United States v. Cochran

UNITED STATES OF AMERICA Plaintiff, v. ORVILLE COCHRAN Defendant.

Case No. 01-CR-108

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

March 3, 2021

DECISION AND ORDER

I sentenced defendant Orville Cochran to 60 months in prison on his guilty plea to conspiracy to commit racketeering. Defendant now seeks compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), arguing that he is at increased risk of severe illness from COVID-19 based on his age (71) and health conditions (heart disease and hypertension). He further contends that, since he has now served more than 85% of his sentence (with a projected release date of August 22, 2021), none of the purposes of sentencing require that he serve out the last few months of his prison term. He accordingly asks the court to reduce his sentence to time served. For the reasons that follow, I grant his motion.

I. FACTS AND BACKGROUND

Defendant was a member, and at times president, of the Chicago south-side chapter of the Outlaws Motorcycle Club. In furtherance of the Outlaws "war" with rival biker clubs, various members committed racketeering acts. In pleading guilty to racketeering conspiracy, defendant admitted that he agreed two racketeering acts would be committed by members, and that he was present and participated in the events that comprised each of these acts. The first concerned a plan to confront, assault, and murder rival bikers at the Illiana speedway in Indiana in June of 1994. Ultimately, no rival bikers appeared, and the Outlaws eventually left the speedway. (PSR ¶¶ 14-19.) The second pertained to a plan to confront, assault, and murder rivals at the International dragway in Indiana in June of 1996. Rain resulted in the eventual cancellation of the races and bands, and most people left. The Outlaws remained the entire three days, but no rival bikers showed up and no confrontation occurred. (PSR ¶ 21.)

The government indicted the case in 2001, but defendant remained a fugitive until he was apprehended in April 2017 trying to shoplift a back brace. (PSR ¶ 2, 60.) At the time he appeared before me for sentencing on January 4, 2019, defendant was 69 years old, with a fairly limited and (by then) quite dated prior record: unlawful use of a weapon in 1969 (PSR ¶ 52), reckless conduct, unlawful use of a weapon, and assault in 1969 (PSR ¶ 53), resisting an officer in 1973 (PSR ¶ 54), criminal damage to property in 1984 (PSR ¶ 55), and retail theft in 1994 (PSR ¶ 56). He fell in criminal history category I under the sentencing guidelines, which recommended 87-108 months in prison. (PSR ¶¶ 58, 103.)

Pursuant to their plea agreement, the parties jointly recommend 60 months' imprisonment, and I found such a sentence sufficient to satisfy the purposes of sentencing. I concluded that this sentence adequately punished defendant for this dangerous conduct and deterred others, while acknowledging his advanced age, health issues, and limited prior record. Defendant is currently serving his prison sentence at FMC Rochester, with a projected release date of August 22, 2021.

On January 19, 2021, defendant filed the instant motion for compassionate release. I directed the government to respond and permitted defendant to reply. The matter is ready for decision.

II. DISCUSSION

A. Compassionate Release Standards

Section 3582(c)(1)(A) authorizes the district court to grant what is commonly known as "compassionate release." The statute provides, in pertinent part:

[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons 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 . . .

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

18 U.S.C. § 3582(c)(1)(A)(i). The statute contains three requirements: (1) the defendant must first make a request to the warden before applying to the court; (2) the defendant must then demonstrate to the court that "extraordinary and compelling reasons" warrant a reduction in his sentence; and (3) the court must determine whether, even if such reasons are shown, a reduction of the sentence would be inconsistent with the applicable 18 U.S.C. § 3553(a) factors. United States v. Cole, No. 08-CR-327, 2021 U.S. Dist. LEXIS 2404, at *5 (E.D. Wis. Jan. 7, 2021) (citing United States v. Rodriguez, 424 F. Supp. 3d 674, 680 (N.D. Cal. 2019)).

1. Exhaustion

Before 2018, compassionate release could be granted only on a motion from the BOP. United States v. Sanford, 986 F.3d 779, 781 (7^th Cir. 2021). However, the First Step Act of 2018 amended the compassionate release statute to permit the court to adjudicate a motiondirectly from the defendant—provided, however, that the defendant must first present his request for compassionate release to the warden and exhaust administrative appeals or wait 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier. Id. at 781-82. The Seventh Circuit has held that, while this "exhaustion" requirement is not jurisdictional, it is a mandatory claim-processing rule which must be enforced if raised by the government. Id. at 782; see also United States v. Williams, 987 F.3d 700, ___, 2021 U.S. App. LEXIS 3762, at *4 (7^th Cir. Feb. 10, 2021) (holding that "an inmate is required to present the same or similar ground for compassionate release in a request to the Bureau as in a motion to the court").

2. Extraordinary and Compelling Reasons

The statute does not define the term "extraordinary and compelling reasons." Rather, Congress instructed the Sentencing Commission, in promulgating general policy statements regarding the sentence modification provisions in § 3582(c)(1)(A), to describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. See 28 U.S.C. § 994(t).¹ The Commission's policy statement provides:

Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering thefactors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that—

(1) (A) extraordinary and compelling reasons warrant the reduction . . .

(2) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g); and

(3) the reduction is consistent with this policy statement.

U.S.S.G. § 1B1.13. The commentary to the policy statement indicates that extraordinary and compelling reasons exist under these circumstances:

(A) Medical Condition of the Defendant.—

(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(ii) The defendant is—

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

(B) Age of the Defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

(C) Family Circumstances.—

(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.

(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.

(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).

U.S.S.G. § 1B1.13 cmt. n.1.

The Commission has not updated the policy statement, which purports to require a motion from the director of the Bureau of Prisons, see U.S.S.G. § 1B1.13 cmt. n.4, since the passage of the First Step Act, which allowed defendants to bring their own motions. Accordingly, "because the Guidelines Manual lacks an applicable policy statement, the trailing paragraph of §3582(c)(1)(A) does not curtail a district judge's discretion." United States v. Gunn, 980 F.3d 1078, 1080 (7^th Cir. 2020); see also United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020) ("[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release. Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court's discretion.").

Giving the statutory terms their common meaning, a...