United States v. Herndon

1

UNITED STATES OF AMERICA v. TIMOTHY HERNDON, Defendant.

Criminal No. ELH-19-268

United States District Court, D. Maryland

May 25, 2023

MEMORANDUM OPINION

Ellen L. Hollander United States District Judge.

On January 22, 2020, defendant Timothy Herndon entered a plea of guilty to the offense of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.§924(c). ECF 47. The plea was tendered pursuant to a Plea Agreement. ECF 48. Under Fed. R. Crim. P. 11(c)(1)(C) the parties agreed to a sentence of 96 months of incarceration. Id. ¶ 9. At sentencing on June 2, 2020 (ECF 56), the Court imposed the agreed upon sentence with credit for time served since May 16, 2019. ECF 57 (Judgment).

Herndon who is now self-represented, has filed a motion for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). ECF 64 (the “Motion”).^[1]The Motion is supported by several exhibits. ECF 64-1 to ECF 64-5. The government opposes the Motion (ECF 72, the “Opposition”), and has submitted several exhibits. ECF 74-1 to ECF 74-4. Defendant has not replied.

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.

I. Background

Herndon was charged in a two-count Indictment on May 29, 2019, with the offenses of possession of a firearm by a prohibited person, in violation of 18 U.S.C.§922(g)(1) (Count One) and possession of a stolen firearm, in violation of 18 U.S.C.§922(j) (Count Two). ECF 9. A Superseding Indictment was filed on June 19, 2018, charging Herndon with the additional offenses of distribution and possession with intent to distribute twenty-eight grams or more of a substance containing cocaine base, in violation of 21 U.S.C.§841(a) (Count Three), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.§924(c) (Count Four). ECF 15. Count Four references Count Three as the drug trafficking crime. A Second Superseding Indictment was filed on October 9, 2019 (ECF 31), adding a charge of conspiracy to possess with intent to distribute a controlled substance, in violation of 18 U.S.C. §924(d) (Count Five).

Pursuant to the Plea Agreement (ECF 48), Herndon entered a plea of guilty on January 22, 2020, to Count Four of the Second Superseding Indictment. ECF 47. The offense carries a mandatory minimum term of imprisonment of 60 months, with a maximum of life imprisonment. ECF 48, ¶ 3. As noted under Fed. R. Crim. P. 11(c)(1)(C) (“C Plea”), the parties agreed to a sentence of incarceration of 96 months (8 years) as the appropriate disposition. Id. ¶ 9.

In the Plea Agreement, the parties stipulated to the following facts, id. at 10-11:

On May 15, 2019, United States Magistrate Judge J. Mark Coulson of the District of Maryland authorized a search and seizure warrant for 114 Maybin Circle Owing Mills, Maryland. Timothy HERNDON was the target of said warrant. On the morning of May 16, 2019, at approximately 6:01 a.m., members of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") executed the search and seizure warrant on 114 Maybin Circle, Owing Mills, Maryland. Investigators observed HERNDON inside of the residence. Investigators read HERNDON Miranda warnings.

After being read the Miranda warnings, HERNDON told investigators that there was a firearm located in a shoebox in the second floor bedroom closet and that he had placed the firearm in that location. Investigators recovered that firearm, which was a Ruger LC9S 9mm containing a magazine with six rounds of 9 mm ammunition and one round of 9 mm ammunition in the chamber.

Investigators then searched the residence and from inside the living room behind a picture frame was one clear bag containing multiple black plastic zip lock baggies of cocaine base (crack). Found on the living room table was approximately $2,000 in U.S. currency.

In the kitchen trash can under the trash bag, was a clear sandwich bag containing multiple small black zip lock baggies of cocaine base (crack). A total of approximately 82 grams of cocaine base (crack) was found in the residence. One black shopping bag containing razor blades and multiple clear plastic bags were also found in the kitchen trashcan. Additionally found in the kitchen trash can was one round of 9 mm ammunition.

Found underneath the dish washer in the kitchen were two plastic clear sandwich bags containing approximately 250 grams of cocaine and multiple clear bags containing smaller black zip lock baggies. Also under the dish washer was one Glock Model 23, 40 caliber handgun with serial number FNP372; two Glock magazines containing sixteen 40 caliber ammunition rounds; one Smith and Wesson 38 Special with serial number CVU9302 and containing 38 caliber rounds of ammunition; two 40 caliber ammunition rounds; and a Ruger 380 caliber LCP with serial number 376-45796 containing six round of 380 caliber ammunition. Also under the dishwasher was a paper bag containing a large amount of U.S. currency. The total currency found in the house was $39,812.

