United States v. O'Neill

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UNITED STATES OF AMERICA, Plaintiff, v. KEVIN P. O'NEILL, Defendant.

No. 97-CR-98-1-JPS

United States District Court, E.D. Wisconsin

May 23, 2024

ORDER

J. P STADTMUELLER U.S. DISTRICT JUDGE

1. COMPASSIONATE RELEASE PROCEDURAL HISTORY

On May 9, 2022, Defendant Kevin P. O'Neill (“Defendant”) filed a pro se motion for compassionate release or, alternatively, for a reduction in sentence. ECF No. 2285. On August 25, 2022, the Government moved to stay briefing on Defendant's motion pending the Seventh Circuit's decision in United States v Williams, No. 22-1212 (7th Cir. Feb. 10, 2022). ECF No. 2303. In Williams, the Seventh Circuit considered an “unresolved legal question” that Defendant raised in his motion: “whether a life sentence mandated by the sentencing guidelines prior to [United States v.] Booker[, 543 U.S. 220 (2005)] is an ‘extraordinary and compelling reason' for compassionate release.” Id. at 2. The Court granted the motion. ECF No. 2304. On April 13, 2023, the Seventh Circuit decided Williams and reiterated its holding in United States v. Thacker, 4 F. 4th 569 (7th Cir. 2021) that “a nonretroactive statutory sentencing change cannot be transformed into one that is retroactive by the device of compassionate release”; in other words, the Williams defendant's life sentence mandated by pre-Booker sentencing guidelines was not an extraordinary and compelling reason for compassionate release. United States v. Williams, 65 F.4th 343, 346 (citing Thacker, 4 F.4th at 574); id. at 347-48.

Subsequent to the Court's order staying briefing pending the Seventh Circuit's decision in Williams, Defendant filed (1) a motion to compel the Bureau of Prisons (the “BOP”) to release surveillance video of three assaults described in Defendant's motion for compassionate release, ECF No. 2317; (2) a motion for the Court to take judicial notice of certified transcripts from proceedings in a co-defendant's case, ECF No. 2323; and (3) a declaration containing supplemental medical information, ECF No. 2332.

In light of these new filings, as well as additional “supplemental materials” that Defendant had served directly on the Government, on May 9, 2023, the Government moved for an extension of time to submit its response to the motion. ECF No. 2333. The Court granted the motion. ECF No. 2336. However, shortly thereafter, on May 19, 2023, Defendant moved for leave to submit supplemental briefing in support of his underlying compassionate release motion “after the [November 1, 2023 presumptive] effective date of the [United States] Sentencing Commission's . . . promulgated amendments to U.S.S.G. Section 1B1.13.” ECF No. 2338 at 1. The Government concurred with Defendant's request and “propose[d] that it be allowed to file an omnibus response to [Defendant's] various filings, including the underlying compassionate release motion and [Defendant's] supplemental brief” at that time. ECF No. 2340 at 2.

The Court granted Defendant's motion. ECF No. 2341. Defendant filed his supplemental brief (styled as a supplemental “motion” for compassionate release or, alternatively, a reduction in sentence) on December 4, 2023. ECF No. 2356. The Government filed its omnibus response on January 18, 2024, ECF No. 2362, and Defendant filed his reply brief on March 15, 2024, ECF No. 2368. The Court has also received several letters from Defendant's friends and family in support of his compassionate release motion and associated filings. ECF Nos. 2287, 2289, 2291, 2295, 2300, 2301, 2357, 2358, 2285-1 at 151-210.

The matter is now ripe for the Court's review. For the reasons set forth herein, the Court will deny Defendant's underlying motion for compassionate release or a reduction in sentence, ECF No. 2285, as well as his supplemental motion for compassionate release or a reduction in sentence, ECF No. 2356. The Court will deny Defendant's motion to compel the BOP to release surveillance videos, ECF No. 2317, but it will grant his motion for the Court to take judicial notice of certified transcripts from proceedings in a co-defendant's case, ECF No. 2323.^[1]

2. CRIMINAL CASE PROCEDURAL HISTORY

In June 2000, following a three-month jury trial, the jury convicted Defendant of six federal offenses: Count One, conducting the affairs of an enterprise, the Outlaws Motorcycle Club (the “Outlaws”), through a pattern of racketeering, in violation of 18 U.S.C. § 1962(c) (the Racketeer Influenced and Corrupt Organizations Act or “RICO”); Count Two, conspiracy to conduct the affairs of the Outlaws through a pattern of racketeering, in violation of 18 U.S.C. § 1962(d); Count Three, conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2; Count Five, assault with a dangerous weapon, in violation of 18 U.S.C. § 1959(a)(3); and Counts Six and Seven, interstate transportation of explosives with intent to kill, in violation of 18 U.S.C. § 844(d). ECF No. 1527; ECF No. 2362 at 2-3; O'Neill v. United States, No. 04-CV-461, 2007 WL 2042250, at *1 (E.D. Wis. July 11, 2007); see also Presentence Report (“PSR”) at 1-4.

