United States v. Henderson

UNITED STATES OF AMERICA, v. LAVAR WILLIAM HENDERSON, Defendant.

Criminal Action No. 3:04cr20

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

November 18, 2020

MEMORANDUM OPINION

This matter comes before the Court on Defendant Lavar William Henderson's Motion for Compassionate Release pursuant to Section 603(b) of the First Step Act (the "Motion"). (ECF No. 59.) The United States responded in opposition, (the "Opposition"). (ECF No. 60.) Henderson has not replied and the time to do so has expired.

After an initial review of Henderson's request for compassionate release, the Court ordered the Parties to address whether United States v. Venable, 943 F.3d 187 (4th Cir. 2019) applies to Henderson's revocation sentence. (ECF No. 62.) Both Parties filed supplemental briefs acknowledging that Venable relates to Henderson's revocation sentence. (ECF Nos. 63-64.) Accordingly, the matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons that follow, the Court will grant the Motion for Compassionate Release in part and reduce Henderson's supervised release revocation sentence from 46 months to 36 months.

I. Background

On May 18, 2004, Henderson pled guilty to Possession with Intent to Distribute cocaine base in violation of 21 U.S.C. § 841 and Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 21 U.S.C. § 924(c). (Plea Agreement, ECF No. 13; see also Compassionate Release Recommendation 1, ECF No. 61.) The Court sentenced Henderson to a term of 181 months' imprisonment to be followed by a five-year term of supervised release. (J., ECF No. 21.)

The Presentence Report (PSR) describes the conduct underlying Henderson's 2003 offense:

On August 20, 2003 . . . Henderson distributed 39.562 grams of cocaine base, commonly known as "crack," to a person secretly working for law enforcement. On January 11, 2004, officers of the Richmond Police Department executed a state search warrant at . . . the residence of Henderson's girlfriend and children. During the search, officers recovered a set of digital scales, 17.650 grams of cocaine base . . . and a Glock .40 caliber semi-automatic pistol. . . . Following the search, officers located Henderson hiding in a car in the parking lot of the apartment complex. . . . On the way to the Richmond City Jail, Henderson informed the officers that he had just left a garage apartment at his mother's house . . . [o]fficers conducted a lawful search of the apartment and recovered 2.558 grams of cocaine base . . . 8.561 grams of cocaine hydrochloride, and a second set of digital scales.

(PSR 4-5, ECF No. 55.)

On August 18, 2011, after completing his initial prison term, Henderson began his five-year supervised release term. (Compassionate Release Recommendation 1.) "On July 19, 2013, . . . Henderson was arrested on state charges of possession with intent to distribute heroin and transporting a controlled substance." (Opp'n 2, ECF No. 60.) Henderson pled guilty to those charges in state court. (Id.) "Those charges also gave rise to a supervised release violation in this Court." (Id.) On March 11, 2015, after finding that Henderson violated the terms of hissupervised release, the Court revoked Henderson's supervision and sentenced him to an additional 46 months' imprisonment. (March 11, 2015 Order, ECF No. 52.)

Henderson has served approximately 50 percent of his 46-month revocation sentence. (Compassionate Release Recommendation 1.) Henderson, currently forty-two years old, is housed at FCI Petersburg Medium.¹ Id. The Bureau of Prisons ("BOP") states that Henderson will be released on May 7, 2022. See Bureau of Prisons, Fed. Inmate Locator, https://www.bop.gov/inmateloc/.

On May 6, 2020, Henderson filed a "request for Compassionate Release Consideration with the Warden at FCI Petersburg Medium." (Opp'n 3; see also ECF No. 60-1.) The record reflects that the Warden has not responded to Henderson's request. (Mot. 8, ECF No. 59.) On August 28, 2020, after more than 30 days with no reply from the Warden, Henderson filed the instant motion for compassionate release through counsel. (Id. 1.)

In the Motion, Henderson describes the current public health crisis caused by COVID-19. (See, e.g., id. 1, 5-7.) Henderson contends that "preventing [COVID-19] in correctional and detention facilities is challenging because of population-dense housing, varied access to hygiene facilities and supplies, and limited space for isolation and quarantine." (Id. 5-6; see also ECF No. 59-1.) Henderson claims that his "motion should be granted because the global COVID-19 pandemic combined with Henderson's mother[']s particular medical condition presents an 'extraordinary and compelling reason' for compassionate release." (Id. 2.) He further avers that "[t]he extraordinary and compelling reason for this motion is that . . . Henderson needs to be home to help his mother who is taking care of his children while he serves his sentence. Hismother currently suffers from a variety of serious medical conditions which makes this task quite difficult at times and more difficult [in] the future as she ages." (Id.) The United States opposes his request for compassionate release. (See ECF No. 60.)

