United States v. Zirkelbach

UNITED STATES OF AMERICA, Plaintiff, v. RORY ZIRKELBACH, Defendant.

No. 13-CR-1001-CJW-MAR

United States District Court, N.D. Iowa, Eastern Division

August 11, 2021

ORDER

C.J WILLIAMS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on defendant's amended motion for compassionate release filed on April 6, 2021. (Doc. 61). On April 13, 2021, the government timely filed a resistance. (Doc. 71). On April 20, 2021, defendant timely filed a reply. (Doc. 73). On June 2, 2021, defendant filed a supplement to his motion. (Doc. 74). For the following reasons, the Court denies defendant's motion.

II. RELEVANT BACKGROUND

On May 31, 2012, defendant attempted to manufacture methamphetamine on the second floor of his residence, a duplex in Dubuque, Iowa. (Doc. 28, at 4). At some point in the manufacturing process, a fire erupted. (Id.). After defendant unsuccessfully attempted to extinguish the fire, his then-girlfriend fled the residence through the front door. (Id.). Defendant's girlfriend then reentered the residence, locked the front door from the inside, and the pair of them exited through the back door. (Id.). Neither defendant nor his girlfriend attempted to alert their neighbors in the attached residence of the fire, even though the neighbor was standing on the front porch. (Id.). The neighbor was ultimately alerted to the fire by a passing bus driver. (Id.). The neighbor ran inside her half of the building to extract her sleeping two-year-old child from a second-floor bedroom, which had begun to fill with smoke. (Id.).

On September 5, 2012, police investigated a reported burglary at a hotel in Dubuque. (Id.). After searching the hotel room where defendant had been staying, police located a stolen television and evidence that defendant had manufactured methamphetamine there. (Id.). Defendant later admitted to stealing the television. (Id.). On November 19, 2012, police executed a search warrant at defendant's residence in Dubuque. (Id., at 5). This search uncovered evidence that defendant had recently manufactured methamphetamine there as well. (Id.).

On January 9, 2013, a grand jury returned an Indictment charging defendant with three counts of manufacturing and attempting to manufacture methamphetamine after having been convicted of a felony drug offense. (Doc. 2). Count 1 further alleged that the offense occurred within 1, 000 feet of a school and a playground. (Id., at 1). On January 14, 2013, defendant appeared before the Honorable Jon S. Scoles, United States Chief Magistrate Judge, pleaded not guilty to all three counts, and was detained pending trial. (Doc. 8). On January 28, 2013, defendant changed his plea to guilty to Count 1 under a plea agreement with the government. (Docs. 20 & 22). On March 15, 2013, the Court accepted defendant's plea. (Doc. 24).

On April 26, 2013, the United States Probation Officer (“USPO”) filed defendant's final presentence investigation report (“PSR”). (Doc 28). Defendant was, at that time, 43 years old. (Id., at 2). Defendant was a lifelong Dubuque, Iowa resident. (Id., at 22). Although he had earned a GED, his employment history was inconsistent, and he reported that he had been living on disability payments for the last two years. (Id., at 23-24). Defendant had two children who resided with their respective mothers. (Id., at 21-22). Defendant's younger child tested positive for methamphetamine at age two. (Id., at 22). Defendant had used methamphetamine since age 30 with a history of using the drug daily, alongside a sporadic history of using alcohol, marijuana, and cocaine. (Id., at 23). Defendant was diagnosed with Tourette syndrome at age 20, with symptoms remaining consistent through the date of his conviction. (Id. at 22). Defendant otherwise had no relevant medical conditions or health issues at that time. Defendant's criminal history was extensive. The USPO noted that defendant had been “arrested nearly every year since age 18, ” (Doc. 28-2, at 2), and had been convicted of 31 offenses, including burglary, theft, domestic abuse assault, and drug related offenses. (Doc. 28, at 8-21). Defendant committed at least 16 of those offenses while on probation or parole. (Id.).

