Summary
finding that part of § 1B1.13 that states “[u]pon motion of the Director of the Bureau of Prisons” was superseded by the First Step Act, and applies factors set forth in § 1B1.13 to motions brought by a defendant under § 3582(c)
Summary of this case from United States v. DemikhOpinion
Case No. 10-CR-0276 (PJS/JJG)
01-02-2020
UNITED STATES of America, Plaintiff, v. Stevon WARREN, Defendant.
Lisa D. Kirkpatrick and LeeAnn K. Bell, UNITED STATES ATTORNEY'S OFFICE, for plaintiff. Stevon Warren, pro se.
Lisa D. Kirkpatrick and LeeAnn K. Bell, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.
Stevon Warren, pro se.
ORDER
Patrick J. Schiltz, United States District Judge
Defendant Stevon Warren was convicted by a jury of one count of interstate transportation to engage in prostitution and one count of sex trafficking of a minor. The conviction for the first count was based on evidence that Warren drove a woman (L.D.) from Minnesota to Wisconsin so that she could engage in a commercial sex act. The conviction for the second count was based on evidence that Warren transported L.D.’s underage sister (C.D.) to a downtown Minneapolis hotel to engage in a commercial sex act. The Court sentenced Warren to 46 months’ imprisonment on the first count and 132 months’ imprisonment on the second count, the two sentences to be served concurrently. The Eighth Circuit affirmed Warren's convictions on direct appeal. See United States v. Warren , 491 F. App'x 775 (8th Cir. 2012).
This matter is before the Court on Warren's motion for compassionate release. Warren is scheduled to be released fairly soon (August 22, 2020), but he nevertheless moves the Court for immediate release under 18 U.S.C. § 3582(c)(1)(A)(i). Warren argues that his health problems and various other circumstances constitute "extraordinary and compelling reasons" justifying the reduction of his sentence. The Court disagrees and denies his motion.
Also before the Court is a motion filed by Warren asking the Court to strike the government's response to his compassionate-release motion because the response does "not pertain[ ] to compassionate release" and is "overly dramatic." ECF No. 239. Warren's motion is denied.
I. COMPASSIONATE RELEASE AFTER THE FIRST STEP ACT
Prior to enactment of the First Step Act of 2018, a court could reduce a defendant's sentence under § 3582(c)(1)(A) only if a motion was filed by the Bureau of Prisons ("BOP") on the defendant's behalf. The First Step Act amended § 3582(c)(1)(A) to allow a defendant to file his own motion for a sentence reduction. Before a defendant can file such a motion, however, he must submit a request for release to the BOP. If the BOP fails to act within 30 days of receiving the request, or if the BOP decides not to file a motion on the defendant's behalf, the defendant himself can move the court to reduce his sentence under § 3582(c)(1)(A).
The government concedes that Warren submitted a compassionate-release request to the BOP and that, because the BOP failed to respond to the request within 30 days, his motion is properly before the Court. See ECF No. 236 at 8.
For a court to grant a defendant's motion for release under § 3582(c)(1)(A)(i), the court must conclude that "extraordinary and compelling reasons warrant [a sentence] reduction" and that the "reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A)(i). A policy statement of the Sentencing Commission ("USSC") adds the requirement that the court find that "the defendant is not a danger to the safety of any other person or to the community ...." U.S.S.G. § 1B1.13(2). In addition, Application Note 1 to the policy statement identifies various circumstances that may constitute "extraordinary and compelling reasons" to reduce a sentence. See U.S.S.G. § 1B1.13 cmt. n.1.
If a court finds that "extraordinary and compelling reasons warrant [a sentence] reduction," and that the "reduction is consistent with applicable policy statements issued by the Sentencing Commission," it must also "consider[ ] the factors set forth in [18 U.S.C.] § 3553(a) to the extent that they are applicable." 18 U.S.C. § 3582(c)(1)(A)(i).
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Courts are divided regarding what weight (if any) should be given to the current USSC policy statement. Because the policy statement has not been amended since the First Step Act was passed, the policy statement continues to provide that courts may grant a sentence reduction to a defendant under § 3582(c)(1)(A) only "[u]pon motion of the Director of the Bureau of Prisons ...." U.S.S.G. § 1B1.13. All courts agree that this part of the policy statement was superseded by the First Step Act, which, as noted, allows a defendant to file a motion on his own behalf.
Courts disagree, however, about what other parts of the policy statement (if any) were superseded by the First Step Act. Courts on one extreme hold that none of the policy statement applies to motions filed by defendants. See, e.g. , United States v. Beck , 425 F.Supp.3d 573, 579 (M.D.N.C. 2019) ("There is no policy statement applicable to motions for compassionate release filed by defendants under the First Step Act. By its terms, the old policy statement applies to motions for compassionate release filed by the BoP Director and makes no mention of motions filed by defendants.... While the old policy statement provides helpful guidance, it does not constrain the Court's independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A)(i).").
