United States v. Duncan

478 F.Supp.3d 669

UNITED STATES of America

v.[14] Demetrius DUNCAN

No. 3:11-cr-00012

United States District Court, M.D. Tennessee, Nashville Division.

Filed August 12, 2020

Byron M. Jones, Sunny A.M. Koshy, John Benjamin Schrader, John K. Webb, Nani Gilkerson, U.S. Attorney's Office, Nashville, TN, for United States of America.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Demetrius Duncan has filed a Supplemental Motion for Compassionate Release (Doc. No. 3041), to which the Government has responded in opposition (Doc. No. 3044), and Duncan has replied (Doc. No. 3057). After considerable thought, and for the reasons set forth below, Duncan's Motion will be granted.

I. Background

Duncan was one of thirty-six individuals charged in a far-reaching Indictment¹ relating to the distribution of cocaine and crack cocaine in and around the Summit Heights public housing development in Clarksville, Tennessee between 2009 and 2013. More specifically, he was charged with conspiring to possess with intent to distribute 500 grams or more of cocaine and 280 grams or more of crack cocaine between January and December 2010 (Count One); possessing with intent to distribute cocaine on December 11, 2010 (Count Sixteen); possessing a firearm in furtherance of a drug trafficking crime between November 10, and December 11, 2010 (Count Seventeen); and possessing a firearm as a convicted felon during that same time period (Count Eighteen).

Only Duncan and two other Defendants – Chris Young and Alto Parnell – exercised their constitutional right to trial by a jury. As a result of going to trial, each faced a mandatory life sentence because the Government had filed Informations under 18 U.S.C. § 851 alleging that each Defendant had two or more prior felony drug convictions. (Doc. Nos. 1112, 1135, 1164).² After a twelve day trial, all three were found guilty of conspiring to distribute cocaine and crack cocaine as alleged in Count One, along with other crimes. All three were sentenced by then-Judge Kevin H. Sharp to life imprisonment on Count One because of the statutory enhancements. In addition to life imprisonment, Duncan was sentenced to concurrent sentences of 360 months on Count Sixteen, 180 months on Count Eighteen, and a mandatory consecutive sentence of 60 months on Count Seventeen.³

Duncan was sentenced on April 27, 2015. However, he had already been in custody for almost 4½ years, having been arrested on December 11, 2010 and detained since then. Thus, he has served almost ten years in prison as a result of his participation in the drug conspiracy alleged in the Indictment.

At sentencing, Duncan requested – and Judge Sharp recommended in the Judgment – that Duncan serve his sentence at the Federal Medical Center in Lexington, Kentucky. (Doc. No. 2615, at 58; 64; Doc. No. 2582 at 2). Nevertheless, Duncan is presently serving his sentence at the United States Penitentiary in Terre Haute, Indiana.⁴ A request for compassionate release was sent to the Warden of that facility on June 10, 2020. (Doc. No. 3044). To date, there has been no response.

II. Statutory Framework

"By statute, a federal court ‘may not modify a term of imprisonment once it has been imposed.’ " United States v. Alam, 960 F.3d 831, 832 (6th Cir. 2020) (quoting 18 U.S.C. § 3582(c) ). "But that rule comes with a few exceptions, one of which permits compassionate release." Id. "Before the First Step Act of 2018, such relief was available only on motion of the Director of the Bureau of Prisons, but the new statute allows a prisoner to seek relief on his own initiative." United States v. Loggins, No. 19-2689, 966 F.3d 891, 892 (8th Cir. July 31, 2020).

Section 3582(c), as amended by the First Step Act, provides, in relevant part:

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 ..., after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... 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). Section 3582(c) does not define "extraordinary and compelling reasons." Instead, in describing the duties of the Sentencing Commission, Congress directed the Commission to "promulgat[e] general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A)" and "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C.§ 994t.⁵ The Commission did so in United States Sentencing Guidelines ("U.S.S.G.") § 1B1.13 and its application notes.

The application notes describe three categories where extraordinary and compelling circumstances may be found to exist: (1) the medical condition of the defendant; (2) his or her age; and (3) his or her family circumstances, only the first of which is at issue here. With regard to the medical condition of a defendant, the application notes provides that compassionate release can be appropriate where:

(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.

U.S.S.G. § 1B1.13, comment n. 1(A)-(C).

Additionally, the application notes contains a catch-all provision. It provides:

(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).

Id., comment note (D).

Notably, the catch-all provision is different from the three other specific provisions because it is prefaced with the phrase, "as determined by the Director of the Bureau of Prisons." This seems to be a redundancy, however, because at the time the application notes were drafted, only the Bureaus of Prison could determine whether compassionate release was appropriate and "a district court could grant relief under § 3582(c)(1)(A) only on a motion by the BOP." United States v. Chambliss, 948 F.3d 691, 693 n.1 (5th Cir. 2020). That changed with the enactment of the First Step Act, but the application notes have not been updated since then, if for no other reason than there has not been a quorum on the Sentencing Commission to conduct business. See United States v. Rodd, 966 F.3d 740, 745-47 & n.9 (8th Cir. 2020) (observing that the policy statement regarding § 1B1.13 and compassionate release "has not been amended since the passage of the First Step Act," and noting the lack of a quorum on the Sentencing Commission); United States v. Handerhan, 789 F. App'x 924, 925 (3d Cir. 2019) (noting that the "[t]he Sentencing Commission has not yet amended § 1B1.13 or its commentary to account for the First Step Act").

Because the policy statements relating to compassionate release and U.S.S.G. § 1B1.13 have not been updated, the majority of the courts to have addressed the issue have determined that a court reviewing a request for compassionate release under the First Step Act can look not only at the three specific categories listed in application notes 1(A)-(C), but may also consider the "other reasons" category as set forth in application note 1(D). Compare, United States v. Lisi, 440 F. Supp. 3d 246, 250 (S.D.N.Y. 2020) ("[T]he Court finds that the majority of district courts to consider the question have found that the amendments made to 18 U.S.C. § 3582(c)(1)(A) grant this Court the same discretion as that previously give to the BOP Director, and therefore the Court may independently evaluate whether [defendant] has raised an extraordinary and compelling reason for compassionate release."); United States v. Ward, No. 3:99-CR-00064-HDM, 2020 WL 4452046, at *2 (D. Nev. Aug. 3, 2020) (collecting cases and agreeing "with the well-reasoned decisions that district courts may base a finding of extraordinary and compelling reasons on the catch-all provision"); United States v. Thornton, No. CR 2:18-167-1, 2020 WL 4368155, at *3 (W.D. Pa. July 29, 2020) ("Consistent with the majority of courts that have considered this issue, I have found that the "catch-all" provision under (D) permits courts to independently assess whether ‘extraordinary and compelling reasons’ exist[.]"); with United States v. Rivernider, No. 10 Cr. 222, 2020 WL 597393, at *3 D. Conn. Feb. 7, 2020 (identifying cases where courts have determined that the BOP remains the gatekeeper of the catch-all category); United States v. Lynn, 2019 WL 3805349, at *2–4 (S.D. Ala. Aug. 13, 2019) (holding that courts must follow the policy statement as it stands and that the Director of the BOP is the ultimate arbiter of what counts as "extraordinary and compelling" under the catchall provision).

In this district, Judge Eli Richardson has held that "where (as here) the Director of BOP has not determined that any...