United States v. Bartlett

• Decision Date: 17 April 2023
• Docket Number: 1:14-CR-14-HAB
• Parties: UNITED STATES OF AMERICA v. DWAINE BARTLETT
• Court: U.S. District Court — Northern District of Indiana

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UNITED STATES OF AMERICA v. DWAINE BARTLETT

No. 1:14-CR-14-HAB

United States District Court, N.D. Indiana, Fort Wayne Division

April 17, 2023

OPINION AND ORDER

JUDGE HOLLY A. BRADY UNITED STATES DISTRICT COURT

Now before the Court is Defendant's second motion for compassionate release (ECF No. 633) and motion to appoint counsel (ECF No. 634). Both motions are now fully briefed. (ECF Nos. 638, 640, 642).

I. Defendant's Crime of Conviction

Defendant was one of several individuals caught up in a so-called “reverse sting” operation. Defendant was recruited to be part of a robbery crew put together by Floyd Thomas. Thomas, in turn, had been recruited by undercover federal agents to rob a fake stash house that was to contain at least 20 kg of powder cocaine.

Defendant attended the final planning meeting for the robbery in February 2014, a meeting attended by undercover agents. Defendant was involved in planning the robbery, telling the undercover agents that the crew would sweep the stash house to make sure no one was hiding, and further advising that the crew would place a member in each room of the house. Defendant also told the agents that the crew had police clothing to help them surprise any armed guards. When the crew geared up for the job, Defendant grabbed a .45 caliber Taurus pistol as well as zip ties.

Defendant pleaded guilty to conspiracy to distribute 5 kg or more of cocaine and to possessing a firearm in furtherance of a drug trafficking crime. As part of the plea Defendant agreed to a binding term of 200 months: 140 months on Count 1 and a consecutive 60 months on Count 2. Defendant is incarcerated at the Pekin Federal Correction Institution, with an expected release date in June 2028.

II. Legal Discussion

A. Appointment of Counsel

Defendant is not entitled to counsel under the Criminal Justice Act for motions brought under 18 U.S.C. § 3582(c)(1)(A). United States v. Blake, 986 F.3d 756, 758 (7th Cir. 2021); United States v. Guerrero, 946 F.3d 983, 985 (7th Cir. 2020); United States v. Foster, 706 F.3d 887, 888 (7th Cir. 2013). But a court may appoint counsel to represent defendants in compassionate release proceedings. See Blake, 986 F.3d at 758 (“District judges have discretion to recruit and sometimes appoint counsel for prisoners seeking post-judgment benefits, but prisoners do not have a constitutional or statutory entitlement to appointed counsel.”) (emphasis in original) (internal citations omitted); Guerrero, 946 F.3d at 985 (“[D]istrict courts are not required to appoint counsel under these circumstances, but it does not prohibit them from doing so”) (emphasis in original); see also United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999) (“How a district judge elects to consider a § 3582(c) motion to reduce a sentence is largely a matter of discretion. The judge can appoint counsel for a movant, but need not do so.”).

The Court sees no reason to appoint counsel here. Any private attorney appointed by the Court would be forced to work for free. Foster, 706 F.3d at 888 (“The Criminal Justice Act does not supply the necessary permission to pay a lawyer from the public fisc.”). As discussed below, the Court finds no merit in Defendant's motion for compassionate release. The Court finds no reason to confiscate the time of private counsel to obtain an unreachable goal. Defendant's motion to appoint counsel (ECF No. 634) is DENIED.

B. Compassionate Release

Defendant's motion requests compassionate release. Generally, a court is statutorily prohibited from modifying a term of imprisonment once imposed. See 18 U.S.C. § 3582(c). A handful of statutory exceptions exist, however, one of which allows a court to grant an inmate compassionate release if the inmate meets certain requirements. See 18 U.S.C. § 3582(c)(1)(A). Under this provision, a court may not modify a term of imprisonment 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 . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, . . . 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)(i).