Courts on the other extreme hold that all of the policy statement applies to motions filed by defendants (except insofar as it provides that only the BOP may file motions under § 3582(c)(1)(A) ). For example, the requirement that a defendant not be "a danger to the safety of any other person or to the community" still applies, as do subdivisions A through C of Application Note 1, which define the medical conditions (subdivision A), age and amount of sentence already served (subdivision B), and family circumstances (subdivision C) that constitute "extraordinary and compelling" circumstances.
These courts even find that subdivision D applies to motions filed by defendants. Subdivision D provides that "extraordinary and compelling" reasons for a sentence reduction exist when "the Director of the Bureau of Prisons" finds that "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)." According to these courts, to qualify for a sentence reduction under subdivision D, a defendant would still need to persuade the BOP to bring a motion on his behalf. See, e.g. , United States v. Lynn , CRIMINAL NO. 89-0072-WS, 2019 WL 3805349, at *4 (S.D. Ala. Aug. 13, 2019) ("The [USSC] may well decide that, since [the] BOP is no longer the gatekeeper regarding the filing of motions for compassionate release, neither should it be the gatekeeper regarding the residual category of extraordinary and compelling reasons for compassionate release. Should the [USSC] so amend its policy statement, the courts will of course be bound by Section 3582(c)(1)(A) to follow the amended version. Until that day, however, the Court must follow the policy statement as it stands.").
Other courts take a middle ground. They continue to apply the requirement that the defendant not be "a danger to the safety of any other person or to the community," and they continue to apply the definitions of "extraordinary and compelling reasons" found in subdivisions A through C. They do not, however, apply subdivision D as written. Instead, they disregard subdivision D's requirement that it be "the Director of the Bureau of Prisons" who finds that the defendant's case is "extraordinary and compelling" for reasons not described in subdivisions A through C. These courts make that decision for themselves. See, e.g. , United States v. Cantu , 423 F.Supp.3d 345, 352 (S.D. Tex. 2019) ("[W]hen a defendant brings a motion for a sentence reduction under [ 18 U.S.C. § 3582(c)(1)(A) ], the Court can determine [under U.S.S.G. § 1B1.13 cmt. n.1(D) ] whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)-(C) warrant granting relief.").
This Court will take the middle-ground approach in analyzing Warren's motion. The Court does not believe that altogether ignoring the policy statement can be squared with the language of the amended statute, and, of the remaining options, the middle-ground approach is the most generous to Warren.
II. WARREN'S MOTION FOR COMPASSIONATE RELEASE
Warren primarily argues that he suffers from various illnesses and that these illnesses constitute extraordinary and compelling circumstances justifying his immediate release. Warren also mentions various other factors, including his age, the fact that he is due to be released soon, and the poor health of a friend. The Court addresses Warren's arguments in turn.
A. Medical Condition
Under subdivision A of Application Note 1 to the USSC policy statement, a defendant's health problems can provide extraordinary and compelling reasons to reduce his or her sentence if the defendant is suffering from a "terminal illness" or:
(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.
U.S.S.G. § 1B1.13 cmt. n.1(A).
Warren's health problems do not qualify as extraordinary and compelling reasons for a sentence reduction under this standard. Warren apparently suffered a heart attack and underwent heart surgery in December 2017. ECF No. 232 at 1. Warren states that, in the aftermath of his heart surgery, he still has "a lot of pain and shortness of breath at times" and that he is "very apprehensive" about his "condition." Id. Medical records submitted by Warren show that he suffers from coronary-artery disease, and that he was released from a hospital in February 2018 after a coronary-bypass operation. See ECF No. 232-1. Those records also show that, as of February 2018, Warren was receiving medication for various health problems, including hyperlipidemia, hypertension, constipation, gastroesophageal reflux disease, and type-2 diabetes. Id. at 1-2. But according to the same medical records, when Warren was discharged from the hospital in February 2018 after his heart surgery, there were "No Restrictions" placed on him. Id. at 4.
None of Warren's health problems is "terminal." U.S.S.G. § 1B1.13 cmt. n.1(A)(i). And even assuming that one or more of Warren's problems are "serious"—or that Warren is "experiencing deteriorating physical ... health because of the aging process"—Warren has not come close to demonstrating that his health has "substantially diminishe[d]" his ability "to provide self-care within the environment of a correctional facility ...." U.S.S.G. § 1B1.13 cmt. n.1(A)(ii). Quite to the contrary, in fact:
As noted, Warren was discharged from the hospital with "No Restrictions" in February 2018. ECF No. 232-1 at 4. In January 2019, he appeared to be working as a welder—a job that obviously involves manual labor. ECF No. 240-1 at 4. Moreover, upon release Warren plans to work as a forklift operator at a warehouse and intends to re-open his painting company—two jobs that also involve manual labor. ECF No. 232 at 1; ECF No. 240 at 4. Warren also plans to take care of his friend by "attend[ing] all his medical appointments and therapy" and "driving [him] to these appointments." ECF No. 240 at 4.
