United States v. Livingston

UNITED STATES OF AMERICA, Plaintiff, v. DAVID CARROLL LIVINGSTON, Defendant.

No. 3:10-CR-88-TAV-HBG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

April 5, 2021

MEMORANDUM OPINION AND ORDER

This matter is before the Court on defendant's pro se motion for compassionate release [Docs. 56], pro se motion for updated docket sheet [Doc. 58], first motion for removal of counsel [Doc. 61], motion to appoint new counsel for compassionate release [Doc. 65], and motion for hearing on motion for compassionate release [Doc. 76]. Federal Defender Services of Eastern Tennessee ("FDSET") has filed a supplement to defendant's pro se motion for compassionate release [Doc. 81], the government has filed a response [Doc. 83], and FDSET has filed a reply [Doc. 88]. The matter is now ripe for adjudication. For the reasons set forth more fully below, defendant's motion for compassionate release will be DENIED.

I. Background

On September 28, 2010, defendant entered a guilty plea to the two count indictment [Doc. 5] which charged him with bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and with using, carrying, and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1) [Doc. 14]. Defendant was sentenced to 84 months of imprisonment as to each count, to run consecutively, for a total of 168 months, followed by five years of supervised release [Doc. 18].

Defendant is housed at FCI Schuylkill, which currently has seven (7) active cases of COVID-19 amongst the inmates, ten (10) active cases amongst the staff, and 93 staff and 213 inmates have been vaccinated against COVID-19. COVID-19 Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited March 31, 2021). Defendant is forty (40) years old and alleges that he has asthma, high cholesterol, diabetes, obesity, and other medical issues [Doc. 63], but his medical records indicate that he has been diagnosed with prediabetes, rather than diabetes, and do not indicate that he suffers from asthma, high cholesterol, or any other severe medical condition [Doc. 87]. With respect to defendant's claim that he suffers from obesity, based on defendant's height [PSR at ¶ 66] and last reported weight from his medical records [Doc. 87], defendant has a BMI of 29.4, which classifies him as overweight rather than obese.

As additional grounds for compassionate release, defendant states that he has a young adult son¹ whose mother passed away in 2018, and defendant contends that he would like to help raise his son. Defendant also states that he has elderly relatives who need a caregiver. Finally, defendant argues that there was an error in the Presentence Investigation Report's ("PSR") calculation of his advisory guideline. Defendant is scheduled forrelease on September 20, 2022. Inmate Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited March 31, 2021).

II. Legal Standard

A court generally lacks "the authority to change or modify [a sentence, once imposed,] unless such authority is expressly granted by statute." United States v. Thompson, 714 F.3d 946, 948 (6th Cir. 2013) (citing United States v. Curry, 606 F.3d 323, 326 (6th Cir. 2010)). The First Step Act of 2018's amendment of § 3582(c)(1)(A) revised one such exception. First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018). Prior to the First Step Act, a district court could grant relief under § 3582(c)(1)(A) only on motion of the Director of the Bureau of Prisons. Now a court may modify a defendant's sentence upon a motion by a defendant if the defendant has exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or after the lapse of thirty (30) days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier. 18 U.S.C. § 3582(c)(1)(A).

If the defendant surmounts this preliminary hurdle, the Court may grant a sentence reduction "after considering the factors set forth in section 3553(a) to the extent that they are applicable" if it finds:

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

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission . . . .

Id. Defendant seeks relief under § 3582(c)(1)(A)(i) [Doc. 81].

If the exhaustion requirement is satisfied, courts must then follow the statute's three-step test:

At step one, a court must "find[ ]" whether "extraordinary and compelling reasons warrant" a sentence reduction. At step two, a court must "find[ ]" whether "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The Commission's policy statement on compassionate release resides in U.S.S.G. § 1B1.13. Thus, if § 1B1.13 is still "applicable," courts must "follow the Commission's instructions in [§ 1B1.13] to determine the prisoner's eligibility for a sentence modification and the extent of the reduction authorized." At step three, "§ 3582(c)[(1)(A)] instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by [steps one and two] is warranted in whole or in part under the particular circumstances of the case."

United States v. Jones, 980 F.3d 1098, 1107-08 (6th Cir. 2020) (internal citations omitted). "In cases where incarcerated persons [as opposed to the Bureau of Prisons] file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define 'extraordinary and compelling' without consulting the policy statement § 1B1.13." Id. at 1111. In considering a compassionate release motion, "district courts may deny compassionate release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others" but must "address all three steps" if granting such a motion. United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021).

III. Analysis

A. Section 3582(c)(1)(A)'s Preliminary Threshold to Relief: Exhaustion

The Court examines first whether defendant has satisfied § 3582(c)(1)(A)'s exhaustion requirement, which is a mandatory prerequisite to consideration of a compassionate release request on the merits. United States v. Alam, 960 F.3d 831, 833-34 (6th Cir. 2020). "When 'properly invoked,' mandatory claim-processing rules 'must be enforced.'" Id. at 834 (quoting Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017)). The only exceptions to such a mandatory claim-processing rule are waiver and forfeiture. Id. (citing United States v. Cotton, 535 U.S. 625, 630 (2002)).

The government states that defendant only exhausted his administrative remedies as to one of the four arguments he raises for compassionate release, but waives the exhaustion requirement in this instance [Doc. 83]. Thus, the Court may consider the merits of defendant's request.

B. Extraordinary and Compelling Reasons

As noted above, the Court need not consider all three statutory prerequisites if any one would serve as a basis for denial. Elias, 984 at 519. In this instance, though not required, the Court will address both the extraordinary and compelling reasons requirement and the §3553(a) factors.

As noted above, defendant has been diagnosed with prediabetes and is overweight. The Centers for Disease Control have identified several health conditions which increase the risk of severe illness from COVID-19. See People with Certain Medical Conditions,Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited March 31, 2021). The Sixth Circuit has held that it is appropriate for a court to consider the CDC guidelines in assessing compassionate release motions. Elias, 984 F.3d at 521. While the CDC recognizes diabetes as increasing the risk of someone becoming seriously ill from COVID-19, it does not designate prediabetes as an increased risk factor. With respect to weight, the CDC does identify both obesity and being overweight as potential risk factors, but the Court declines to find that defendant's medical condition satisfies the "extraordinary and compelling reasons" requirement.

While the Court in no way minimizes the impact and severity of COVID-19, the Court notes that defendant recently contracted and recovered from COVID-19 with no apparent serious effects [See Doc. 87 at p. 5, noting that defendant tested positive on March 4, 2021, but that defendant denied any symptoms or complaints]. In addition, as the Court stated above, the Bureau of Prisons has begun vaccinating inmates against COVID-19. With this information in mind, at this time the Court finds that defendant's specific medical conditions do not rise to the level of "extraordinary and compelling."

With respect to defendant's desire to take care of his son and relatives, while the Court understands that defendant wants to help his family, the Court finds that there is insufficient evidence in the record to establish that defendant is the only person who can fill the role of caretaker. Furthermore, there is insufficient evidence that the need for a caretaker is so great as to rise to the level of "extraordinary and compelling."

The Court notes that a friend of defendant submitted a letter which states that defendant's son had been living with his grandparents, but that might no longer be the case [Doc. 80]. The letter does not indicate where the son is currently living [Id.]. While...