United States v. Mitchell

472 F.Supp.3d 403

UNITED STATES of America, Plaintiff,

v.Larry MITCHELL, Defendant.

4:13-cr-20468

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

Signed July 14, 2020

Christopher Rawsthorne, U.S. Attorney's Office, Flint, MI, for Plaintiff.

ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE

TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE

Defendant Larry Mitchell suffers from three of the recognized medical conditions that make a person more susceptible to contracting a dangerous case of Covid-19: Type 2 diabetes, hypertension, and obesity. He has less than a year of his sentence remaining and seeks compassionate release under 18 U.S.C. § 3582(c), as amended by the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, or, in the alternative, transfer to home confinement under the Coronavirus Aid, Relief, and Economic Security Act ("CARES"), Pub. L. 116-135, 134 Stat. 281, § 12003(b)(2). Mitchell pled guilty in 2013 to possession with intent to distribute more than 28 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). He was sentenced to 108 months in prison and both parties agree that his current release date is July 8, 2021. The government concedes there are "extraordinary and compelling reasons" to reduce Mitchell's sentence under the First Step Act, but opposes release based on the belief that Mitchell presents a danger to the community and that the sentencing factors set forth in 18 U.S.C. § 3553(a), as well as applicable policy statements issued by the Sentencing Commission, weigh against granting early release. Having carefully considered the question, the Court disagrees and will grant Mitchell's motion for compassionate release. He will be released after he completes the required 14-day quarantine.

BACKGROUND

Mitchell is currently incarcerated at the Federal Correctional Institution in Terre Haute, Indiana ("FCI Terre Haute"). In 2013, he pled guilty to possession with intent to distribute more than 28 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). ECF No. 23, PageID.50 (Plea Agreement). The parties disagreed on the question of whether Mitchell possessed a firearm in connection with the offense. See ECF No. 60, PageID.557 (Gov't Resp. Br.). Accordingly, the government calculated Mitchell's Sentencing Guidelines range as 87 to 108 months while defense counsel urged that the applicable Guidelines range was 70 to 87 months. ECF No. 23, PageID.51.

The Probation Department's Presentence Investigation Report determined that Mitchell was a career offender under § 4B1.1¹ , raising his potential Guidelines range to 188 to 235 months. But the plea agreement was limited to 108 months and this Court applied a downward departure from the criminal-history calculation applicable to certain defendants categorized as career offenders. See U.S.S.G. § 4A1.3(3) ; PSR, p. 18; F No. 41, PageID.223 (Sentencing Tr.). This effectively lowered Mitchell's Guidelines range back down to the 87 to 108 range presented by the government. ECF No. 41, PageID.223.

The Court ultimately imposed a sentence of 108 months, well below the potentially applicable Guidelines range of 188 to 235 months, in part because it found that Mitchell's criminal history was "distinguishable ... from those violent crimes that are intentional violent crimes such as assaultive behavior or trying to murder someone."² ECF No. 41, PageID.222; ECF No. 25, PageID.68 (Judgment). The Court further supported its decision for a downward departure by explaining that the applicable Guidelines range "overrepresent[s] the seriousness of the criminal history here and also the likelihood of the defendant to commit serious criminal offenses." ECF No. 41, PageID.222.

In his motion for compassionate release, Mitchell, who is 43 years old, explains that he suffers from several health problems, including Type 2 diabetes, hypertension, and obesity, as well as high cholesterol. ECF No. 64, PageID.606. These diagnoses are documented in the BOP's medical records. See ECF No. 69-6, PageID.642. The Centers for Disease Control have identified Type 2 diabetes as potential comorbidity that places "[p]eople of any age ... at increased risk of severe illness from COVID-19." People of Any Age with Underlying Medical Conditions , CENTERS FOR DISEASE CONTROL , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov% 2Fneed-extra-precautions% 2Fgroups-at-higher-risk.html. Hyperten sion, which Mitchell also suffers from, is listed as an underlying health problem that "might" put affected individuals at a higher risk of contracting serious illness because of the virus. Id. Of the individuals who have been hospitalized for Covid-19 in the United States, 49 percent had preexisting hypertension and 48 percent were obese. Michael Pollan, The Sickness in Our Food Supply , N.Y. REV. OF BOOKS , June 11, 2020. See also United States v. Sanders , No. 2:19-cr-20288, 466 F.Supp.3d 779, 786–87, (E.D. Mich. May 11, 2020) (summarizing scientific studies identifying hypertension as a Covid-19 risk factor).

