United States v. Burnside

• Decision Date: 18 June 2020
• Docket Number: No. 18-CR-2068-CJW-MAR,18-CR-2068-CJW-MAR
• Citation: 467 F.Supp.3d 659
• Parties: UNITED STATES of America, Plaintiff, v. Treysean Adair BURNSIDE, Defendant.
• Court: U.S. District Court — Northern District of Iowa

467 F.Supp.3d 659

UNITED STATES of America, Plaintiff,

v.Treysean Adair BURNSIDE, Defendant.

No. 18-CR-2068-CJW-MAR

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

Signed June 18, 2020

Patrick J. Reinert, US Attorney's Office, Cedar Rapids, IA, for Plaintiff.

MEMORANDUM OPINION AND ORDER

C.J. Williams, United States District Judge

I. INTRODUCTION

This matter is before the Court on defendant's Motion for Compassionate Release filed on May 15, 2020. (Docs. 44 & 45). After receiving an extension of time, the government timely filed its resistance on May 25, 2020. (Doc. 48). On June 1, 2020, defendant timely filed a reply. (Doc. 52). Oral argument was not requested and is not necessary. See LR 7(c). For the following reasons, the Court grants defendant's motion.

II. RELEVANT BACKGROUND

On July 5, 2018, defendant applied for a permit to carry weapons, indicating on the form that he was not an unlawful user of any controlled substance. (Doc. 23, at 4). On July 22, 2018, police responded to a report of shots fired near defendant's residence. (Id. ). Officers questioned defendant after observing seven spent shell casings on his porch. (Id. ). Defendant, after telling a few different versions of the story, eventually told officers what transpired. (Id. , at 4–5). Defendant recently used cocaine and had six drinks at a local bar before getting into an argument with another person over a counterfeit $100 bill. (Id. , at 5). Defendant went home and received a suspicious call asking for his location. (Id. ). Defendant retrieved his gun and waited on his porch, assuming someone was coming to harm him. (Id. ). Shortly thereafter, a vehicle drove by defendant's residence and fired one shot and defendant returned fire, shooting at the vehicle six or seven times. (Id. ). Officers later learned that one bullet went into a nearby residence and pierced a coat hanging in a closet. (Id. ). Defendant allowed officers to search his home and officers retrieved the firearm and some Xanax bars. (Id. , at 4). Defendant's urine was also seized and tested positive for benzodiazepines and cocaine. (Id. ). Defendant also admitted he frequently used marijuana. (Id. ).

On August 2, 2018, following his contact with officers, defendant posted photos of himself online firing two guns at a shooting range. (Id. , at 5). On August 4, 2018, defendant posted a large bag of apparent marijuana on social media with the caption "Shop, Shop." (Id. ). On August 23, 2018, defendant posted a photo of himself holding a firearm with the caption "New Pickup." (Id. ). On September 17, 2018, defendant's downstairs neighbor told officers that, in July of that year, defendant had accidentally fired a bullet through his floor and into the neighbor's apartment. (Id. ). On October 26, 2018, defendant posted a video of himself holding a firearm at an indoor gun range. (Id. ). On November 16, 2018, officers executed a search warrant at defendant's second residence in Des Moines, Iowa and recovered a pistol. (Id. , at 6).

On November 27, 2018, a grand jury issued an Indictment charging defendant with possession of a firearm by a drug user in violation of Title 18, United States Code, Section 922(g)(3). (Doc. 2). On November 28, 2018, defendant appeared before the Honorable Mark A. Roberts, United States Magistrate Judge, pleaded not guilty, and was released pending trial. (Doc. 6). On January 14, 2019, defendant changed his plea to guilty pursuant to a plea agreement with the government. (Docs. 15 & 16). On January 31, 2019, the Court accepted defendant's plea. (Doc. 19).