Prior to its recovery by ATF, the defendant possessed the cocaine and cocaine base with the intent to sell it. Furthermore, the defendant possessed the firearms in furtherance of his distribution of cocaine base.

All events occurred in the District of Maryland.

The parties agreed that, under the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), the Guidelines for Count Four corresponded to the mandatory minimum sentence. ECF 48, ¶ 6(a). There was no agreement regarding Herndon's criminal history. Id. ¶ 7. However, the parties anticipated a three-point deduction in the offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. Id. ¶ 6(b).

The Presentence Report (“PSR”) (ECF 53) reflects that the defendant, born in 1990 (id. at 3), had three criminal history points. Id. ¶¶ 22-26. This resulted in a criminal history category of II. Id. ¶ 27.

At sentencing on June 2, 2020 (ECF 56), Herndon was twenty-nine years of age. See ECF 53 at 3. The PSR reflected that Herndon did not have a high school diploma or a GED. Id. at 3. Defendant “reported purchasing [Oxycodone/Percocet] from the street and reported use of 100 mg a day up until May 15, 2019.” Id. ¶ 51. Herndon also reported that he was exposed to lead paid as a child, id. ¶ 49, which causes memory problems. Id. ¶ 53. As noted, the Guidelines called for a period of imprisonment of 60 months, i.e. the mandatory minimum. ECF 53, ¶¶ 61, 62.

Herndon is currently serving his sentence at FCI Texarkana. To date, Herndon has served approximately 50% of his sentence. He has a projected release date of June 21, 2026. See Find an inmate, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last accessed May 2, 2023).^[2]

Herndon filed a petition with the Warden on February 22, 2022, seeking compassionate release. ECF 64-3 at 2. His petition was denied on March 7, 2022. Id. at 3-4. The government agrees that Herndon has exhausted his administrative remedies. ECF 72 at 7 n. 1.

This Motion followed on May 31, 2022. ECF 64. Herndon bases his claim of extraordinary and compelling reasons for compassionate release on the COVID-19 pandemic, coupled with his family's medical history, and the conditions of his confinement, along with his severe sentence. Id. at 6-10. In the Motion, he seeks a sentence reduction from 96 months to the mandatory minimum of 60 months' imprisonment. Id. at 10.

The government contends that Herndon's “family history of diabetes, high blood pressure, and high cholesterol” cannot constitute a justification for release as Herndon's medical records do not show he personally suffers from any of those conditions. ECF 72 at 8. And, the government argues that Herndon should not be granted compassionate release because he has refused to be vaccinated. Id. at 9. Further, the government avers that Herndon's medical records (ECF 74-1 at 93, 95) show he contracted COVID-19, and as such, he has antibodies that render him less vulnerable to the virus. ECF 72 at 10 (citing United States v. Taylor, JCD-14-14, 2022 WL 2311769, at *2 (E.D. N.C. June 27, 2022) (“[Defendant] has already contracted and recovered from COVID-19, thereby obtaining natural antibodies”).

Additional facts are discussed, infra.

III. Standard of Review

Ordinarily, a court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c); see United States v. Malone, 57 F.4th 167, 173 (4th Cir. 2023); United States v. Bond, 56 F. 4th 381, 383 (4th Cir. 2023); United States v. Bethea, 54 F.4th 826, 831 (4th Cir. 2022); United States v. Ferguson, 55 F.4th 262, 267 (4th Cir. 2022); United States v. Hargrove, 30 F.4th 189, 194 (4th Cir. 2022); United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020); United States v. Jackson, 952 F.3d 492, 495 (4th Cir. 2020); United States v. Martin, 916 F.3d 389, 395 (4th Cir. 2019). But, “the rule of finality is subject to a few narrow exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011). One such exception is when the modification is “expressly permitted by statute.” 18 U.S.C. § 3582(c)(1)(B); see Jackson, 952 F.3d at 495.

Congress “broadened” the authority of the courts in 2018 with passage of the First Step Act (“FSA”), Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018) (codified as 18 U.S.C. § 3582(c)(1)(A)). Malone, 57 F.4th at 173. Commonly termed the “compassionate release” provision, 18 U.S.C. § 3582(c)(1)(A)(i) provides a statutory vehicle to modify a defendant's sentence if “extraordinary and compelling reasons warrant such a reduction.” Hargrove, 30 F.4th at 194. This provision is an exception to the ordinary rule of finality in regard to a federal sentence. United States v. Jenkins, 22 F.4th 162, 169 (4th...