United States v. Clark

1

UNITED STATES OF AMERICA v. JERMON RODRIGUEZ CLARK

No. 2:94-CR-000001-JRG-RSP-3

United States District Court, E.D. Texas, Marshall Division

April 6, 2023

MEMORANDUM OPINION & ORDER

RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant Jermon Rodriguez Clark's Motion for Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A) (the “Motion”). (Dkt. No. 206.) The Court, having considered the Motion, the response, the reply the record, and the applicable law, finds that the Motion should be and hereby is DENIED.

I. BACKGROUND

After entering a guilty plea on July 28, 1995, Clark was sentenced to 540 months' imprisonment for the offense of carjacking that resulted in death in violation of 18 U.S.C. § 2119 and 60 months' imprisonment for the offense of possession of a firearm during a crime of violence in violation of 18 U.SC. § 924(c)(1). (Dkt. No. 128.) Both sentences were ordered to run consecutively, totaling 50 years' imprisonment. Clark did not file a direct appeal. He filed two 28 U.S.C. § 2255 motions, both of which were dismissed. (Dkt. Nos. 159, 189.) The United States Court of Appeals for the Fifth Circuit affirmed both dismissals. (Dkt. No. 124, at 3.) Clark filed this Motion on December 16, 2022.

II. FACTUAL BACKGROUND

Clark, Kendrick Allen, and Torvos Simpson (collectively, the “defendants”) formed a plan to carjack a vehicle. (Dkt. No. 124, at 4.) At the time, Clark was fifteen years old; Allen was seventeen and Simpson was sixteen. (Id., at 3.) Clark stole a .22 caliber rifle from his father to use for the carjacking. (Id., at 4.) The defendants decided one of them would pull a person out of their car while the others would get inside. (Id., at 5.)

On November 25, 1993, after being unable to find a suitable victim for two hours, the defendants walked to a Whataburger restaurant, where Clark had hidden the rifle. (Id.) The defendants sat at a table inside the restaurant and spoke to the victim, sixteen-year-old Susan Van Orden (“Van Orden”), an employee of the Whataburger. (Id.) Allen persuaded the victim to give them a ride. (Id.) The three discussed killing her, but it is unclear who mentioned this first. (Id.)

Shortly after 10:00 p.m., Van Orden drove the defendants a short distance at which time a gun was pulled from the rear floorboard and pointed at her. (Id.) She moved to the front passenger seat and Clark began driving the car. (Id., at 6.) Van Orden begged them not to kill her, asking them to leave her alone and simply take the car. (Id.) Clark drove them down a deserted road in Marshall, at which point Van Orden was forced out of the car. (Id.) She was then shot and beaten by Allen and Simpson. (Id.) One or both of them dragged her body to an area of tall grass. (Id.) Once they returned to the car, Clark drove them away, and they later threw the rifle into a ditch. (Id.) Clark eventually lost control of the vehicle during a high-speed chase with police. (Id., at 7.)

In 1995, after the Court certified Clark to be tried as an adult, all three were indicted. (Id., at 3.) Clark was sentenced to 540 months' imprisonment for the carjacking and 60 months' imprisonment for possession of a firearm during a crime of violence. (Dkt. No. 128.) Allen and Simpson were sentenced to life in prison.

III. CLARK'S MOTION

Clark maintains that extraordinary and compelling reasons exist in his case which warrant compassionate release. Specifically, Clark cites his age at the time of the offenses and argues that since his conviction in 1995, courts and scholars have recognized that the juvenile brain is different from that of an adult. (Dkt. No. 206, at 17.) He insists that juveniles are vulnerable, lack maturity, and are susceptible to negative influences and pressures. (Id.) Clark states that the United States Supreme Court has held that it would be morally “misguided to equate the failings of a minor with those of an adult,” as a greater possibility exists that a minor's character will be reformed. (Id., at 18, citing Roper v. Simmons, 543 U.S. 551, 570 (2005)). Further, Clark argues that he deserves a second chance because he has served more than half of his sentence. (Id., at 22.)

