United States v. Peoples

UNITED STATES OF AMERICA v. ROBIN PEOPLES

Cause No. 3:98-cr-55(3)-RLM

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

June 14, 2021

OPINION AND ORDER GRANTING COMPASSIONATE RELEASE

Now age fifty, Robin Peoples has served twenty-two years of a 110-year sentence (or 1,329 months) imposed in December 1999 for four counts of bank robbery, four counts of using a firearm during a felony, two counts of destroying a vehicle by fire, and two counts of using fire to commit a felony. His sentence was the least allowed by law. Mr. Peoples's projected release date is April 2095, which would require him to reach the age of 123. The sentencing range for a defendant sentenced today for same conduct as Mr. Peoples would be 768 to 810 months, 600 months of which would necessarily be mandatory consecutive sentences by statute. Mr. Peoples seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A), relying primarily on the unreasonableness of his 1999 sentence when compared with today's standard of reasonableness.

An inmate petitioner seeking compassionate release must (1) exhaust his remedies within the Bureau of Prisons; (2) show that extraordinary and compelling reasons support compassionate release; and (3) persuade the court that compassionate release wouldn't be inconsistent with the purposes of sentencing set forth in 18 U.S.C. § 3553(a). United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020). More than thirty days have passed since Mr. Peoples submitted his request to the warden of the United States Prison at Terre Haute, so the government agrees that he has exhausted his remedies within the Bureau of Prisons. United States v. Sanford, 986 F.3d 779, 782 (7th Cir. 2021).

APPLICATION NOTE TO U.S.S.G. § 1B1.13

The government argues, apparently to preserve the issue for appeal, that the application notes to U.S.S.G. § 1B1.13 contain the only permissible definition of "extraordinary and compelling reasons." Section 3582(c) of Title 18 limits a court's power to modify a sentence to three situations:

• when the Sentencing Commission has reduced a sentencing range and made its amendment retroactive, 18 U.S.C. § 3582(c)(2);

• when allowed by a statute or Fed. R. Crim. P. 35, 18 U.S.C. § 3582(c)(1)(B); and

• when the court finds that extraordinary and compelling reasons warrant a reduction, "and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission . . . ." 18 U.S.C. § 3582(c)(1)(A).

The only policy statements addressing compassionate release are those accompanying U.S.S.G. § 1B1.13, the government's argument goes, so a compassionate release order can only issue if it consistent with those policy statements.

District courts in this circuit must reject the government's position. In United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020), our court of appeals recognized that although the Sentencing Commission has issued policy statements to address motions or determinations by the Director of the Bureau of Prisoners, the First Step Act authorized — for the first time — prisoners to file compassionate release motions with the court. The policy statement in U.S.S.G § 1B1.13 is self-limiting because it begins with "Upon motion of the Director of the Bureau of Prisons." With no quorum for the last few years, the Sentencing Commission hasn't issued any policy statement to address the meaning of "extraordinary and compelling" when a prisoner makes the motion.

When dealing with an inmate-generated motion for compassionate release, district courts in this circuit "must operate under the statutory criteria — 'extraordinary and compelling reasons' — subject to deferential appellate review." United States v. Gunn, 980 F.3d at 1180. This court, as it must, agrees with Mr. Peoples that the application note to U.S.S.G. § 1B1.13 doesn't provide the complete definition of "extraordinary and compelling reasons" and the First Step Act uses that phrase in 18 U.S.C. § 3582(c)(1)(A).

UNREASONABLENESS OF SENTENCE AS AN EXTRAORDINARY AND COMPELLING REASON

Mr. Peoples's argument that a sentence's unreasonableness can itself be an "extraordinary and compelling reason" for purposes of compassionate release relies in part on Section 403 of the First Step Act, which "clarified" the law.

When Mr. Peoples was sentenced in 1999, a conviction under § 924(c) required a sentence of at least five years, which had to be consecutive to any other sentence. That's true today, as well. The minimum penalty increased from five years to twenty years (now twenty-five) for each subsequent offense. Mr. Peoples was convicted of four separate bank robberies in 1997 and 1998; each robbery count carried a § 924(c) count. In 1999, the law was understood to mean that a "second or subsequent offense" was one committed after the first. So the § 924(c) count relating to the first robbery for which Mr. Peoples was convicted (the December 12, 1997 robbery) required at least a five-year sentence, which had to be served consecutively to all other sentences. The § 924(c) count on the second charged and convicted robbery (the first December 26, 1997 robbery) amounted to the second offense, requiring at least twenty more years to be added to the other sentences. And the § 924(c) counts on the third and fourth bank robberies (the second December 26, 1997 robbery and the February 17, 1998 robbery) amounted to third and fourth offenses, requiring still another forty years (at least) to be added to the other sentences. See United States v. Bennett, 908 F.2d 189, 194 (7th Cir. 1990). So under the law as it was understood in 1999, the four convictions under § 924(c) added sixty-five years to Mr. Peoples's sentence, and were responsible for 60 percent of Mr. Peoples's overall sentence.

Section 403 of the First Step Act "clarified" Congressional intent. Congress said that by "subsequent offense," it meant offenses committed after another § 924(c) conviction. One court described the change as "an extraordinary development in American criminal jurisprudence. A modern-day dark ages — aperiod of prosecutorial 924(c) windfall courts themselves were powerless to prevent — had come to an end." United States v. Haynes, 456 F. Supp. 3d 496, 502 (E.D.N.Y. 2020). Congress specifically made its "clarification" non-retroactive, so Section 403 of the First Step Act doesn't directly benefit Mr. Peoples. Today's courts focus on the dates of the convictions and not the dates of the crimes. Had that been the law when Mr. Peoples was sentenced in 1999, the court would have had to impose four five-year terms, consecutively to each other as well as to the bank robbery sentences - 20 years instead of 65.

Mr. Peoples contends that application of the pre-First Step Act understanding produced a sentence that is unreasonable today. Until last week, it appeared likely that this court would reject Mr. Peoples's argument as not cognizant under the First Step Act. The judge to whom this case was assigned rejected a similar argument while also finding that a defendant's pre-2000 sentence was so unreasonable as to justify relief if only the law allowed. United States v. Watford, 2021 WL 533555 (N.D. Ind. Feb. 12, 2021).

In part because of its Watford holding, the court asked the parties to submit Mr. Peoples's relevant medical records. The parties' arguments centered on the reasonableness of his sentence as grounds for compassionate release, but the court noted reference in Mr. Peoples's clemency petition (included in his compassionate release submission) to health issues that might amount to extraordinary and compelling reasons for compassionate release. If that turnedout to be the case, the court could consider the 110-year sentence when it evaluated the § 3553(a) factors.

Nothing in the First Step Act limits a compassionate release motion to circumstances relating to COVID-19, but the risk posed by COVID-19 has been the ground most commonly raised in motions for compassionate release, and the papers before the court suggest no other ground besides the unreasonableness of Mr. Peoples's sentence. Mr. Peoples is fifty years old. A person without immunity between the ages of fifty and sixty-four is twenty-five times more likely to require hospitalization, and 440 times more likely to die compared to younger adults, if the person contracts COVID-19. Older Adults, C.D.C. (June 9, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html. Mr. Peoples is obese (six feet tall, 269 pounds), and has documented histories of chronic hypertension, fatty liver disease/hepatic steatosis, and obstructive sleep apnea. The Centers for Disease Control have catalogued known comorbidities that increase the risk of severe illness from COVID-19; all of Mr. Peoples's conditions other than the sleep apnea is on the CDC list. Mr. Peoples cites studies that indicate that obstructive sleep apnea is a comorbidity even though it's not on the CDC list.

On the other side of the ledger, the medical records indicate that Mr. Peoples had COVID-19 from December 22 to January 5, 2021. From this, the government concludes that "the COVID-19 virus does not present a high risk of certain death to Mr. Peoples." Doc. No. 396, at 2. The science of COVID-19 isalways emerging, but at this point in the pandemic, it appears that the risk of reinfection after a bout of COVID-19 is low — 0.65 percent, according to a large Danish study reported in a leading medical journal. Steen Ethelberg, Sophie Madeleine Gubbels, Christian Holm Hansen, Daniela Michlmayr, & Kåre Mølbak, Assessment of Protection Against Reinfection with SARS-CoV-2 Among 4 Million PCR-Tested Individuals in Denmark in 2020: A Population-Level Observational Study, 397 THE LANCET 10280 (Mar. 27, 2021), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(21)00575-4/fulltext. The study also noted a significantly greater risk for older people than for younger ones, though the study's age bracket was...