In short, nothing in Warren's medical records, prison records, or post-release plans suggests that he has a "substantially diminishe[d]" ability "to provide self-care within the environment of a correctional facility." U.S.S.G. § 1B1.13 cmt. n.1(A)(ii); Cf. United States v. Bellamy , 15-CV-0165(8) (JRT/LIB), 2019 WL 3340699, at *3-4 (D. Minn. July 25, 2019) (finding that a defendant presented extraordinary and compelling reasons for a sentence reduction when he suffered from "several serious chronic illnesses," "need[ed] assistance getting to the bathroom, taking a shower, getting dressed, making phone calls, using the computer" and other basic tasks, and was "confined to a wheelchair or his bed for more than 50% of the time he [was] awake").
B. Age
Under subdivision B of Application Note 1 to the USSC policy statement, extraordinary and compelling reasons may be present when 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." U.S.S.G. § 1B1.13 cmt. n.1(B).
Warren points out that he is 60 years old and has completed most of his term of imprisonment. ECF No. 232 at 1. But, under subdivision B, Warren must be at least 65 years old. Warren thus does not satisfy subdivision B's requirements.
C. Family Circumstances
Under subdivision C of Application Note 1 to the USSC policy statement, family circumstances can present extraordinary and compelling reasons supporting a reduced sentence when the caregiver of a defendant's minor child dies or is incapacitated or when a defendant's spouse or registered partner is incapacitated and "the defendant would be the only available caregiver." U.S.S.G. § 1B1.13 cmt. n.1(C).
None of this is true about Warren. He simply has a "close friend"—to whom he refers as his "play brother," ECF No. 240 at 1, 4—who is experiencing "deteriorating health issues," ECF No. 240 at 1. This friend is apparently counting on Warren to drive him to medical appointments. ECF No. 240 at 4. This is a far cry from being the only available caregiver for a minor child or incapacitated spouse. Indeed, Warren does not even appear to be the only available caregiver for his friend, as the friend appears to be married and living with his wife. See, e.g. , ECF No. 240 at 4. Warren thus does not satisfy the requirements of subdivision C.
D. Other Reasons
Subdivision D of Application Note 1 to the USSC policy statement is a catchall provision, which (as applied by the middle-ground courts) directs the Court to determine whether Warren's sentence should be reduced for "an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) though (C)." U.S.S.G. § 1B1.13 cmt. n.1(D). Here, taking all of Warren's arguments together, there is nothing extraordinary and compelling about his situation. Warren suffers from treatable health problems that are common among older men—health problems that, as far as the record reflects, have been adequately treated by the BOP and have not impacted Warren's ability to work or care for himself in any way. Warren is 60 years old and has served a significant portion of his term of imprisonment, but there are many prisoners that are Warren's age or older, and all prisoners eventually serve significant portions of their terms of imprisonment. Finally, while the Court does not doubt that Warren has a friend who is getting older and could use his help, this is presumably true of nearly every prisoner. Prisoners’ friends (and relatives) inevitably grow older as prisoners serve their terms of imprisonment, and when friends and family grow older they inevitably could use more assistance.
Finally, the Court notes that, even if it found extraordinary and compelling reasons to reduce Warren's sentence, it would not do so. Section 3582(c)(1)(A) instructs courts to "consider[ ] the factors set forth in [ 18 U.S.C.] § 3553(a)" in deciding whether to reduce a defendant's sentence. Despite the fact that the evidence against Warren left little doubt about his guilt, he has never taken the slightest bit of responsibility for his crimes. To the contrary, in a continuous stream of post-conviction motions and letters, Warren has denied any wrongdoing, attacked his victims, and even lied about what happened at trial—and persisted in those misrepresentations even after this Court quoted back to him portions of the transcript demonstrating that his account was false. ECF No. 193 at 3-4. Indeed, while litigating the pending compassionate-release motion, Warren filed a second or successive § 2255 motion accusing his victims of lying and arguing that he is innocent. ECF No. 241; see also ECF Nos. 242, 243, 244 (documents filed in support of Warren's second or successive § 2255 motion). Given "the history and characteristics of the defendant" and "the need for the sentence imposed ... to provide just punishment for the offense," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant," reducing Warren's sentence would not be consistent with the goals of § 3553(a).
For all of these reasons, the Court denies Warren's motion for a sentence reduction under § 3582(c)(1)(A).
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT defendant's motion for compassionate release [ECF No. 232] and motion to strike [ECF No. 239] are DENIED.