United States v. Johnson

1

UNITED STATES OF AMERICA, v. (1) EVER A. JOHNSON, Defendant.

No. 3:17-CR-01569-DCG-1

United States District Court, W.D. Texas, El Paso Division

March 28, 2023

MEMORANDUM OPINION AND ORDER

DAVID C. GUADERRAMA UNITED STATES DISTRICT JUDGE

Pro se Defendant Ever A. Johnson asks the Court for compassionate release-that is, to reduce his criminal sentence to time served-under the First Step Act. Mot. Reduce Sentence, ECF No. 66; Reply, ECF No. 81; see also 18 U.S.C. § 3582(c). He also asks the Court to (1) appoint him counsel and (2) order U.S. Probation and Pretrial Services to investigate his son's whereabouts. Mot Counsel, ECF No. 67; Mot. U.S. Probation, ECF No. 68. The Government opposes Johnson's requests for compassionate release and appointed counsel; it takes no position on Johnson's request for an order requiring U.S. Probation and Pretrial Services to conduct a factual investigation on Johnson's behalf. Resp., ECF No. 76; Surresponse, ECF No 83. The Court DENIES Johnson's three motions.

I. BACKGROUND

Johnson is serving a 137-month prison term for four counts of bank robbery and one count of bank robbery by the use of a dangerous weapon or device, each of which Johnson pleaded guilty to. See Am. J., ECF No. 54; Am. Plea Agreement, ECF No. 38; see also 18 U.S.C. § 2113(a), (d). Johnson is also serving an 18-month sentence, running consecutively to his 137-month sentence, for violating his supervised release in a separate case.^[1]See Order Revoking Supervised Release, United States v. Johnson, No. EP-10-CR-01166-PRM-1 (W.D. Tex. May 2, 2018), ECF No. 60. He is currently housed at Schuylkill Federal Correctional Institution (“FCI Schuylkill”) in Pennsylvania, and his anticipated release date is September 12, 2028. See Fed. Bureau of Prisons, Find an inmate, https://www.bop.gov/inmateloc/ (last visited Mar. 27, 2023) (Johnson BOP Register No. 36862-013).

II. DISCUSSION

A. Motion for Compassionate Release

Johnson says several facts support his compassionate release, including that he is the only available caretaker for his son, that he has experienced harsher than expected prison conditions, and that his medical conditions render him particularly susceptible to severe illness if he were to contract COVID-19. Mot. Reduce Sentence at 2-6; Reply at 4-6.^[2] Johnson does not, however, request that he be totally free of his original sentence. In exchange for his release from prison, he asks the Court to “increase his supervision conditions to include the first 24 months in a combination of community and home confinement, with strict conditions of work, and medical appointments, and nothing else.”^[3] Mot. Reduce Sentence at 8. He also requests confinement in a halfway house upon his desired release so that he can “gain employment and housing[] suitable for him and his son.” Id. at 8-9.

Generally, a “court may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). But there are exceptions. A defendant may request a modification of his sentence, and a court may accordingly modify his sentence, if:

(1) The defendant has exhausted his administrative remedies;

(2) “[E]xtraordinary and compelling reasons” warrant a reduction in his sentence;^[4]

(3) A reduction in his sentence is “consistent with applicable policy statements issued by the Sentencing Commission;” and

(4) A reduction in his sentence “would be consistent with the sentencing factors in 18 U.S.C. § 3553(a).”

United States v. Jackson, 27 F.4th 1088, 1089 (5th Cir. 2022) (quoting 18 U.S.C. § 3582(c)(1)(A)).

1. Exhaustion of Administrative Remedies

If a defendant fails to “submit a request to ‘the Bureau of Prisons to bring a [sentence reduction] motion on the defendant's behalf'” before moving for compassionate release, the court must deny his motion.^[5]United States v. Franco, 973 F.3d 465, 468-69 (5th Cir. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)).

The Government concedes that Johnson has exhausted his administrative remedies, see Surresponse at 1; Warden's Resp. Request, Reply Ex. 4, ECF No. 81-1, at 9-11, so the Court moves to the second component of the compassionate release analysis.

2. Extraordinary and Compelling Circumstances

Johnson alleges several facts that he says constitute extraordinary and compelling circumstances that warrant his compassionate release:

(1) His son's biological mother has allegedly abandoned their son and Johnson is now the only person available to take care of him;

(2) Harsh confinement conditions; and

(3) Underlying medical conditions and FCI Schuylkill's allegedly inadequate medical care place him at heightened risk of severe illness due to COVID-19.

Mot. Reduce Sentence at 2-6; Reply at 4-6.

