United States v. Davis

581 F.Supp.3d 759

UNITED STATES of America,

v.Edward Demond DAVIS, Defendant.

CRIMINAL NO.4:08cr144

United States District Court, E.D. Virginia.

Signed January 25, 2022

Counsel for United States: David M. Coleman, Assistant United States Attorneys, 721 Lakefront Commons, Suite 300, Newport News, VA 23606.

Defendant: Edward Demond Davis, Pro Se.

OPINION AND ORDER

REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the court on Defendant's "Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A) (Compassionate Release)" ("Motion"), filed pro se and subject to defect on April 26, 2021, with the defect lifted on June 29, 2021. ECF No. 559 at 22 ; ECF No. 567. For the reasons explained below, Defendant's Motion is DENIED .¹

I. PROCEDURAL HISTORY

On November 17, 2009, Defendant pleaded guilty to Counts One, Five, Thirteen, and Twenty-Eight of a forty-count, multiple-defendant Superseding Indictment. ECF Nos. 30, 294, 295. Count One charged Defendant with Conspiracy to Engage in Racketeering Acts, in violation of 18 U.S.C. § 1962(d). ECF No. 30 at 2-23. Count Five charged Defendant with Discharging a Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1) and 2. Id. at 29. Count Thirteen charged Defendant with Brandishing a Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1). Id. at 37. Count Twenty-Eight charged Defendant with Use of a Firearm Resulting in Death, in violation of 18 U.S.C. § 924(c)(1) and (j). Id. at 55. On March 16, 2010, the court sentenced Defendant to imprisonment for life plus four hundred twenty (420) months, consecutive.² ECF No. 337 at 2.

Defendant filed the instant Motion subject to defect on April 26, 2021, with the defect lifted on June 29, 2021, requesting release from incarceration. ECF Nos. 559, 567. In his Motion, Defendant claims four reasons to warrant a reduction in sentence:

(1) the spread of the novel Coronavirus ("COVID-19") and its effect on his physical and mental health conditions, ECF No. 559 at 5-7, 22;(2) the effect of his stacked sentences under 18 U.S.C. § 924(c) in light of United States v. McCoy, 981 F.3d 271 (4th Cir. 2020) ;³

(3) a desire to be with his family, ECF No. 559 at 6-8 ; and

(4) his rehabilitation, id. at 7-8.

The United States filed a Response in Opposition on July 29, 2021, ECF No. 571, and additional documents supporting its position on September 21, 2021, ECF No. 577. Defendant filed a Reply on September 14, 2021. ECF No. 575.⁴ The next day, Defendant filed a "Motion for Legal Notice and Demand." ECF No. 578. The court CONSTRUES this filing as a submission, rather than a motion, as it did not request any particular form of relief. Id. Instead, Defendant used it to "serve notice of record" that he "claim[s] exemption" to receiving the COVID-19 vaccine on religious grounds under the First Amendment to the United States Constitution. See id. at 1; U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....").

II. EXHAUSTION OF ADMINISTRATIVE REMEDIES

"[T]he default position ... is that a sentencing court ‘may not modify a term of imprisonment once it has been imposed.’ " United States v. High, 997 F.3d 181, 185 (4th Cir. 2021) (quoting 18 U.S.C. § 3582(c) ). Nonetheless, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the court may modify a term of imprisonment if it finds that "extraordinary and compelling reasons warrant such a reduction." Id. Before the court may consider such a motion filed by a defendant, however, the defendant must have "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf," or there must have been a "lapse of 30 days from the receipt of such a request by the warden of the defendant's facility." Id. § 3582(c)(1)(A).

Defendant submitted a request for compassionate release to the warden of the institution where he is incarcerated on March 16, 2021. ECF No. 559 at 22. Notably, Defendant's request did not raise his consecutive § 924(c) sentences, rehabilitation, or need to reunite with his family as justifications for a sentence reduction. Id. The warden responded to Defendant's request on March 29, 2021, explaining that because Defendant is "a Care Level one inmate," he did not qualify for compassionate release through the Bureau of Prisons’ ("BOP") administrative process and would "need to file through the courts [himself]." Id. at 3, 21.

