United States v. McIntyre

526 F.Supp.3d 1

UNITED STATES of America, Plaintiff,

v.Anthony E. MCINTYRE, Defendant.

18-CR-6089L

United States District Court, W.D. New York.

Signed March 17, 2021

Sean C. Eldridge, U.S. Attorney's Office, Rochester, NY, for United States of America.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Defendant Anthony E. McIntyre ("McIntyre") was convicted after trial of narcotics offenses and being a felon in possession of a firearm. On January 23, 2020, this Court sentenced McIntyre principally to a term of 86 months imprisonment, which he is presently serving at Lewisburg USP. McIntyre still has approximately 3 years left to serve on the sentence.

McIntyre has appealed his conviction and it remains pending before the United States Court of Appeals for the Second Circuit. Because of that appeal, this Court lacks jurisdiction to entertain motions on the case.

McIntyre, through counsel, has filed a motion (Dkt. #123) for an Indictive Ruling. Counsel moves pursuant to Fed. R. Crim. P. 37(a) and asks this Court to issue an "indictive ruling" that the Court would grant a sentence reduction for compassionate release under 18 U.S.C. § 3582(c) if the Court of Appeals were to remand the case solely for that purpose. Rule 37 provides the Court with several options on motions filed while an appeal is pending. The Court could defer ruling in the motion for compassionate release, render an "indicative ruling" that it would grant the motion, or it could simply deny the motion on the merits.

The Government has filed a Response (Dkt. #128) to the motion urging the Court, pursuant to Fed. R. Crim. P. 37(a) to deny the motion. The Probation Department for the Western District of New York has filed its Report (Dkt. #129) relative to McIntyre and the status of matters at Lewisburg USP.

After considering the pleadings, and authority pursuant to 18 U.S.C. § 3582(c), the sentencing factors under 18 U.S.C. § 3553(a), I elect, pursuant to Fed. R. Crim. P. 37(a), to deny the motion for compassionate release.

Although McIntyre has apparently exhausted his administrative remedies as required by statute, it does not appear that he is entitled to the release that he seeks. First of all, the motion is based on the serious COVID-19 pandemic which has affected the public and certainly inmates for the past year. Simply because there is the pandemic, though, does not warrant, by itself, the release of inmates sentenced for serious crimes to significant terms of imprisonment. The test is whether the inmate has established extraordinary and compelling reasons for a sentence reduction and the burden is on the inmate.

After reviewing all the factors, I believe McIntyre has failed to establish extraordinary and compelling reasons for his early release. McIntyre is relatively young, 38 years old, and is classified at the Bureau of Prisons at the lowest medical care level: Level 1. According to the Probation Report, in the original Presentence Report, McIntyre himself reported that he is in good health with only minor medical problems, including high blood pressure, which is treated with medication. That Report, as well as the Government's Response, also indicates that McIntyre declined to receive the COVID-19 vaccine on ...