In their supplemental briefs, the Parties agree that Henderson qualifies for compassionate relief even though he is serving a revocation sentence. The United States avers that in Venable, 943 F.3d 187, the Fourth Circuit ruled that "defendants serving sentences on supervised release violations [are] eligible for sentence reductions under the First Step Act (FSA), provided, that the underlying offenses of conviction were 'covered offenses' under the FSA." (U.S. Resp. 1, ECF No. 63.) In Venable, the Fourth Circuit relied on the "unitary sentence" framework, under which "the sentence imposed on a supervised release violation is but a continuation of the same sentence imposed on the 'covered offense' of conviction." (Id.) The United States does not dispute that "the 'unitary sentence framework' supports the conclusion that the term of imprisonment Henderson is currently serving is simply part of the sentence originally imposed on him" and "Henderson thus qualifies to apply for compassionate relief." (Id. 2.) However, the United States claims that Venable "would appear to have no applicability here one way or the other, as it did not address compassionate relief, and qualification for compassionate relief does not turn on whether the defendant is serving a sentence for a 'covered offense.'" (Id.)

Henderson asserts that "the Venable case stands for the proposition that [he] is eligible for relief even though he is serving time on a supervised release violation." (Resp. 1, ECF No. 64.) But "[a]s noted by the Venable Court, and the United States, it is still a discretionary decision by the court on whether to grant this relief." (Id.)

II. Legal Standards

A. Compassionate Release Under the First Step Act of 2018 Section 603

Generally, courts do not have the authority to modify a term of imprisonment once it has been imposed. Freeman v. United States, 564 U.S. 522, 526 (2011). When a court imposes a sentence of imprisonment, that is considered a final judgment on the matter. 18 U.S.C. § 3582(b). It is well established that "'[t]he law closely guards the finality of criminal sentences against judicial 'change of heart.'" United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir. 2010) (quoting United States v. Layman, 116 F.3d 105, 109 (4th Cir. 1997)).

In 2018, Congress enacted the First Step Act to provide incarcerated individuals the opportunity to directly petition the courts for compassionate release under 18 U.S.C. § 3582(c)(1)(A).² Prior to the First Step Act in 2018, the BOP had the sole authority to petition the court for sentence modifications on compassionate release grounds. Coleman v. United States, No. 4:17-cr-69, 2020 WL 3039123, at *1 (E.D. Va. June 4, 2020). Following enactment of the First Step Act, criminal defendants may petition courts on their own initiative to modifytheir sentences if "extraordinary and compelling reasons warrant such a reduction." Id. (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). Before granting a reduction, courts must consider the factors set forth in 18 U.S.C. § 3553(a), see 18 U.S.C. § 3582(c)(1)(A), and evidence of rehabilitation and other post-conviction conduct. See United States v. Martin, 916 F.3d 389, 397-98 (4th Cir. 2019) (requiring consideration of post-conviction evidence and statutory sentencing factors in the context of a sentence reduction sought pursuant to § 3582(c)(2)).

1. Exhaustion of Administrative Remedies

Although the Court generally cannot "modify a term of imprisonment once it has been imposed," the defendant may bring a motion to modify his or her sentence "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. . . ." 18 U.S.C. § 3582(c)(1)(A). "Accordingly, a petitioner seeking compassionate release is generally required to exhaust his or her administrative remedies prior to bringing a motion before the district court." Casey v. United States, No. 4:18-cr-4, 2020 WL 2297184, at *1 (E.D. Va. May 6, 2020).

The court may waive the exhaustion requirement, however, in certain circumstances. United States v. Jones, No. 3:11-cr-249, at *2-3 (E.D. Va. Apr. 3, 2020) (Lauck, J.) Courts may waive exhaustion if: "pursuing an administrative remedy would be futile[,]" "'exhaustion via the agency review process would result in inadequate relief[,]' or 'pursuit of agency review would subject the petitioner to undue prejudice.'" United States v. Robinson, No. 3:10cr261,...