Johnson provided four affidavits in support of some of his allegations:

(1) An affidavit from his sister who states that his son's biological mother had “given [his son] up for adoption” in March 2018.^[6]P. Johnson Aff., ECF No. 79, at 1.

(2) An affidavit from Johnson's nephew, who says he “need[s] [his] uncle” back so that he can be “a role model” and so that Johnson can “fight to have his son back.” G. Johnson Aff., ECF No. 79, at 3.

(3) The first (of two) of Johnson's own affidavits in which he says that he “recently became aware that [his] son . . . was abandoned by his biological mother and was left with an elderly couple” sometime around August 2019. 1st Johnson Aff., ECF No. 67, at 4-5.

(4) Johnson's second affidavit in which he describes the alleged conditions of his confinement and mentions, without further detail, that his son's biological mother “surrender[ed] custody of [his] child to an [e]lderly couple.” 2d Johnson Aff., ECF No. 80, at 1-4.

The Government argues that Johnson has failed to show extraordinary and compelling circumstances justifying a reduction of his sentence. Resp. at 11-16. Specifically, the Government says,

(1) Johnson has offered no credible evidence that he is the only available caretaker for his son, id. at 16;

(2) Johnson's alleged harsh conditions of confinement stem from the Federal Bureau of Prison's (“BOP”) attempts to limit the spread of COVID-19 and thus cannot form the basis of extraordinary and compelling circumstances, id. at 1314, and;

(3) Johnson has not shown his medical conditions put him at substantial risk of a severe case of COVID-19, id. at 12-13; Surresponse at 3-8.

The First Step Act does not define the phrase “extraordinary and compelling.” See United States v. Rodriguez, 27 F.4th 1097, 1099 (5th Cir. 2022) (“There is little developed guidance on what constitutes extraordinary and compelling reasons for a sentence reduction because neither § 3582 nor the [U.S. Sentencing] Guidelines fully define or limit those reasons.”). Nevertheless, “the commentary to the Sentencing Guidelines (‘U.S.S.G.') § 1B1.13 informs [the] analysis as to what reasons may be sufficiently ‘extraordinary and compelling' to merit compassionate release.” United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021); see also Jackson, 27 F.4th at 1090 (explaining that the Sentencing Guidelines commentary “does not bind a district court” but does “inform the district court's analysis” (cleaned up)). Under U.S.S.G. § 1B1.13, extraordinary and compelling reasons may exist if:

(1) The defendant is suffering from certain serious medical conditions; (2) “The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less;” or

(3) There are certain “family circumstances,” including the “death or incapacitation of the caregiver of the defendant's minor child.”^[7]

U.S.S.G. § 1B1.13 cmt. n.1(A)-(C).

The defendant bears the burden of establishing that extraordinary and compelling reasons warrant a reduction of his sentence. See Ward v. United States, 11 F.4th 354, 361 (5th Cir. 2021).

a. Johnson's Alleged Family Circumstances

Johnson has failed to establish that his family circumstances are extraordinary and compelling. In his Motion for Compassionate Release and his own affidavits, Johnson alleges that his son's biological mother abandoned their minor child and left him with an elderly couple, but he fails to adequately explain the entire situation. See Mot. Reduce Sentence at 2-3; 1st Johnson Aff. at 4; 2d Johnson Aff. at 1. Johnson's sister's and nephew's affidavits fare little better at adequately explaining Johnson's factual assertions. For example, Johnson's sister says that the minor child's biological mother gave Johnson's son “up for adoption without [Johnson's] notice or consent” and that the minor child was “staying with the family.” P. Johnson Aff. at 1-2.^[8]But Johnson's sister provides no further information about who is caring for Johnson's son, such as who “the family” is, despite clearly indicating that someone is looking after Johnson's son. See id. These affidavits fail to establish the Johnson is the only available caregiver for his son.

To the contrary, these affidavits suggest Johnson's son is being cared for.^[9]According to Johnson and his sister, his son is in the care of an “elderly couple.” 1st Johnson Aff. at 4; P. Johnson Aff. at 1-2. Johnson “cannot establish he is the sole caregiver without addressing the inability” of the elderly couple “to provide care for his child in his absence.” Cf. Rooks, 2022 WL 267899, at *7; United States v. Duggins, No. 2:18-1061, 2021 WL 5449642, at *5 (S.D Tex. Nov. 22, 2021) (pointing out that the defendant's “affidavit states that [his] children [were] being cared for” and thus the defendant “ha[d] offered no evidence that he is the only available caregiver for his minor children”). Nor can Johnson establish h...