Summary
denying motion for compassionate release, in part, on this basis
Summary of this case from United States v. FreemanOpinion
CRIMINAL NO. 2:16cr95
2021-05-12
UNITED STATES of America, v. Morris Lee BOWSER, Jr., Defendant.
Counsel for United States: Sherri S. Capotosto, Assistant United States Attorney, 101 W. Main Street, Suite 8000, Norfolk, VA 23510. Morris Lee Bowser, Jr., Pro Se.
Counsel for United States: Sherri S. Capotosto, Assistant United States Attorney, 101 W. Main Street, Suite 8000, Norfolk, VA 23510.
Morris Lee Bowser, Jr., Pro Se.
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Defendant's Motion for Compassionate Release and Memorandum in Support, filed pro se on December 22, 2020. ECF Nos. 107-109. I. Background
On July 27, 2016, the Defendant pled guilty to Count One of a two-count Indictment. Count One charged him with Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). On December 9, 2016, the court sentenced the Defendant to one hundred fifty-six (156) months imprisonment and three (3) years supervised release. On March 20, 2019, the court reduced his term of imprisonment to one hundred five (105) months.
On December 22, 2020, the Defendant filed the instant Motion, ECF No. 107, requesting compassionate release for two reasons. First, he asks that his sentence be reduced because of the spread of the novel Coronavirus ("COVID-19"). Second, he argues that he would not have received a "career offender" designation if sentenced after the passage of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222, and is therefore serving a disproportionate sentence compared to similarly-situated defendants sentenced after the First Step Act. On February 10, 2021, the United States filed a Response opposing the Motion, to which the Defendant replied on April 29, 2021. ECF Nos. 112, 118.
II. Exhaustion of Remedies
Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the court may modify a term of imprisonment if it finds that "extraordinary and compelling reasons warrant such a reduction." Id. Before the court may consider such a motion, however, the defendant must have "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf," or there must have been a "lapse of 30 days from the receipt of such a request by the warden of the defendant's facility." Id. § 3582(c)(1)(A).
The Defendant submits documents showing that he requested compassionate release from the warden of his facility on August 13, 2020, ECF No. 107, Exs. 2-3, and that his request was denied on September 3, 2020, id., Ex. 4. The Defendant appealed the warden's denial through the Administrative Remedy Process. ECF No. 108, Exs. 11-13. Therefore, the court concludes--and the United States agrees--that the Defendant has complied with the requirement that he exhaust his administrative remedies before pursuing a motion for compassionate release in this court. See 18 U.S.C. § 3582(c)(1)(A).
III. Merits
Next, the court must consider whether the Defendant has shown "extraordinary and compelling reasons" that justify a reduction in his sentence. Any reduction under § 3582(c)(1)(A) must be "consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A) ; see United States v. McCoy, 981 F.3d 271, 274-75 (4th Cir. 2020). In McCoy, the Fourth Circuit held that "there currently exists no ‘applicable policy statement’ " because the Commission has not issued a policy statement since the passage of the First Step Act. 981 F.3d at 281. Therefore, until the Sentencing Commission issues an updated policy statement, "district courts are ‘empowered to consider any extraordinary and compelling reason for release that a defendant might raise.’ " Id. at 284 (alteration omitted) (quoting United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020) ).
Although the policy statement in U.S.S.G. § 1B1.13 is no longer binding on this court after the Fourth Circuit's decision in McCoy, the court finds certain provisions useful in addressing the instant Motion. For example, the court will still consider "the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable," U.S.S.G. § 1B1.13, and whether "[t]he defendant is ... a danger to the safety of any other person or to the community," id. § 1B1.13(2), because these considerations remain highly relevant to whether a reduction in sentence is warranted in this case. See United States v. Dean, Case No. 15-CR-0339(1), 2020 WL 7055349, at *1–2 (D. Minn. Dec. 2, 2020) (citing McCoy and stating that "the court will treat § 1B1.13 as providing useful guidance about how the Court should exercise its discretion under § 3582(c)(1)(A), but the Court will not treat its provisions as binding").
A.
The Defendant argues that the increased threat of serious illness or death from COVID-19 due to his underlying medical issues constitutes an extraordinary and compelling reason that warrants his release. "In the context of the COVID-19 outbreak, 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 prison facility." United States v. Feiling, 453 F.Supp.3d 832, 841 (E.D. Va. 2020) (Novak, J.) (emphasis added).
The Defendant contends that he is susceptible to serious illness or death from COVID-19 because he is advanced in age, is supposedly diagnosed with tetanus or diphtheria, and has a bullet lodged in his lower back. ECF No. 109 at 13-14. As to age, the Defendant is only 40 years old, which is well-below the age threshold of 65 that the Centers for Disease Control and Prevention ("CDC") considers at an increased risk from COVID-19 exposure. See ECF No. 109 at 13. Next, the medical record that the Defendant uses to support his diagnosis of Tetanus or Diphtheria is actually an immunization record showing that he has been immunized with the Tetanus-Diphtheria vaccine, not that he suffers from either tetanus or diphtheria. See ECF No. 108 at 1. There is nothing in the record to support a diagnosis for either of those conditions. See ECF No. 114-1 at 15 (listing current and resolved medical conditions). The Defendant does appear to suffer from adhesive capsulitis, known as frozen shoulder, and he does have a bullet lodged in his back, but these conditions do not make him particularly susceptible to COVID-19. See ECF No. 114 at 1. Furthermore, these conditions are well-cared for by Bureau of Prisons ("BOP") medical staff, despite the Defendant's refusal to address his physical issues. See id. (indicating that the Defendant refused physical therapy which medical staff determined would be appropriate for his shoulder condition). Thus, the Defendant fails to show that he is particularly susceptible to extreme illness or death from COVID-19.
