United States v. Gibson

UNITED STATES OF AMERICA, Plaintiff, v. JAMALL GIBSON, Defendant.

Case No. 11-20551

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 22, 2021

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION AND DENYING DEFENDANT'S SECOND MOTION TO REDUCE SENTENCE

Defendant Jamall Gibson pleaded guilty to conspiracy to distribute and possess with intent to distribute controlled substances, 21 U.S.C. § 841(a)(1), (b)(1)(C). (ECF No. 1088, PageID.5963.) On May 8, 2015, the court sentenced him to 151 months imprisonment. (Id., PageID.5964.) His projected date of release, assuming good behavior, is in April 2026. (ECF No. 1898-2, PageID.19428.)

Defendant first filed a "Motion to Reduce Sentence" in September 2020. (ECF No. 1875.) He argued that the health risk presented by the Coronavirus Disease ("COVID-19") at his location of confinement, FCI Milan, warranted compassionate release under 18 U.S.C. § 3582(c)(1)(A). Even after assuming that Defendant's risk of contracting COVID-19 represented an "extraordinary and compelling reason" for Defendant's release, this court examined the applicable sentencing factors 18 U.S.C. § 3582(c)(1)(A) and concluded that Defendant's release was "not warranted." (See ECF No. 1925.) Defendant now seeks reconsideration of this decision. (ECF No. 1931.) And, Defendant has also filed, pro se, a second "Motion to Reduce Sentence[,]" arguing he should be released so he can serve as a caregiver for his son. (ECF No. 1942.)

The federal compassionate release statute has "three substantive requirements." United States v. Hampton, 985 F.3d 530, 532 (6th Cir. 2021). First, the court may reduce a term of imprisonment if it determines "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A). Second, the sentencing factors provided under 18 U.S.C. § 3553(a) must weigh in favor of a sentence reduction. Third, a sentence reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." Id.

A motion requesting a prisoner's compassionate release may be filed either by the Bureau of Prisons ("BOP") or by the prisoner himself. 18 U.S.C. § 3582(c)(1)(A). The Sixth Circuit held in United States v. Jones, 980 F.3d 1098, 1110-11 (6th Cir. 2020), that when a prisoner moves for compassionate release himself there is no "applicable policy statement[] issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). Thus, when a prisoner moves for compassionate release, the requirement in § 3582(c)(1)(A) that a sentence reduction be "consistent with [a] policy statement[]" does not apply, and courts are to ignore it. Jones, 980 F.3d at 1111; accord United States v. Elias, 984 F.3d 516, 519-20 (6th Cir. 2021). To obtain compassionate release, a prisoner must nevertheless present "extraordinary and compelling" circumstances and must have § 3553(a)'s sentencing factors that weigh in his favor. 18 U.S.C. § 3582(c)(1)(A); see Jones, 980 F.3d at 1108, 1111 (holding that a court has "full discretion to define 'extraordinary and compelling'" and must also "determine whether, in its discretion, [a] reduction . . . is warranted" under § 3553(a)).

I. Motion for Reconsideration

First, the court will address Defendant's motion for reconsideration of the court's January 2021 opinion denying Defendant's first motion for compassionate release. (See ECF No. 1931.) To prevail on a motion for reconsideration, Defendant "must not only demonstrate a palpable defect . . . but also show that correcting the defect will result in a different disposition of the case." E.D. Mich. LR 7.1(h)(3); see also Indah v. U.S. Sec. & Exch. Comm'n, 661 F.3d 914, 924 (6th Cir. 2011) (explaining that this standard requires movant demonstrate both the "palpable defect" and "different disposition" elements). "A 'palpable defect' is a defect which is obvious, clear, unmistakable, manifest, or plain." Hawkins v. Genesys Health Sys., 704 F. Supp. 2d 688, 709 (E.D. Mich. 2010) (Borman, J.) (quoting Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich. 2001) (Lawson, J.)).

Defendant fails to make even a substantial attempt at identifying a palpable defect but instead complains that the court did not assign enough weight to certain § 3553(a) factors. (See, e.g., ECF No. 1931, PageID.19821 (arguing that a "palpable defect occurred by failing to give substantial weight [to] 18 U.S.C. § 3582(a)(2)(D)").) Precedent is clear that the court has "broad discretion" in weighing such § 3553(a) sentencing factors, so Defendant has failed to identify a palpable defect. See United States v. Austin, 825 F. App'x 324, 325 (6th Cir. 2020) (quoting United States v. Kontrol, 554 F.3d 1089, 1093 (6th Cir. 2009)). Defendant's motion for reconsideration is simply another recitation of the arguments the court rejected in Defendant's first motion for compassionate release. See, e.g., Settles v. Lafler, No. 06-10496, 2008 WL 596881, at*1 (E.D. Mich. Mar. 4, 2008) (Cohn, J.) (denying a motion for reconsideration where "[p]etitioner essentially repeats the arguments considered and rejected" in the original motion).

