Opinion
15-cr-95 (AJN)
03-25-2022
United States, v. Anderson Ross, Defendant.
MEMORANDUM OPINION & ORDER
ALISON J. NATHAN, District Judge:
Defendant Anderson Ross filed a motion seeking compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). For the reasons that follow, the motion is DENIED.
I. BACKGROUND
In November 2016, Mr. Ross pled guilty to racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), for his involvement with the Big Money Bosses gang-a “violent gang that operated in the Bronx.” Sent. Tr., May 19, 2017, at 20; see also Dkt. No. 888. The gang trafficked in nar cotics and “engaged in acts of violence including shootings, stabbings and gang assaults.” Sent. Tr. at 20. As part of his membership in BMB, Mr. Ross participated in two attempted murders of rival gang members. Id. hi one of these attempted minders, the victim lost a kidney due to the beating and stabbing. PSR ¶ 24. Mr. Ross was also “arrested while fleeing with a loaded firearm.” Sent. Tr. at 20. Mr. Ross was a “full and proud participant” of this violent organization, regularly posting references to the gang on social media. Id. He also sold marijuana for the gang. Id.
The factual recitations set forth in the PSR were adopted without objection at Mr. Ross's sentencing. Sent. Tr. at 4.
Defendant was sentenced in May 2017. The Court calculated a Guidelines range of 188 to 235 months of imprisonment with an offense level of 32 and criminal history category of V. Sent. Tr. at 6, 19. The Court sentenced Defendant to a below-Guidelines sentence of 160 months' imprisonment, which was adjusted pursuant to Section 5G1.3(b) for the approximately 36 months Mr. Ross had served in New York State prison for relevant conduct. Id. at 6, 23. In imposing the sentence, the Court took into account Mr. Ross's “extensive criminal history despite his young age, ” including an assault that resulted in the “punching of a baby” and another assault committed while on probation. Id. at 20-21. It determined that due to the “extreme level of violence that Mr. Ross was involved with, ” a “very serious sentence” was warranted. Id. at 21. However, in sentencing Mr. Ross to a below-Guidelines sentence, the Court also considered Mr. Ross's history and characteristics-including his troubled childhood marked by violence and poverty, his mother's death when he was a young child, his youth at the time of the offense, and his efforts at rehabilitation. Id. at 21-22. Finally, the Court also considered the “relative culpability” of Mr. Ross's co-defendants, as well as the need to avoid unwarranted sentence disparities generally. Id. at 22. Including the adjustment, Mr. Ross was ultimately sentenced to imprisonment of 123 months and 24 days, to run concurrently with his undischarged term of imprisonment for his state conviction. Id. at 23.
On October 20, 2020, Mr. Ross's counsel emailed a letter requesting compassionate release to the warden of FMC Butner. Dkt. No. 3090 at 5-6; Dkt. No. 3098 at 4 n.4. After more than 30 days elapsed without a response, Defense counsel filed the instant motion on November 18, 2020. Dkt. No. 3090. The Government filed on opposition on December 1, 2020, Dkt. No. 3098, and the Defendant filed a counseled reply on December 8, 2020, Dkt. No. 3117. Defense counsel subsequently filed several status updates as to Mr. Ross's medical condition between December 2020 and April 2021. Dkt. Nos. 3135, 3192. On January 24, 2022, the Court ordered Defense counsel to provide a status update as to Mr. Ross's medical condition. Dkt. No. 3294. Defense counsel filed a status letter on February 3, 2022, and the Government responded on February 10, 2022. The Court ordered both letters to be filed under seal as they contained Defendant's private medical information.
II. DISCUSSION
“Federal courts are forbidden, as a general matter, to modify a term of imprisonment once it has been imposed, but the rule of finality is subject to a few narrow exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011) (internal citation and quotation marks omitted). The compassionate-release statute creates one such exception: It allows a court to “reduce” a term of imprisonment, after considering the factors set forth in 18 U.S.C. § 3553(a), 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)(i)-(ii). Under the First Step Act, defendants serving their sentence may move the Court for compassionate release after they have exhausted their administrative remedies or thirty days have lapsed from the receipt of a compassionate release request by the warden. United States v. Scparta, No. 18-cr-578 (AJN), 2020 WL 1910481, at *4 (S.D.N.Y. Apr. 20, 2020).
In order for a defendant to be eligible for a reduction of their term of imprisonment under 18 U.S.C. § 3582(c)(1)(A), there must be “extraordinary and compelling reasons” warranting such a reduction. The Second Circuit held that the Sentencing Commission's policy statement §1B1.13 Note 1(D), which instructs that the power to determine what reasons are extraordinary and compelling remains exclusively with the Bureau of Prisons director, is no longer applicable. See United States v. Brooker, 976 F.3d 228, 234 (2d Cir. 2020). Therefore, this Court may “independently . . . determine what reasons, for purposes of compassionate release, are ‘extraordinary and compelling.'” Id.
Moreover, presenting an extraordinary and compelling reason for release is only one of the requirements for a reduction in one's prison sentence under 18 U.S.C. § 3582(c)(1)(A). See United States v. Ebbers, 432 F.Supp.3d 421, 430-31 (S.D.N.Y. 2020). The Court must also determine that granting release is consistent with the factors set forth in 18 U.S.C. § 3553(a) and the applicable policy statements of the Sentencing Commission to determine if release is appropriate. See 18 U.S.C. § 3582(c)(1)(A). In particular, the Court must consider whether a reduced sentence would still “reflect the seriousness of the offense . . . promote respect for the law . . . provide just punishment for the offense” and “afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(A), (B).