As for the Covid-19 situation at Mitchell's place of incarceration, FCI Terre Haute has three diagnosed cases of Covid-19, according to BOP statistics as of the date of this Order. COVID-19 Cases , BUREAU OF PRISONS , https://www.bop.gov/coronavirus/index.jsp. The government, in its response brief, describes precautions the Bureau of Prisons is taking to limit the spread of Covid-19 in federal prisons, including FCI Terre Haute. ECF No. 70, PageID.646–48 (Gov't Resp. Br.).

DISCUSSION

The circumstances in which a sentencing court may "modify a term of imprisonment once it has been imposed" are limited by 18 U.S.C. § 3582(c), as amended by the First Step Act of 2018. Courts can modify a sentence only upon motion by the Director of the Bureau of Prisons ("BOP"), or upon motion by the defendant. After a defendant has exhausted his administrative remedies with the BOP, the sentencing court may reduce the term of imprisonment if it determines that "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A). The court must also take into account the sentencing factors set forth in 18 U.S.C. § 3553(a) and assess whether a sentence reduction "is consistent with applicable statements issued by the Sentencing Commission." Id.

Here, the Court finds that Mitchell's preexisting health conditions—when considered in light of the pandemic and conditions of incarceration—present "extraordinary and compelling reasons" warranting reduction of his sentence to time served. None of the other factors this Court is bound to consider weigh strongly against ordering Mitchell's release. Accordingly, the motion for compassionate release will be granted.

A. Mitchell has properly exhausted his administrative remedies.

Because Mitchell has already exhausted his administrative remedies with the BOP, his motion for compassionate release is properly before the Court. See United States v. Alam , 960 F.3d 831 (6th Cir. 2020) (holding that a defendant seeking compassionate release must exhaust his administrative remedies with the BOP before filing his own motion). To demonstrate exhaustion in the compassionate-release context, a defendant must have "fully exhausted all administrative rights to appeal" the BOP's decision not to move for compassionate release on his behalf, or waited for the lapse of 30 days from the date the facility's warden received his request asking the BOP to move for compassionate release, whichever comes first. 18 U.S.C. § 3582(c)(1)(A).

In his motion, Mitchell explains that "the Warden of FCI Terre Haute denied Petitioner's request for compassionate release and home confinement in light of the Covid-19 pandemic." ECF No. 64, PageID.605. Accordingly, it appears from the record that Mitchell has properly exhausted his administrative remedies. The government agrees, acknowledging that "Mitchell has properly exhausted his administrative remedies and the Court may rule on the motion on the merits." ECF No. 70, PageID.646.

B. Mitchell has demonstrated extraordinary and compelling reasons warranting a sentence reduction.

In light of Covid-19's rapid spread among prison populations, Mitchell's Type 2 diabetes and hypertension present "extraordinary and compelling reasons" warranting compassionate release. The government does not dispute that Mitchell has demonstrated "extraordinary and compelling reasons" warranting release. And the Court further finds that reducing Mitchell's sentence to time served would be consistent with the sentencing factors contained in § 3553(a), and applicable policy statements. For these reasons, the Court will grant Mitchell compassionate release.

The term "extraordinary and compelling reasons" has been defined by the United States Sentencing Commission. See U.S.S.G. § 1B1.13, comm. n.1.1 It encompasses four categories: the defendant's medical condition, age, family circumstances, and a catchall of "other reasons." Id. Relevant medical considerations described by the Sentencing Commission include whether the defendant is suffering from terminal illness or "a serious physical or medical condition ... that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." Id. at comm. n.1(A). The medical conditions referenced in § 1B1.13, comm. n.1 have not been updated since 2018 and accordingly are not tailored to the current Covid-19 pandemic. Concerning age, the Sentencing Commission directs courts and the BOP to consider whether the defendant is over 65, is deteriorating "because of the aging process," or has served "at least 10 years or 75 percent" of his or her term of imprisonment." U.S.S.G. § 1B113, comm. n.1(B).

At least one court in this district has found that the...