Opinion
CRIMINAL NO. 2:11cr34-11
2022-06-07
UNITED STATES of America, v. Burhan Abdirahman YUSUF, Defendant.
Brian James Samuels, US Attorney, United States Attorney's Office, Newport News, VA, Joseph E. DePadilla, US Attorney, United States Attorney's Office, Norfolk, VA, Joseph Attias, US Attorney, United States Attorney Office, Richmond, VA, for United States of America.
Brian James Samuels, US Attorney, United States Attorney's Office, Newport News, VA, Joseph E. DePadilla, US Attorney, United States Attorney's Office, Norfolk, VA, Joseph Attias, US Attorney, United States Attorney Office, Richmond, VA, for United States of America.
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on Defendant's pro se Motion for Compassionate Release ("Motion"). ECF No. 1165. In the Motion, Defendant requests that his sentence be reduced because he chose to surrender rather than fight to prevent his arrest during a hijacking of a United States flagged sailing vessel in international waters. For the reasons explained below, Defendant's Motion is DENIED .
I. Procedural History
On May 23, 2011, Defendant pleaded guilty to Piracy under the Law of Nations, in violation of 18 U.S.C. § 1651. ECF No. 183. This charge stemmed from his participation in the hijacking of the S/V Quest and the sailboat's four American passengers, all of whom were murdered during the attack. See ECF No. 1168 ("PSR") ¶¶ 25-28. On August 22, 2011, District Judge Mark S. Davis sentenced Defendant to a term of life in prison. ECF Nos. 304, 306. The court later reduced Defendant's sentence to thirty (30) years of imprisonment. ECF No. 953.
On September 24, 2021, Defendant filed the instant Motion, ECF No. 1165, as well as several exhibits, ECF No. 1166. The United States filed a Response in opposition on November 14, 2021. ECF No. 1179. Defendant filed a Reply on April 25, 2022. ECF No. 1202. Having been fully briefed, the Motion is now ripe for judicial determination.
In Defendant's Reply, Defendant asks the court to order the United States to disclose the FBI report on the Quest negotiations. ECF No. 1202. The FBI had previously rejected the disclosure because, as an Investigative File, the report is exempt from disclosure pursuant to 5 U.S.C. § 552. See ECF No. 1202 at 1. The court DENIES the request as the materials before the court are sufficient to explain the situation at the time of Defendant's offense conduct and arrest.
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 ["BOP"] 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). Defendants may satisfy this exhaustion requirement by "wait[ing] 30 days from the date of their initial request to file a motion in the district court," even if the warden has already responded to their request. United States v. Muhammad, 16 F.4th 126, 131 (4th Cir. 2021) (collecting cases). Moreover, the exhaustion requirement "is a non jurisdictional claim processing rule," and therefore "may be waived or forfeited." Id. at 130.
As exhibits to the Motion, Defendant has submitted documentation that (1) Defendant requested compassionate release from the warden of his facility on August 6, 2021, and (2) the warden forwarded the request to the Complex's Reduction in Sentence Coordinator on August 20, 2021. See ECF No. 1166 at 2-3. It appears the BOP has not responded to the request within 30 days. Accordingly, the court finds that Defendant has satisfied the exhaustion requirement of 18 U.S.C. § 3582(c)(1)(A).
III. Merits
For a court to reduce a defendant's sentence under § 3582(c)(1)(A)(i), it must find that "extraordinary and compelling reasons" justify a reduction. The defendant bears the burden of showing that this requirement is satisfied. See, e.g., United States v. Newton, 996 F.3d 485, 488 (7th Cir. 2021) ; United States v. Noel, No. 3:08-cr-186-03, 2021 WL 1602402, at *2 (E.D. Va. Apr. 23, 2021) (Payne, J.). Even if a defendant carries his burden, a court may only reduce his sentence "after considering the factors set forth in [ 18 U.S.C. §] 3553(a) to the extent that they are applicable." § 3582(c)(1)(A). Any such reduction must also be "consistent with applicable policy statements issued by the Sentencing Commission." Id.; see United States v. McCoy, 981 F.3d 271, 275-76 (4th Cir. 2020).
In McCoy, the Fourth Circuit held that, in the context of prisoner-filed § 3582(c)(1)(A) motions, "there currently exists no ‘applicable policy statement’ " because the Commission has not issued a policy statement since the passage of the First Step Act. 981 F.3d at 281-82 (alteration omitted). 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 United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 1B1.13 does not bind the court in this case after McCoy, the court finds several of its provisions relevant. 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 quite relevant to whether a reduction in sentence is warranted in this case.
