United States v. Merriweather

UNITED STATES OF AMERICA, Plaintiff, v. LARRY D. MERRIWEATHER, Defendant.

No. 02-40130-JAR-1

United States District Court, D. Kansas

August 9, 2021

MEMORANDUM AND ORDER

JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on Defendant Larry D Merriweather's Motion for Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A)(i) (Doc. 110). The motion is fully briefed, and the Court is prepared to rule. For the reasons discussed below, the Court grants Merriweather's motion.

I. Background

On August 18, 2003, Merriweather pleaded guilty to three counts of bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), one count of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C § 924(c)(1)(A)(ii), and one count of discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).^[1] On November 24, 2003, the Court sentenced Merriweather to a controlling term of 37 years and 10 months in prison, followed by five years of supervised release.^[2] This term of imprisonment included three concurrent sentences of 70 months on the bank robbery counts and mandatory consecutive sentences of 7 and 25 years on the § 924(c) counts. After announcing the final sentence, the Court addressed Merriweather directly and, among other things, stated: “[Y]ou're going to be spending a good portion of your life in prison. And it's not an easy thing to stand here and look at you. You're a 22-year-old man, and I've just given you a 37-year sentence. That saddens me immensely.”^[3] Merriweather is now 40 years old, and his projected release date is August 18, 2035. Defendant represents that as of April 26, 2021, with good time credit, “he ha[d] served the equivalent of a 20-year prison sentence.”^[4]

On April 2, 2021, Merriweather, proceeding pro se, filed a motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), arguing that “the combination of his age at sentencing . . ., the length of his sentence under [the] now[-]repealed § 924(c) stacking regime[, ] and his commitment to rehabilitation while incarcerated . . . together with an analysis of the factors under 18 U.S.C. § 3553(a) should warrant resentencing.”^[5] Pursuant to District of Kansas Administrative Order 2020-8, Merriweather's motion was referred to the Federal Public Defender's office, which entered an appearance on his behalf and filed a supplement in support of the motion.^[6] Merriweather asks the Court to reduce his sentence to time served or to grant any reduction the Court finds warranted by the circumstances of his case. If released, Merriweather intends to live with and work for his father in Wichita, Kansas.

On April 29, 2021, the government filed a response in opposition to the § 3582(c)(1)(A) motion, ^[7] to which Merriweather replied.^[8]

II. Legal Standard

“Federal courts are forbidden, as a general matter, to modify a term of imprisonment once it has been imposed, but th[at] rule of finality is subject to a few narrow exceptions.”^[9] “One such exception is contained in [18 U.S.C.] § 3582(c)(1).”^[10] Section 3582(c)(1)(A), as amended by the First Step Act of 2018, ^[11] permits a court to reduce a term of imprisonment “upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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.” Before reducing a term of imprisonment, a court must find that (1) “extraordinary and compelling reasons” warrant a sentence reduction, (2) such a reduction is consistent with “applicable policy statements issued by the Sentencing Commission, ” and (3) the applicable sentencing factors set forth in 18 U.S.C. § 3553(a) support such a reduction.^[12] The Tenth Circuit has clarified that “the Sentencing Commission's existing policy statement is applicable only to motions filed by the Director of the BOP, and not to motions filed directly by defendants.”^[13]

III. Discussion

A. Exhaustion

Merriweather has satisfied § 3582(c)(1)(A)'s exhaustion requirement. On January 29, 2021, the warden of FTC Oklahoma received Merriweather's letter requesting a sentence reduction.^[14] The warden denied the request on March 23, 2021-53 days later.^[15] The government does not dispute that this satisfies the exhaustion requirement. The Court thus turns to the merits of the motion.

