United States v. Anderson

UNITED STATES OF AMERICA, Plaintiff, v. KIRK ANDERSON, Defendant.

No. 08-CR-1332-CJW-MAR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

January 7, 2021

MEMORANDUM OPINION & ORDER

I. INTRODUCTION

This matter is before the Court on defendant's motion for compassionate release and for relief under Section 404 of the First Step Act ("FSA") filed on July 21, 2020. (Docs. 116 & 117). On August 6, 2020, the government timely filed a resistance. (Doc. 118). On August 21, 2020, defendant timely filed a reply. (Doc. 121). For the following reasons, the Court grants in part and denies in part defendant's motion.

The Court will first address whether compassionate release is warranted before considering relief under the FSA.

II. RELEVANT BACKGROUND

Between 1996 and 1997, defendant conspired with others to distribute cocaine base. (Doc. 66, at 32). Defendant obtained marijuana, cocaine, and cocaine base from Chicago, Illinois for distribution in Dubuque, Iowa. (Id.). Defendant would either sell these substances personally or direct others to sell them on his behalf. (Id.). Despite being arrested on December 18, 1996, for his part in the distribution scheme, defendant continued to direct others to sell drugs from jail via phone. (Id.). On November 12, 1997, defendant was sentenced to 180 months' imprisonment followed by eight years on supervised release. (Id.). On December 11, 1998, his term of incarceration was amended to 144 months. (Id.). On June 13, 2006, defendant was released from prison and began his term of supervised release. (Id., at 33).

Upon release, defendant immediately became involved in a conspiracy to obtain, cut, package, and distribute "large amounts" of cocaine base and marijuana in Dubuque despite being under federal supervision. (Id., at 8-10). Defendant gradually took on a supervisory role in the conspiracy. (Id., at 11). Defendant's responsibilities included overseeing the delivery of the cocaine, which included renting cars and enlisting female drivers with valid licenses, and collecting the funds derived from distribution. (Id., at 11-12). For his work, defendant was paid $2,000 a month and sometimes a small amount of cocaine. (Id., at 11). Defendant was sometimes present when the cocaine base was converted into smokable rock form and, on occasion, provided a motel room for the operation. (Id., at 14). Defendant's co-conspirators maintained stash houses around Dubuque which housed drugs, money, and as many as 12 firearms. (Id., at 15). The firearms were used to beat and threaten drug dealers if they fell behind on their payments. (Id.). Defendant was present for such beatings at least twice. (Id.). In early 2007, the Court modified defendant's supervised release and ordered him to serve three consecutive weekends in jail after he tested positive for cocaine. (Id., at 33). Twice in October 2007, a confidential informant ("CI") called defendant to purchase cocaine base. (Id., at 15). Defendant referred the CI to B.H., who then sold the CI cocaine base from his residence near a school. (Id.). Defendant supplied the cocaine base to B.H. (Id.). Even while hospitalized in December 2007, defendant continued to direct the sale of drugs. (Id., at 16). In total, defendant was responsible for the distribution of 3,628.8 grams of marijuana, 15,349.23 grams of cocaine, and 40,618.55 grams of cocaine base, all while on supervised release with this Court. (Id.).

On December 17, 2008, a grand jury issued an Indictment charging defendant with two counts of distributing cocaine base within 1,000 feet of a school and one count of conspiracy to distribute cocaine base within 1,000 feet of a school in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), 846, 851, and 860. (Doc. 1). On December 19 or 20, 2007, defendant was arrested. (Docs. 5; 66, at 17). On January 2, 2008, the Court revoked defendant's supervised released and sentenced him to 12 months' imprisonment. (Doc. 66, at 17). On January 8, 2009, defendant pled not guilty and was detained. (Doc. 12).¹ On March 25 , 2009, defendant pled guilty to the conspiracy charge under a plea agreement with the government. (Docs. 46 & 46-1). On April 9, 2009, the Court accepted defendant's plea. (Doc. 49).

On November 19, 2009, the United States Probation Office filed defendant's second revised final presentence investigation report. (Doc. 66). Defendant was, at that time, 47 years old. (Id., at 2). Defendant reported that he never knew his father but, on prior occasions, defendant stated his father was a veteran who died around 1970. (Id., at 39). Defendant described his mother as a heroin addict. (Id.). At age 5, defendant began residing with other family members due to his mother's drug abuse. (Id.). His mother died of a drug overdose when he was approximately 16 years old. (Id.). Two of defendant's eight half-siblings had drug-related criminal histories. (Id.). Defendant was a member of a gang from 1974 to 2006. (Id., at 41). Defendant dropped out of school in eighth grade but later earned his GED as well as some college credits while incarcerated. (Id., at 47-48).

