United States v. Karr

611 F.Supp.3d 395

UNITED STATES of America, Plaintiff,

v.Larry KARR, Defendant.

No. 6:17-CR-25-REW

United States District Court, E.D. Kentucky, Southern Division. London.

Signed February 18, 2020

Gregory Rosenberg, AUSA, U.S. Attorney's Office, London, KY, Haley Trogdlen McCauley, AUSA, Kevin Charles Dicken, Rajbir Datta, AUSA, U.S. Attorney's Office, Lexington, KY, for Plaintiff.

OPINION & ORDER

Robert E. Wier, United States District Judge

Defendant Karr, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), moves for a reduction in sentence, effectively, a "compassionate release[.]" DE 612 (Motion); see DE 612-1 (Mem. in Support). The Government responded in opposition. DE 616 (Response). Defendant replied. DE 624 (Reply).¹ The Court, on full review, under the applicable standards, and for the following reasons, GRANTS DE 612 IN PART . Karr's Stage IV lung cancer is an advanced, terminal illness. He has served a weighty fraction of his overall term, and the circumstances justify a compassionate release under strict terms and diligent USPO oversight.

I. BACKGROUND

Before turning to the merits of Karr's motion, some history:

– January 25, 2018 : The Grand Jury returned a Superseding Indictment (DE 46) charging Karr² with conspiring, from January 2009 through August 2, 2017, to illicitly distribute oxycodone and oxymorphone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) & 846 (Count 1); and with knowingly and intentionally distributing oxycodone on December 4, 2017, (Count 2) and December 11, 2017, (Count 3) in violation of 21 U.S.C. § 841(a)(1). See DE 46 at 1–2.³

– February 7, 2018 : Karr made his initial appearance, was arraigned, and detained. See DE 79.

– February 20, 2018 : Based on the results of a "CT-guided biopsy[,]" Defendant was diagnosed with lung cancer. DE 238-1 at 10; see id. at 9 ("Diagnosed 2/20/2018").⁴

– May 17, 2018 : The Court accepted Judge Ingram's Recommendation (DE 154) to accept Karr's plea and adjudged him guilty of Count 1 of the operative indictment. See DE 157 (Order). As part of his plea agreement, Karr conceded that his participation in the conspiracy extended from January 2013 through "at least August 2017[.]" See DE 151 (Plea Agreement).

– June 25, 2018 : Karr began "chemoradiotherapy" recommended by Dr. William Richards following a "cardiothoracic surgery" evaluation that deemed Defendant "not to be a surgical candidate." DE 238-1 at 11–12 (history & recommended course); id. at 7–8 ("post-radiotherapy follow-up visit"). Karr's cancer, as of June 30, 2018, was reported as stage IIIA.

– October 22, 2018 : Dr. Azeem Niazi—though noting difficulty in estimating any overall prognosis due to unavailability of "definitive [surgical] treatment" for Karr's cancer (then-described as "at least stage IIB")—opined: "Follow-up scans after concurrent chemotherapy and radiation did reveal[ ] improvement but with residual disease [.] ... Overall survival with a definitive treatment 40-50% for next 5 years." DE 238-1 at 5.⁵

– November 1, 2018 : The Court—recognizing Defendant's "concerning prognosis[,]" but noting, inter alia , that Karr was "currently stable, and ... positively responded to recent treatment" (DE 243 – Minute Entry Order)—denied the defense's motion for a downward departure based on Karr's physical condition and sentenced Defendant to 108 months imprisonment. See DE 244 (Judgment).⁶ This was, though, a variance. Per Bureau of Prisons (BOP) records, soon after sentencing, Karr's diagnosis progressed from stage IIB to "stage IV lung cancer." DE 612-7 at 36 (noting transfer in "November 2018 for stage IV lung cancer treatment"). June 4, 2019 : BOP medical personnel reported that Karr's condition is terminal and estimated his life expectancy at 12 months. DE 612-3 at 3.

– June 14, 2019 : Acting FCC Butner Warden A.W. Rupska recommended "consideration" of Karr's "Reduction in Sentence" request. DE 629-1 at 2. [Karr represents filing his request in "early 2019." DE 612-1 at 9.]

– October 30, 2019 : BOP Assistant Director/General Counsel Ken Hyle issued a decision denying Karr's request for compassionate release. DE 612-2 at 2–3.⁷ The Bureau found that "although [Karr met] the criteria for a [reduction in sentence or ‘RIS’] under" BOP Program Statement (PS) 5050.50 § 3(a),⁸ "approval of Mr. Karr's request for a RIS would be inappropriate." DE 612-2 at 3. The BOP cited 3 factors in support of this conclusion: (1) "Mr. Karr's diagnosis was known by the court at the time of sentencing;" (2) "his medical conditions did not prevent him from committing his offenses;" and (3) "his current independence with his [activities of daily living] will not prevent him from reoffending." Id.