B. Extraordinary and Compelling Reasons

Section 3582(c)(1)(A) requires a district court to find that “extraordinary and compelling reasons warrant a sentence reduction” before it may grant a sentence reduction. The court has “the authority to determine for [itself] what constitutes ‘extraordinary and compelling reasons.'”^[16] While that authority “is bounded by the requirement . . . that a reduction in sentence be consistent with applicable policy statements issued by the Sentencing Commission, ” the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant.^[17] Accordingly, § 3582(c)(1)(A)'s consistency requirement does not constrain this Court's discretion to consider whether extraordinary and compelling reasons warrant a sentence reduction in this case.^[18]

Merriweather contends that his unique circumstances, coupled with the First Step Act's elimination of sentence-stacking under 18 U.S.C. § 924(c), constitute extraordinary and compelling reasons to reduce his sentence under § 3582(c)(1)(A). At the time of Merriweather's sentencing, § 924(c)(1)(C) required the imposition of a consecutive 25-year mandatory minimum sentence for “a second or subsequent” § 924(c) conviction, which the Supreme Court interpreted to mean a second “finding of guilt by a judge or jury, ” even if the first § 924(c) conviction was obtained in the same case.^[19] In 2018, the First Step Act ended this practice of “stacking” § 924(c) convictions.^[20] Under the First Step Act, the consecutive 25-year mandatory minimum applies only when a prior § 924(c) conviction “has become final.”^[21] Thus, the consecutive 25-year mandatory minimum is now “reserved for recidivist offenders, and no longer applies to multiple § 924(c) convictions obtained in a single prosecution.”^[22] The First Step Act did not, however, make this critical change to § 924(c) retroactive.^[23]

Nonetheless, district courts may, on an individualized, case-by-case basis, relieve some defendants of their stacked § 924(c) sentences under § 3582(c)(1)(A). While “[a] long sentence derived from stacking cannot, by itself, be an ‘extraordinary and compelling' reason for a sentence reduction, ”^[24] the Tenth Circuit has held that “the combination of such a sentence and a defendant's unique circumstances [may] constitute ‘extraordinary and compelling reasons' for purposes of § 3582(c)(1)(A)(i).”^[25]

In United States v. Maumau, for instance, the Tenth Circuit affirmed the district court's decision granting a sentence reduction under § 3582(c)(1)(A) based on “a combination of factors, ” including the young age of the defendant at the time of his sentencing (24 years old), the length of his stacked mandatory sentences under § 924(c), the First Step Act's elimination of sentence-stacking under § 924(c), and the fact that he would not be subject to such a long sentence if he were sentenced today.^[26] In affirming the district court's decision, the Tenth Circuit noted that the district court's finding of extraordinary and compelling reasons was appropriately “based on its individualized review of all the circumstances of [the defendant]'s case, ” and not on “its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions” or “solely upon its disagreement with the length of [the defendant]'s sentence in particular.”^[27]

Merriweather contends that Maumau is highly instructive, as the unique circumstances that warranted a sentence reduction there are also present here. Indeed, Merriweather was even younger than the defendant in Maumau was at the time of his sentencing and arrest.

Merriweather was 22 years old when he was sentenced, and only 21 when he was arrested. And at the time, Merriweather faced a total mandatory minimum sentence of 32 years' imprisonment on the two § 924(c) counts alone. Today, with sentence-stacking eliminated, he would be sentenced under § 924(c) to 17 years, not 32 years--a 15-year difference.

The government, however, asserts that Merriweather's “argument that he would face a shorter sentence today is inaccurate.”^[28] The government notes that, in exchange for Merriweather pleading guilty to five of the six counts charged in the original Indictment, the government moved to dismiss the Superseding Indictment, which contained seven additional charges. Those seven additional charges included four § 924(c) counts, two counts of Hobbs Act robbery, and one count of bank robbery. Had it instead proceeded to trial against Merriweather on all thirteen counts charged in the Superseding Indictment, the government contends, “the ultimate prison sentence (applying present-day sentencing schemes) would not result in a sentence that is dramatically different than what was originally imposed.”^[29]

In other words, the government asks the Court to assume that, if the First Step Act's antistacking provision had been in effect at the time, then the government would have proceeded to trial against Merriweather on all thirteen counts charged in the Superseding Indictment, and a jury would have returned a guilty verdict. These assumptions are speculative. The Court declines the government's invitation to...