United States v. Whitmire

UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY WHITMIRE, Defendant.

No. 1:17-cr-34

United States District Court, S.D. Ohio, Western Division

August 31, 2021

ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE

Susan J. Dlott Judge United States District Court

This matter is before the Court on Defendant's Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (Doc. 53). The Government opposes Defendant's motion. (Doc. 54). For the reasons set forth below, Defendant's motion will be DENIED.

I. BACKGROUND

On October 13, 2017, Defendant Anthony Whitmire entered into a plea agreement with the Government whereby Defendant pled guilty to Count 1 of the Indictment, Possession by a Prohibited Person in violation of 18 U.S.C. § 922(g). (Doc. 21). The Court accepted Defendant's plea on November 9, 2017 (Doc. 22), and sentenced Defendant to a term of imprisonment for 66 months^[1] followed by three years of supervised release. (Doc. 29).

Defendant is currently incarcerated at the Federal Correctional Institution at Manchester, Kentucky (“FCI Manchester”) with an anticipated release date of September 12, 2022. See Federal Bureau of Prisons Find an Inmate, https://www.bop.gov/inmateloc/ (last visited 8/26/2021). Defendant filed the instant Motion for Compassionate Release on August 3, 2021 (Doc. 53), to which the Government responded in opposition on August 17, 2021 (Doc. 54).

In his motion, Defendant argues that he is entitled to compassionate release because his medical conditions combined with his incarceration increase his susceptibility to COVID-19. The Government argues that Defendant is not entitled to release for want of an extraordinary and compelling reason, and that the sentencing factors do not support his early release. For the reasons that follow, Defendant's motion will be DENIED.

II. LEGAL STANDARD

The Court lacks authority to resentence a defendant, except as permitted by statute. United States v. Houston, 529 F.3d 743, 748-49 (6th Cir. 2008). The compassionate release provisions in 18 U.S.C. § 3582(c)(1)(A) were “intended to be a ‘safety valve' to reduce a sentence in the ‘unusual case in which the defendant's circumstances are so changed, such as by terminal illness, that it would be inequitable to continue the confinement of the prisoner.'” United States v. Ebbers, 432 F.Supp.3d 421, 430 (S.D.N.Y. 2020) (quoting S. Rep. 98-225, at 121 (1983)). A defendant seeking sentence reduction bears the burden of proving entitlement to compassionate release. Id. at 426; see also United States v. Hill, No. 5:14CR337, 2020 WL 5104477, at *1 (N.D. Ohio Aug. 31, 2020). Section 3582(c) provides as follows:

The court may not modify a term of imprisonment once it has been imposed except that-

(1) in any case-

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if it finds that-

(i) extraordinary and compelling reasons warrant such 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).

If the inmate has exhausted administrative remedies, the district court must engage in the § 3582(c)(1)(A) analysis as follows: (1) finding that “extraordinary and compelling reasons” warrant a reduction; (2) finding that a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and (3) considering the relevant sentencing factors listed in § 3553(a). United States v. Jones, 980 F.3d 1098, 1101, 1106 (6th Cir. 2020). However, as to the second prong, the First Step Act rendered the only Sentencing Commission policy statement potentially applicable to motions for compassionate release-U.S.S.G. § 1B1.13-inapplicable to cases filed by federal inmates. Id. at 1109, 1111. Therefore, the district court has full discretion to define extraordinary and compelling reasons without reference to the policy statement in § 1B1.13. See id. at 1111; see also United States v. Elias, 984 F.3d 516, 519-20 (6th Cir. 2021).

The § 3553(a) factors referenced in the statute include (1) the nature and circumstances of the offense and the defendant's history and characteristics; (2) the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; (3) the need to protect the public from further crimes of the defendant; (4) the sentencing guideline range; and (5) the need to avoid unwarranted sentence disparities among defendants with similar records guilty of similar conduct. 18 U.S.C. § 3553. These factors implicitly allow the Court to consider the amount of time served when determining if a reduction in sentence is appropriate. See United States v. Kincaid, 802 Fed.Appx. 187, 188-89 (6th Cir. April 23, 2020). District courts are encouraged to be “explicit and particular with their factual reasoning” when they consider the § 3553(a) factors. Jones, 980 F.3d at 1113.

