United States v. Clark

467 F.Supp.3d 684

UNITED STATES of America, Plaintiff,

v.William Earl CLARK, Jr., Defendant.

4:08-CR-00096

United States District Court, S.D. Iowa.

Signed June 17, 2020

Nicole M. Proesch, United States Attorney's Office, Des Moines, IA, for Plaintiff.

ORDER GRANTING COMPASSIONATE RELEASE

ROBERT W. PRATT, Judge

Before the Court is Defendant William Earl Clark, Jr.'s Motion for Compassionate Release, filed by the Federal Public Defender (FPD) on May 22, 2020. ECF No. 95. The Government filed its Resistance on June 3. ECF No. 96. The matter is fully submitted.

I. BACKGROUND

On April 2, 2010, this Court sentenced Defendant to 240 months imprisonment for distributing crack cocaine with a prior conviction, then the mandatory minimum. ECF No. 91 at 1; ECF No. 61 ¶ 120. Defendant was thirty-six-years-old and already had been in federal custody for nearly two years.¹

The lengthy sentence capped an adult life littered with bad choices and circumstances. Defendant had drug and firearm convictions going back to age sixteen. ECF No. 61 ¶¶ 70–77. His father spent much of Defendant's childhood incarcerated. Id. ¶ 91. His younger brother was convicted of attempted murder in 2000. Id. ¶ 90. Defendant joined a gang. Id. ¶¶ 13, 18. In too many cases, that would be the end of the matter.

Congress then passed the First Step Act of 2018. See Pub. L. No. 115-391, 132 Stat. 5194. The Act lowered Defendant's mandatory minimum sentence to 120 months under 21 U.S.C. § 841(b)(1)(B) from the 240 months under 21 U.S.C. § 841(b)(1)(A) applicable at sentencing. Compare ECF No. 61 ¶ 120, with ECF No. 91. The Act also allowed certain federal inmates, including Defendant, to seek resentencing under modern law. See ECF No. 91. In a 2019 pro se filing, Defendant argued several factors warranted such a reduction. ECF No. 87. These included his spotless disciplinary record in prison, concern for his children's well-being in a single-parent household, and his extensive use of rehabilitative programming. Id. at 1–5. Once released, Defendant said he planned to obtain his commercial driver's license. Id. at 3.

"I am a different man than I was then," Defendant wrote. Id. "I won't say I'm wise, but I'm smarter and more determined to be a better man, father[,] and citizen to my family and community as a whole." Id. at 3–4. On March 25, 2019, the Court reduced Defendant's term of imprisonment to 184 months, giving him a July 25, 2021, release date.² ECF No. 91. The Court also reduced his subsequent term of supervised release to eight years. Id.

Of course, 2019 was a very different year from 2020. The virus known as COVID-19 has killed more than 116,000 Americans and infected more than 2.1 million in a few months. Mortality Analysis , Johns Hopkins U. & Med. (June 16, 2020, 3:00 AM), https://coronavirus.jhu.edu/data/mortality. "At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others." S. Bay United Pentecostal Church v. Newsom , No. 19A1044, ––– U.S. ––––, 140 S.Ct. 1613, 207 L.Ed.2d 154, (U.S. May 29, 2020) (Roberts, C.J., concurring).

We limited access to courts, schools, churches, theaters, and "non-essential" businesses—places where there are too many people and too little space to keep the virus from spreading. That also sounds a lot like federal prison. Already "tinderboxes for infectious disease," prisons now are even more dangerous than we typically accept. United States v. Rodriguez , No. 2:03-CR-00271-AB-1, 451 F.Supp.3d 392, 393–94, (E.D. Pa. Apr. 1, 2020). At least 1209 inmates and 168 Federal Bureau of Prisons (BOP) employees have "open" and "confirmed" cases. COVID-19 Cases , Fed. Bureau Prisons (June 16, 2020), https://www.bop.gov/coronavirus/. Eighty-five inmates and an employee have died. Id. Meanwhile, 4940 inmates and 502 staff have had the virus but recovered. Id. There are no open and confirmed cases at Defendant's prison, USP Leavenworth.³ Id.

It is hard to compare these numbers to those for the United States at large. This is so because it remains unclear when the BOP tests inmates or employees. See BOP Implementing Modified Operations , Fed. Bureau Prisons, https://www.bop.gov/coronavirus/covid19_status.jsp (last visited June 16, 2020) (describing inmate screening procedures). The BOP screens staff through "self-reporting and temperature checks." Id.

