United States v. Thompson

1

UNITED STATES OF AMERICA v. EUGENE THOMPSON

CRIMINAL ACTION No. 11-70

United States District Court, E.D. Louisiana

April 12, 2023

SECTION I

ORDER & REASONS

LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

Before the Court is pro se defendant Eugene Thompson's (“Thompson”) second motion^[1] for compassionate release pursuant to the First Step Act, 18 U.S.C. § 3582(c)(1)(A). The government opposes the motion.^[2] Also before the Court is Thompson's motion^[3] to appoint counsel. For the reasons below the Court denies both motions.

I. FACTUAL BACKGROUND

In 2011, a jury convicted Thompson of four counts: (1) conspiracy to distribute and to possess with the intent to distribute 280 grams or more of cocaine base and a quantity of cocaine hydrochloride in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C) and 846; (2) possession with the intent to distribute the same in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 18 U.S.C. § 2; (3) possession of a firearm in furtherance of the drug trafficking crime alleged in count 2, in violation of 18 § U.S.C. 924(c)(1)(A)(I) and 18 U.S.C. § 2; and (4) possession of a firearm in and affecting interstate commerce after having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).^[4]

This Court sentenced Thompson to a term of imprisonment of 300 months, consisting of: (1) 240 months each for counts one and two, to be served concurrently; (2) 120 months as to count four, to be served concurrently with the term for counts 1 and 2; and (3) 60 months as to count three, to be served consecutively to the terms imposed for counts one, two, and four.^[5] Thompson is currently incarcerated at Forrest City Medium FCI; his projected release date is November 10, 2033.^[6]

As noted, this is Thompson's second motion for compassionate release. This Court denied the first motion, concluding that the sentencing factors set forth in 18 U.S.C. 3553(a) weighed against granting the requested relief.^[7] In particular, the Court determined that the need “to protect the public from further crimes of the defendant,” 18 U.S.C. § 3553(a)(2)(C), weighed against granting Thompson's motion.

In the present motion, Thompson argues that compassionate release is warranted because of his medical conditions and history, namely injuries and pain due to being shot twenty times, hypertension, obesity, and neuropathy^[8]; and because, he argues, if he was sentenced today, his sentence would be lower due to “several landmark cases.”^[9]

II. LAW & ANALYSIS

a. Motion to Appoint Counsel

There is no constitutional right to appointed counsel in post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel extends to the first appeal of right, and no further.”). In the context of 18 U.S.C. § 3582(c)(2) motions, which are analogous to compassionate release motions pursuant to 18 U.S.C. § 3582(c)(1)(A) like Thompson's, “the Fifth Circuit has held that defendants have no statutory or constitutional right to counsel.” United States v. Joseph, No. 15-307, 2020 WL 3128845, at *1 (E.D. La. June 12, 2020) (Vance, J.) (citing United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995) and United States v. Moore, 400 Fed.Appx. 851, 852 (5th Cir. 2010) (per curiam)).

“Although a defendant in a § 3582(c) motion does not have a statutory or constitutional right to appointment of counsel, the Court may appoint counsel in the interest of justice.” United States v. Mogan, No. 14-040, 2020 WL 2558216, at *4 n.29 (E.D. La. May 20, 2020) (Morgan, J.) (quotation and citation omitted); see 18 U.S.C. § 3006A(a)(2) (allowing appointment of counsel under certain circumstances when “the court determines that the interests of justice so require”). The interests of justice do not require that counsel be appointed where a “defendant's motion does not involve complicated or unresolved issues” or where a defendant proves capable of representing himself pro se. See Joseph, 2020 WL 3128845, at *2 (quoting Moore, 400 Fed.Appx. at 852) (internal citation and alterations omitted).

