United States v. Lii

528 F.Supp.3d 1153

UNITED STATES of America, Plaintiff,

v.Henry Kapononuiahopili LII, Defendant.

CR. NO. 06-00143 JMS (01)

United States District Court, D. Hawai‘i.

Signed March 23, 2021

Beverly W. Sameshima, Office of the United States Attorney, Honolulu, HI, for Plaintiff.

Glenn D. Choy, Honolulu, HI, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE, ECF NO. 154

J. Michael Seabright, Chief United States District Judge

I. INTRODUCTION

In 2006, Defendant Henry Kapononuiahopili Lii ("Defendant") pled guilty to three methamphetamine-related offenses that involved a total of 104.6 grams of actual methamphetamine. Based on two prior state court convictions for minor drug offenses, Defendant was sentenced to a mandatory minimum sentence of life in prison.¹

Defendant now moves, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), for compassionate release from United States Penitentiary Atwater ("USP Atwater"). ECF No. 154. He argues that compassionate release is warranted because (1) his life sentence is grossly disproportionate relative to the fifteen-year mandatory minimum that now applies in light of the First Step Act's sentencing reforms; and (2) pre-existing medical conditions place him at increased risk of serious illness or death should he contract COVID-19. Id. The court agrees that the enormous sentencing disparity justifies compassionate release and thus ORDERS that Defendant's sentence be reduced to time served with supervised release to follow.

II. BACKGROUND

On August 24, 2006, Defendant pled guilty to a three-count indictment charging him with: (1) conspiring to distribute and possess with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) ; (2) distributing 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) ; and (3) possessing with intent to distribute 5 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). ECF No. 39; ECF No. 78 at PageID # 214. These charges were based on the distribution of 77.4 grams of actual methamphetamine and the possession of 27.2 grams of actual methamphetamine with the intent to distribute. See PSR ¶¶ 12-13, ECF No. 73 at PageID # 1048. Thus, for the purpose of sentencing, Defendant was deemed responsible for 104.6 grams of actual methamphetamine. Id. at ¶ 26, ECF No. 73 at PageID # 1050.

Under the United States Sentencing Guidelines ("Guidelines"), and based on this drug quantity, Defendant received a base level offense 32 and a three-level downward adjustment for acceptance of responsibility, resulting in a total offense level of 29. Id. at PageID # 1051. With a criminal history category VI at the time of sentencing, id. at PageID # 1052-57, Defendant's advisory Guideline range—before taking into account the mandatory minimum—was 151 to 188 months. Id. at ¶ 73,² ECF No. 73 at PageID # 1060; see also Guideline Sentencing Table (2007).³ But because the Government filed a special information pursuant to 21 U.S.C. § 851, Defendant received a mandatory life sentence. See ECF No. 33; ECF No. 78 at PageID # 215.

In 2006, when Defendant was sentenced, the filing of a § 851 special information triggered enhanced mandatory minimum sentences under 21 U.S.C. § 841 based on prior "felony drug offenses," defined as any drug offense "that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country." 21 U.S.C. § 802(44). Based on Defendant's conviction under 21 U.S.C. § 841(b)(1)(A), one prior conviction resulted in a mandatory minimum of 20 years, and two prior convictions resulted in a mandatory minimum of life. See PSR ¶¶ 71, ECF No. 73 at PageID # 1060.

In this case, the Government's special information relied on two prior convictions, both stemming from 1988 arrests, when Defendant was 22 years old. Id. at ¶¶ 40-41, ECF No. 73 at Page ID ## 1052-54. First, Defendant was convicted in Hawaii state court in 1988 for promoting a dangerous drug in the second degree after he sold 0.27 grams of cocaine to an undercover police officer for $50. Id. at ¶ 40, ECF No. 73 at Page ID # 1052. This offense is a class B felony, punishable by a maximum term of imprisonment of 10 years. See Hawaii Revised statutes ("HRS") § 712-1242 ; HRS § 706-660(2)(a). Second, Defendant was convicted in Hawaii state court in 1989 for promoting dangerous drugs in the third degree—a class C felony punishable by a maximum term of imprisonment of five years, HRS § 712-1243 ; HRS § 706-660(2)(b)⁴ —after a probation search of his apartment yielded 3.09 grams of cocaine, 0.06 grams of marijuana, and two glass pipes. PSR ¶ 41, ECF No. 73 at Page ID # 1053-54. Because both of these convictions qualified as "felony drug offenses," Defendant's mandatory minimum sentence was increased from ten years to life. See id. at ¶¶ 71-72, ECF No. 73 at PageID # 1060.

