United States v. White, 3:17-cr-00104-2

UNITED STATES OF AMERICA v. [2] TODD WHITE

No. 3:17-cr-00104-2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

January 27, 2021

MEMORANDUM OPINION

Pending before the Court is Todd White's Supplemental Motion for Compassionate Release (Doc. No. 540), to which the Government has responded in opposition (Doc. No. 543), and White has replied (Doc. Nos. 546, 557). For the reasons that follow, White's Motion will be granted and he will be released from custody under certain conditions.

I. Background

On August 30, 2017, a federal grand jury returned a six-count Superseding Indictment against ten defendants. (Doc. No. 11). In Count One, all Defendants were charged with conspiring to distribute and possessing with intent to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). White was not named in any other count.

White pled guilty and, as part of his plea agreement, admitted to being responsible for the distribution of 13 kilograms of methamphetamine over the course of the 17 month conspiracy. This resulted in a base offense level of 34. However, because of White's prior record and because the Government filed an information under 21 U.S.C. § 851 asserting prior drug convictions (Doc. No. 326), he was deemed a Career Offender and subject to a base offense level of 37. With a three-point reduction for acceptance of responsibility and a criminal history category VI, the Guidelines range for sentencing was 262 to 327 months imprisonment.

Prior to sentencing, the Government filed a Motion for Downward Departure and requested a 222-month sentence. (Doc No. 410). This represented a 15% reduction from the low end of the guideline range and was based upon White's apparent truthfulness with the Government during debriefing sessions.

On October 23, 2018, White was sentenced to a 136-month term of imprisonment, to be followed by 5 years of supervised release. In imposing the below-Guidelines sentence, the Court throughly considered the Section 3553(a) factors, but focused on three specific areas that warranted a lower sentence.

First, according to the Presentence Report ("PSR"), White's personal history and characteristics were about as far from ideal as possible. He was born and spent the first two years of his life in the Georgia State Mental Institution where his mother, an epileptic, was committed after suffering a mental breakdown. (PSR ¶ 66). White's biological father, who he did not know, committed suicide on an unspecified date. (Id.).

At the age of two, White was adopted, but was primarily raised by his mother in Georgia. After his parents divorced when he was 12, he spent every weekend with his adoptive father, who was an alcoholic. (Id. ¶ 67). Summers were spent in North Carolina with relatives, but this was no mere vacation. There, over a period of eight years, White was sexually abused by an older cousin. (Id. ¶ 68).

White's family "struggled" with his homosexuality. His mother eventually accepted his sexuality after counseling failed to "cure him," but his sisters did not. (Id. ¶ 69). At the age of 16, he contracted the human immunodeficiency virus ("HIV"), and that illness has led to continuing medical issues over the years.

Second, even though White was deemed a career offender because of his prior drugconvictions, his criminal history points overstated the nature of his criminal record. Of the 18 criminal history points (not counting the 2 added because he was under a criminal justice sentence at the time of his present offense), 8 of those points were based upon five convictions for driving related offenses.

Third, in addition to HIV, White had "a lot of health issues" that were either "life threatening" or "potentially life threatening." (Sentencing Transcript, Doc. No. 494-1 at 5). In 2007, he was diagnosed with Hepatitis B, and in 2016 with Hepatitis C. (PSR ¶ 75). Then, in October of 2017, White was diagnosed with anal cancer for which he received six weeks of radiation treatment at a hospital in Elizabethtown, Kentucky.

White also had mental issues, having reportedly suffered post-traumatic stress disorder as a result of the childhood sexual abuse. Because of his medical and/or mental issues, he received $1,025 per month in Social Security Disability benefits. (Id, ¶¶ 76, 80).

At sentencing, the Court specifically recommended to the Bureau of Prisons that White be "house[d] at SCP-Lexington, FCI-Butner or [an]other medical facility due to [his] serious medical problems." (Doc. No. 493, Judgment at 2). He is presently incarcerated at FCI-Butner Medium II, and has been continuously detained since his arrest on June 9, 2017. White is now 50 years old, and has served almost 43 months for his role in the conspiracy.

