United States v. Kearney

1

UNITED STATES OF AMERICA v. ALBERT KEARNEY Defendant.

CRIMINAL No. ELH-18-17

United States District Court, D. Maryland

April 5, 2023

MEMORANDUM OPINION

Ellen L. Hollander United States District Judge

This Memorandum Opinion concerns a second motion for compassionate release filed by defendant Albert Kearney, pursuant to 18 U.S.C. § 3582(c)(1)(A). ECF 1042 (the “Motion”). Kearney, who is self-represented, is serving a 132-month sentence at Coleman I USP for the offense of conspiracy to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 846 and § 841(b)(1)(A). ECF 419 (Judgment).

By Memorandum Opinion (ECF 973) and Order (ECF 974) of August 31, 2021, the Court considered and denied defendant's earlier request for compassionate release. ECF 840 (the “First Motion”). In particular, upon considering defendant's “failure to provide an explanation for his refusal of a vaccine, I conclude[d] that his medical conditions do not constitute extraordinary and compelling circumstances under 18 U.S.C. § 3582.” ECF 973 at 20. However, the First Motion was denied “without prejudice to [defendant's] right to resubmit his request following full vaccination for COVID-19.” ECF 974 at 1.

Kearney received a COVID-19 vaccination on December 6, 2021. ECF 1042-1 at 1.^[1] In his Motion, he “asks this Court to reduce his term of imprisonment to time served and that he immediately be placed on supervised release with the condition that he be placed on home confinement as the Court deems appropriate.” ECF 1042 at 11-12. The government opposes the Motion (ECF 1061, the “Opposition”) supported by an exhibit of defendant's medical records. ECF 1061-1. Kearney has replied. ECF 1108 (the “Reply”).

No hearing is necessary to resolve the Motion. For the reasons that follow, I shall grant the Motion, in part. I shall reduce defendant's sentence from 132 months to 120 months of incarceration.

I. Background^[2]

Kearney was indicted on January 11, 2018 (ECF 1), along with seventeen others. A Superseding Indictment was filed on March 22, 2018, which added a nineteenth defendant. ECF 157. In particular, defendant was charged in Count One with conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. Id. at 2. He was charged in Count Two with possession of a firearm by a prohibited person, under 18 U.S.C. § 922(g). Id. at 3. In Count Three, defendant was charged with possession with intent to distribute heroin, under 21 U.S.C. § 841(a). ECF 157 at 4. Count Four charged Kearney with possession of a firearm in furtherance of a drug trafficking crime, pursuant to 18 U.S.C. § 924(c). Id. at 5.

On December 10, 2018, defendant tendered a plea of guilty to Count One of the Superseding Indictment (ECF 347), pursuant to a Plea Agreement. ECF 349. The plea was entered under Fed. R. Crim. P. 11(c)(1)(C). Id. ¶ 9. Under the terms of the “C Plea,” the parties agreed to a sentence in the range of 120 to 180 months of incarceration. Id.

The Plea Agreement also included a Stipulation of Facts. ECF 349 at 9. According to the Stipulation, between March 2017 and January 2018, defendant was a member of the “‘Good Pussy' heroin shop” (“GP heroin shop”), which operated around “the 5100 block of Fairlawn Avenue in Baltimore, Maryland,” an area known as “the Buses.” Id. Kearney participated in a conspiracy to obtain and distribute one kilogram or more of heroin. Id.

Pursuant to an authorized wiretap, the Drug Enforcement Administration intercepted wire and electronic communications between members of the GP heroin shop, including Kearney, discussing the conspiracy's operations. Id. Pole cameras were positioned near the Buses and at 4201 Penhurst Avenue, where the conspirators kept their supply of heroin. Id. Using these cameras, investigators captured video evidence of defendant, on numerous occasions, “going to the location of the GP heroin shop's stash location,” before “driving directly to the Buses to supply heroin” to his co-conspirators. Id.

In March 2017, investigators executed a search warrant of defendant's residence. Id. They recovered 101 grams of heroin, a loaded firearm, and over $1,100. Id. After defendant was advised of his Miranda rights, he admitted that the property belonged to him. Id.

In the Plea Agreement, the parties contemplated a base offense level of 30, based on the drug quantity, pursuant to § 2D1.1(c)(5) of the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Id. ¶ 6(a). The parties also agreed to a two-level increase under U.S.S.G. § 2D1.1(b)(1), because the defendant possessed a firearm during the commission of the offense. Id. There was no agreement as to defendant's criminal history. Id. ¶ 7. But, the Plea Agreement reflects the government's belief that defendant would qualify as a career offender under U.S.S.G. § 4B1.1(a), which would increase his base offense level to 37, before deductions for acceptance of responsibility. Id. ¶ 6(a).

