that “the defendant is at least 70 years of age” and “has served at least 30 years in prison,” but this provision does not apply to Munsey-Killian, as she is 48 years old and has served approximately 7 years in BOP custody. 18 U.S.C. § 3582(c)(1)(A)(ii).
Pursuant to this amendment, district courts may consider motions for compassionate release filed either by the Bureau of Prisons (“BOP”) or by a defendant after the defendant has “exhaust[ed] the BOP's administrative process” or “thirty days after the warden received the compassionate release request-whichever is earlier.” United States v. Jones, 980 F.3d 1098, 1105 (6th Cir. 2020). Exhaustion of the administrative remedies is a “mandatory condition” to defendant-filed motions for compassionate release. United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020). However, because the administrative exhaustion requirement operates as a “claim- processing rule,” it may be waived or forfeited by the government. Id. at 833-34.
In addition to the procedural requirements, Section 3582(c)(1)(A) “has identified three substantive requirements for granting relief.” United States v. Ruffin, 978 F.3d 1000, 1004 (6th Cir. 2020). The Court must: (1) find that “extraordinary and compelling reasons merit a sentence reduction”; (2) find “that the reduction is consistent with ‘applicable' Sentencing Commission policy statements”; and (3) consider the factors in Section 3553(a), to the extent they apply. Jones, 980 F.3d at 1106 (quoting Ruffin, 978 F.3d at 1003-06). A motion for compassionate release may be denied when any of the three substantive requirements are not met. United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021). Additionally, the Sixth Circuit has clarified that when the defendant, rather than the BOP, files a motion for compassionate release, the Court “may skip step two of the [Section] 3582(c)(1)(A) inquiry” and has “full discretion to define ‘extraordinary and compelling' without consulting the policy statement in [U.S.S.G.] § 1B1.13.” Jones, 980 F.3d at 1111.
III. ANALYSIS
The government does not address whether Munsey-Killian exhausted her administrative remedies before filing his motion in this Court, but the record indicates she requested a sentence reduction from her warden on July 23, 2022, and then moved for a sentence reduction in this Court on August 26, 2022 [Doc. 568, pg. 5]. Nonetheless, the government asks the Court to deny Munsey-Killian's motion on the merits [Doc. 573]. Accordingly, the Court will consider the merits of Munsey-Killian's motion and address the two requirements for a defendant-filed motion for a sentence reduction: (1) whether extraordinary and compelling reasons exist and (2) whether the applicable Section 3553(a) factors warrant a sentence reduction.
A. Extraordinary and Compelling Reasons
Munsey-Killian argues extraordinary and compelling reasons exist because since her sentencing, the Sixth Circuit has held that conspiracy offenses like the one for which she was sentenced cannot serve as predicates for career offender status [Doc. 568, pg. 3]; see United States v. Havis, 927 F.3d 382, 386, 387 (6th Cir. 2019) (holding that attempt crimes are not “controlled substance offenses” giving rise to armed career criminal status); United States v. Cordero, 973 F.3d 603, 626 (6th Cir. 2020) (“Although the specific facts of Havis involved an attempt crime, its reasoning applies with equal force to other inchoate crimes not listed in the text of § 4B1.2(b).”) (citation omitted). Munsey-Killian asserts that, if she were sentenced today, she would not be classified as a career offender under the Sentencing Guidelines [Doc. 568, pg. 3]. The government acknowledges that under Sixth Circuit precedence a defendant convicted of a conspiracy offense could not be sentenced as a career offender under the Guidelines but argues this change is not retroactive to apply to those defendants like Munsey-Killian whose cases have been fully resolved before the rule was announced [Doc 573, pg. 5]; see Bullard v. United States, 937 F.3d 654, 657 (6th Cir. 2019) (“Havis provides no relief on collateral review.”). The government contends that non-retroactive legal developments cannot constitute extraordinary and compelling reasons for a sentence reduction [Id., pg. 4].
Recently, the Sixth Circuit resolved whether non-retroactive changes in sentencing law constitute extraordinary and compelling reasons to grant a motion for compassionate release. United States v. McCall, 56 F.4th 1048, 1055 (6th Cir. 2022). The Sixth Circuit held that “non[-]retroactive changes in sentencing law cannot be ‘extraordinary and compelling reasons' that warrant relief.” Id.
