Opinion
3:18-cr-00341-RJC-DCK
10-22-2021
USA v. TIMOTHY STINSON
This Order refers to sealed documents; therefore, it will be filed under seal.
ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court upon motion of the defendant for compassionate release based on his fear of developing severe symptoms if he is re-infected with COVID-19, under 18 U.S.C. § 3582(c)(1)(A) as amended by the First Step Act of 2018, (Doc. No. 39), the government's response in opposition, (Doc. No. 42), and related pleadings. I. BACKGROUND
The defendant pled guilty to possession with intent to distribute at least 500 grams of cocaine. (Doc. No. 34: Judgment at 1). The Court rejected the defendant's request for a variance based on his age, health issues, and statistics regarding reduced recidivism by people over 60 years old. Instead, the Court found that his actual criminal history was uncharacteristic of a Category III, given his nine prior drug convictions and seventeen convictions which did not score criminal history points, reflecting a serious disrespect for the law and a need to protect the public from further crimes by him. The Court, therefore, sentenced the defendant in the middle of the advisory guideline range to 97 months' imprisonment. (Id. at 2). He has served approximately 36 months and has a projected release date of July 19, 2025.
https://www.bop.gov/inmateloc.
The parties agree that the defendant sought a sentence reduction under § 3582(c)(1)(A) from the warden of his institution, (Doc. No. 42: Response at 2-3); accordingly, this matter is ripe for decision.
II. DISCUSSION
Ordinarily, a court may not modify a sentence once it is imposed. 18 U.S.C. § 3582(c). Section § 3582(c)(1)(A)(i) provides an exception that allows a court to reduce a sentence, after consideration of the factors in § 3553(a), upon finding 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.” The United States Court of Appeals for the Fourth Circuit recognized that that the Sentencing Commission has not issued policy statements since the amendment of § 3582(c)(1)(A) by the First Step Act. United States v. McCoy, 981 F.3d 280, 281 (4th Cir. 2020). However, the appellate court noted the previously issued policy statement, USSG §1B.13, “remains helpful guidance” for motions filed by defendants in district court. Id. at n.7. As the movant, the defendant bears the burden of proving his suitability for a § 3582 sentence reduction. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013).
A. Extraordinary and Compelling Reasons
Although the statute does not define “extraordinary” or “compelling, ” the commentary to USSG §1B1.13 describes what should be considered extraordinary and compelling reasons and provides examples of when they exist. United States v. High, 997 F.3d 181, 186 (4th Cir. 2021). The examples most applicable to this case involve medical conditions, such as a terminal illness or serious medical condition that substantially diminishes the ability of the defendant to provide self-care, and age, where a defendant is at least 65 years old, is experiencing a serious deterioration of physical health, and has served at least 10 years' imprisonment. USSG §1B1.13 cmt. n.1(A)(i), (ii)(I), (III) and (B). “In the context of the COVID-19 outbreak, courts have found extraordinary and compelling reasons for compassionate release when an inmate shows both a particularized susceptibility to the disease and a particularized risk of contracting the disease at his prison facility.” United States v. Lentz, 857 Fed.Appx. 733 (4th Cir. 2021) (internal quotation marks and citation omitted).
The defendant is 59 years old and has been diagnosed with diabetes mellitus type 2, hypertension, hyperlipidemia, and obesity. (Doc. No. 44: medical records at 1-2). While he has risk factors, the defendant successfully recovered from COVID-19. (Id. at 33-34). The National Institutes of Health has reported lasting immune protection against the coronavirus after recovery. Additionally, Butner Medium I FCI currently has 1 inmate with a confirmed active case of COVID-19, and 125 inmates have recovered from the illness. Thus, in the circumstances of this case, the Court finds that the defendant has not established extraordinary and compelling reasons for a sentence reduction.
Lasting immunity found after recovery from COVID-19 , NIH (Jan. 26, 2021), https://www.nih.gov/news-events/nih-research-matters/lasting-immunity-foundafter-recovery-covid-19.
www.bop.gov/coronavirus (Oct. 18, 2021).
B. Dangerousness and 18 U.S.C. § 3553(a) Factors
Even if the defendant had shown extraordinary and compelling reasons, the Court would not reduce the defendant's sentence based on his dangerousness. USSG §1B1.13(2). The defendant considers himself to be a non-violent offender, (Doc. No. 54: Addendum at 1), yet, he has spent his adult life endangering the community through stealing, breaking and entering, and distributing drugs. See United States v. Smith, No. 3:15-cr-101, 2021 WL 3641463, slip. op. at *4 (E.D. Va. Aug. 17, 2021) (“courts long ago accepted that drug trafficking is a dangerous trade and that drugs present great risks to those who use them”).
For example, at age 19, the defendant was sentenced to 3 years' imprisonment for felony larceny. (Doc. No. 26: PSR ¶ 42). At age 22, he was placed on 4 years' probation for selling marijuana. (Id. ¶ 43). While on probation, he was arrested and convicted for breaking and entering and sentenced to another 5 years' probation. (Id. ¶ 44). Both of those probationary sentences were later revoked.
Shortly after being discharged from the resulting sentence, the defendant was arrested and convicted of possession with intent to sell a Schedule II controlled substance and carrying a concealed weapon at age 28. (Id. ¶ 48). Despite receiving a 10-year sentence, the defendant was convicted again of possession with intent to distribute cocaine at age 33. (Id. ¶ 49). At age 35, he was convicted of possession of cocaine. (Id. ¶ 51). After serving that sentence, he was placed on probation for larceny at age 38, which was later revoked. (Id. ¶ 53). At age 40, the defendant was sentenced to 35-42 months for trafficking cocaine. (Id. ¶ 59). He was sentenced to another 35-42 months for again trafficking cocaine at age 48. (Id. ¶ 60). He committed the instant offense involving more than 5 kilograms of cocaine at age 56. (Id. ¶ 28).
This is the first offense that scored criminal history points. (Doc. No. 26: PSR ¶ 59).
The government rightly argues that the defendant has remained undeterred from criminal conduct despite years of imprisonment and numerous convictions, (Doc. No. 42: Response at 8), and the defendant has not shown any basis to find that the risk he poses to the community has been mitigated. Thus, his release would be inconsistent with the Sentencing Commission's policy statement and inconsistent with the need for the sentence to protect the public from further crimes of the defendant. The Court will accordingly decline to exercise its discretion to reduce his sentence. 18 U.S.C. §§ 3553(a)(2)(C), 3582(c)(1)(A); USSG §1B1.13(2), (3), comment. (n.1).
IT IS, THEREFORE, ORDERED that the defendant's motion for compassionate release, (Doc. No. 39) is DENIED.
The Clerk is directed to certify copies of this Order to the defendant and the United States Attorney.
SEALED DOCUMENT with access to Specified Parties/Defendants.