– December 2019 : After a July 2019 CT scan that showed "stable mediastinal" disease, a follow-up scan showed an "increase in size of [the] mediastinal disease," and "stable liver lesions." DE 634-1 at 6.⁹

– January 8, 2020 : Karr filed the instant motion. DE 612.

– January 13, 2020 : Dr. Andrew Stock, of BOP, noted that an oncological review of Karr's December 2019 CT scan "showed some progression of [the] disease[,]" and confirmed that Defendant's prognosis "remains poor" with a "life expectancy under 12 months." DE 618-2 at 2.

– February 3, 2020 : BOP Oncologist Dr. Andres Carden saw Karr to discuss "other treatment regimens including adding Carboplatin and Taxol to [his current cancer medication] Keytruda or switching to a TKI." DE 634-1 at 6. Karr reported shortness of breath and that he was easily fatigued. Id.

– February 5, 2020 : Karr stated, in an email to counsel, that his 9 months of Keytruda treatments "reduced" but did not remove his "difficulties breathing and pain." DE 636-2 at 2. He further reported that, in recent months: (1) Keytruda's beneficial effects have declined, (2) breathing has become "extremely difficult[,]" (3) walking causes the pain in his chest to "become so unbearable" that he has "to sit or lean against the wall before [he is able to] continue on"; and (4) he has "developed a cough ... so hard that [he] passed out[.]" Id.

Based on his well-documented diagnosis of "terminal metastatic" Stage IV cancer,¹⁰ Karr (now nearly 76 years old, see PIR at 2) seeks a sentence reduction under § 3582 so "that he can spend his final days with his family and loved ones." DE 612-1 at 5. The matter is briefed. See DE 616 & 624.

II. EXTRAORDINARY & COMPELLING REASONS

In relevant part, § 3582(c)(1)(A) provides:

[T]he court ... may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—

(i) extraordinary and compelling reasons warrant such a reduction; ....

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission;

18 U.S.C. § 3582(c)(1)(A).¹¹ This is a provision Congress recently broadened (through a direct federal court portal) as part of the First Step Act of 2018, a criminal justice measure passed on December 21, 2018. See PL 115-391, 132 Stat 5194.

Congress has explicitly directed the USSC to define "extraordinary and compelling reasons for sentence reduction[.]" 28 U.S.C. § 994(t) ; see id. at (a)(2). The parties agree that Karr qualifies for one such basis, as defined in the Commission's policy statement at Application Note 1(A)(i) to USSG § 1B1.13 :¹²

The defendant is suffering from a terminal illness (i.e. , a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e. , a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

That is, the Government acknowledges that Karr's terminal cancer is a qualifying "extraordinary and compelling" predicate for a sentence reduction. See DE 616 at 5 (Karr's cancer "provides a legal basis on which the Court may consider reducing his sentence[.]"). With the predicate established, the Court must address the merits of Karr's reduction request. The Court has discretion to reduce a sentence where the triggering predicate exists, but must analyze all applicable § 3553(a) factors, must determine that the defendant is not a danger (per § 3142(g)), and must find any reduction compliant with applicable Sentencing Commission policy statements.

III. REDUCTION PROPRIETY

The United States opposes Karr's reduction request on several grounds. Generally, the Government notes the Court's obligation to consider the § 3553(a) factors and USSC policy, and that the authorizing provisions permit, but do not require a reduction for a qualifying movant. DE 616 at 5. [Notably, the Government is not arguing that releasing Karr would never be appropriate; rather, its theory is that the motion is "premature." Id. at 7; see also id. at 2 ("Karr's motion should be denied without prejudice."); id. at 8 ("Karr ... should not at this time receive a Compassionate Release[.]").] The Court now addresses the Government's three arguments.

A. Karr's Life Expectancy

The Government first argues that Karr's life expectancy is indeterminate. DE 616 at 6. Section 3582(c)(1)(A) expressly directs the Court to ensure consistency with USSC policy statements on this topic. Commission policy, in turn, provides that for a qualifying "terminal illness" a "specific prognosis of life expectancy ... is not required." USSG § 1B1.13, comment. (n.1(A)(i)). Thus, to accept the Government's theory and deny Karr relief based on imprecision in his prognosis would be inconsistent with both USSC policy and, given the congressional directive, the governing statute. The theory, as presented, also makes little logical sense. Consider, the United States acknowledges that it is "[o]bviously ... impracticable to predict the exact date Karr will die[,]"...