United States v. Conner

465 F.Supp.3d 881

UNITED STATES of America, Plaintiff,

v.Larry CONNER, Defendant.

No. CR07-4095-LTS

United States District Court, N.D. Iowa, Western Division.

Signed June 8, 2020

John H. Lammers, US Attorney's Office, Sioux City, IA, for Plaintiff.

Robert Tiefenthaler, Sioux City, IA, for Defendant.

MEMORANDUM OPINION AND ORDER

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This case is before me on defendant Larry Conner's motion (Doc. No. 141) for compassionate release. The Government has filed a response (Doc. No. 147) and Conner has filed a reply (Doc. No. 151). Oral argument is not necessary. See Local Rule 7(c).

II. BACKGROUND

On October 17, 2008, Conner pleaded guilty to one count of conspiracy to distribute 500 grams or more of methamphetamine mixture and 50 grams or more of methamphetamine actual after a felony drug conviction and one count of possession with intent to distribute 50 grams or more of methamphetamine mixture after a felony drug conviction. See Doc. No. 93. At Conner's sentencing hearing on January 7, 2009, United States District Judge Mark W. Bennett calculated a guideline range of 262 to 327 months, based on a total offense level of 34 and a criminal history category VI. See Doc. No. 105. Because Conner had a previous felony drug conviction, he faced a mandatory minimum of 240 months. See Doc. No. 108 at ¶¶ 51, 93. However, the parties entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) in which they jointly recommended a sentence of 210 months' imprisonment. See Doc. No. 105-2. That sentence was possible after Judge Bennett granted the Government's motion for a downward departure pursuant to United States Sentencing Guideline (U.S.S.G.) § 5K1.1 and 18 U.S.C. § 3353(e). See Doc. No. 105. Judge Bennett accepted the plea agreement and sentenced Conner to 210 months' imprisonment. Id.

Conner had health issues at the time of his sentencing. His presentence investigation report (PSR) states:

The defendant suffers from ongoing and extensive medical health issues. The majority of his records are maintained by the U.S. Department of Veterans Affairs. He experienced a ruptured appendectomy in 1965, a hernia in 1967, and thoracotomy in 1999. In addition, he has been diagnosed with multi-level spinal stenosis, Chronic Obstructive Pulmonary Disease, congestive heart failure, Hepatitis B and C, Peripheral Neuropathy, diabetes, hypertension, tobacco abuse, severe Lumbar Radiculopathy, and Lubmar Disc Degeneration. The defendant has also been subject to multiple surgeries. He last underwent back surgery on March 16, 2007. While this summary may not reflect the extent of the defendant's multiple medical conditions, they are severe.

Doc. No. 108 at ¶ 77. Conner indicated before sentencing that he was going to file a motion for a downward departure because of his health issues pursuant to U.S.S.G. § 5H1.4. Id. at 22. However, because the parties entered an 11(c)(1)(C) agreement and Judge Bennett accepted it, the motion for downward departure was not filed and Judge Bennett did not consider Conner's health issues at sentencing. See Doc. No. 108-3.

According to the Bureau of Prisons (BOP) website, Conner is located at Rochester FMC and his projected release date is May 14, 2023.

III. COMPASSIONATE RELEASE STANDARDS

A court's ability to modify a sentence after it has been imposed is extremely limited. One way a court may modify a sentence is through "compassionate release" as outlined in 18 U.S.C. § 3582(c)(1)(A), which was recently modified by the First Step Act of 2018 (FSA). See Pub. L. No. 115-391, § 603. In the past, 18 U.S.C. § 3582(c)(1)(A) permitted a court to reduce a defendant's term of imprisonment only upon the motion of the Director of Bureau of Prisons (BOP). The FSA modified § 3582(c)(1)(A) such that a defendant may now directly petition the court "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." See Mohrbacher v. Ponce , No. CV18-00513, 2019 WL 161727, at *1 (C.D. Cal. Jan. 10, 2019) (discussing modifications made to § 3582(c)(1)(A) by the FSA); see also United States v. Perez-Asencio , No. CR18-3611, 2019 WL 626175, at *2–3 (S.D. Cal. Feb. 14, 2019).

If a defendant fully exhausts administrative remedies, the court may, upon motion of the defendant, reduce the defendant's sentence, after considering the factors set forth in 18 U.S.C. § 3553(a) to the extent they are applicable, if the court finds that:

(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

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

18 U.S.C. § 3582(c)(1)(A). Conner does not meet the requirements of § 3582(c)(1)(A)(ii). He has not served at least 30 years in prison and was not sentenced pursuant to 18 U.S.C. § 3559(c) to life in prison. Accordingly, Conner's only possible avenue for relief is § 3582(c)(1)(A)(i).

The starting point in determining what constitutes "extraordinary and compelling reasons" under § 3582(c)(1)(A)(i) is the Sentencing Guideline discussing compassionate release issued by the United States Sentencing Commission. See U.S.S.G. § 1B1.13 (U.S. Sentencing Comm'n 2018); see also United States v. Hall , No. CR98-7, 2019 WL 6829951, at *3 (E.D. Ky. Dec. 13, 2019) ; United States v. Rivernider , No. CR10-222, 2019 WL 3816671, at *2 (D. Conn. Aug. 14, 2019). The Guideline provides that extraordinary and compelling reasons exist in the following 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.

This Guideline predates the FSA and has "not been amended to reflect that, under the FSA, a defendant may now move for compassionate release after exhausting administrative remedies." Rivernider , 2019 WL 3816671, at *2. Courts are split on whether the policy statement is binding because it predates the FSA's changes to 18 U.S.C. § 3582(c)(1)(A). A number of district courts have concluded that Guideline § 1B1.13 cmt. n.1 does not restrain a court's assessment of whether extraordinary and compelling reasons exist to release a defendant. See, e.g., United States v. Rodriguez , 424 F.Supp.3d 674, 682 (N.D. Cal. 2019) ; United States v. Urkevich , No. CR03-37, 2019 WL 6037391, at *3 (D. Neb. Nov. 14, 2019) ; United States v. Brown , 411 F.Supp.3d 446, 451-52 (S.D. Iowa 2019) ; United States v. Fox , CR14-03, 2019 WL 3046086, at *3 (D. Me. July 11, 2019) ; United States v. Beck , 425 F.Supp.3d 573, 579-80 (M.D.N.C. 2019) ; United States v. Cantu , 423 F.Supp.3d 345, 350-52 (S.D. Tex. 2019). Other courts have concluded that extraordinary and compelling reasons exist only if they are included in the Guideline. See, e.g., United States v. Lynn , No. CR89-0072, 2019 WL 3805349, at *4 (S.D. Ala. Aug. 13, 2019).

As I have previously stated, I agree with those courts that have found that although the Guideline provides helpful guidance on what constitutes extraordinary and compelling reasons, it is not conclusive given the recent statutory changes. See United States v. Schmitt , No. CR12-4076-LTS, 2020 WL 96904, at *3 (N.D. Iowa Jan. 8, 2020) ; see also Rodriguez , 424 F.Supp.3d at 681-82 (Congress knew that the BOP rarely granted compassionate release requests prior to the FSA, and the purpose of the FSA is to increase the number of compassionate release requests granted by allowing defendants to file motions in district courts directly even after the BOP denies their request); Brown , 411 F.Supp.3d at 450-51 (same).

IV. DISCUSSION

A. Exhaustion of Administrative Remedies

On February 26, 2020, Conner submitted an administrative request for compassionate release to his warden. Doc. No. 147-2. The request did not mention the COVID-19 pandemic but did refer to his medical conditions. Id....