United States v. Curry

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT T. CURRY, Defendant.

Criminal No. ELH-17-0387

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

January 14, 2021

MEMORANDUM OPINION

Robert T. Curry, defendant, was convicted in 2018 of conspiracy to distribute heroin, for which he is serving a sentence of 84 months' imprisonment at FCI Morgantown, with credit dating to August 15, 2017. ECF 32. Defendant filed a pro se motion for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A). ECF 34. He also provided several exhibits. Curry subsequently amended his submission. ECF 36. Thereafter, through appointed counsel, defendant filed a memorandum in support of his motion (ECF 37), along with additional exhibits. ECF 39. I shall refer to ECF 34, ECF 36, and ECF 37 collectively as the "Motion."

The government opposes the Motion. ECF 44. It has submitted an exhibit. Defendant replied (ECF 47) and also submitted a supplemental reply. ECF 49.

No hearing is necessary to resolve the Motion. For the reasons that follow, I shall grant the Motion, in part.

I. Background

On July 20, 2017, a grand jury in the District of Maryland returned an indictment against the defendant (ECF 1), charging him with conspiracy to possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846 (Count One), and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841 (Count Two).

The defendant entered a plea of guilty as to Count One of the indictment on November 2, 2017 (ECF 23), pursuant to a Plea Agreement. ECF 25. The plea was tendered under Fed. R. Crim. P. 11(c)(1)(C), by which the parties agreed to a term of imprisonment ranging from 72 months to 96 months of incarceration. Id. ¶ 7.

The Plea Agreement included a stipulation of facts. Id. at 8. According to the factual stipulation, between the beginning of 2016 and the defendant's arrest in April 2017, Curry was involved in trafficking heroin in and around western Maryland. Id. On April 17, 2017, defendant and a coconspirator drove to New York to obtain a new supply of heroin. Id. Their vehicle was stopped by law enforcement on the drive back from New York, and a canine alerted the officers to the presence of drugs. A search of the vehicle revealed approximately 300 grams of heroin as well as fentanyl in a bookbag that belonged to Curry. Id. The defendant admitted that he had taken at least eight trips to New York, where he usually purchased about 100 grams of heroin each time, for the purpose of distribution. Id.

Sentencing was held on February 2, 2018. ECF 31. According to the Presentence Investigation Report ("PSR," ECF 27), defendant was 31 years old. Id. at 3. He reported that he had surgery after his lungs collapsed when he was born and had two hernia repair surgeries in 2000. Id. ¶ 49. He also reported that he had been in a car accident in 2000, which resulted in back and leg issues and required him to take pain medication. Id. ¶ 50. Further, he started consuming alcohol at the age of 11 and began using opiates at the age of 14 after being prescribed pain medication for his hernia surgery. Id. ¶¶ 56, 57. He reported that his addiction to the medications increased over time and transformed into a daily heroin habit that lasted until he was arrested in April 2017. Id.

The PSR reflected a final offense level of 25. Id. ¶ 23. And, the defendant had nine criminal history points, resulting in a Criminal History Category of IV. Id. ¶ 33. The offense required a mandatory minimum term of imprisonment of five years, with a maximum exposure of 40 years. See 21 U.S.C. §§ 846, 841(b)(1)(B)(i); ECF 27, ¶ 72. Curry's advisory sentencing guidelines ("Guidelines") called for a sentence ranging between 84 months and 105 months of imprisonment. Id. ¶ 68. And, as noted, the "C Plea" called for a range of 72 to 96 months.

The Court imposed a sentence of 84 months' imprisonment, with credit for time served in federal custody from August 15, 2017. ECF 32. Therefore, the defendant has served about 41 months of his sentence, or roughly half. Curry is currently serving his sentence at FCI Morgantown, which is a minimum-security institution. He has a projected release date of August 2, 2023. ECF 34-2 at 3.

In addition to the pain and difficulties resulting from his previous surgeries, defendant now suffers from hepatitis C. ECF 37 at 1; see ECF 39-2 (Medical Records); ECF 44-1 (Medical Records). He submitted a request for compassionate release to the Warden on May 28, 2020. ECF 34-4 at 2. The request was promptly denied. Id. at 1.