Defendant reported that he was in a relationship with his "common law wife" from 1980 until her death in 1993. (Id., at 40). Defendant's daughter from this relationshiplived with her grandmother following the death of her mother. (Id.). Defendant was married from 1997 to 2003. (Id.). He reported his wife abused cocaine and had a history of forgery and drug-related convictions. (Id.). In 2006, defendant began a relationship with another woman, with whom he had one child. (Id., at 40-41). Defendant reported that he was not ordered to pay child support for either of his children, but records reflect he was in arrears as to both children, one in excess of $34,000. (Id., at 41). While not incarcerated, defendant held consistent but largely episodic employment. (Id., at 48-49). At his most recent job, he was terminated in part for falsely verifying the hours of persons ordered to complete community service. (Id., at 48).

Defendant had undergone many operations and medical tests related to his ulcerative colitis. (Id., at 42-43). Defendant often experienced nausea, vomiting, bowel obstruction, abdominal pain, and other side effects from his condition. (Id.). Defendant reported that his condition may eventually develop into "stomach cancer." (Id., at 43). Defendant reported that he was not suffering from any mental health issues, although he was diagnosed in the past with depression, personality disorder, antisocial personality disorder, and adjustment disorder. (Id., at 44). Defendant attempted suicide in 1992 while in the Dubuque County Jail. (Id.). He contemplated suicide in 2007 and admitted himself to a psychiatric unit as a result. (Id.). In 2008, defendant again contemplated suicide and reported hearing auditory hallucinations of "positive remarks." (Id., at 45). Defendant reported long running and heavy use of alcohol, marijuana, and cocaine. (Id., at 45-46). Defendant used these substances at times daily over the course of decades. (Id.). Defendant was diagnosed with cocaine and cannabis abuse. (Id., at 46). Nevertheless, he did not believe his histories with any of these substances was problematic. (Id., at 45-46). Defendant also abused heroin on occasion and "tac." (Id., at 46). Defendant had undergone multiple drug treatment programs, including the Bureauof Prisons' ("BOP") Residential Drug Abuse Treatment Program and was diagnosed with moderate marijuana and cocaine dependence. (Id., at 46-47).

Defendant's criminal history was substantial. At age 24, he was convicted of possession with intent to deliver cocaine and was sentenced to two years' probation. (Id., at 24). Defendant violated his probation twice and was given a two-year prison sentence but was paroled after five months. (Id., at 24-25). One of defendant's probation violations was his conviction for theft at age 27, which involved defendant damaging and stealing a car and fleeing from police. (Id., at 25). At age 29, defendant was convicted of disorderly conduct. (Id., at 26). Also at age 29, defendant was convicted of assault causing bodily injury for grabbing, pushing, choking, and slapping his common law wife as well as threatening her with a gun. (Id., at 27). At age 30, defendant was convicted of two counts of delivery of a cocaine within 1,000 feet of a park and sentenced to ten years in prison but was paroled after three years. (Id., at 28). Defendant was also convicted of extortion for entering a woman's residence and threatening her and her son with a gun to allow his friends to reside at the house. (Id., at 30). While on bond for that offense, defendant was arrested for threatening another person with a gun. (Id.). Defendant was also convicted of theft for presenting false checks at a casino. (Id.). Defendant failed to pay more than $6,000 in fines and restitution. (Id.). At age 34, only about four months after being released from prison for his prior offenses, defendant was convicted of conspiracy to distribute cocaine, the offense for which he was on supervised release at the time of his instant offense. (Id., at 32).

On November 23, 2009, the Court sentenced defendant. (Doc. 69). Defendant was a career offender in criminal history category VI with a total offense level of 42, yielding an advisory guideline range of 360 months to life imprisonment followed by ten years on supervised release. (Doc. 66, at 24). The Court sentenced him to 360 months'imprisonment followed by ten years on supervised release. (Doc. 70). Defendant did not appeal his sentence.

On April 2, 2012, defendant filed a pro se motion to reconsider his sentence. (Doc. 81). That same day, the Court denied his motion. (Doc. 82). On July 6, 2015, the Court, on its own motion, found a reduction in defendant's sentence was not appropriate in light of changes to the United States Sentencing Guidelines...