United States v. Marshall

604 F.Supp.3d 277

UNITED STATES of America

v.Kerry MARSHALL

CRIMINAL ACTION NO. 00-385

United States District Court, E.D. Pennsylvania.

Signed March 14, 2022

Howard Perzan, Robert A. Zauzmer, United States Attorney's Office, Philadelphia, PA, for United States of America.

MEMORANDUM

Padova, District Judge

This action arises out of Petitioner Kerry Marshall's conviction for conspiracy to receive explosives in violation of 18 U.S.C. § 844(n). Presently before the court is Marshall's "Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(1)." Marshall filed this Motion after the Pennsylvania state court vacated his life without parole sentence for crimes he committed when he was a minor, following the United States Supreme Court's ("Supreme Court") directives in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Marshall now argues that the unconstitutional state sentence imposed upon him as a minor and subsequent long-term periods in solitary confinement, which had psychological repercussions that led to his federal crime, in combination with his significant efforts towards rehabilitation, constitute extraordinary and compelling circumstances for compassionate release under the First Step Act of 2018 ("FSA"). He also seeks release based on his medical conditions and the COVID-19 pandemic.

We held argument on Marshall's Motion on December 15, 2021. For the reasons that follow, we now grant the Motion in part and defer it in part. Specifically, we grant the Motion insofar as it seeks a determination that Marshall has established an extraordinary and compelling reason for relief, but defer the Motion insofar as it seeks a sentence reduction and, instead, schedule a hearing for consideration of the sentencing factors under 18 U.S.C. § 3553(a).

I. BACKGROUND

A. Marshall's State Homicide Conviction

On November 2, 1988, 17-year-old Marshall and his 14-year-old accomplice climbed aboard a fish truck and attempted an armed robbery. The driver, Susan Richardson, drew her gun in defense, and she and Marshall exchanged shots. Marshall was struck in the hand and Ms. Richardson was shot in the chest. Ms. Richardson eventually died of her wound. On March 6, 1990, Marshall was found guilty of first-degree murder, recklessly endangering another person (two counts), robbery, possession of an instrument of crime, and criminal conspiracy. He was sentenced to a mandatory sentence of life without the possibility of parole ("LWOP").

B. Marshall's First Decade of Confinement

Marshall was diagnosed with antisocial personality disorder in 1990 shortly after entering prison. (Presentence Investigation Report ("PSR") ¶ 42.) In prison, he would often hurt guards or other inmates. (See Pet'r’s Medical Records ("Med. Records"), Pet'r’s Ex. J (Docket No. 110), at 2, 4.) A psychological report prepared in 1995 concluded: "Mr. Marshall's thought content is characterized by a paranoid symptomology. Although some of his behavior is a projection of reasonable fear within prison, Mr. Marshall reacts to future possible violence in his actions, i.e., burying a shank, assaulting individuals." (Id. at 2.)

As a result of his misconduct, Marshall spent over 13 years in solitary confinement, the majority of which was during his first decade in prison. (Pet'r’s State Court Resentencing Transcript ("Pet'r’s Resentencing Tr."), Pet'r’s Ex. A (Docket No. 91-1), at 39.) His psychological examination in 1995 was conducted after he had recently spent 2.5 years in solitary confinement for assaulting a guard and then had been returned to solitary for burying a shank. (Med. Records at 2.) Marshall was again released from solitary confinement in August 1996 but was sent back one month later for "threatening comments written on a request slip." (Id. at 3.) Marshall recognized the wrongfulness of his behavior, but "expresse[d] difficulty in controlling his actions." (See id. ) In August 1997, Marshall, upon his request, was admitted to a mental health unit for "major depression." (Id. at 17.) A medical record from that time reads: "[u]pon admission [to the mental health unit,] Mr. Marshall was observed to be despondent and sobbing. He was believed to be suicidal at times. Issues involved the sudden asthma death of his grandmother and early mid-life crisis (life sentence). Poor hygiene was exhibited and neurovegetative symptoms were reported." (Id. at 18.) He was ultimately diagnosed with major depressive disorder. (Id. at 6.)