A. Extraordinary and Compelling Reasons
In the Motion, Defendant claims that the circumstances of his surrender to United States Navy personnel constitutes "extraordinary and compelling" circumstances. See ECF No. 1165 at 4. Specifically, Defendant argues that putting his hands up and surrendering constitute extraordinary and compelling reasons to grant a sentence reduction because these acts saved other lives including United States Navy SEALs. Id. at 12.
Surrendering to law enforcement, or in this case the United States military, does not alone justify compassionate release. Defendant fails to explain how surrendering is an extraordinary response once a suspect is faced with inevitable capture. The court does not find it extraordinary that Defendant put his hands up in the air once the United States Navy had boarded and secured the Quest. See United States v. Beyle, 782 F.3d 159, 164 (4th Cir. 2015) (noting that the pirates surrendered after the Navy had "boarded" and "secured" the Quest ). Surrendering likely would be the most rational and common choice in such circumstances. See PSR ¶ 28 (stating that all of the pirates except two surrendered shortly after the shooting began). Defendant claims that his conduct saved American lives, see ECF No. 1165 at 7, but in reality, he most likely just saved his own life. See PSR ¶ 28 (stating that the two pirates who kept their weapons or attacked the Navy personnel were killed). Defendant does not deserve commendation for surrendering in the face of overwhelming force and near certain death.
Moreover, information regarding his surrender existed at the time of sentencing. Defendant could have presented such facts at sentencing, if he wanted the sentencing judge to consider them.
Defendant has failed to establish his conduct as extraordinary or compelling. Accordingly, the court concludes that Defendant does not qualify for compassionate release under 18 U.S.C. § 3582(c)(1)(A).
B. Section 3553(a) Factors
Furthermore, even if Defendant could show extraordinary and compelling reasons, the court declines to reduce Defendant's sentence because his release would pose a danger to the community, and the factors in 18 U.S.C. § 3553(a) weigh heavily against his release. Cf. United States v. Kibble, 992 F.3d 326, 330-32 (4th Cir. 2021) (affirming denial of a motion for compassionate release where the defendant's "health conditions ... amount to extraordinary and compelling circumstances," but "the § 3553(a) factors counseled against a sentence reduction").
A court may only reduce a defendant's sentence under § 3582(c)(1)(A) "after considering 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). That said, "[s]ection 3582(c)(1) 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) (citing United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) ).
The Defendant was one of nineteen pirates who hijacked a United States flagged vessel, the sailboat Quest, with high-powered firearms; held the four American passengers hostage over the course of days; and attempted to bring the hostages back to Somalia for ransom. See PSR ¶¶ 28-31. Following a standoff with the United States Navy, which was attempting to rescue the hostages and secure the Quest, one pirate fired a rocket-propelled grenade toward a Navy ship and the pirates thereafter began firing weapons from the Quest. Id. ¶ 32. Soon after, a group of Navy SEALs boarded and secured the Quest, but the pirates had already killed all four American hostages. Id. Although no words can aptly describe the true gravity of the crimes committed by Defendant and his co-conspirators, the court finds that his offense conduct was undeniably serious.
Even now, Defendant tries to minimize his culpability in the horrific acts perpetrated by the pirates. Defendant points out that he did not personally kill the hostages and that he was not the leader of the operation. ECF No. 1202 at 2. However, Defendant cannot separate himself from the conduct of his fellow pirates.
The court acknowledges Defendant's purported remorse, his acceptance of responsibility, and his participation in prison programs as a means of rehabilitation, but these considerations simply do not outweigh the severity of Defendant's offense conduct. Not only did Defendant engage in piracy, but his and his co-conspirators’ actions resulted in the murder of the four American citizens.
Defendant has only served about one-third of his already reduced sentence for piracy that resulted in the loss of four innocent lives. See ECF No. 1179 at 10; Kibble, 992 F.3d at 331 (recognizing that district courts are "entitled to consider the amount of time [defendants] ha[ve] served as one factor in the § 3553(a) analysis"). Though the amount of time remaining on Defendant's sentence is not a dispositive factor, it is one factor to consider when weighing Defendant's initial steps towards rehabilitation against the seriousness of his offense conduct. See United States v. Bowser, 539 F. Supp. 3d 572, 576 (E.D. Va. 2021) (Smith, J.). Reducing the Defendant's sentence at this juncture would simply not reflect the seriousness of the offense, promote respect for the law, protect the public, or provide adequate deterrence. See 18 U.S.C § 3553(a).
IV. Conclusion
For the foregoing reasons, and having considered the factors in 18 U.S.C. § 3553(a), the court concludes that Defendant is not entitled to a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Defendant has not shown any extraordinary or compelling reasons in support of his Motion. Accordingly, Defendant's Motion, ECF No. 1165, is DENIED .
IT IS SO ORDERED .