II. Standard of Review

Ordinarily, a court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020); United States v. Jackson, 952 F.3d 492, 495 (4th Cir. 2020); United States v. Martin, 916 F.3d 389, 395 (4th Cir. 2019). But, "the rule of finality is subject to a few narrow exceptions." Freeman v. United States, 564 U.S. 522, 526 (2011). One such exception is when the modification is "expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B); see Jackson, 952 F.3d at 495.

Commonly termed the "compassionate release" provision, 18 U.S § 3582(c)(1)(A)(i)provides a statutory vehicle to modify a defendant's sentence. Section 3582 was adopted as part of the Sentencing Reform Act of 1984. It originally permitted a court to alter a sentence only upon a motion by the Director of the BOP. See Pub. L. No. 98-473, § 224(a), 98 Stat. 2030 (1984). Thus, a defendant seeking compassionate release had to rely on the BOP Director for relief. See, e.g., Orlansky v. FCI Miami Warden, 754 F. App'x 862, 866-67 (11th Cir. 2018); Jarvis v. Stansberry, No. 2:08CV230, 2008 WL 5337908, at *1 (E.D. Va. Dec. 18, 2008) (denying compassionate release motion because § 3582 "vests absolute discretion" in the BOP).

However, for many years the safety valve of § 3582 languished. The BOP rarely filed motions on an inmate's behalf. As a result, compassionate release was exceedingly rare. See Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm'n 66 (2016) (statement of Michael E. Horowitz, Inspector General, Dep't of Justice) (observing that, on average, only 24 inmates were granted compassionate release per year between 1984 and 2013).

In December 2018, Congress significantly amended the compassionate release mechanism when it enacted the First Step Act of 2018 ("FSA"). See Pub. L. 115-391, 132 Stat. 5239 (2018); see United States v. McCoy, 981 F.3d 271, 276 (4th Cir. 2020). As amended by the FSA, 18 U.S.C. § 3582(c)(1)(A) permits a court to reduce a defendant's term of imprisonment "upon motion of the Director of [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 occurs first. So, once a defendant has exhausted his administrative remedies, he may petition a court directly for compassionate release. McCoy, 981 F.3d at 276.

Under § 3582(c)(1)(A), the court may modify the defendant's sentence if, "afterconsidering the factors set forth in section 3553(a) to the extent that they are applicable," it finds that

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

(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 . . . .

Accordingly, in order to be entitled to relief under 18 U.S.C. § 3582(c)(1)(A)(i), the defendant must demonstrate that (1) "extraordinary and compelling reasons" warrant a reduction of his sentence; (2) the factors set forth in 18 U.S.C. § 3553(a) countenance a reduction; and (3) the sentence modification is "consistent" with applicable policy statements issued by the Sentencing Commission.

Notably, "Section 3582(c)(1)(A)(i) does not attempt to define the 'extraordinary and compelling reasons' that might merit compassionate release." McCoy, 981 F.3d at 276. But, in U.S.S.G. § 1B1.13, titled "Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A) Policy Statement," the Sentencing Commission addressed the "extraordinary and compelling reasons" that might warrant compassionate release. See McCoy, 981 F.3d at 276. The Sentencing Commission acted pursuant to 28 U.S.C. § 994(t), as well as § 994(a)(2)(C). McCoy, 981 F.3d at 276. However, as the McCoy Court observed, the policy statement was issued in 2006 and was last updated in November 2018, prior to the enactment of the First Step Act in December 2018. Id.

In particular, U.S.S.G. § 1B1.13 provides that, on motion by the Director of the BOP, the court may reduce a sentence where warranted by extraordinary or compelling reasons (§ 1B1.13(1)(A)); the defendant is at least 70 years old and has served at least 30 years in prison (§1B1.13(1)(B)); the defendant is not a danger to the safety of any other person or to the community (§ 1B1.13(2)); and the reduction is consistent with the policy statement. U.S.S.G. § 1B1.13(3).

The Application Notes to U.S.S.G. § 1B1.13 indicate that compassionate release may be based on circumstances involving illness, declining health, age, exceptional family circumstances, as well as "other reasons." U.S.S.G. § 1B1.13 App. Notes 1(A)-(D). Application Note 1 to U.S.S.G. § 1B1.13 defines "Extraordinary and Compelling Reasons" in part as follows:

1. Extraordinary and Compelling Reasons.—Provided the

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