Because Defendant, not the Director of the BOP, filed the motion, Defendant must first show that he has satisfied the statutory exhaustion requirement. The Government concedes that Defendant has properly exhausted his remedies for at least some claims presented in his motion. (ECF No. 640 at 5-6). But the exhaustion only applies to those issues raised to the warden. United States v. Williams, 987 F.3d 700, 703-04 (7th Cir. 2021) (requiring exhaustion as to each issue raised). As the Government notes, Defendant failed to raise his issues with the reverse sting or his selected enforcement claim. He also failed to mention the alleged harsh conditions at his facility.^[1]The Court finds, then, that these issues have been waived for this motion.

Congress did not define “extraordinary and compelling reasons” in the statute, instead delegating the matter to the Sentencing Commission to promulgate a policy statement that “describe[s] what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” 28 U.S.C. § 994(t). The policy statement, in United States Sentencing Guidelines (“U.S.S.G.”) § 1B1.13 and the accompanying Application Notes, have not been amended to reflect the First Step Act's change to § 3582(c)(1)(A) allowing prisoners to bring compassionate release claims directly. United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020)^[2]. As a result, “§ 1B1.13 and its application notes provide useful - but not binding - guidance to courts in determining whether a defendant has identified an extraordinary and compelling reason for compassionate release.” United States v. Hoskins, No. 2:99 CR 117, 2020 WL 7640408, at *2 (N.D. Ind. Dec. 23, 2020) (citing Gunn, 938 F.3d at 1180). Indeed, “[d]istrict judges must operate under the statutory criteria-'extraordinary and compelling reasons'-subject to deferential appellate review.” Gunn, 980 F.3d at 1181.

Using the guidance of §1B1.13 to inform the statutory criteria, the court considers the medical condition of the defendant, his age, his family circumstances, and whether there is in the defendant's case an extraordinary or compelling reason “other than or in combination with” the other reasons described in the Application Notes. Second, the Court determines whether the defendant is “a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2). Finally, the Court considers the § 3553(a) factors, “to the extent they are applicable.” U.S.S.G. § 1B1.13.

Defendant makes several arguments in support of his request for compassionate release. The Court will address each in turn.

1. Care for Defendant's Mother

Defendant claims that he should be released to care for his elderly mother. While the Court is sympathetic to the concerns of Defendant about the health of his aging mother, “family circumstances that would amount to an extraordinary and compelling reason [for compassionate release] are strictly circumscribed under the [applicable United States Sentencing Commission] policy statement and do not encompass providing care to elderly parents.^[3]” United States v. Goldberg, No. 12-180 (BAH), 2020 WL 1853298, at *4 (D.D.C. April 13, 2020); see also U.S.S.G. § 1B1.13 cmt. n.1(C) (limiting family circumstances that may be considered an adequate reason for a sentence reduction to the need to care for the defendant's minor children or a spouse or registered partner when no other caregiver is available). Thus, “[c]ourts have not considered a parent's or grandmother's health as an ‘extraordinary and compelling' reason under 18 U.S.C. § 3582(c)(1)(A).” United States v. Stewart, No. 1:16-CR-89-HAB, 2020 WL 5406181, at *3 (N.D. Ind. Sept. 9, 2020); see also United States v. Bonel, No. 4:14-CR-180 (4), 2020 WL 3470319, at *3 (E.D. Tex. June 25, 2020) (defendant's contention that she “is needed at home to help her grandmother,” while commendable, does not meet the requirements for family circumstances that establish extraordinary and compelling reasons for release from imprisonment); United States v. Baye, No. 3:12-CR-00115-RCJ, 2020 WL 2857500, at *10 (D. Nev. June 2, 2020) (denying defendant's compassionate release motion to care for his widowed mother's deteriorating health); Goldberg, 2020 WL 1853298, at *4 (denying compassionate release motion and stating that “a desire to care for one's elderly parents does not qualify as an ‘extraordinary and compelling' reason for release” under 18 U.S.C. § 3582(c)(1)(A)); United States v. Ingram, No. 2:14-cr-40, 2019 WL 3162305, at *2 (S.D. Ohio July 15, 2019) (denying compassionate release motion to care for defendant's ill mother because “[m]any, if not all inmates, [have] aging and sick parents”).

Defendant acknowledges that care for his mother is not an extraordinary or compelling reason under the statute, but offers seven non-binding, district court decisions that considered care for an elderly family member as part of the compassionate release calculus. (ECF No. 633 at 2021). This Court is not so eager as those cited by Defendant to graft its own...