United States v. Gray

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT DALE GRAY, Defendant.

No. 6:96-CR-03075-MDH

United States District Court, W.D. Missouri

September 8, 2021

ORDER

DOUGLAS HARPOOL United States District Judge

Before the Court is Defendant Robert Dale Gray's Motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A) (Doc. 154). The Government filed its Suggestions in Opposition (Doc. 159), and Defendant filed his Reply Suggestions (Doc. 161). The matter is now ripe for review. For the reasons set forth herein, the Motion is GRANTED. The Court hereby reduces Gray's sentence from a life sentence to time served with 10 years of supervised release.

BACKGROUND

On November 1, 1996, a federal grand jury returned a three-count Indictment charging Gray with conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846 (Count One); possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Two); and witness tampering, in violation of 18 U.S.C § 1512(b). (Doc. 11). On November 19, 1996, the Government filed an information pursuant to 21 U.S.C. § 851, alleging Gray had two prior felony drug convictions enhancing the penalties under 21 U.S.C. § 841(b)(1)(A). (Doc. 14).

On December 18, 1996, Gray was indicted in Case Number 96-03082-01-CR-S-RGC on one count of threatening to murder a federal agent, in violation of 18 U.S.C. §§ 115 and 1114. On December 19, 1997, during Gray's sentencing for conspiracy to distribute, the Court determined that Gray's prior convictions for felony sale of methamphetamine on July 26 and July 27, 1989, qualified as separate offenses under 21 U.S.C. § 841(b)(1)(A). The convictions were charged in the same instrument and resulted from the same arrest. These prior convictions included two offenses only 48 hours apart: two counts of felony sale of methamphetamine on July 26, 1989 and July 27, 1989 as well as one count of possession of methamphetamine on July 27, 1989. These prior offenses were for the sale and possession of a total of less than two grams of methamphetamine.

On April 28, 1997, shortly after the beginning of trial for the present offense, Gray pleaded guilty to Count One, that is, conspiracy to distribute a controlled substance. In exchange, the Government agreed to dismiss the remaining counts and also the Indictment in Case Number 96-03082-01-CRS-RGC. (Doc. 74; PSR ¶ 10).. Because Gray had two prior felony drug convictions which, at that time, counted as separate offenses, he was subject to a mandatory life sentence without parole under 21 U.S.C. § 841(b)(1)(A). Id.

On September 22, 1997, this Court sentenced Gray to a term of life imprisonment, to be followed by ten years' supervised release. (Doc. 103). The Court noted that it was “bound by the statutes passed by Congress and also bound by the guidelines. And whether the sentence called for under the statute is excessive, the Court has very little discretion, if any, in departing from the statute.” Transcript of September 19, 1997 Sentencing 20:15-19. Gray's sentence was affirmed on appeal. United States v. Gray, 152 F.3d 816, 818 (8th Cir. 1998).

The First Step Act of 2018 has since abolished mandatory life sentences for drug offenders that have two or more qualifying drug offenses. See First Step Act of 2018, Pub. L. No. 115-391, § 401, 132 Stat. 5194, 5220-21. Further, Amendment 709 has clarified that prior offenses charged in the same instrument and without an intervening arrest, such as Gray's two underlying convictions for felony sale of methamphetamine on July 26 and July 27, 1989, are no longer considered separate offenses under the sentencing guidelines. See U.S.S.G. § 4A1.2(a)(2) (amended 2007). Gray is “seeking relief from this Court to bring his sentence within current public policy and justice norms.” (Doc. 154, p. 3).

Gray has significant health concerns. He is sixty-nine years old and suffers from type 2 diabetes, hypertension, and cirrhosis of the liver and has a history of Hepatitis C. Given the COVID-19 pandemic-and the fact that Gray has previously contracted the virus-it is unclear what long-term effects he may encounter or whether he would be able to survive contracting COVID-19 a second time.

DISCUSSION

A. First Step Act

Under 18 U.S.C. § 3582(c) a court may not modify a term of imprisonment once it has been imposed except that, under subsection § 3582(c)(1)(A), a court may reduce a term of imprisonment upon finding “extraordinary and compelling reasons, ” if such reduction is consistent with applicable policy statements of the Sentencing Commission, after considering the factors set forth in 18 U.S.C. § 3553(a), and after determining the defendant is not a danger to the community as provided in 18 U.S.C. § 3142(g). (U.S.S.G. § 1B1.13(2).)

To be entitled to relief under § 3582(c)(1)(A)(i), a defendant must show: (1) he has exhausted his administrative remedies; (2) extraordinary and compelling reasons warrant a reduction of his sentence; and (3) the sentencing factors outlined in § 3553(a) support his release. United States v. Roat, 6:15-03076-CR-RK, 2020 WL 4506091, at *1 (W.D. Mo. Aug. 5, 2020).

