United States v. Lumbardy

1

UNITED STATES OF AMERICA, Plaintiff, v. STANLEY LEE LUMBARDY, Defendant.

No. CR. 19-50107-JLV

United States District Court, D. South Dakota, Western Division

May 5, 2023

ORDER

JEFFREY L. VIKEN, UNITED STATES DISTRICT JUDGE.

INTRODUCTION

Defendant Stanley Lee Lumbardy, appearing pro se, filed a motion for compassionate release and appointment of counsel together with a number of supporting documents. (Dockets 71 and 71-1). Pursuant to the May 1, 2020, Standing Order 20-06 the Federal Public Defender for the Districts of South Dakota and North Dakota (“FPD”) and the United States Attorney for the District of South Dakota filed records submissions and briefing on Mr. Lumbardy's motion. (Dockets 72-76). For the reasons stated below, defendant's motion is granted.

STANDING ORDER 20-6

Standing Order 20-06,^[1] captioned “Establishing a Procedure for Compassionate Release Motions Under the First Step Act,” put in place “a procedure for submission and consideration of compassionate release motions under the First Step Act, 18 U.S.C. § 3582(d)(1)(A), in the wake of the spread of the COVID-19 virus into the federal prison system.” (SO 20-06 at p. 1).

Under the order, the FPD is automatically “appointed to represent all defendants in criminal cases: (a) who previously were determined to be entitled to appointment of counsel or who are now indigent; and (b) who may be eligible to seek compassionate release under the First Step Act.” Id. at ¶ 1. The initial step for the FPD is to

communicate a recommendation to inmates interested in compassionate release that they immediately submit requests for compassionate release to the warden of the facility in which they are detained, if they have not done so already. These communications will include the recommendation that the prisoner describe their proposed release plan.

Id. at ¶ 2.

By the standing order, the FPD and the United States Attorney for the District of South Dakota are “to place [the defendant] into one of four categories[.]” Id. at p. 2 ¶ 4. Those categories are:

a. High Priority Cases where there exists some combination of:

(i) medical issues that correspond to the categories outlined in the commentary to U.S.S.G. § l.B.1.13; (ii) recognized COVID-19 risk factors in the inmate's medical history; and/or (iii) imprisonment in a federal facility known to have a serious COVID-19 outbreak in its population....

b. Intermediate Priority Cases where identified medical issues and/or COVID-19 risk factors and/or institutional concerns are less extreme than High Priority Cases.

c. Low Priority Cases where there are no identifiable medical issues or COVID-19 risk factors. d. Unknown Risk Cases where there is a lack of sufficient information to categorize the request for compassionate release.

Id. The FPD and U.S. Attorney are to “immediately report the categorization . . . to the Clerk of Court and the Probation Office.” Id.

MR. LUMBARDY'S CLASSIFICATION

On August 4, 2022, the FPD and the U.S. Attorney filed a notice of categorization of compassionate release. (Docket 72). They jointly “agree that this case should be categorized an Intermediate Priority case.” Id.

FACTUAL BACKGROUND

On August 17, 2021, Defendant Stanley Lumbardy was sentenced to a term of 60 months in the custody of the Bureau of Prisons (“BOP”) for his conviction for attempted receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1). (Docket 69). This sentence was the statutory minimum term of imprisonment mandated by 18 U.S.C. § 2252A(b)(1). But for this mandatory minimum sentence, according to Mr. Lumbardy's presentence report (“PSR”) (Docket 62) “[b]ased on a total offense level of 19 and a criminal history category of I, the guideline imprisonment range [would have been] 30 months to 37 months.” (Docket 62 at ¶ 52).

Mr. Lumbardy is currently an inmate at the United States Penitentiary in Englewood, Colorado (“FCI Englewood”).^[2]According to the BOP website, Mr. Lumbardy's release date is July 9, 2025. As of this order, Mr. Lumbardy has served approximately 40 percent of his sentence and his home detention eligibility date is January 9, 2025. (Docket 73 at p. 104). Mr. Lumbardy is 72 years old. Id.

Mr. Lumbardy's pro se motion seeks compassionate release on the basis of extraordinary and compelling reasons in light of his personal health during the COVID-19 pandemic. (Docket 71). Mr. Lumbardy suffers from:

• Major depressive disorder. (Docket 73 at p. 24);

• Essential (primary) hypertension. Id.;

• Hyperlipidemia. Id.; and

• Anxiety disorder. Id.