Even if, arguendo, the court assumed that Defendant had presented a valid argument for reconsideration, the broad availability of effective COVID-19 vaccines means that Defendant's risk of infection clearly does not represent an extraordinary and compelling reason for release. See 18 U.S.C. § 3582(c)(1)(A). "Extraordinary" is defined as "exceptional to a very marked extent." Extraordinary, Webster's Third International Dictionary, Unabridged (2020). "Compelling" is defined as "tending to convince or convert by or as if by forcefulness of evidence." Compelling, Webster's Third International Dictionary, Unabridged (2020). Courts have interpreted "extraordinary" in the context of compassionate release as "beyond what is usual, customary, regular, or common," and a "'compelling reason" as "one so great that irreparable harm or injustice would result if the relief is not granted." United States v. Sapp, Case No. 14-20520, 2020 WL 515935, at *3 (E.D. Mich. Jan. 31, 2020) (Leitman, J.); United States v. Murphy, Case No. 15-20411, 2020 WL 2507619, at *5 (E.D. Mich. May 15, 2020) (Cox, J.).

On April 28, 2021, the BOP offered Defendant a COVID-19 vaccine. In a signed statement, he refused to receive the Moderna vaccine. (ECF No. 1948, PageID.19947.) Available scientific evidence demonstrates that the currently authorized vaccines are extraordinarily effective at reducing the risk of COVID-19 infection. See, e.g., Moderna COVID-19 Vaccine Overview and Safety, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Moderna.html(last visited June 14, 2021) (noting that the Moderna vaccine was "94.1% effective at preventing laboratory-confirmed COVID-19 illness"); Mark G. Thompson et al., Interim Estimates of Vaccine Effectiveness (2021) (finding that mRNA vaccines, such as the Pfizer and Moderna vaccines, are 90% effective at preventing both asymptomatic and symptomatic COVID-19 infections). The court is aware of no scientifically derived evidence showing that there is a material risk of severe complications or death from COVID-19 to fully vaccinated individuals.

The court does not find that the existence of COVID-19, and the possibility Defendant could contract the disease in the future, present extraordinary and compelling circumstances. 18 U.S.C. § 3582(c)(1)(A). Defendant was given the opportunity to receive a safe, effective, and reliable vaccine, and he refused. Centers for Disease Control and Prevention, supra; Thompson et al, supra. (ECF No. 144-1, PageID.1565.)

Defendant does not convincingly establish that his conditions are exceptional and demand immediate release when he intentionally prevents prison officials from mitigating dangers to his health and safety. 18 U.S.C. § 3582(c)(1)(A). A prisoner will not be heard to complain of the risk of severe illness while he simultaneously avoids basic, sensible precautionary measures such as vaccination. Allowing a prisoner to qualify for compassionate release in the face of his refusal to receive a COVID-19 vaccine would serve to discourage prisoners from becoming vaccinated. This court is exceedingly hesitant to provide prisoners an incentive to increase their risk of contracting COVID-19 and developing severe symptoms. Such a result would be plainly counter-productive and dilute the ameliorative purposes of compassionate release.

Consistent with this reasoning, courts have regularly denied motions for compassionate release on the basis of COVID-19 when prisoners have declined to receive a COVID-19 vaccine. See, e.g., United States v. Toney, Case No. 17-20184, 2021 WL 1175410, at *1 (E.D. Mich. Mar. 29, 2021) (Levy, J.) ("Courts in this circuit have consistently refused to find extraordinary and compelling medical circumstances when a defendant declines the COVID-19 vaccine."); United States v. Carter, Case No. 13-20422, 2021 WL 1310784, at *3 (E.D. Mich. Apr. 8, 2021) (Murphy, J.) (holding that a prisoner did not present extraordinary or compelling circumstances where the prisoner "declined to receive the COVID-19 vaccine"); United States v. Cohen, Case No. 09-20326, 2021 WL 1575300, at *2 (E.D. Mich. Apr. 22, 2021) (Edmunds, J.) ("The Court agrees with courts that have found that access to the vaccine mitigates the health concerns that may otherwise constitute extraordinary and compelling reasons in light of the pandemic."); United States v. MacGregor, Case No. 15-20093, 2021 WL 1378786, at *1 (E.D. Mich. Apr. 12, 2021) (Leitman, J.) (holding that a prisoner "failed to show that there were extraordinary and compelling reasons justifying his release because a COVID-19 vaccine had been offered to him, and he declined to take the vaccine").

Furthermore, and despite Defendant's choice to refuse a COVID-19 vaccine, prison authorities have...