CDC, "Older Adults," https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.
The Defendant has also not shown that he faces a particularized risk of contracting COVID-19 in his facility. The BOP has started vaccinating inmates and staff at prison facilities with vaccines shown to be highly effective against serious COVID-19 illness. See ECF No. 112 at 4. Moreover, as of May 12, 2021, FCI Petersburg Low has zero active cases of COVID-19 among inmates. In sum, the Defendant has not demonstrated a particularized susceptibility to COVID-19 or that he is at risk of contracting the virus, and therefore has not shown extraordinary or compelling reasons justifying a sentence reduction on this basis.
CDC, Key Things to Know About COVID-19 Vaccines, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html.
See Fed. Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/.
B.
Next, the Defendant makes the legally incorrect argument that if sentenced after passage of the First Step Act, he would not qualify as a career offender under U.S.S.G. § 4B1.1, because, according to him, the First Step Act changed the definition of offenses triggering that enhancement. See ECF No. 109 at 15-17. Although the Defendant acknowledges that the First Step Act is not retroactive to his case, he argues that the disparities in sentencing for similarly-situated defendants sentenced before and after the passage of the First Step Act constitute extraordinary and compelling reasons that justify his release. See id.
However, if the Defendant had been sentenced after the passage of the First Step Act, he still would be considered a career offender under U.S.S.G. § 4B1.1. Section 401(a) of the First Step Act amended 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) to lower the mandatory minimum sentences for certain drug offenders with qualifying predicate offenses, and it also narrowed the definition of qualifying predicate offenses that triggered those mandatory minimums. But contrary to the Defendant's suggestion, the First Step Act did not change the definition of the predicate "controlled substance offense[s]" that trigger the § 4B1.1 career offender enhancement. See United States v. Wiseman, 932 F.3d 411, 420 (6th Cir. 2019) ("[T]he First Step Act did not affect the definition of offenses that qualify for career offender status under U.S.S.G. § 4B1.1."), cert. denied, ––– U.S. ––––, 140 S. Ct. 1237, 206 L. Ed. 2d 227 (2020).
As was the case when he was originally sentenced, the Defendant still would be considered a career offender under § 4B1.1 if sentenced after the First Step Act because: (1) the Defendant was over eighteen years old at the time of the offense of conviction; (2) the offense of conviction was a controlled substance offense; and (3) the Defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense, see PSR ¶¶ 44 (Possession with Intent to Distribute Cocaine), 49 (Distribution of Cocaine), 50 (Possession of Marijuana with Intent to Distribute and Possession of a Firearm by a Convicted Felon). Therefore, he fails to show extraordinary and compelling reasons that justify his relief on this basis.
C.
Furthermore, the Defendant's release would pose a danger to the community, and the factors in 18 U.S.C. § 3553(a) weigh heavily against his release. Cf. United States v. Kibble, 992 F.3d 326, 330 (4th Cir. 2021) (affirming denial of a motion for compassionate release where the defendant's "health conditions ... amount to extraordinary and compelling circumstances," but "the § 3553(a) factors counseled against a sentence reduction").
Although the court acknowledges and credits the Defendant's participation in numerous rehabilitative, educational, and work programs while incarcerated, at this juncture, these accomplishments do not outweigh the seriousness of the Defendant's offense conduct. The Defendant was involved with heroin and cocaine distribution for which he was attributed 20.15 grams of cocaine, and was also in possession of a stolen firearm when arrested. PSR ¶¶ 10, 14, 15. Even more concerning is the Defendant's criminal history and his general disregard for the law, as evidenced by his Criminal History Category of VI at sentencing. Id. ¶ 103. The instant offense was his second federal conviction on drug-related charges, and his fourth overall drug-related conviction. Id. ¶¶ 44, 49, 50. Moreover, he has a history of not complying with the conditions of supervised release, and he committed the instant offense right after he had been released from supervised probation for one of the prior drug offenses. Id. ¶ 50. Reducing the Defendant's sentence or releasing him to home confinement now would not reflect the seriousness of the offense, promote respect for the law, protect the public, or provide adequate deterrence. See 18 U.S.C § 3553(a).
IV. Conclusion
For the foregoing reasons, and having considered the factors in 18 U.S.C. § 3553(a), the court concludes that the Defendant is not entitled to a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Accordingly, the Defendant's Motion is DENIED . The Clerk is DIRECTED to forward a copy of this Memorandum Order to the Defendant, the United States Attorney, and the Bureau of Prisons.