United States v. Desanges

1

UNITED STATES OF AMERICA v. OMAR YUSUF DESANGES, Defendant

No. 5:95-CR-70046-1

United States District Court, W.D. Virginia, Harrisonburg Division

May 8, 2023

MEMORANDUM OPINION

Michael F. Urbanski Chief United States District Judge

Defendant Omar Yusuf DesAnges, originally proceeding pro se but later represented by counsel, has filed three motions to reduce his sentence pursuant to die First Step Act of 2018 Pub. L. No. 115-015. ECF Nos. 95,109. He asks that his sentence be reduced from life to 235 months or time served whichever reduction is greater. The government filed a response arguing that DesAnges is not eligible for relief under the First Step Act ECF No. 119. DesAnges also has filed two motions for compassionate release, one which he filed pro se, ECF No. 124, with a supplement, ECF No. 128 and one which counsel filed on his behalf, ECF No. 132.^[1] The government has responded to the motions for compassionate release. ECF No. 133- As the issues have been fully briefed, the court does not believe a hearing will aid in the decisional process.

As discussed more fully below, the court DENIES the motions for compassionate release and GRANTS? in part the motions for First Step Act relief. DesAnges' sentence will be reduced from life to 450 months, to be followed by a 4-year term of supervised release.

I. Background

On June 23, 1995, DesAnges, who was 23 at the time, was charged in a superseding indictment with the following:

(1) intentionally, knowingly, and unlawfully killing Sanford Datcher while engaging in a conspiracy to distribute 50 grams or more of cocaine base, (an offense punishable under 21 U-S-C § 841(b)(1)(A)(iii)), in violation of 21 U.S.C. § 848(e)(1)(A) (Count 1);

(2) carrying and using a firearm in the course pf committing the crime of conspiracy to distribute cocaine base, and causing the death of Datcher through the use of the firearm, in violation of 18 U.S.C. § 924(c) and 924(i)(1) (Count 2);

(3) conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and $46 (Count 3); and

(4) using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C § 924(c) (Count 4).

Superseding Indictment, ECF No. 11.

The Pre-Sentence Investigation Report (PSR), described the facts of Datcher's murder.

Datcher was an associate of DesAnges and on December 6,1994, Datcher was sentenced for possession of cocaine in state court. At the sentencing hearing, Datcher testified that he assisted the Drug Task Force in order to gain consideration for a reduced sentence. PSR, ECF No. 99 ¶ 9. Two people who were present in court reported to DesAnges that Datcher testified about cooperating. DesAnges became upset about the possibility of Datcher telling authorities about DesAnges' involvement in drug trafficking and was heard to say several times that the next time he saw Datcher he was going to "get him." Id

On the evening of December 23, 1994, Datcher and a friend, Dawn Ford, were in Ford's automobile in Clarke County, Virginia. DesAnges approached the automobile and fired thirteen shots from a .40 caliber semi-automatic handgun into the driver's side window, killing Datcher and wounding Ford. Id. ¶10- DesAnges fled on foot and later traveled to Washington, D.C. where he disassembled the handgun and threw it into the Potomac River. DesAnges called one of the people who had been at Datcher's hearing and asked, "Did I do good?" The person informed DesAnges that Datcher was dead. Id. DesAnges was arrested on January 9, 1995 in Washington, D.C. on a warrant obtained for a state firearms violation. Id. ¶¶ 10-11.

After the murder, DesAnges met with two associates and told them, "If I go down you all go down with me." One of the associates stated that he was very afraid of DesAnges and believed DesAnges was capable of retaliating against him. Id. ¶14.

On March 28, 1996, DesAnges entered into a plea agreement in which he pled guilty to Counts 1, 3, and 4. Count 2 was dismissed on motion of the government. ECF Nos. 39, 61. In exchange for his guilty plea, the government agreed not to pursue the death penalty on Count 1. Plea Agreement, ECF No. 61 at 3.

