United States v. Sherrod

United States of America, Plaintiff, v. Walter Sherrod, Defendant.

No. 19-20139

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

August 6, 2021

ORDER GRANTING WALTER SHERROD'S MOTION FOR COMPASSIONATE RELEASE [28]

ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE

On September 11, 2019, Walter Sherrod pleaded guilty to three counts of Possession with Intent to Distribute a Controlled Substance, in violation of 21 U.S.C. § 841(a)(1), and one count of Possession of Firearms in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A). (ECF No. 20, PageID.51). He was sentenced to eight years in prison on December 12, 2019. (ECF No. 24 PageID.84).

On June 14, 2021, Sherrod moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (ECF No. 28). The Court appointed the Federal Community Defender and set a briefing schedule. (ECF No. 29). On August 3, 2021, following the submission of the briefs, the Court held a hearing. For the reasons outlined below, Sherrod's Motion [28] will be GRANTED.

BACKGROUND

Sherrod was born in Detroit, Michigan, in 1979, and is the youngest of three siblings. (PSR ¶¶ 35-36). Sherrod's parents separated when he was four and he was primarily raised by his mother. (Id. ¶ 35). Sherrod has good relationships with his mother, stepfather, and siblings all of whom still live in Detroit.^[1] (Id. ¶¶ 35-36). Sherrod also has three children from previous relationships and, prior to being incarcerated, paid some child support. (Id. ¶ 37). Sherrod is engaged and has been in a relationship with his fiance for thirteen years. (ECF No. 28, PageID.98).

Sherrod was expelled from high school in the twelfth grade and has been self-employed for most of his adult life. (PSR ¶¶ 43, 45). He was arrested for the instant offenses on December 20, 2018, after FBI agents executed a warrant at his home and discovered cocaine, heroin, and marijuana, as well as five firearms, which he kept for protection. (Id. ¶¶ 12-13). A confidential informant had previously made several purchases of cocaine and heroin from Sherrod at the FBI's direction. (Id. ¶ 11). Prior to this case, Sherrod had no criminal history apart from a single conviction for driving without a valid license. (Id. ¶ 30).

Sherrod is forty-two years old, incarcerated at FCI Morgantown, and scheduled for release on December 16, 2026.^[2]

ANALYSIS

Before a petitioner moves for compassionate release under 18 U.S.C § 3582(c)(1), they must either exhaust their administrative remedies with the BOP or wait thirty days from when they filed a request with their warden. United States v. Alam, 960 F.3d 831, 832 (6th Cir. 2020). Once the exhaustion requirement is deemed satisfied, district courts proceed through a three-step inquiry:

At step one, a court must “find[]” whether “extraordinary and compelling reasons warrant” a sentence reduction. 18 U.S.C. § 3582(c)(1)(A)(i). At step two, a court must “find[]” whether “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. § 3582(c)(1)(A) (emphasis added). At step three, “§ 3582(c)[(1)(A)] instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by [steps one and two] is warranted in whole or in part under the particular circumstances of the case.” [Dillon v. United States, 560 U.S. 817, 827 (2010).]

United States v. Jones, 980 F.3d 1098, 1107-08 (6th Cir. 2020) (first four alterations in original) (footnotes omitted). Where the incarcerated person moves for release on their own behalf, the Sentencing Commission's policy statement on compassionate release, § 1B1.13 of the Sentencing Guidelines, is not “applicable, ” and “district courts need not consider it.” United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021). In such cases, “district courts have discretion to define ‘extraordinary and compelling' on their own initiative.” Id. at 519-20 (citing Jones, 980 F.3d at 1111; United States v Ruffin, 978 F.3d 1000, 1007 (6th Cir. 2020)). Finally if “any of the three prerequisites listed in § 3582(c)(1)(A) [are] lacking, ” the motion for compassionate release can be denied the other requirements need not be addressed. Id. at 519.

I. Exhaustion

Sherrod made an administrative request for compassionate release on April 13, 2021. (ECF No. 32-3, PageID.130). The request reached F.J. Bowers, the Warden of FCI Morgantown, on April 27, 2021, and was denied on May 10, 2021. (Id. at 129). Ordinarily, this would mean that Sherrod had exhausted. See Alam, 960 F.3d at 832. The Government argues, however, that § 3582(c)(1)(A) requires issuespecific exhaustion and that Sherrod's administrative request failed to raise the specific issues he now argues qualify as extraordinary and compelling circumstances. (ECF No. 33, PageID.178).

