United States v. McDonel

513 F.Supp.3d 752

UNITED STATES of America, Plaintiff,

v.Robert MCDONEL, Defendant.

Case Number 07-20189

United States District Court, E.D. Michigan, Southern Division.

Signed January 13, 2021

Terrence R. Haugabook, Benjamin Coats, Jessica Vartanian Currie, United States Attorney's Office, Detroit, MI, for Plaintiff.

ORDER GRANTING MOTION TO REDUCE SENTENCE

DAVID M. LAWSON, United States District Judge Defendant Robert McDonel, then 21 years old, was sentenced to over 100 years in prison in 2008 after engaging in a spree of auto parts store robberies using a handgun. That extraordinarily harsh sentence was the product of a statutory sentencing scheme that required enhancing and stacking sentences for multiple firearm brandishing offenses even when the crimes were committed as part of the same episode and charged in a single indictment. Congress since has corrected that Draconian measure, but the legislation does not help McDonel, as the amendment is not retroactive. He asks the Court for relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for "extraordinary and compelling reasons." The gross disparity created by the legislative changes, which mitigated the harshness in the sentencing scheme to which McDonel was subjected, coupled with McDonel's youth and rehabilitative efforts, qualify as extraordinary and compelling reasons under section 3582(c)(1)(A)(i). Other factors that the Court also must consider favor relief. The motion will be granted.

I.

Over the span of two weeks in November 2006, Robert McDonel and co-conspirators Johnnie Cromer, Frederick Atkins, Maurice Woodley, and Kenneth Brown robbed five businesses — mostly auto-part stores — at gunpoint in Detroit, Michigan. Police arrested Woodley first, then McDonel in late 2006, just as he was preparing to rob a sixth business. McDonel was 19 years old at the time.

Cromer and Atkins robbed three more stores after McDonel's arrest. During one of the subsequent robberies in April 2007, someone fired a gun during a struggle between Atkins and a customer. Atkins sprinted from the store but dropped his cell phone on the way. Police used that phone to track down Atkins and arrest him. Then, acting under a warrant, police arrested Cromer on August 2, 2007.

A federal grand jury charged McDonel with five counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951 and five counts of brandishing a firearm during and in relation to those robberies in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Cromer and Adkins were added to the case in two superseding indictments.

Before trial, the government offered McDonel a plea deal where it would recommend a 20-year sentence if he cooperated and 30 years if he did not cooperate. McDonel refused the offer, electing to try his case instead.

On March 31, 2008, a jury convicted McDonel on all counts. After trial, the government again offered McDonel a plea deal of 20 years imprisonment if he provided information related to other crimes, but he also refused that offer.

On August 6, 2008, the Court sentenced McDonel to a total sentence of 1,285 months (107 years and 1 month) in prison, broken down as follows: one month each for the Hobbs Act robberies to run concurrently, 84 months (seven years) for the first section 924(c) conviction, and 300 months (25 years) each for the remaining four section 924(c) convictions all to run consecutively to each other. The latter four section 924(c) convictions carried mandatory minimum sentences of 25 years because they were "second or subsequent" convictions within the meaning of section 924(c)(1)(C) as then in effect.

McDonel's co-conspirators fared much better. Woodley and Cromer testified against McDonel and Atkins at their trial in exchange for reduced sentences. The Court sentenced Woodley to four years in prison, and Cromer received 20 years.

On October 2, 2019, McDonel submitted a written request to the Warden of United States Penitentiary (USP) at Atwater, asking that the Warden move the Court for a reduction of his sentence under 18 U.S.C. § 3582(c)(1)(A)(i). The Warden declined McDonel's request in writing on November 4, 2019. This motion followed.

So far, McDonel has served about 13 years of his sentence. He likely will not live long enough to serve all of it. His projected release date is November 21, 2098.

II.

As a general rule, "a federal court ‘may not modify a term of imprisonment once it has been imposed.’ " United States v. Alam , 960 F.3d 831, 832 (6th Cir. 2020) (quoting 18 U.S.C. § 3582(c) ). "But that rule comes with a few exceptions, one of which permits compassionate release." Ibid. "The request may come through a motion in federal court filed by the Director of the Bureau of Prisons. 18 U.S.C. § 3582(c)(1)(A). Or it may come through a motion filed by the inmate after he has ‘fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the [prisoner]’s behalf’ or after ‘the lapse of 30 days from the receipt of such a request by the warden of the [prisoner]’s facility, whichever is earlier.’ " Ibid. (quoting 18 U.S.C. § 3582(c)(1)(A) ).