C. Marshall's Federal Conviction

In June of 1999, while Marshall was serving his LWOP sentence at the State Correctional Institute at Graterford, correctional officers found 250 feet of rope under Marshall's mattress and discovered one of the metal bars on his window had been cut away in what officials determined was an attempted escape. (6/7/01 Guilty Plea Hr'g Tr. ("6/7/01 Hr'g Tr.") at 15.) As a result, Marshall was again placed in solitary confinement, and all of his ingoing and outgoing mail was intercepted, copied, and read, leading authorities to discover a series of incriminating letters. (Id. ) These letters, which were between Marshall, his mother, and other individuals, led to a suspicion that Marshall was attempting to smuggle dynamite into prison in order to facilitate his escape. (Id. at 15-17.) On October 1, 1999, undercover agents met with Marshall's mother. (Id. at 17.) The agents, acting undercover, provided Marshall's mother with five sticks of sham dynamite and a handgun, and she acknowledged that she knew the items were to be used to free her son. (Id. at 18.) The next day, prison officials intercepted a letter from Marshall telling another individual to contact his mother to obtain the dynamite. (Id. )

On June 29, 2000, Marshall and his mother were charged with conspiracy to receive explosives in violation of 18 U.S.C. § 844(n), "as part of a plan to cause the escape of [Marshall] from the custody of the Pennsylvania Department of Corrections." (Indictment at 1.) On June 7, 2001, Marshall pled guilty to this crime. (6/7/01 Hr'g Tr. at 23.)¹

D. Marshall's Federal Sentence

We sentenced Marshall on September 12, 2001. In determining Marshall's sentence, we considered the sentencing recommendations of both the Probation Officer and the Government, the pre-sentence investigation report, the statutory maximum provided by 18 U.S.C. § 844(d), and the Sentencing Guidelines Range calculated pursuant to the 2000 edition of the United States Sentencing Guidelines. Marshall had nine criminal history points, three of which arose from a 1990 conviction for "manufacture and delivery" of crack cocaine,² three of which arose from the murder conviction underlying the unconstitutional LWOP sentence, and three of which arose from a 1995 conviction for making a knife for another prisoner. Marshall received an additional three points because he was imprisoned—serving his unconstitutional LWOP sentence—at the time he committed the explosives conspiracy. We therefore assigned him a criminal history category of V. This criminal history category, in combination with Marshall's calculated offense level of 25, resulted in a Sentencing Guidelines Range of 100-120 months, which at the time was a mandatory sentencing range.³ Although we knew at sentencing that Marshall had a lengthy disciplinary record, we did not know that he had spent years in solitary confinement. We ultimately sentenced Marshall to a term of 110 months in prison, to be served consecutively to his state LWOP sentence.⁴

E. Marshall's Post-Conviction Record

Marshall stayed in state prison after we imposed our federal sentence to run consecutively to his state sentence. His last misconduct was in or around 2010. (Pet'r’s Mem. at 23.) He has taken college classes at Villanova and completed 15 self-improvement courses. (Id. see also Marshall's Programming Records ("Program Records"), Pet'r’s Ex. D (Docket No. 91-3), at 2, 4-8, 20-22 of 22.) He has also "founded a book club and a performing arts program, facilitated courses on restorative justice ... taught vocational skills," worked as a peer educator to assist "those seeking state parole," and served as an advocate for prison reform with groups including "Citizens United for the Rehabilitation of Errants (CURE), Books Through Bars, the Human Rights Coalition, Real Cost of Prisons, Decarcerate PA, and Prison Radio." (Pet'r’s Mem. at 23-24; see also Program Records at 20-22 of 22.) In sum, he has become an advocate for change affecting lives both inside and outside of the prison.

F. Marshall's State Court Order Vacating his State Sentence

In 2012, the Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller, 567 U.S. at 479, 132 S.Ct. 2455 (citation omitted). This is in part because "a child's character is not as well formed as an adult's, his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity]." Id. at 471, 132 S.Ct. 2455 (alterations in original) (quotations omitted). In 2016, the Supreme Court found that " Miller announced a substantive rule that is retroactive in cases on collateral review." Montgomery, 577 U.S. at 206, 136 S.Ct. 718. In light of these decisions, Marshall filed a Post-Conviction Relief Act ("PCRA") petition in Pennsylvania state court. On May 17, 2018, Judge Jeffrey Minehart of the Court of Common Pleas of Philadelphia County granted the PCRA petition, vacated Marshall's LWOP sentence, and resentenced him to 29 years to life, in part due to his rehabilitation efforts, giving him immediate parole eligibility. (Pet'r’s Resentencing Tr. at 90-91.) Marshall was paroled not long after, in 2020, but because of his federal sentence, he was transferred to the custody of the Federal Bureau of Prisons to serve his 110-month federal sentence instead of being released. (Pet'r’s Mem. ...