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finding that the defendant had exhausted his administrative remedies in similar circumstances
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No. 7:19-cr-36-BO-2
04-29-2020
UNITED STATES of America v. Anthony Lee NORRIS
F. Murphy Averitt, III, United States Attorney's Office, Raleigh, NC, for Plaintiff.
F. Murphy Averitt, III, United States Attorney's Office, Raleigh, NC, for Plaintiff.
ORDER
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE This cause comes before the Court on defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). [DE 88]. The motion is ripe for ruling and, for the reasons that follow, the motion is granted.
BACKGROUND
Defendant, Anthony Lee Norris, is currently serving a sentence of forty-eight months' imprisonment after pleading guilty to (1) one count of conspiracy to distribute and possess with intent to distribute fifty grams or more of methamphetamine and (2) one count of distribution of fifty grams of methamphetamine. Following his term of imprisonment, Norris must also complete a five-year term of supervised release. Defendant has been in custody since March 29, 2018 and is currently scheduled for release on August 24, 2021.
Norris seeks a reduction in his prison sentence based upon his age and current health conditions, which he argues, in light of the current health crisis related to COVID-19, qualify as extraordinary and compelling circumstances warranting relief.
DISCUSSION
Subject to few exceptions, a sentence that has been imposed may not be modified. 18 U.S.C. § 3582(c). One exception to this general rule applies where a defendant qualifies for a modification in his sentence due to certain age, health, or family circumstance factors, often referred to as compassionate release. 18 U.S.C. § 3582(c)(1)(A). Prior to the passage of the First Step Act on December 21, 2018, the discretion to file a motion for compassionate release under § 3582(c)(1)(A) rested entirely with the Director of the Bureau of Prisons (BOP). Section 603 of the First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to provide that a defendant may request compassionate release from the sentencing court after exhausting his administrative remedies.
Pub. L. 115-391. 132 Stat. 5194.
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Compassionate release may be available to defendants where (1) extraordinary and compelling circumstances warrant a reduction in the sentence or (2) a defendant who is serving a sentenced imposed pursuant to 18 U.S.C. § 3559(c) is at least seventy years old and has served at least thirty years in prison. 18 U.S.C. §§ 3582(c)(1)(A)(i)-(ii). A reduction under either section must be consistent with applicable policy statements issued by the United States Sentencing Commission. Id. at (c)(1)(A). When reducing a term of imprisonment via compassionate release, a court "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[.]" Id.
The commentary to § 1B 1.13 of the United States Sentencing Commission's advisory Guidelines Manuel provides criteria for determining whether extraordinary and compelling circumstances are present. U.S.S.G. § 1B 1.13, comment. n. 1. These criteria generally concern the age, medical condition, or family circumstances of the defendant. In addition to considering whether extraordinary and compelling circumstances are present, in order to determine that a reduction in sentence is warranted, a court must further consider the 18 U.S.C. § 3553(a) factors and determine whether the defendant is a danger to the safety of another person or the community as provided in 18 U.S.C. § 3142(g). U.S.S.G. § 1B1.13.
To start, the Court finds that Norris has exhausted his administrative remedies. Administrative exhaustion in this context requires the defendant to either exhaust all administrative rights to appeal a failure of the BOP to bring a motion for compassionate release on his behalf or the lapse of thirty days from the receipt of a request for compassionate release by the warden of defendant's facility, whichever is earlier. 18 U.S.C. § 3582(c)(1)(A). Here, Norris is being detained at the Piedmont Regional Jail in Farmville, Virginia, and has yet to be transferred to a BOP facility. The BOP has not moved for compassionate release on Norris's behalf and, because he is not at a BOP facility, there is no BOP warden to whom Norris can direct a compassionate relief request. The government has not attempted to identify any additional administrative procedures available to Norris. Consequently, the Court finds that he has exhausted his administrative remedies.
The Court further concludes that Norris has demonstrated extraordinary and compelling circumstances warranting relief. Norris suffers from various severe medical ailments that cumulatively make his continued confinement especially dangerous in light of COVID-19. He suffers from a communicable, life-threatening disease and has kidney failure requiring dialysis three times per week. He has also suffered multiple bouts of pneumonia while incarcerated.
The Guidelines provide three categories of circumstances that are extraordinary and compelling, the first concerning the medical condition of the defendant (section A), the second concerning the age of the defendant (section B), and the third concerning the family circumstances of the defendant (section C). There is also a fourth category, a catchall provision which permits the Director of the Bureau of Prisons to identify other extraordinary circumstances that are not set out by the Guidelines (section D). U.S.S.G. § 1B 1.13 comment. n.1(A)-(D). Relevant here, section B provides specifically that extraordinary and compelling circumstances exist where a defendant is at least sixty-five years old. is experiencing a serious deterioration in physical or mental health because of the aging process, and has served ten years or 75% of his term of imprisonment, whichever is less.
The government argues that Norris does not qualify for compassionate release because he does not satisfy the particular criteria outlined in either the Guidelines manual or the Bureau of Prisons' program statement. However, this Court is in agreement with the other courts that have decided that judges have discretion to afford relief to defendants under § 3582(c)(1)(A) even where their circumstances do not fit squarely within the current policy statement of the Sentencing Commission as reflected in U.S.S.G. § 1B 1.13. United States v. Maumau , No. 2:08-CR-00758-TC-11, 2020 WL 806121. at *4 (D. Utah Feb. 18, 2020) (listing cases holding same). Thus, while an applicable policy statement "provides helpful guidance, it does not constrain the Court's independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction." United States v. Beck , 425 F. Supp.3d 573, 581–82 (M.D.N.C. 2019).
The Court must also consider the § 3553(a) factors and Norris's dangerousness before determining whether a reduction in his term of imprisonment is appropriate. Norris's crime was serious, as he was held accountable for distribution of at least fifty grams of methamphetamine in this district. However, he was a minor participant in this criminal activity. He fully complied with and qualified for the safety valve provision under the First Step Act. § 3553(f). Norris's current release date is less than fifteen months from today, and the Court does not find that a reduction in his term of imprisonment—replaced with a term of probation—would diminish the original sentence's goals of providing general and specific deterrence, promoting respect for the law, and providing just punishment. On balance, the § 3553(a) factors do not counsel against a sentence modification.
Finally, the Court does not find that Norris would be a danger to any person or the community if he were to be released.
CONCLUSION
Accordingly, for the foregoing reasons, Norris's motion for compassionate release [DE 88] is GRANTED as follows. Norris's remaining term of imprisonment is MODIFIED to a term of probation, subject to the applicable mandatory and standard conditions listed in U.S.S.G. § 5B1.3. The Court further imposes special conditions of home detention and electronic monitoring as described in U.S.S.G. § 5F1.2. The Court will consider the imposition of any additional conditions recommended by the U.S. Probation Office. All other conditions of the original judgment remain in full force and effect.
SO ORDERED, this 29 day of April, 2020.