The Sixth Circuit has never required issue exhaustion in the compassionate release context, and it “is not mandated in any plain terms of the statute.” United States v. Williams, 473 F.Supp.3d 772, 775 (E.D. Mich. 2020). As one judge in the

Eastern District recently noted:

[T]he Supreme Court has cautioned courts against imposing issue exhaustion requirements, especially where there is no adversarial administrative proceeding. See Sims v. Apfel, 530 U.S. 103, 109-10 (2000). Cases with a compassionate release request made to the BOP are within this category. See United States v. Brown, 457 F.Supp.3d 691, 697 (S.D. Iowa 2020) (holding issue exhaustion is not required because “§ 3582 contains no such requirement and BOP compassionate release requests are not adversarial proceedings”). And while there is a BOP regulation requiring an inmate to detail the circumstances warranting compassionate release in an administrative request, 28 C.F.R. § 571.61(a)(1), that regulation has not been updated since passage of the First Step Act-similar to the Sentencing Commission's policy statement which the Sixth Circuit has held is not applicable to motions for compassionate release filed by defendants on their own behalf. See [United States v.] Torres, 464 F.Supp.3d [651, ] 656 [(S.D.N.Y. 2020)].

United States v. Ferguson, No. 10-20403, 2021 U.S. Dist. LEXIS 81752, at *4-6 (E.D. Mich. Apr. 29, 2021). For these reasons, although the Seventh Circuit recently became the first appellate court to hold to the contrary, United States v. Williams, 987 F.3d 700, 703 (7th Cir. 2021), this Court will join the majority of district courts in holding that issue exhaustion is not required.

Even if issue exhaustion were required, however, Sherrod's request would still suffice. In writing to Warden Bowers, Sherrod cited his “medical history and condition” as well as COVID-19. (ECF No. 32-3, PageID.130). His Motion [28] cites the same issues, albeit with more detail. (ECF No. 28, PageID.98; ECF No. 32, 5 PageID.110). Because Sherrod's specific medical conditions are detailed in his BOP records, there can be no question that Warden Bowers was able to consider them in denying his request for compassionate release. (ECF No. 32-4, PageID.132-33). Accordingly, Sherrod has satisfied § 3582(c)(1)(A)'s exhaustion requirement.

II. Extraordinary and Compelling Reasons

Sherrod's Supplemental Brief argues that the unusually harsh conditions he has faced during the entirety of his incarceration and his increased susceptibility to severe illness from COVID-19 constitute extraordinary and compelling reasons for release. (ECF No. 32, PageID.110-20). The Court agrees.

A. Extraordinarily Punitive Conditions of Confinement

Sherrod, who remained on bond following his sentencing, self-surrendered two weeks earlier than he needed to, on February 26, 2020. (ECF No. 26; ECF No. 34-10, PageID.324). Due to COVID-19, however, Sherrod was not placed at his designated facility, FCI Morgantown, until nearly a year later. (Id. at 323). During this extended waiting period, Sherrod was warehoused at FCI Milan without access to the programs in which the Court intended him to participate and was subject to far more restrictive conditions of confinement than would normally have been the case. See, e.g., United States v. McRae, 2021 U.S. Dist. LEXIS 8777, at *12 (S.D.N.Y. Jan. 15, 2021) (noting that “a day spent in prison under extreme lockdown and in well-founded fear of contracting a once-in-a-century deadly virus exacts a price on a prisoner beyond that imposed by an ordinary day in prison”); see also Keri Blakinger, What Happens When More than 300, 000 Prisoners Are Locked Down, MARSHALL PROJECT (Apr. 15, 2020), https://www.themarshallproject.org/2020/04/15/what-happens-when-more-than-300-000-prisoners-are-locked-down [https://perma.cc/S3WG-8XXU] (“Experts say the widespread use of such restrictions is extraordinary, in scale and in length..... Studies show long-term social isolation comes with a higher chance of dying prematurely, in part because of the physical effects of stress.”).

In addition, Sherrod recounted during the hearing how he was placed in solitary confinement on more than one occasion, sometimes for as long as seventeen days, as a means of quarantine. That Sherrod was subject to such extreme measures, particularly when imposed for administrative convenience rather than punishment, is disturbing. See United States v. Bowlson, No. 01-cr-80834-1, 2021 U.S. Dist. LEXIS 119868, at *8 (E.D. Mich. June 28, 2021) (discussing the debilitating effect of solitary confinement on mental health and noting that the United Nations has classified prolonged solitary confinement as a form of torture).

Although these extraordinarily punitive conditions might, by themselves, be insufficient to justify compassionate release ^[3] the Court finds that they support a finding of extraordinary...