The Presentence Investigation Report (ECF 408, the “PSR”) reflected that the defendant, born in 1968 (id. at 3), has a long criminal history. Id. ¶¶ 28-45. This resulted in his designation as a career offender. Id. ¶ 47.

Several of the offenses listed in the PSR did not score points. See Id. ¶¶ 28-38, 42, 43, 45. However, of pertinence here, defendant's record included two prior felony drug distribution convictions. Id. ¶¶ 39, 40. In December 2001, Kearney was convicted of distribution of a controlled dangerous substance as well as conspiracy. Id. ¶ 39. He received concurrent sentences of twenty years imprisonment, of which sixteen years, eight months, and five days were suspended, as well as five years' probation. Id. Nearly six years later, in September 2007, defendant pled guilty to distribution of narcotics, for which he was sentenced to ten years' incarceration, of which nine years, eight months, and one day were suspended, and three years' probation. Id. ¶ 40. In other words, it appears to have been a time served sentence.

Sentencing in this case was held on February 22, 2019. ECF 435. At the time, Kearney was fifty years old. See ECF 408 at 3. He had a history of physical and mental ailments. Id. ¶¶ 77-82. He also reported a history of use of marijuana, alcohol, heroin, and crack cocaine, including daily use of all four substances for various periods of time. Id. ¶ 84. And, he previously participated in substance abuse treatment programs, with little or no success. Id. ¶ 86. Nonetheless, Kearney indicated that he would be “amenable to participating in substance abuse treatment while in the Bureau of Prisons and as a condition of his supervision.” Id.

Based on a career offender designation (id. ¶¶ 21, 47), Kearney had an offense level of 37 and a criminal history category of VI. Id. After deductions for acceptance of responsibility, he had a final offense level of 34. Id. ¶ 24.

As of the time of sentencing, the defendant had never served a lengthy sentence. See ECF 408. However, the offense of conviction carried a mandatory minimum term of ten years' imprisonment, with a maximum of life imprisonment. ECF 408, ¶ 97; ECF 349, ¶ 3. Based on an offense level of 34 and a criminal history category of VI, the Guidelines called for a period of imprisonment ranging from 262 to 327 months. ECF 408, ¶ 98. And, as noted, under the C Plea, the parties agreed to a sentence ranging from 120 to 180 months of imprisonment.

Notably, if defendant were not a career offender, his criminal history category would have been a IV, rather than a VI. Id. ¶ 46. And, his final offense level would have been a 29, rather than a 34. See id. ¶ 20. In that circumstance, the Guidelines would have called for a sentence of imprisonment ranging from 121 to 151 months. As discussed, infra, if defendant were sentenced today, he would not qualify as a career offender.

The Court has not been provided with a sentencing transcript. But, according to the notes in my Chambers file, the government recommended a sentence of 144 months (12 years) of incarceration. The Court imposed a sentence of 132 months' imprisonment (11 years), with credit for time served, followed by five years of supervised release. ECF 419.

On September 9, 2020, defendant submitted a request for compassionate release to the Warden. ECF 840-2 at 7. That request was promptly denied. Id. at 8. Defendant sought an administrative remedy, asking the Warden to conduct a review of defendant's medical history, pursuant to his request for compassionate release. Id. at 6. This request was also denied. Id. at 6. Thereafter, on December 9, 2020, defendant submitted his First Motion for compassionate release. ECF 840. As mentioned, by Memorandum Opinion (ECF 973) and Order (ECF 974) of August 31, 2021, I denied that motion, “without prejudice to [Kearney's] right to resubmit his request following full vaccination for COVID-19.” ECF 974 at 1.

As noted, Kearney received a COVID-19 vaccination on December 6, 2021 (ECF 1042-1 at 1), and filed the Motion on March 3, 2022. ECF 1042. In support, he observes that he “has a startling four of the core risk factors identified by the CDC for particular susceptibility to COVID-19, diabetes, stroke, heart disease and morbid obesity.” ECF 1042 at 10. Kearney also states that he has “family support from his sister, Robin James, whom he plans to live with upon release, as well as his mother, Christine James ....” Id. at 11.

The government contends that “although Petitioner's medical condition confers threshold eligibility, he has not established extraordinary and compelling reasons for compassionate release because he is not exposed to any risk of severe infection from a BOP facility.” ECF 1061 at 16. And, the government argues that ...