On April 22, 2019, the United States Probation Officer ("USPO") filed defendant's final presentence investigation report ("PSR"). (Doc. 23). The PSR revealed defendant is a mixed race, both black and white, male who was, at that time, 23 years old. (Id. , at 1). Defendant had some college education, was currently enrolled in barber school, had one dependent child of whom he shared custody, and was both born and currently residing in Iowa. (Id. , at 1, 9, 11). Defendant was primarily raised by his mother and had strong familial ties in Iowa. (Id. , at 9). Defendant's criminal history was minimal, containing only three convictions: (1) criminal mischief in the fifth degree at age 20 for kicking and causing minor damage to a taxi; (2) disorderly conduct at age 21 for engaging in a physical altercation; and (3) public intoxication at age 22. (Id. , at 8). Defendant's work history was somewhat consistent but episodic. (Id. , at 12).

Defendant's health and medical conditions were notable in the PSR. Defendant had been diagnosed with, among other things, asthma, obesity, spinal stenosis, sleep apnea, prediabetes, hypertension, and vitamin D deficiency. (Id. , at 10). At that time, defendant was 5’11" and 310 lbs. (Id. , at 1). Defendant suffered from "significant back problems" which required four back surgeries. (Id. , at 10). Regarding mental health, defendant had been diagnosed with attention deficit disorder, depression, and anxiety. (Id. , at 10–11). Regarding substance abuse, defendant reported normal use of alcohol, long and significant use of marijuana, and a one-time use of cocaine near the time of his offense. (Id. , at 11). Defendant successfully completed outpatient treatment. (Id. ).

On May 31, 2019, the Court sentenced defendant. (Doc. 33). The Court determined defendant was in criminal history category I, had a total offense level of 17, and thus calculated an advisory guideline range of imprisonment of 24 to 30 months followed by one to three years on supervised release. (Doc. 23 & 23-1, at 1). Defendant moved for a downward variance based on his "numerous serious medical conditions," his minimal criminal history, positive performance on pretrial release, responsibilities as a father, enrollment in barber school, and cooperation with law enforcement officers. (Doc. 28–1, at 2–4). The Court denied defendant's motion for downward variance and sentenced defendant to 24 months, at the bottom of the advisory guideline range, followed by three years on supervised release. (Doc. 33). Because defendant was on pretrial release pending sentencing and had no known violations, the Court granted defendant the privilege of self-surrender and set a surrender date of June 14, 2019. (Docs. 23–1, at 3 & 33). The Bureau of Prisons ("BOP") now lists defendant as residing at the correctional facility in Milan, Michigan with a projected release date of February 24, 2021.

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." In the past, Section 3582(c)(1)(A) permitted a court to reduce a defendant's term of imprisonment only on a motion from the BOP. Under the First Step Act of 2018's ("FSA") recent modifications, however, a defendant may now directly petition the court for compassionate release "after the defendant has fully exhausted all administrative rights to appeal a failure of the [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) ; see also Pub. L. No. 115-391, § 603; United States v. Perez-Asencio , No. CR18-3611, 2019 WL 626175, at *2–3 (S.D. Cal. Feb. 14, 2019) (discussing modifications made to Section 3582(c)(1)(A) by the FSA); Mohrbacher v. Ponce , No. CV18-00513, 2019 WL 161727, at *1 (C.D. Cal. Jan. 10, 2019) (same).

The 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 [BOP] 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).

The starting point in determining what constitutes "extraordinary and compelling reasons" under Section 3582(c)(1)(A)(i) is the United States Sentencing Guidelines ("USSG") discussing compassionate release issued by the United States Sentencing Commission. See USSG § 1B1.13 ; see also United States v. Hall , No. CR98-7, 2019 WL 6829951, at *3 (E.D. Ky. Dec. 13, 2019) ; United States v. Rivernider , No. CR10-222, 2019 WL 3816671, at *2 (D. Conn. Aug. 14, 2019). The USSG Section 1B1.13 provides that extraordinary and compelling reasons exist in the following circumstances:

(A) Medical Condition of the Defendant.—

(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(ii) The defendant is—

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

(B) Age of the Defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (i

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