Mr. Ross suffers from a rare sarcoma cancer. Dkt. No. 3090 at 2. In March 2019, while in state custody, he was diagnosed with “Stage IV high-grade myxoid sarcoma.” Id. at 3. He was also diagnosed with COVID-19 in September 2020, and has subsequently recovered. Id. at 4. While incarcerated, Mr. Ross has undergone chemotherapy and numerous surgeries, and several large tumors. He has been housed in FMC Butner's Oncology Unit and received care at the Duke Cancer Institute's Sarcoma Clinic. Dkt. No. 3098 at 3, 5; Dkt. No. 3090 at 3; Sealed Def. Ltr, Feb. 3, 2022.
In April 2021, FMC Butner medical staff's prognosis for Mr. Ross was between six and eight months left to live. Dkt. No. 3192. However, after several successful surgeries, Mr. Ross's cancer is now in “remission” status. Sealed Def. Ltr., Feb. 3, 2020. He is also scheduled for a routine post-surgery follow up with Duke this month. Sealed Gov. Ltr, Feb. 10, 2022. However, he continues to suffer from chronic pain and other post-surgery issues. Sealed Def. Ltr., Feb. 3, 2022.
The Government concedes that Defendant's “current cancer diagnosis is sufficient to establish extraordinary and compelling circumstances under the statute.” Dkt. No. 3098 at 4. But even if a defendant establishes extraordinary and compelling reasons for release, the Court must also determine that release is in accordance with the factors set forth in 18 U.S.C. § 3553 and the applicable policy statements. See 18 U.S.C. § 3582(c)(1)(A).
In its sealed February 10, 2022, status update response, the Government does not amend its prior concession in light of Mr. Ross's current medical status.
Defendant argues that the § 3553 factors counsel in favor of relief in light of Mr. Ross's rehabilitation, serious illness, and the hardships posed by the COVID-19 pandemic. Moreover, Defendant argues that even if he were healthy, the Section 3553 factors would counsel in favor of granting relief because Mr. Ross is no longer a danger to the community. Dkt. No. 3090 at 2. The Court disagrees and concludes that the § 3553 factors counsel against granting Defendant's requested relief.
Defendant was a “full and proud” member of an extremely violent gang. Sent. Tr. at 20. As part of this organization, Mr. Ross participated in two attempted murders, sold marijuana, and possessed handguns. At the time of the offense, he already had an “extensive criminal history despite his young age.” Id. Accordingly, and taking into account Mr. Ross's history and characteristics, the Court determined that a “very serious, ” although below-Guidelines, sentence was necessary to “protect the public from further crimes of the defendant but also to impose just punishment, promote respect for the law and deter Mr. Ross and others from engaging in comparably dangerous and violent and destructive conduct.” Id. at 21. The Court commends Mr. Ross's efforts at rehabilitation and lack of recent disciplinary issues, but such efforts do not outweigh these factors. Moreover, Mr. Ross has more than three years remaining on his below-Guidelines sentence. See United States v. Martinez, No. 12 Cr. 862 (AJN), 2020 WL 2079542, at *3 (S.D.N.Y. 2020) (“Granting Martinez's compassionate-release motion, when he is more than a year away from completing his carceral term, would disserve these important § 3553(a) factors.”). The Court is cognizant that Mr. Ross's incarceration has been extremely difficult due to his medical condition and the hardships posed by the COVID-19 pandemic. But the Court cannot conclude that reducing Mr. Ross's sentence to time served or releasing him to home confinement would adequately serve the § 3553 factors in this instance.
Moreover, the Court must also conclude that “the defendant is not a danger to the safety of any other person or to the community” in order to grant relief. U.S.S.G. § 1B1.13(2); see also 18 U.S.C. § 3553(a)(2)(C). This it cannot do. Again, the Defendant committed an extremely serious offense: a long running racketeering conspiracy that involved two attempted murders. The fact that Defendant has numerous physical infirmities does not inexorably lead to the conclusion that he cannot pose a danger to the community. See United States v. Nieves, No. 12-cr-931 (AJN), 2020 WL 2476185, at *1-3 (S.D.N.Y. May 13, 2020). Ultimately, Defendant's criminal history “presents a concerning pattern of violent conduct and access to firearms which suggests that he continues to pose a danger to the community.” Dkt. No. 3098 at 6.
To be clear, the Court does not seek to minimize the Defendant's health issues. To the contrary, it is concerned about the delays Mr. Ross experienced in his initial care and now his follow-up care, as reported by Defense counsel. BOP must ensure that adequate care is provided to Mr. Ross. However, Mr. Ross's medical issues, while certainly serious, do not erase his violent conduct. Because of the violence and seriousness of the Defendant's crime, his extensive criminal history, and the significant amount of ti incarcerated.
III. CONCLUSION
For the reasons stated above, Defendant' This resolves Dkt. No. 3090.
The Court will temporarily seal the Memorandum Opinion & Order to allow the parties the opportunity to propose redactions. Accordingly, the parties are ORDERED to confer and submit proposed redactions via email on or before April 8, 2022.
SO ORDERED.