United States v. Wymer

573 F.Supp.3d 1208

UNITED STATES of America, Plaintiff,

v.Michael G. WYMER, Defendant.

Case No. 3:13-cr-00134-JGC-1

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

Filed December 1, 2021

Michael G. Wymer, Pro se, John B. Thebes, 405 Madison Avenue, Suite 1000, Toledo, OH 43604.

ORDER

James G. Carr, Sr. United States District Judge

Pending in this case is a motion for compassionate release of defendant, (Doc. 681), filed under 18 U.S.C. § 3582(c)(1)(A)(i). The government has not filed a response.

For the reasons that follow, I deny the motion.

Background

On September 30, 2014, a jury convicted defendant Michael G. Wymer of: 1) Conspiracy to Defraud the Government by Committing Theft of Interstate Shipments; 2) four counts of Interstate Transportation of Stolen Vehicles, Aiding & Abetting; 3) eight counts of Interstate Transportation of Stolen Goods, Aiding & Abetting; and 4) two counts of Theft of Interstate Shipments by Carrier, Aiding & Abetting. On May 4, 2015, I imposed a 324-month aggregate sentence on him. See (Doc. 445). He currently is incarcerated at FCI Gilmer in Glenville, West Virginia.

Though fully vaccinated, (Doc. 681-1), the defendant contends that his pre-existing comorbid conditions, including diabetes, justify granting his motion. In his view, the risk of contracting COVID-19, given his health conditions, creates extraordinary and compelling circumstances that, under § 3582, entitle him to compassionate release.

A review of the most current COVID-related data at FCI Gilmer indicates that currently, no inmates and three staff members are positive. https://www.bop.gov/coronavirus/index.jsp (last visited Nov. 30, 2021). FCI Gilmer has a total inmate population of 1,574. https://www.bop.gov/locations/institutions/gil/ (last visited Nov. 30, 2021).

In addition, 187 staff and 1,292 inmates have been vaccinated to date. https://www.bop.gov/coronavirus/index.jsp (last visited Nov. 30, 2021). FCI Gilmer houses a total of 1,574 inmates. https://www.bop.gov/locations/institutions/gil/ (last visited Nov. 30, 2021).

Discussion

Wymer contends that his imprisonment is tantamount to a "death sentence." (Doc. 681, pgID 7588). Simply put, the defendant's contentions are overblown and unrealistic. While a small percentage of vaccinated individuals have experienced "breakthrough" COVID infection, the data reported indicates that breakthrough cases, hospitalizations, and deaths are extremely rare events among those who are fully vaccinated against COVID-19.

According to the CDC, the vaccine reduces the risk of COVID-19 among people who are fully vaccinated "by 90 percent or more." CDC, "COVID-19 Vaccines Work," https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html (last visited Nov. 29, 2021). Further, the vaccine has been shown to "provide protection against severe illness and hospitalization among people of all ages eligible to receive [it]." Id. Significantly, "[t]his includes people ... who are at higher risk of severe outcomes from COVID-19." Id.

According to the CDC's most recent statistics (Sept. 28, 2021), only 3.9% of adults age 18-64 hospitalized due to COVID-related complications were vaccinated.¹ https://COVID.cdc.gov/COVID-data-tracker/#COVIDnet-hospitalizations-vaccination. Other relevant studies indicate that the rates of death among fully vaccinated people with COVID-19 were nearly non-existent with most states reporting 0% and a few states reporting less than 1%. https://www.kff.org/policy-watch/COVID-19-vaccine-breakthrough-cases-data-from-the-states (data as of July 30, 2021).

Germane to this issue, the framework for analyzing motions for compassionate release premised on an inmate's fear of contracting COVID-19 has changed in light of the Bureau of Prisons’ ("BoP") mass distribution of vaccines.

The Sixth Circuit recently clarified that "a defendant's incarceration during the COVID-19 pandemic—when the defendant has access to the COVID-19 vaccine—does not present an ‘extraordinary and compelling reason’ warranting a sentence reduction." See, United States v. Traylor , 16 F.4th 485, 487 (6th Cir.), (citing, United States v. Lemons, 15 F.4th 747, 750–51 (6th Cir.) and United States v. Broadfield , 5 F.4th 801, 803 (7th Cir. 2021) ). In other words, once an inmate has access to the COVID vaccine, he or she cannot show that a fear of contracting the virus is extraordinary or compelling, regardless whether the inmate gets vaccinated. Id. ; see also, U.S. v. Lee , No. 18-20523, 2021 WL 5074428 (E.D. Mich.).

In this case, the defendant has received two doses of the Pfizer-Biontech vaccine. In addition, FCI Gilmer has distributed the vaccine widely to its inmates.

Currently, no inmates and only three staff members at FCI Gilmer are positive for COVID. Even given the defendant's heightened risk from any infection by COVID – indeed from any respiratory infection including the flu, the likelihood of a) infection, and b) serious illnesses is not so great that it rises to the level of extraordinary and compelling circumstances.

Thus, under recent precedent from the Sixth Circuit and other federal courts of appeal, granting the defendant's motion is not warranted.

In addition, on consideration of the § 3553(a) sentencing factors, I conclude that release is not justifiable.

Section 3582(c)(1)(A)(i) states that a court:

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 section 3553(a) to the extent that they are applicable, if it finds that--

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

18 U.S.C. § 3582(c)(1)(A)(i).

Section 3553 lists the sentencing factors a court must consider as:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant

....

Even apart from the fifteen counts of which the jury convicted Wymer in this case, he has an extraordinary life-long criminal history focused on operating a "chop shop" and receiving stolen tractor-trailers or stealing them himself.

Wymer began his criminal career at age sixteen when he committed an aggravated burglary using a rifle. (Doc. 429, pgID 3635). Since then, he has been convicted of, inter alia , felony Receiving Stolen Property offenses in 1981, 1985, 1990, 2007 and 2010, Theft/Aggravated Theft in 1985, federal charges of Interstate Transportation of Stolen Goods in 1986, Concealed Identity of Motor Vehicles in 1990, federal charges of Theft from Interstate Shipment in 1992, Engaging in a Pattern of Corrupt Activity (involving stolen property) in 1993, and federal charges of Rackateer Influenced and Corrupt Organization Conspiracy (involving stolen property) in 1997. (Doc. 429, pgID 3628-29). His criminal history also includes vehicular homicide, (id. , pgID 3642), and escape from a federal prison camp, (id. , pgID 3640).

Thus, it is clear that Wymer has been involved in operating a chop shop" and stealing trucks, trailers, and their contents for virtually his entire adult life, other than the time he has spent in prison. Moreover, the last time Wymer completed a sentence, in June 2011, he returned to his truck-stealing operation shortly thereafter. (Id. , pgID 3629).

The presentence report for Wymer's 1997 RICO...