III. LAW & ANALYSIS

A. Exhaustion of Administrative Remedies

Section 3582(c)(1)(A)'s administrative exhaustion requirement-though not a jurisdictional requirement-is a mandatory claim-processing rule. United States v. Alam, 960 F.3d 831, 833-34 (6th Cir. 2020). Pursuant to 18 U.S.C. § 3582(c)(1)(A), the exhaustion requirement is satisfied if 30 days have lapsed from the warden's receipt of the inmate's request for release. Here, Defendant sought compassionate release from the warden of his prison on April 29, 2021 and thereafter filed the instant motion on August 3, 2021, more than 30 days after Defendant's initial request. (Doc. 53 at PageID 207; Doc. 53-1). The Government disputes the issue of exhaustion on the basis that the warden never denied Defendant's request, ^[2] but fails to provide any legal support for its position. (See Doc. 54 at PageID 215). The Sixth Circuit has held “[a]s th[e] text [of 18 U.S.C. § 3582(c)(1)(A)] makes clear, defendants now may bring reduction-of-sentence motions on their own once they . . . wait 30 days from the date they request relief from the Bureau of Prisons.” United States v. Ruffin, 978 F.3d 1000, 1004 (6th Cir. 2020); see also United States v. Campbell, No. 2:17-cr-0166, 2020 WL 6709899, at *1 (S.D. Ohio Nov. 16, 2020) (“The Bureau of Prisons did not respond to the defendant's request within 30 days of receiving the request. Thus, the Government acknowledges [the defendant] has satisfied the administrative exhaustion requirement.”).

Although the Warden did not render a decision regarding Defendant's request, the instant motion was filed well beyond the 30-day period. Accordingly, the Court finds that Defendant has satisfied the exhaustion requirement.

B. Extraordinary and Compelling Reason for Release

Having found Defendant exhausted his administrative remedies, the Court now considers the merits of Defendant's motion. The COVID-19 pandemic is an ongoing public health crisis that is affecting daily life both inside and outside of correctional facilities. COVID-19 is caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and was recognized as a pandemic in March 2020. “During the COVID-19 pandemic, courts have found extraordinary and compelling reasons for compassionate release when an inmate shows both a particularized susceptibility to the disease and a particularized risk of contracting the disease at his [or her] prison facility.” United States v. Provost, 474 F.Supp.3d 819, 825 (E.D. Va. 2020) (internal quotation marks omitted) (granting motion for compassionate release). “Generalized fears of contracting COVID-19, without more, do not constitute a compelling reason.” United States v. Bothra, 838 Fed.Appx. 184, 185 (6th Cir. Feb. 25, 2021).

Based on the statistics from the Bureau of Prisons, although there was an initial outbreak of COVID-19 at FCI Manchester, the pandemic is now more controlled at the facility. FCI Manchester currently has 1 inmate and 4 staff who have tested positive for COVID-19, as well as 571 inmates and 132 staff who have recovered from COVID-19. See Federal Bureau of Prisons, COVID-19 Coronavirus, https://www.bop.gov/coronavirus/ (last visited 8/26/2021). No inmate or staff deaths from COVID-19 have been reported at the facility, and currently 95 staff and 741 inmates have been fully vaccinated against COVID-19. Id.

The crux of Defendant's motion is that he “has long suffered from a skin condition that when coupled with his race, may make him particularly susceptible to Covid-19 which is in turn exacerbated by the conditions of his incarceration.”^[3] (Doc. 53 at PageID 206). Upon review of Defendant's medical records, the only reference to a “skin condition” the Court could ascertain is that Defendant suffers from “[s]car conditions and fibrosis of skin” and, more specifically, “[k]eloid scarring on anterior chest.” (Doc. 54-1 at PageID 227).

While the Court is sympathetic with Defendant's concerns, the Court finds that Defendant's asserted conditions are not sufficient to warrant his compassionate release. None of Defendant's asserted medical conditions have been identified by the Centers for Disease Control and Prevention as...