The interests of justice do not require that the Court appoint counsel for Thompson. The motion at issue is not complex. United States v. Drayton, No. 1020018, 2020 WL 2572402, at *1 (D. Kan. May 21, 2020) (“[A] claim for compassionate release is not particularly complex factually or legally.”). Thompson has previously proven himself fully capable of representing himself pro se, both with regard to the instant motion and his previous motion.^[10] See United States v. Delco, No. 09-57, 2020 WL 4569670, at *2-3 (E.D. La. Aug. 7, 2020) (Ashe, J.) (declining to appoint counsel to a defendant seeking compassionate release, observing that there was no indication that the defendant, who had submitted a twenty-two page brief, was “incapable of adequately presenting his motion pro se”); United States v. Hames, No. 09-39, 2020 WL 3415009, at *1 (E.D. Tex. June 19, 2020) (denying appointment of counsel for defendant seeking compassionate release who submitted a well-reasoned, albeit ultimately unsuccessful brief, and provided no basis to suggest that appointment of counsel would help him obtain relief). Accordingly, Thompson's motion to appoint counsel will be denied.

b. Motion for Compassionate Release

Before a federal court assesses the merits of a motion for compassionate release, a defendant must show that he 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 that “30 days [have passed] from the receipt of such a request by the warden of the defendant's facility.” 18 U.S.C. § 3582(c)(1)(A). The Fifth Circuit has emphasized that “all requests for compassionate release must be presented to the Bureau of Prisons before they are litigated in the federal courts.” United States v. Franco, 973 F.3d 465, 468 (5th Cir. 2020), cert. denied, 208 L.Ed.2d 466, 141 S.Ct. 920 (2020). Failure to satisfy this prerequisite is not jurisdictional, but is rather a mandatory claim-processing rule that must be enforced if invoked by the government. Id. at 468-69. The defendant bears the burden of demonstrating exhaustion. See, e.g., United States v. Rodriguez, No. 15-198, 2020 WL 5369400, at *2 (E.D. La. Sept. 8, 2020) (Feldman, J.); United States v. Castro, No. 15-309, 2020 WL 3076667, at *2 (E.D. La. June 10, 2020) (Africk, J.).

Once exhaustion has been demonstrated, the Court “may” grant a reduction in sentence if, “after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent they are applicable,” it finds that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). “[T]he district court may deny [the defendant's] motion without reaching the Section 3553(a) factors if it determines that he has not identified ‘extraordinary and compelling reasons' justifying his release.” United States v. Jackson, 27 F.4th 1088, 1093 n.8 (5th Cir. 2022).

According to statute, before granting a motion for reduction in sentence, the Court must also conclude that “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). However, the Fifth Circuit-along with the Second, Fourth, Sixth, Seventh, and Tenth Circuits^[11]-has held that “neither the [Sentencing Commission's] policy statement nor the commentary to it binds a district court addressing a prisoner's own motion under § 3582.” United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021). Accordingly, this Court is “bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a).” Id. Nonetheless, the Fifth Circuit has also recognized that the policy statement may still “inform[ ] [the court's] analysis.” United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021).

The most relevant policy statement is found in § 1B1.13 of the U.S. Sentencing Guidelines Manual (“U.S.S.G.”). The Application Notes to that policy statement, in turn, provide four categories of extraordinary and compelling reasons: “(1) medical conditions, (2) age, (3) family circumstances, and (4) ‘other reasons.'” Thompson, 984 F.3d at 433 (quoting U.S.S.G. § 1B1.13, Policy Statement, cmt. n.1(A)-(D)) (alterations omitted).

The government concedes that Thompson has exhausted his administrative remedies by submitting a request for reduction in sentence to the warden of his facility on September 21, 2022.^[12] The Court therefore examines whether Thompson has set forth extraordinary and compelling reasons justifying release, and whether a reduction in sentence would be consistent with the factors set forth in 18 U.S.C. § 3553(a).

i. Health Conditions

The Court first addresses Thompson's argument that his health conditions constitute extraordinary and compelling reasons justifying release. The U.S. Sentencing Commission guidelines state that medical conditions are extraordinary and compelling if “[t]he defendant is suffering from a terminal illness,” or “[t]he defendant is suffering from a serious physical or medical condition,” “a serious functional or cognitive impairment,” or “experiencing deteriorating physical or mental health because of the aging process,” and one or more of these conditions “substantially diminish[ ] the ability of the defendant to provide self-care within the environment of a correctional facility.” U.S.S.G. § 1B1.13, Application Note 1(A); accord United States v. Ciprano, No. 92-350, 2022 WL 503742, at *3 (E.D. La. Feb. 18, 2022) (Fallon, J.) (recognizing that the policy statements are not binding, but discussing this commentary as a guideline...