The BOP indeed faces a daunting task. It has undertaken emergency measures to halt the virus's spread. Id. Social visits are cancelled, prisoner movement is limited, and legal visits are suspended subject to exception. Id. At the same turn, it is unclear what the future holds as states relax restrictions on free residents, including BOP employees. Indeed, some states already are seeing a resurgence in cases, suggesting the United States has time yet with COVID-19. Jennifer Calfas, New Cases Grow in Over Dozen States , Wall St. J., June 16, 2020, A6.

On April 2, 2020, Defendant requested compassionate release from his warden pursuant to 18 U.S.C. § 3582(c)(1)(A), another First Step Act provision. ECF No. 95-4 at 3. He argued his high blood pressure and respiratory problems, among other issues, created a risk of COVID-19 complications. Id. at 2–3. He also cited the amount of time he has served, his spotless disciplinary record in prison, and his general rehabilitation. Id. at 3. A doctor who viewed Defendant's medical records concluded "it is clear that he would be at risk of both a more severe case as well as a higher likelihood of adverse outcomes if he were to contract COVID-19." ECF No. 95-3 at 2.

II. ANALYSIS

The First Step Act of 2018 amended numerous provisions of the U.S. Code to promote rehabilitation of prisoners and unwind decades of mass incarceration. Cong. Research Serv., R45558, The First Step Act of 2018: An Overview 1 (2019). Congress designed the statute at issue here, § 3582(c)(1)(A), for "Increasing the Use and Transparency of Compassionate Release." § 603(b), 132 Stat. at 5239. This provision allows defendants, for the first time, to petition district courts directly for compassionate release. Id. Under the old regime, defendants could petition only the BOP Director, who could then make a motion, at his or her discretion, to the district court. See U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.4 (U.S. Sentencing Comm'n 2018) [hereinafter U.S.S.G.]. The Director rarely did so. Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm'n (2016) (statement of Michael E. Horowitz, Inspector General, Dep't of Justice).

A. Exhaustion

The First Step Act's gate-keeping provision created two ways for a defendant to bring a compassionate release motion to a district court. The defendant may file a motion after he "has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." § 3582(c)(1)(A).

Here, the Government agrees Defendant satisfied the gate-keeping provision because thirty days have passed since the BOP received his request. ECF No. 96 at 1 n.1. The Court may thus address the merits.

B. Extraordinary and Compelling Reasons

Compassionate release provides a path for defendants with "extraordinary and compelling reasons" to leave prison early. § 3582(c)(1)(A)(i). Such a sentence reduction must comply with the 18 U.S.C. § 3553(a) factors and "applicable policy statements issued by the Sentencing Commission." § 3582(c)(1)(A).

1. Definitions

Congress never defined what constitutes "extraordinary and compelling." See 28 U.S.C. § 994(t). Instead, Congress directed the Sentencing Commission to promulgate "the criteria to be applied and a list of specific" extraordinary and compelling examples. Id. Before the First Step Act, the Commission provided just three: terminal illness, an elderly inmate's rapidly declining health, and care for dependent family members. U.S.S.G. § 1B1.13 cmt. n.1. Defendant does not claim any of these examples apply here.

The Commission also provided a catch-all provision that allows the BOP Director to determine "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the" examples described above. Id. § 1B1.13 cmt. n.1(D). That still begs the question: what is extraordinary and compelling?

Congress and the Commission gave two general guideposts. Extraordinary and compelling reasons "need not have been unforeseen at the time of sentencing." Id. § 1B1.13 cmt. n.2. For example, just because a judge believes a defendant will dramatically improve himself while incarcerated, that does not mean she cannot deem such improvement extraordinary and compelling. And although "[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason," its mention by Congress indicates rehabilitation may be considered with other factors. § 994(t) (emphasis added); see also U.S.S.G. § 1B1.13 cmt. n.3.

Courts otherwise are left to themselves because the Commission never updated its policy statement for the First Step Act.⁴ Rather, the outdated policy statement still assumes compassionate release "may be granted only upon motion by the Director of the Bureau of Prisons." U.S.S.G. § 1B1.13 cmt. n.4. This left district courts in a conundrum. On the one hand, Congress unequivocally said it wished to "[i]ncreas[e] the [u]se ... of [c]ompassionate [r]elease" by allowing district courts to grant petitions "consistent with applicable policy statements" from the Commission. § 3582(c)(1)(A) (emphasis added). On the other hand, the Commission has not made the policy statement for the old regime applicable to the new one.

Many courts, including this one, have concluded this means the Commission lacks an applicable policy statement regarding when a court can grant compassionate release....