II. Application of Law

"By statute, a federal court 'may not modify a term of imprisonment once it has been imposed.'" United States v. Alam, 960 F.3d 831, 832 (6th Cir. 2020) (quoting 18 U.S.C. § 3582(c)). "But that rule comes with a few exceptions, one of which permits compassionate release[.]" Id. This includes motions under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, whichamended § 3582(c)(1)(A) and allows inmates to file reduction-of-sentence motions after exhaustion of administrative remedies.

Recently, the Sixth Circuit had occasion to discuss in detail compassionate release and the First Step Act in the context of COVID-19. Acknowledging that "[t]he First Step Act and COVID-19 have redefined the compassionate release landscape" in this "annus horribilis," the Sixth Circuit in United States v. Jones instructed district courts to consider compassionate release by undertaking 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). The Commission's policy statement on compassionate release resides in U.S.S.G. § 1B1.13. See U.S.S.G. § 1B1.13 (U.S. Sent'g Comm'n 2018). Thus, if § 1B1.13 is still "applicable," courts must "follow the Commission's instructions in [§ 1B1.13] to determine the prisoner's eligibility for a sentence modification and the extent of the reduction authorized." Dillon, 560 U.S. at 827, 130 S. Ct. 2683.13 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." Id.

980 F.3d 1098 at 1101, 1107-08 (6th Cir. 2020) (emphasis in original).

The Sixth Circuit in Jones also explained, however, that where, as here, an inmate (as opposed to the BOP) files the request for compassionate release, "§ 1B1.13 does not appl[y]" and the district court "can skip[] the second step." Id. at 1108; see also United States v. Belcher, No. 219CR000191JRGCRW, 2020 WL 7480552, at *4 (E.D. Tenn. Dec. 18, 2020) (stating that in light of Jones, "the Court will exercise its discretion to skip an analysis under § 1B1.13 in favor of an analysis under § 3553(a)'s factors"); United States v. Pooler, No. 3:18-CR-00137, 2020 WL 7046964, at *7 (S.D. Ohio Dec. 1, 2020) (noting that the court "'may skip'—and does skip—the[second] step, in accordance with the Sixth Circuit's Jones decision"); United States v. Lamar, No. 18-20183, 2020 WL 7319431, at *4 (E.D. Mich. Dec. 10, 2020) (observing that the government's argument based upon § 1B1.13 "is a dead letter after the Sixth Circuit's decision in Jones"). Accordingly, the Court turns to "compelling and extraordinary" circumstances and the § 3553(a) factors in considering White's request for compassionate release.

A. Compelling and Extraordinary Circumstances

White seeks compassionate release because of his many and significant health problems and his belief that, were he to become infected with COVID-19, he would become extremely sick or die. The Government comes close, but does not quite concede that White has presented compelling and extraordinary circumstances for purposes of the First Step Act. That is, the Government acknowledges that "compelling and extraordinary" circumstances can exist "where an inmate presents a chronic medical condition identified by the CDC as a risk factor for a more severe outcome from COVID-19," but asserts that White's "number of ailments, including two different types of cancers, HIV, Hepatitis B, and multiple physical injuries" do not rise to that level. (Doc. No. 543 at 10).

"Congress did not define the term 'compelling and extraordinary reasons' within the First Step Act, but, instead, directed the U.S. Sentencing Commission 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.'" United States v. Gwaltney, No. 3:17-CR-00381 (PGS), 2020 WL 5983161, at *2 (D.N.J. Oct. 8, 2020) (citing 28 U.S.C. § 994(t)); United States v. Lynn, No. 4:18-CR-00255-01-SWW, 2020 WL 3799052, at *1 (E.D. Ark. July 7, 2020) (same). For that reason, many courts (including this one) looked to § 1B1.13 of the Sentencing Guidelines and itspolicy statements for guidance in determining whether such circumstances exist. See United States v. White, No. 3:17-CR-00098, 2020 WL 4530931, at *2 (M.D. Tenn. Aug. 6, 2020) (finding "compelling and extraordinary circumstances" where it was "consistent with applicable policy statements issued by the Sentencing Commission"); United States v. Calloway, No. 3:16-CR-00121, 2020 WL 3510684, at *1 (M.D. Tenn. June 29, 2020) (noting it was "hotly debated" whether court could consider catchall "other reasons" under § 1B1.13 when determining the existence of compelling and extraordinary reasons). Post-Jones, however, that approach is...