Because Havis and Cordero are non-retroactive, the Court cannot consider the disparity in sentencing those cases produce as an extraordinary and compelling reason to grant Munsey-Killian's motion.
That leaves Munsey-Killian's arguments concerning her purported rehabilitation, conditions of confinement and risk from COVID-19, and her desire to care for her mother [Id.]. Congress instructed that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 944(t). Further, rehabilitation is “expected of federal prisoners,” and is therefore neither extraordinary nor compelling. United States v. Hymes, 19 F.4th 928, 934 (6th Cir. 2021). Moreover, “a defendant's incarceration during the COVID-19 pandemic-when the defendant has access to the COVID-19 vaccine-does not present an ‘extraordinary and compelling reason' warranting a sentence reduction. United States v. Lemons, 15 F.4th 747, 751 (6th Cir. 2021). Here, Munsey-Killian is vaccinated, with a booster shot administered January 2022 [Doc. 574, pgs. 48-49, 76-77, 79-80]. Munsey-Killian further indicates “[t]he health of my mother is a pressing matter that I would like to tend to in some fashion” [Doc. 568, pg. 1]. The Court is sympathetic to the hardships faced by Munsey-Killian's family, but the record does not justify release. She has not indicated the severity of her mother's medical condition or represented that there are no other caregivers available. In fact, the PSR indicates she has a sister and four half-siblings. [Doc. 213, ¶ 86]. It is an unfortunate reality that family members commonly experience hardship during a defendant's incarceration and that defendants wish to reunite with them. See, e.g., United States v. Williams, Case No. 1:17-cr-103, 2020 WL 3502819, *3 (S.D. Ohio June 29, 2020); United States v. Farnsworth, Case No. 1520095, 2021 WL 4962135, at *5 (E.D. Mich. Oct. 26, 2021). In sum, Munsey-Killian's circumstances are not so extraordinary and compelling as to justify a reduction in sentence.
B. Applicable § 3553(a) Factors
Even if the Court found that Munsey-Killian presented extraordinary and compelling reasons, the § 3553(a) factors do not support a sentence reduction. Munsey-Killian's offense was serious. She conspired to distribute and possess with intent to distribute 50 grams or more of methamphetamine and to commit money laundering [Docs. 156]. The PSR noted that she was being held accountable for at least 150 grams but less than 500 grams of actual methamphetamine [Doc. 213, ¶ 28]. She had a total of 17 criminal history points, including two additional points because she committed the instant offenses while under a criminal justice sentence [Doc. 213, ¶¶ 72-74]. The result was a criminal history category of VI, the highest possible [Id.]. The PSR notes that she had a prior felony conviction for sale of methamphetamine in 2004 [Doc. 213, ¶ 53] with multiple revocations while on both probation and parole. In 2009, she was convicted of promotion to manufacture methamphetamine [Id. at ¶ 65]. She was convicted of numerous theft offenses, a forgery offense, and failure to appear. She also did not perform well while on probation as the PSR reflects her probation was revoked numerous times. Based on her criminal history and the conviction offense, the PSR calculated her guideline range of imprisonment as life. [Doc. 213, ¶ 102]. Upon the government's motion for downward departure, and after considering the relevant § 3553(a) factors, the Court sentenced Munsey-Killian to a term of 235 months [Doc. 471]. In this case, Munsey-Killian argues that the Court should sentence her to time served. But to do so would depreciate the seriousness of her criminal conduct and not be just punishment. See United States v. Kincaid, 802 Fed.Appx. 187, 188 (6th Cir. 2020) (“[T]he need to provide just punishment, the need to reflect the seriousness of the offense, and the need to promote respect for the law permit the court to consider the amount of time served in determining whether a sentence modification is appropriate.”). Releasing her now would not promote respect for the law, provide just punishment, protect the public, or deter Munsey-Killian and others like her from future offenses.
IV. CONCLUSION
Accordingly, Munsey-Killian's pro se Motion for Compassionate Release [Doc. 568] is DENIED.
SO ORDERED: