United States v. Rank

491 F.Supp.3d 442

UNITED STATES of America, Plaintiff,

v.Randall Lee RANK, Defendant.

No. CR06-3011-LTS

United States District Court, N.D. Iowa, Central Division.

Signed September 29, 2020

Shawn Stephen Wehde, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

MEMORANDUM OPINION AND ORDER

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This case is before me on defendant Randall Rank's motion (Doc. No. 68) to reduce sentence based on compassionate release. The Government has filed a response (Doc. No. 72) and Rank has submitted a reply (Doc. No. 73). Oral argument is not necessary. See Local Rule 7(c).

II. BACKGROUND

On March 23, 2006, the Grand Jury returned an Indictment charging Rank with five counts: (1) conspiracy to manufacture and distribute 50 grams or more of methamphetamine (actual) and to distribute and possess with the intent to distribute 500 grams or more of methamphetamine after a conviction for a felony drug offense in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 and 851 (2) two counts of manufacture and attempt to manufacture 5 grams or more of methamphetamine (actual) after a conviction for a felony drug offense in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 851 and (3) two counts of possession of Pseudoephedrine, knowing and having reasonable cause to believe that the Pseudoephedrine would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2). Doc. No. 2. On July 17, 2006, Rank pled guilty to Counts 1, 2 and 3. See Doc. No. 31. At Rank's sentencing hearing on October 30, 2006, United States District Judge Mark W. Bennett calculated a guideline range of 235 to 293 months, based on a total offense level of 33 and a criminal history category of VI. Doc. No. 43; Doc. No. 46 at 8, 14, 17; Doc. No. 49-1. Because the Government had filed a 21 U.S.C. § 851 prior felony drug offense enhancement notice, Rank's mandatory minimum sentence was 240 months. Doc. No. 46 at 17, Doc. No. 49-1 at 2. Judge Bennett sentenced Rank to 240 months’ imprisonment, followed by 10 years of supervised release. See Doc. No. 44.

On April 9, 2020, I denied Rank's pro se motion for a sentence reduction pursuant to the First Step Act because he was not eligible for relief. See Doc. No. 56. On August 3, 2020, I denied Rank's pro se motion (Doc. No. 59) for compassionate release because his rehabilitation alone was not an extraordinary and compelling reason for early release. See Doc. No. 61. On August 24, 2020, I appointed the Federal Public Defender to represent him. Doc. No. 67. On September 8, 2020, Rank filed an amended motion (Doc. No. 68), through counsel, for compassionate release.

According to the online Bureau of Prisons (BOP) inmate locator, Rank is currently at Greenville FCI and his projected release date is April 12, 2023.

III. COMPASSIONATE RELEASE STANDARDS

A court's ability to modify a sentence after it has been imposed is extremely limited. One way a court may modify a sentence is through "compassionate release" as outlined in 18 U.S.C. § 3582(c)(1)(A), which was recently modified by the First Step Act of 2018 (FSA). See Pub. L. No. 115-391, § 603. In the past, 18 U.S.C. § 3582(c)(1)(A) permitted a court to reduce a defendant's term of imprisonment only upon the motion of the Director of BOP. The FSA modified § 3582(c)(1)(A) such that a defendant may now directly petition the court "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 the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." See Mohrbacher v. Ponce , No. CV18-00513, 2019 WL 161727, at *1 (C.D. Cal. Jan. 10, 2019) (discussing modifications made to § 3582(c)(1)(A) by the FSA); See also United States v. Perez-Asencio , No. CR18-3611, 2019 WL 626175, at *2–3 (S.D. Cal. Feb. 14, 2019).

If a defendant fully exhausts administrative remedies, the court may, upon motion of the defendant, reduce the defendant's sentence, after considering the factors set forth in 18 U.S.C. § 3553(a) to the extent they are applicable, if the court finds that:

(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission ...

18 U.S.C. § 3582(c)(1)(A). Rank does not meet the requirements of § 3582(c)(1)(A)(ii). He is under 70 years of age and has not served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c). See Doc. No. 69. Accordingly, Rank's only possible avenue for relief is § 3582(c)(1)(A)(i).

The starting point in determining what constitutes "extraordinary and compelling reasons" under § 3582(c)(1)(A)(i) is the Sentencing Guideline discussing compassionate release issued by the United States Sentencing Commission. See U.S.S.G. § 1B1.13 (U.S. Sentencing Comm'n 2018); See also United States v. Hall , No. CR98-7, 2019 WL 6829951, at *3 (E.D. Ky. Dec. 13, 2019) ; United States v. Rivernider , No. CR10-222, 2019 WL 3816671, at *2 (D. Conn. Aug. 14, 2019). The Guideline provides that extraordinary and compelling reasons exist in the following circumstances:

(A) Medical Condition of the Defendant.—

(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(ii) The defendant is—

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

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.

(B) Age of the Defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

(C) Family Circumstances.—

(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.

(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.

(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).

U.S.S.G. § 1B1.13 cmt. n.1.

This Guideline predates the FSA and has "not been amended to reflect that, under the FSA, a defendant may now move for compassionate release after exhausting administrative remedies." Rivernider , 2019 WL 3816671, at *2. Courts are split on whether the policy statement is binding because it predates the FSA's changes to 18 U.S.C. § 3582(c)(1)(A). A number of district courts have concluded that Guideline § 1B1.13 cmt. n.1 does not restrain a court's assessment of whether extraordinary and compelling reasons exist to release a defendant. See, e.g., United States v. Rodriguez , 424 F. Supp. 3d 674, 681 (N.D. Cal. 2019) ; United States v. Urkevich , No. CR03-37, 2019 WL 6037391, at *3 (D. Neb. Nov. 14, 2019) ; United States v. Brown , 411 F. Supp. 3d 446, 451 (S.D. Iowa 2019) ; United States v. Fox , No. CR14-03, 2019 WL 3046086, at *3 (D. Me. July 11, 2019) ; United States v. Beck , 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019) ; United States v. Cantu , 423 F. Supp. 3d 345, 352 (S.D. Tex. 2019). Other courts have concluded that extraordinary and compelling reasons exist only if they are included in the Guideline. See, e.g., United States v. Lynn , No. CR89-0072, 2019 WL 3805349, at *4 (S.D. Ala. Aug. 13, 2019).

As I have previously stated, I agree with those courts that have found that although the Guideline provides helpful guidance on what constitutes extraordinary and compelling reasons, it is not conclusive given the recent statutory changes.¹ See United States v. Schmitt , No. CR12-4076-LTS, 2020 WL 96904, at *3 (N.D. Iowa Jan. 8, 2020) ; See also Rodriguez , 424 F. Supp. 3d at 682 (Congress knew that the BOP rarely granted compassionate release requests prior to the FSA, and the purpose of the FSA is to increase the number of compassionate release requests granted by allowing defendants to file motions in district courts directly even after the BOP denies their request); Brown , 411 F. Supp. 3d at 451 (same).

IV. DISCUSSION

A. Exhaustion of Administrative Remedies

Rank requested compassionate release from the BOP on April 11, April 27 and May 11, 2020, based on his health conditions and COVID-19. Doc. No. 69 at 2 (citing Doc. No. 69-1). The warden denied his requests on July 5, 2020. See Doc. No. 65-1. Counsel for Rank filed the instant motion (Doc. No. 68) for compassionate release on September 8, 2020. The Government points out that less than 30 days passed from BOP's denial to Rank's pro se motion (Doc. No. 59) for compassionate release (which I denied) but agrees that more than 30 days have passed between the warden's receipt (and denial) of Rank's requests and the motion now before me. See Doc. No. 72 at 10.

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