Defendant has now spent 15 years in Bureau of Prisons ("BOP") custody. During that time, he has had a mixed record. In his favor, he has taken multiple educational classes, worked continuously, and has reportedly completed a non-residential drug treatment program. ECF No. 154-3; ECF No. 154-1 at PageID # 915. He has worked as a unit orderly since 2016, and his most recent program review states that he "[m]aintains the high standards of the Unit, assists in tasks that he is not assigned, and maintains Good work evaluations." ECF No. 154-3 at PageID # 921.

Much less favorable, Defendant has received four disciplinary actions over the last fifteen years. ECF No. 160-1 at PageID ## 985-86. Three of these offenses—receiving money from another inmate's family, possessing intoxicants (which appear to be alcohol), and participating in a group demonstration—are of lesser concern than the fourth—possession of "card stock bindles laced [with] heroin" in January 2018. Id. ; see generally ECF No. 175-1.

On March 23, 2020, Defendant applied to USP Atwater's Warden for compassionate release based on the First Step Act's sentencing reforms. ECF No. 149-1 at PageID # 863. USP Atwater's Warden denied Defendant's request on April 23, 2020, id. at PageID # 864, and Defendant appealed (sought reconsideration) on June 8, 2020. ECF No. 149-2 at PageID # 865. That appeal, too, was denied by the Warden. Id. at PageID # 866. On January 6, 2021, Defendant, represented by counsel, moved for compassionate release before this court based both on the First Step Act change in law and health concerns related to COVID-19. ECF No. 154.

The Government filed its Opposition on January 21, 2021. ECF No. 160. Among other issues, the Government argued that Defendant failed to exhaust his administrative remedies because he had never sought compassionate release from BOP based on COVID-19 concerns. Id. at PageID ## 969-72. On January 25, 2021, Defendant submitted a request for compassionate release on COVID-19 grounds to the USP Atwater Warden, which was denied on February 10, 2021. ECF No. 173 at PageID # 1086. The parties now agree that Defendant has fully exhausted his administrative remedies. Id. at PageID # 1085.

Meanwhile, Defendant filed his Reply to the Government's Opposition on January 27, 2021. ECF No. 163. After applying for leave to do so, the Government filed a Sur-Reply on February 18, and Defendant filed a Response to the Sur-Reply on February 23, 2021. ECF Nos. 167 & 171. An in-court hearing was held on March 8, 2021. ECF No. 174. At the court's request, the Government filed a Second Supplemental Brief on March 15, 2021. ECF No. 175.

III. DISCUSSION

A. Legal Framework

Both the compassionate release mechanism Defendant invokes and his argument as to why compassionate release is warranted stem from reforms implemented through the First Step Act of 2018. The court sets forth the pertinent provisions of the Act before turning to the substance of Defendant's arguments.

1. Compassionate Release

The First Step Act substantially increased the ability of federally incarcerated persons to seek reduction of their sentence under the "compassionate release statute," 18 U.S.C. § 3582(c)(1)(A). United States v. McCoy , 981 F.3d 271, 275 (4th Cir. 2020). Before passage of the First Step Act, courts could only consider motions for compassionate release upon a motion by the BOP. Id. at 276. But the BOP "used that power so ‘sparingly’ " that a negligible number of incarcerated persons were released each year. Id. Moreover, the BOP lacked standards and timelines for review of compassionate release motions, "causing delays so substantial that inmates sometimes died awaiting final BOP decisions." Id. (citing United States v. Brooker , 976 F.3d 228, 231-32 (2d Cir. 2020) ).

Through the First Step Act, Congress amended § 3582(c)(1)(A) to "remove the Bureau of Prisons from its former role as gatekeeper over compassionate release petitions." Id. (internal quotation and citation omitted). As amended, § 3582(c)(1)(A) now allows defendants to file motions for compassionate release on their own behalf, so long as they first "exhaust[ ] all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [their] 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." Once administrative remedies have been exhausted, a court may grant a defendant's motion for compassionate release if "after considering the factors set forth in [ 18 U.S.C.] section 3553(a) to the extent that they are applicable," it finds that "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).

Thus, the court may reduce Defendant's sentence if: (1) Defendant has exhausted the required administrative remedies; (2) after consideration of the applicable section 3553(a) factors, the court determines that Defendant...