The criminal activity occurred during and as part of a violent war with rival motorcycle gangs over territory. PSR at 6-21. Defendant's RICO convictions were based on eighteen proven racketeering acts, including murder; various attempted murders and conspiracies to commit murder of and/or arson towards rival bikers, including through the use of explosive devices; robbery and assault of rival biker club members and associates; and cocaine delivery. Id. at 1-4 (as to Defendant, proven racketeering acts were Acts 1, 2, 5, 6, 7, 9, 10, 11, 13, 14, 15, 16, 19, 20, 21, 22, 23, 34). On December 19, 2000, this Court sentenced Defendant to two concurrent life sentences on Counts One and Two; a concurrent 240-month sentence on Counts Three, Five, and Six; and a concurrent 120-month sentence on Count Seven, for a total sentence of life in prison. ECF Nos. 1736, 1741.

Defendant appealed to the Seventh Circuit Court of Appeals, which affirmed his conviction and sentence. United States v. Warneke, 310 F.3d 542 (7th Cir. 2002). The Supreme Court subsequently denied Defendant's petition for a writ of certiorari. O'Neill v. United States, 538 U.S. 1035 (2003). In May 2004, Defendant filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, which the Court denied. O'Neill, 2007 WL 2042250. The Seventh Circuit denied Defendant a certificate of appealability. O'Neill v. United States, No. 04-CV-461-JPS, ECF No. 56 (Oct. 14, 2008). The Supreme Court again subsequently denied Defendant's petition for a writ of certiorari. O'Neill v. United States, 556 U.S. 1160 (2009). In September 2013, the Court denied a final motion for reconsideration pertaining to the § 2255 proceedings. O'Neill v. United States, No. 04-CV-461-JPS, ECF No. 61 (Sept. 12, 2013).

Almost five years later, Defendant filed a motion for relief from judgment in this case. ECF No. 2196; see also United States v. O'Neill, No. 18-CV-989-JPS, 2018 WL 10094281, at *1 (E.D. Wis. June 28, 2018). The Court was obliged to recharacterize the motion as one under § 2255 and denied the motion as an uncertified second or successive motion under § 2255(h). O'Neill, 2018 WL 10094281 at *2 (citing Melton v. United States, 359 F.3d 855, 857-58 (7th Cir. 2004) and § 2255(h)). In 2017 and 2018, Defendant pursued two unsuccessful successive collateral attacks under § 2255(h) and a petition for a writ of mandamus. ECF No. 2203. In the interim, and since, Defendant has also filed a number of Freedom of Information Act proceedings in this District and in the Western District of Wisconsin seeking documents and information related to his criminal case. See O'Neill v. U.S. Dep't of Just., F.B.I., No. 06C671, 2007 WL 1521530 (E.D. Wis. May 23, 2007); O'Neill v. U.S. Dep't of Just., No. 05-C-0306, 2008 WL 819013 (E.D. Wis. Mar. 25, 2008); O'Neill v. U.S. Dep't of Just., No. 16-C-425, 2017 WL 384334 (E.D. Wis. Jan. 25, 2017); O'Neill v. U.S. Dep't of Just. Exec. Office for U.S. Att'ys, No. 18-CV-396-JDP, 2020 WL 905869 (W.D. Wis. Feb. 25, 2020). These compassionate release proceedings followed in May 2022.

3. LEGAL STANDARD

The Court can modify a term of imprisonment “upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf” or thirty days after the warden at the defendant's facility has received such a request for release, “whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). There must be “extraordinary and compelling reasons warrant[ing] such a reduction.” Id. § 3582(c)(1)(A)(i).

Section 3582(c)(1)(A) instructs that a reduction must also be “consistent with applicable policy statements issued by the [United States] Sentencing Commission” (the “Commission”). See also United States v. Black, No. 05 CR 70-4, 2024 WL 449940, at *4 (N.D. Ill. Feb. 6, 2024) (“Congress directed the . . . Commission, in policy statements, to ‘describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.'”) (quoting 28 U.S.C. § 994(t)).

In 2020, the Seventh Circuit held that the relevant policy statement, U.S.S.G. § 1B1.13, was inapplicable to prisoner-initiated motions for compassionate release. United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020) (“Section 1B1.13 addresses motions and determinations of the Director, not motions by prisoners. In other words, the . . . Commission has not yet issued a policy statement ‘applicable' to [a prisoner's] request.”). Therefore, because there was no applicable policy statement,...