As the proponent of a 18 U.S.C. § 3582(c)(1)(A) motion, the inmate bears the burden of proving both that they have satisfied the procedural prerequisites for judicial review - i.e., that they have “exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf”' or that 30 days have lapsed “from the receipt of such a request by the warden” -and that “extraordinary and compelling reasons” exist to support the motion. 18 U.S.C. § 3582(c)(1)(A). Gray and the Government agree that Gray has exhausted his administrative remedies based upon his requested relief being denied by the warden at El Reno FCI on September 11, 2020. (Doc. 154, p. 8).

a. Extraordinary and Compelling Reasons

Under 18 U.S.C. § 3582(c)(1)(A), the pertinent policy statement, U.S.S.G. § 1B1.13, defines specific medical, age, and family circumstances as possibly justifying a sentencing reduction under this statute, and further authorizes a sentencing reduction based on an extraordinary and compelling circumstance identified by the BOP. See §1B1.13 Cmt. n.1(D).) However, the “extraordinary and compelling reasons” upon which district courts may reduce a sentence are not limited to medical condition, age, and family circumstances. See United States v. Rodd, 966 F.3d 740, 746-47 & n.7 (8th Cir. 2020) (recognizing a district court's discretion under the First Step Act to determine whether extraordinary and compelling reasons exist for compassionate release); see also United States v. Littrell, 461 F.Supp.3d 899, 904-05 (E.D. Mo. 2020) (stating § 1B1.13 of the Sentencing Guidelines provides guidance but does not limit the court). This Court is therefore free to determine whether “extraordinary and compelling reasons” warrant reduction of Gray's sentence. Id.

i. Gray's health concerns relating to the COVID-19 pandemic

Gray argues that even though he contracted and survived COVID-19 while incarcerated, “it remains unclear how it will affect him long term” given the novel nature of the virus. (Doc. 154, p. 14). Gray is sixty-nine years old and suffers from type 2 diabetes, hypertension, and cirrhosis of the liver and has a history of Hepatitis C. With his pre-existing conditions, it is unclear what long-term effects he may encounter or whether he would be able to survive contracting COVID-19 a second time.

The COVID-19 pandemic and the risks to those incarcerated have been considered “extraordinary and compelling” reasons for granting release. See Robinson, 2020 WL 5200929, at *2; United States v. Bell, No. 16-00003-01-CR-W-SRB, 2020 WL 7647554, at *2 (W.D. Mo. Dec. 23, 2020); United States v. Smith, 464 F.Supp.3d 1009, 1021 (N.D. Iowa 2020) (collecting cases). Further, vaccination against COVID-19 has not been a bar to compassionate release in other cases. See, e.g., United States v. Murakami, No. 1:17-CR-10346-DPW, ECF No. 80 (D. Mass. Feb. 25, 2021) (granting compassionate release to hypertensive defendant who had received one dose of the vaccine, and would receive second dose prior to release); United States v. Sandoval, 3:14-cr-05105-BHS, ECF No. 617 at 9 (W.D. Wash. Feb. 22, 2021) (granting compassionate release notwithstanding vaccine dose, citing expert opinion that “efficacy of the vaccine in various subpopulations, such as immunosuppressed individuals, is still unknown”); United States v. Sweet, No. 2:07-CR-20369-VAR-VMM, ECF No. 42 (E.D. Mich. Apr. 15, 2021) (“[B]eing fully vaccinated decreases one's likelihood of severe COVID symptoms, [but] recent data reveals that the threat of severe illness or death from COVID-19, while diminished, is nevertheless real.”).

Even if the COVID-19 pandemic, along with Gray's age and medical conditions, is not in and of itself extraordinary and compelling reasons for the reduction of Gray's sentence, the combination of these factors with the circumstances of his current sentence is.

ii. Current sentence

Gray contends that his life sentence is an extraordinary and compelling reason for his release under § 3582(c)(1)(A). The 2018 First Step Act has made several changes to sentencing statutes, including to 21 U.S.C. § 841 which was instrumental in Gray's sentencing. Before the First Step Act was passed, defendants with two prior felony drug convictions received mandatory life imprisonment under 21 U.S.C. § 841(b)(1)(A). The First Step Act changed (1) the mandatory minimum sentence for a defendant with two qualifying convictions under 21 U.S.C. § 841, and (2) what constitutes a qualifying conviction. Today, the mandatory minimum for two qualifying prior felony convictions is twenty-five years rather than life;...