On June 3, 2013, the Court sentenced defendant. (Doc. 32). The PSR designated defendant as a career offender under United States Sentencing Guidelines (“USSG”) Section 4B1.1 based on three prior felony convictions for controlled substance offenses: (1) a 1998 Iowa conviction for Possession With Intent to Deliver Amphetamine, (2) a 1998 Iowa conviction for Possession With Intent to Deliver Cocaine, and (3) a 2003 Illinois conviction for Unlawful Possession of Methamphetamine Manufacturing Chemicals. (Doc. 28, at 13-14, 17). Defendant was in criminal history category VI with a total offense level of 31, resulting in a guideline range of 188 to 235 months' imprisonment followed by six years to life on supervised release. (Id., at 26). The Court sentenced defendant to 235 months, at the top of the guideline range, followed by 10 years on supervised released. (Doc. 33). The Court also ordered defendant to pay restitution in the amount of $40, 803.64. (Id., at 5).

On June 17, 2013, defendant timely appealed his judgment to the Eighth Circuit Court of Appeals, challenging both the application and constitutionality of the sentencing guidelines. (Doc. 36, at 2). On August 12, 2013, however, the Eighth Circuit granted defendant's motion to dismiss the appeal under Federal Rules of Appellate Procedure 42(b). (Doc. 48). On June 30, 2015, the Court sua sponte declined to reduce defendant's sentence in light of Amendment 782. (Doc. 51). The Court concluded that, because defendant was sentenced as a career offender, he was ineligible for a reduction. (Id. at 3-4).

On May 8, 2016, defendant filed a motion to vacate, set aside, or correct sentence under Title 28, United States Code, Section 2255. Zirkelbach v. United States, No. 16-CV-1015-LRR, (Doc. 1). In a subsequent motion to amend his petition, defendant explained that his initial Section 2255 motion was misinformed and, notwithstanding, he argued that this Court improperly sentenced him under the career offender enhancement. Id. (Docs. 4 & 5). Defendant relied on Mathis v. United States, 136 S.Ct. 2243 (2016), which clarified the proper application of the categorical approach used in determining predicate offenses for the career offender enhancement. Id. (Docs. 4 & 5). On October 2, 2017, the Court denied defendant's initial motion and his motion to amend on the ground that they were untimely under the limitations period of Section 2255(f). Id. (Doc. 6). The Court noted that Mathis did not recognize a new right made retroactively applicable on collateral review, and thus concluded Mathis did not overcome the limitations period of Section 2255(f). Id. On November 6, 2017, defendant timely sought a certificate of appealability from the Eighth Circuit Court of Appeals. Id. (Doc. 8). On February 8, 2018, the Eighth Circuit dismissed the appeal. Id. (Doc. 13).

On March 18, 2021, defendant filed a pro se motion for compassionate release. (Doc. 53); see also (Doc. 58). On March 23, 2021, the Court appointed counsel to defendant. (Doc. 54). On April 6, 2021, defendant filed his amended motion now before the Court. (Doc. 61). Defendant, now 52 years old, is currently incarcerated at Forrest City Medium FCI with a projected release date of October 4, 2029.^[1]

III. COMPASSIONATE RELEASE STANDARDS

A court's ability to modify a sentence after it has been imposed is limited. Title 18, United States Code, Section 3582(c)(1)(A) allows a court to modify a sentence through “compassionate release.” A defendant may directly petition the court for compassionate release “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons [(“BOP”)] 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.” 18 U.S.C. § 3582(c)(1)(A). Although some courts disagree, this Court holds that defendants are not required to administratively appeal a warden's denial and may satisfy Section 3582(c)(1)(A) by waiting 30 days from the date the warden receives their request before filing a motion for compassionate release in the courts. United States v. Burnside, 467 F.Supp.3d 659, 667 (N.D. Iowa 2020) (compiling cases).

A court may only reduce the defendant's sentence, however, after considering the factors set forth in Title 18, United States Code, Section 3553(a) to the extent they are applicable, and finding that:

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

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the [Bureau of Prisons] that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

18 U.S.C. § 3582(c)(1)(A). Defendants bear the burden of establishing eligibility for a sentence reduction. United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016).

Congress delegated authority to the Sentencing Commission to “describe what should be considered extraordinary and compelling reasons for sentence reduction.” 28 U.S.C § 994(t). The Sentencing Commission's applicable policy statement defining “extraordinary and compelling reasons” is USSG Section 1B1.13-however, this statement is at least partly...