According to the PSR, Counts 1 and 3 were grouped in accordance with United States Sentencing Guidelines (USSG or guidelines) § 3D1.2(b) and (c), with the highest offense level of the group determining the offense level for the group. Count 4 carried a mandatory 60-month sentence and was precluded from grouping or guidelines computations. PSR, ECF No. 99 ¶ 17. The sentencing guidelines called for a base offense level of 43 for a violation of 21 U.S.C. § 848(e)(1)(A). USSG § 2A1.1. In the PSR, DesAnges' sentence was calculated as having a 2-point increase because he directed at least three individuals in die distribution of cocaine base, a 2-point increase for obstruction of justice after he threatened or intimidated witnesses during the course of the investigation, and a 3-point decrease for acceptance of responsibility, resulting in a total offense level of 44, but treated as an offense level of 43 in accordance with USSG Ch. 5, Pt. A, App. Note 2. PSR, ECF No. 99 ¶¶ 17-27. However, in the addendum to the PSR, it appears that the court sustained an objection to one of the 2-point increases and found that DesAnges had a total offense level of 42. See Addendum to PSR, ECF No. 100 at 1, 4; Sentencing Tr., ECF No. 137 at 62.

On Count 1, DesAnges faced a statutory minimum sentence of 20 years and a maximum of life. 21 U.S.C. § 848(e)(1)(A). On Count 3 his statutory sentencing range was 10 years to life. 21 U.S.C. § 841(b)(1)(A). On Count 4 he faced a statutory sentence of 60 months, to run consecutively to all other sentences. 18 U.S.C. § 924(c)(1)(A)(i). With a total offense level of 42 and a criminal history category of II, his guidelines range for imprisonment was 360 months to life, to be followed by 5 years on Count 4. Addendum to PSR, ECF No. 100 at 1; USSG Ch. 5 Pt. A.

On July 2, 1996, the court sentenced DesAnges to life on Counts 1 and 3 and to 60 months to run consecutively on Count 4. The sentences were to be followed by a 5-year period of supervised release on Counts 1 and 3 and a 3-year period of supervised release on Count 4, to run concurrently. ECF Entry of July 2, 1996. The court commented that it chose the life sentence "because of the callousness and the lack of respect for human life evidenced by the defendant's acts; and also for the reasons the court articulated in open court in concluding that there existed bases for departure (although defendant was sentenced within the applicable guideline range without a departure)." Statement of Reasons attached to Addendum to PSR, ECF No. 100 at 4; Sentencing Tr., ECF No. 137 at 61-62.^[2] DesAnges has served approximately 336 months. According to the Bureau of Prisons website, DesAnges is incarcerated at FCI Fairton.^[3]

II. Compassionate Release

DesAnges argues that he is entitled to compassionate release based on his vulnerability to COVID-19 and also because if he were sentenced today, he would receive a significantly shorter sentence. The compassionate release statute, 18 U.S.C § 3582(c)(1)(A), as amended by the First Step Act ("FSA"), authorizes courts to modify terms of imprisonment as follows:

The court may not modify a term of imprisonment once it has been imposed except that-in any case-the 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).

Accordingly, DesAnges' requested relief requires the court to consider (1) if he exhausted his administrative remedies; (2) if so, whether there are extraordinary and compelling reasons that warrant a reduction in his sentence; and (3) if so, what, if any, sentence reduction is appropriate after considering the applicable 18 U.S.C. § 3553(a) factors.

Regarding exhaustion of administrative remedies, DesAnges asserts and provides evidence that he submitted his request for compassionate release to the Warden of FCI Butner which was denied on March 25, 2021. ECF No. 124-1 at 8. The government does not contest that DesAnges has exhausted his administrative remedies as required under 18 U.S.C. § 3582(c)(1)(A). Accordingly, the court finds that DesAnges has satisfied the statute's exhaustion requirements.

The court must next consider whether DesAnges has shown an extraordinary and compelling reason for a reduction in his term of imprisonment. The United States Sentencing Commission Guidelines Manual § 1B1.13 policy statement provides that "extraordinary and compelling reasons" exist where (A) the defendant is suffering from a terminal or serious medical condition; . (B) the defendant is over 65 years old, has failing health, and has served at least ten years or 75 percent of his sentence, whichever is less; (C) the caregiver of the defendant's minor child dies or becomes incapacitated, or the defendant's spouse or partner becomes...