Moreover, Clark maintains that if he were sentenced for the same offenses today, he would have a different criminal history category and would be subject to a lower sentence range of 324405 months' imprisonment rather than 360 months to life. (Id.). He states that a court may modify a sentence to a term of imprisonment based on a range that was subsequently lowered by the United States Sentencing Commission. (Id.) Since he was previously convicted of two juvenile offenses, four additional points were added in determining his sentence-but those points would not be considered or added under the same circumstances today. (Id., at 22-23.) Clark argues that his criminal history would be categorized as II rather than III, and that because he has already served 347 months, he “is within the range of punishment should he have been sentenced today under the current guidelines.” (Id., at 25.)

Clark further contends that he has demonstrated “extraordinary post-sentencing rehabilitation.” (Id.) Specifically, he highlights his receipt of a GED, numerous college credits, accolades, and awards while imprisoned. (Id.) He also assists other prisoners through programs like the Suicide Watch Program and notes that his prison disciplinary records demonstrate progress over time. (Id.) He has a post-release plan and expresses a desire to be released to a halfway house to assist him with transitioning back into society. (Id., at 26.) Finally, Clark argues that he is not a threat to the public, his risk assessment has been deemed “low,” and the time he has spent in prison illustrates the seriousness of his crimes, respect for the law, and just punishment. (Id., at 27.)

IV. THE GOVERNMENT'S RESPONSE

The Government contends that a change in the sentencing guidelines does not constitute an “extraordinary and compelling” reason warranting compassionate release because the change cited is not retroactive. (Dkt. No. 207, at 3.) It further maintains that Clark's rehabilitation, standing alone, is legally insufficient to serve as an extraordinary and compelling reason for compassionate release. (Id., at 5-6.) Additionally, the Government asserts that Clark has provided no reason for the Court to reduce his sentence because he is not entitled to a reduction under the factors set forth in 18 U.S.C. § 3553(a). (Id., at 6.) Finally, the Government contends that Clark failed to demonstrate how his release would reflect the seriousness of the crimes, promote respect for the law, and provide just punishment. (Id., at 6-7.) Given the offenses of conviction, the Government maintains that compassionate release is inappropriate. (Id., at 7.)

V. CLARK'S REPLY

Clark responds that the Government ignored a large portion of his motion: his young age at the time of the offense. (Dkt. No. 208, at 1.) He contends that the Government ignored the number of recommendations from individuals attesting to his behavior and rehabilitation. (Id., at 4.) Clark further maintains that the Fifth Circuit has held that a district court is bound only by § 3582(c)(A)(1) and the factors outlined in § 3553(a), thereby allowing this Court to consider the sentencing guidelines and what his sentence would be if sentenced today. (Id., at 9.) Clark provides the following in support of his motion for compassionate release:

• he had just turned 15 when the crime was committed

• he had no serious criminal history

• he has served over 50% of his 600-month sentence

• he has demonstrated his rehabilitation through his education, good work (including time on the suicide watch program and other such endeavors), good behavior, and numerous references, etc.

• he did not take part in the actual murder of Ms. Van Orden

• if sentenced today, he would have a different criminal history and be subject to a lesser range of punishment (most likely 324-405 months instead of 360 months to life)

• he has a plan for his release (including a request to be released to a halfway house)

• his recidivism risk assessment is low in both general and violent levels.

(Id., at 10.)

VI. STANDARD OF REVIEW

A judgment of conviction imposing a sentence of imprisonment “constitutes a final judgment and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting 18 U.S.C. § 3582(b)); see 18 U.S.C. § 3582(c).

One such circumstance arises from 18 U.S.C. § 3582(c)(1)(A)-the statute authorizing compassionate release.

The First Step Act of 2018 instituted the first major changes to compassionate release since its authorization in 1984. Pub. L. 115-391, 132 Stat. 5194. The Act, in part, amended section 3582(c), which gives the court discretion-in certain circumstances-to reduce a defendant's term of imprisonment:

(A) the court, upon motion of the Director of the Bureau of Prisons (“BOP”), or upon motion of the defendant after the defendant 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that- (i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served

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