ANALYSIS

A. Legal Standard

Because sentences are final judgments, a “court may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). In 2018, Congress passed the First Step Act (“FSA”), which amended 18 U.S.C. § 3582(c)(1)(A) to permit inmates in specified circumstances to file motions in the court where they were convicted seeking compassionate release.

Compassionate release provides a narrow path for defendants with “extraordinary and compelling reasons” to leave prison early. 18 U.S.C. § 3582(c)(1)(A)(i). Such a sentence must comply with the 18 U.S.C. § 3553(a) sentencing factors and “applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The Sentencing Commission's policy statement, which was adopted before the FSA, requires both “extraordinary and compelling reasons” and that “the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(1) (U.S. Sentencing Comm. 2018). The inmate bears the burden to establish that compassionate release is warranted. United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016). The district court is not required to investigate possible avenues for relief or to develop the record in support of a motion. United States v. Banderas, 39 F.4th 1059 (8th Cir. 2022).

Congress did not define what constitutes “extraordinary and compelling.” 28 U.S.C. § 994(t). Rather, the Sentencing Commission was directed to promulgate “the criteria to be applied and a list of specific” extraordinary and compelling examples. Id. Prior to Congress passing the FSA, the Sentencing Commission limited “extraordinary and compelling reasons” to four scenarios which are the consideration of the defendant's (1) terminal illness, (2) debilitating physical or mental health condition, (3) advanced age and deteriorating health in combination with the amount of time served and (4) compelling family circumstances. Id. There was a fifth catch-all category for an “extraordinary and compelling reason other than, or in combination with, the reasons described” as determined by the Director of the Bureau of Prisons. U.S.S.G. § 1B1.13 cmt. n.1(D). These categories have not been updated since December 2018 when FSA became law.^[3]

As a result, district courts are left to determine whether the policy statement of the Sentencing Commission that was in existence when the FSA was passed still applies. See Concepcion v. United States, 142 S.Ct. 2389, 2404 (2022) (“the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act”). The purpose of the First Step Act is to expand the availability of compassionate release based on judicial findings of extraordinary and compelling reasons without being restricted to those categories identified by the Sentencing Commission or the rationale used by the BOP before the passage of the First Step Act. It is clear Congress wishes to “[i]ncreas[e] the [u]se . . . of [c]ompassionate [r]elease” by allowing district courts to grant petitions “consistent with applicable policy statements” from the Sentencing Commission. See 18 U.S.C. § 3582(c)(1)(A).

A defendant may not bring a motion for compassionate release until after he has “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's 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.” 18 U.S.C. § 3582(c)(1)(A).

In this case, Mr. Lumbardy requested compassionate release from FCI Englewood's Warden on December 16, 2021. (Docket 73 at p. 106). The warden denied his request on December 28, 2021. Id. at pp. 98-99. Mr. Lumbardy has exhausted his administrative remedies. 18 U.S.C. § 3582(c)(1)(A).

B. Defendant's Motion for Compassionate Release

Mr. Lumbardy argues his age, mental health conditions [major depressive disorder and anxiety disorder] and hypertension increase his risk of developing serious complications from COVID-19. (Docket 74 at p. 6). Acknowledging “he has received three doses of the Moderna vaccine,” Mr. Lumbardy submits he “remains susceptible to COVID-19 as new variants develop.” Id. He contends that according to the scientific literature these new variants “are four times more resistant to antibodies from vaccines than BA.2, a subvariant that became the dominant strain in the United States in April [2022].” Id. at p. 7 (internal citation omitted). Plus, he argues “people who [are] over 65 make up . . . 69 percent of hospitalizations [for COVID-19] among fully vaccinated people.” Id. (internal citation omitted). At his age, “in the prison environment,” Mr. Lumbardy submits his “mental and physical condition[s] are deteriorating and he has limited ability to care for himself.” Id. at p. 10.

Addressing the 18 U.S.C. § 3553(a) factors, Mr. Lumbardy argues “a reduction in sentence to time served is warranted in light of his age, health conditions, his personal history and characteristics, and the nature and...