Upon a proper motion via either avenue, the Court may, "[a]fter ‘considering the factors set forth in section 3553(a) ... reduce the prisoner's sentence if it finds that ‘extraordinary and compelling reasons warrant such a reduction’ or if the ‘[prisoner] is at least 70 years of age,’ has ‘served at least 30 years,’ and meets certain other conditions." Ibid. (quoting 18 U.S.C. § 3582(c)(1)(A)(i), (ii) ). McDonel relies on subparagraph (i) of the statute. Under that provision, the Court can order a reduction of a sentence, even to time served, by following a procedure that the court of appeals has distilled into three steps. First , consider whether "extraordinary and compelling reasons warrant such a reduction." Second , determine if the "reduction is consistent with applicable policy statements issued by the Sentencing Commission." Third , "consider[ ] the factors set forth in section 3553(a) to the extent that they are applicable." United States v. Ruffin , 978 F.3d 1000, 1004-06 (6th Cir. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A) ).

The Sentencing Commission's policy statement to be considered under step two is found in U.S.S.G. § 1B1.13, which simply recites the statute. The commentary adds gloss, which does not have the force of law. United States v. Havis , 927 F.3d 382, 386 (6th Cir.), reconsideration denied , 929 F.3d 317 (6th Cir. 2019) (en banc) (holding that the "commentary has no independent legal force — it serves only to interpret the Guidelines’ text, not to replace or modify it"). That has led the court of appeals in its evolving guidance on the subject to hold that district courts should dispense with step two when the motion for compassionate release comes from a prisoner and not the BOP. United States v. Jones , 980 F.3d 1098, 1109 (6th Cir. 2020) ("We now join the majority of district courts and the Second Circuit in holding that the passage of the First Step Act rendered § 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for compassionate release.") (citing United States v. Brooker , 976 F.3d 228, 234 (2d Cir. 2020) ).

More recently, the court of appeals took the explanation a step further. In United States v. Elias , 984 F.3d 516, No. 20-3654 WL (6th Cir. Jan. 6, 2021), the court ascribed Congress's amendment of section 3582(c)(1) to the BOP's "rare[ ]" exercise of its power to move for sentence reductions, that "the program was plagued by mismanagement," and that "the BOP ‘ha[d] no timeliness standards for reviewing ... requests.’ " 984 F.3d at 519 (quoting United States v. Brooker , 976 F.3d 228, 231-32 (2d Cir. 2020) ). It reaffirmed Jones ’s holding "that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions." Id. at 519. It then held that "in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define ‘extraordinary and compelling’ on their own initiative." Ibid.

A.

McDonel has exhausted his administrative remedy within the BOP, submitting a written request to the Warden to move for a reduction of sentence under section 3582(c)(1)(A)(i) on October 2, 2019. That request was denied, and McDonel waited the requisite 30 days before filing his motion in this Court.

B.

Addressing the first element — extraordinary and compelling reasons — McDonel argues that the amendment to section 924(c) ’s enhanced mandatory sentence stacking provisions wrought by the First Step Act, coupled with the effect of the old regime's resulting "indefensibly harsh, stacked sentences" and his substantial (albeit imperfect) rehabilitation efforts, satisfies this element.

Because McDonel went to trial on all five robbery counts and their accompanying section 924(c) charges, his convictions called for a seven-year sentence on the first section 924(c) count and four 25-year sentences on the rest of the 924(c) convictions that are to run consecutively to each other, resulting in a total sentence of 107 years on the firearm charges alone. Section 403 of the First Step Act clarified that 924(c) sentences can be stacked only if the second offense occurs after a final conviction on the first offense. § 403(a), 132 Stat. at 5221–22. In other words, if sentenced today, a court would add only seven years on each count to McDonel's sentence for brandishing a gun during the robberies, not 25 years. Congress did not make this change retroactive. § 403(b), 132 Stat. at 5222.

The government maintains that the non-retroactive changes to section 924(c) cannot constitute extraordinary and compelling circumstances allowing compassionate release because doing so would defy Congress's...