The United States maintains "that a defendant must present the same claims in support of compassionate release to BOP that he presents to the Court," and that "[b]ecause Defendant never presented his claim about sentencing disparity to BOP, he cannot assert if for the first time before [the court]." ECF No. 571 at 20-21. The court has previously noted the split of authority concerning this issue. See United States v. Bryant, No. 2:92-cr-88, slip op. at 2-5 (E.D. Va. Jan. 13, 2021) (Smith, J.) (identifying split but declining to resolve the question of law where waiver of exhaustion requirement was appropriate). As in Bryant, the court finds that Defendant may very well have satisfied the administrative exhaustion requirement, in line with United States v. Brown and other cases similarly holding. 457 F. Supp. 3d 691, 697 (S.D. Iowa 2020) (noting that 18 U.S.C. § 3582(c)(1)(A) "does not ... state that the reasons presented to the warden must mirror those presented to the district court."). However, the court does not need to resolve this question of law.

Even if Defendant has not exhausted his administrative remedies, as the United States urges, the court concludes that waiver of the exhaustion requirement is warranted under the circumstances of this case. See Casey v. United States, No. 4:18-cr-4, 2020 WL 2297184, at *1 (E.D. Va. May 6, 2020) (Jackson, J.) (noting that the exhaustion requirement can be waived when "the relief sought would be futile upon exhaustion"). The warden's response to Defendant's request made clear that the BOP would not bring a motion for compassionate release on his behalf and he would "need to file through the courts [himself]." See ECF No. 559 at 21. Therefore, the court finds any attempt by Defendant to raise additional arguments before the BOP would be futile, and that waiver of the exhaustion requirement is appropriate. See United States v. Muhammad, 16 F.4th 126, 130 (4th Cir. 2021) (holding that the exhaustion requirement "is a non-jurisdictional claim-processing rule," and therefore "may be waived or forfeited").

III. MERITS OF DEFENDANT'S MOTION

For a court to reduce a defendant's sentence under § 3582(c)(1)(A)(i), it must find that "extraordinary and compelling reasons" justify such a reduction. The defendant bears the burden of showing that this requirement is satisfied. See, e.g., United States v. Newton, 996 F.3d 485, 488 (7th Cir. 2021) ; United States v. Noel, No. 3:08-cr-186-03, 2021 WL 1602402, at *2 (E.D. Va. Apr. 23, 2021) (Payne, J.). Even if a defendant carries his burden, a court may only reduce his sentence "after considering the factors set forth in [ 18 U.S.C. §] 3553(a) to the extent that they are applicable." § 3582(c)(1)(A). Any such reduction must also be "consistent with applicable policy statements issued by the Sentencing Commission." Id.; see United States v. McCoy, 981 F.3d 271, 275-76 (4th Cir. 2020).

In McCoy, the Fourth Circuit held that, in the context of prisoner-filed § 3582(c)(1)(A) motions, "there currently exists no ‘applicable policy statement’ " because the Commission has not issued a policy statement since the passage of the First Step Act. 981 F.3d at 281-82 (alteration omitted). Therefore, until the Sentencing Commission issues an updated policy statement, "district courts are ‘empowered to consider any extraordinary and compelling reason for release that a defendant might raise.’ " Id. at 284 (alteration omitted) (quoting United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020) ); see United States v. Davis, No. 21-6960, 2022 WL 127900, at *1-2 (4th Cir. Jan. 13, 2022) (holding district court abused discretion in determining that certain claims "categorically" could never "establish a sufficient reason for release."). In particular, the Fourth Circuit held that courts "may consider, under the ‘extraordinary and compelling reasons’ inquiry, that defendants are serving sentences that Congress itself views as dramatically longer than necessary or fair." McCoy, 981 F.3d at 285-86.

Although the policy statement in United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 1B1.13 is no longer binding on this court in this case after the Fourth Circuit's decision in McCoy, the court finds certain of its provisions useful in addressing the instant Motion. For example, the court will still consider "the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable," U.S.S.G. § 1B1.13, and whether "[t]he defendant is ... a danger to the safety of any other person or to the community," id. § 1B1.13(2), because these considerations remain highly relevant to whether a reduction in sentence is warranted in this case.

A. EXTRAORDINARY AND COMPELLING REASONS

Defendant offers four matters which he contends amount to "extraordinary and compelling reasons" for a reduction in sentence, pursuant to § 3582(c)(1)(A)(i). For the reasons explained below, the court finds that none of these issues, individually or in combination, amount to an "extraordinary and compelling reason[ ]" for such a reduction. See Davis, 2022 WL 127900, at *2 (vacating denial of compassionate release where there was "no indication that the district court considered [the defendant's] circumstances, as a whole.").

1. Effect of COVID-19 on Defendant

Defendant explains that he "fear[s] contracting" COVID-19, and argues that he faces an increased threat of serious illness or death from the virus due to his underlying physical...