United States v. Cash

• Decision Date: 13 July 2022
• Docket Number: 4:16-CR-25(4)
• Parties: UNITED STATES OF AMERICA v. KENNETH DEMARCUS CASH
• Court: U.S. District Court — Eastern District of Texas

UNITED STATES OF AMERICA
v.
KENNETH DEMARCUS CASH

No. 4:16-CR-25(4)

United States District Court, E.D. Texas

July 13, 2022

MEMORANDUM AND ORDER

MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE.

Pending before the court is Defendant Kenneth Demarcus Cash's (“Cash”) pro se Motion for Compassionate Release (#319), wherein he requests that the court release him from imprisonment pursuant to 18 U.S.C. § 3582(c)(1)(A) due to the United States Supreme Court's opinion in United States v. Davis, U.S., 139 S.Ct. 2319 (2019). The Government filed a response in opposition (#324) and Cash filed a reply (#325). After conducting an investigation, United States Probation and Pretrial Services (“Probation”) prepared a report. Having considered the motion, the Government's response, Cash's reply, Probation's report, the record, and the applicable law, the court is of the opinion that the motion should be denied.

I. Background

On October 12, 2016, a federal grand jury in the Eastern District of Texas returned a 17-count First Superseding Indictment charging Cash in Count 1 with Conspiracy to Commit 924(c)-Use, Carry, Possess Firearms During, in Relation to, and in Furtherance of a Crime of Violence, in violation of 18 U.S.C. §§ 924(c) and (o); in Count 2 with Conspiracy to Commit Theft of Firearms, in violation of 18 U.S.C. § 371; in Count 3 with Conspiracy to Possess Stolen Firearms, in violation of 18 U.S.C. § 371; in Count 8 with Carjacking, in violation of 18 U.S.C. § 2119; in Count 9 with Use, Carry, and Possess Firearms During, in Relation to, and in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c); in Counts 10, 12, and

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with Theft of Firearms, in violation of 18 U.S.C. § 924(1); and in Counts 11, 13, and 15 with Possession of a Stolen Firearm, in violation of 18 U.S.C. § 922(j). Cash was not named in the remaining counts. On April 25, 2017, Cash pleaded guilty to the offenses charged in Counts 1, 8, and 9 of the First Superseding Indictment pursuant to a Rule 11(c)(1)(C) plea agreement; the court dismissed the remaining counts. Subsequently, on April 4, 2018, the court sentenced Cash to an agreed sentence of 300 months' imprisonment, to be followed by a five-year term of supervised release. Cash is currently housed at Federal Correctional Institution Beaumont Low (“FCI Beaumont Low”), located in Beaumont, Texas. His projected release date is December 20, 2037.

II. Analysis

On December 21, 2018, former President Trump signed the First Step Act of 2018 into law. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The Act, in part, amended 18 U.S.C. § 3582(c), which gives the court discretion, in certain circumstances, to reduce a defendant's term of imprisonment:

(A) the court, upon motion of the Director of the Bureau of Prisons (“BOP”), or upon motion of the defendant 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, 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; 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

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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). This provision is commonly referred to as “compassionate release.”

A. Exhaustion of Administrative Remedies

Prior to the First Step Act, only the Director of the BOP could file a motion seeking compassionate release. See United States v. Franco, 973 F.3d 465, 467 (5th Cir.) (“Prior to the passage of the First Step Act . . . courts lacked the power to adjudicate motions for compassionate release.”), cert. denied, 141 S.Ct. 920 (2020); Tuozzo v. Shartle, No. 13-4897, 2014 WL 806450, at *2 (D.N.J. Feb. 27, 2014) (denying petitioner's motion for compassionate release because no motion for his release was filed by the BOP). The First Step Act amended § 3582(c) by providing a defendant the means to appeal the BOP's decision not to file a motion for compassionate release on the defendant's behalf. United States v. Cantu, 423 F.Supp.3d 345, 347 (S.D. Tex. 2019); United States v. Bell, No. 3:93-CR-302-M, 2019 WL 1531859, at *1 (N.D. Tex. Apr. 9, 2019). The plain language of the statute, however, makes it clear that the court may not grant a defendant's motion for compassionate release unless the defendant has complied with the administrative exhaustion requirement. 18 U.S.C. § 3582(c)(1)(A); United States v. Garrett, 15 F.4th 335, 337 (5th Cir. 2021) (“[T]o file a proper motion for compassionate release in the district court, a prisoner must first exhaust the available administrative avenues.”); Franco, 973 F.3d at 467 (holding that the statutory requirement that a defendant file a request with the BOP before filing a motion for compassionate release in federal court “is not jurisdictional but that it is mandatory”); United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020) (“Even though

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[the] exhaustion requirement does not implicate [the court's] subject-matter jurisdiction, it remains a mandatory condition.”); United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (“[T]he exhaustion requirement . . . presents a glaring roadblock foreclosing compassionate release.”). Thus, before seeking relief from the court, a defendant must first submit a request to the warden of his facility to move for compassionate release on his behalf and then either exhaust his administrative remedies or wait for the lapse of 30 days after the warden received the request. 18 U.S.C. § 3582(c)(1)(A); Garrett, 15 F. 4th at 338 (“[A]n inmate has two routes by which he may exhaust his administrative remedies. Both begin with ‘requesting that the [BOP] bring a motion on the defendant's behalf.'” (quoting Franco, 973 F.3d at 467)); United States v. Harris, 812 Fed.Appx. 106, 107 (3d Cir. 2020); United States v. Springer, 820 Fed.Appx. 788, 791 (10th Cir. 2020) (defendant “was required to request that the BOP file a compassionate-release motion on his behalf to initiate his administrative remedies” (citing Raia, 954 F.3d at 595)); Alam, 960 F.3d at 833-34; United States v. Soliz, No. 2:16-190-3, 2020 WL 2500127, at *3 (S.D. Tex. May 14, 2020) (“§ 3582(c)(1)(A) does not provide this Court with the equitable authority to excuse [defendant's] failure to exhaust his administrative remedies or to waive the 30-day waiting period.” (quoting United States v. Reeves, No. 18-00294, 2020 WL 1816496, at *2 (W.D. La. Apr. 9, 2020))).

In this instance, Cash submitted a request for “a non-medical Compassionate Release,” dated January 21, 2021, to the warden of the facility where he was housed based on the Supreme Court's holding in Davis and the “BOP's inability to curtail the spread of COVID-19.” Warden F. J. Garrido (“Warden Garrido”) denied Cash's request on March 19, 2021. Cash appealed

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Warden Garrido's decision and, on June 3, 2021, Regional Director J. Baltazar denied Cash's appeal, noting:

[T]he offense which underlies your 18 U.S.C. § 924 convictions is Carjacking in violation of 18 U.S.C. § 2119, which appears to have as an element the use, attempted use, or threatened use of force. Therefore, it appears your 18 U.S.C. § 924 convictions fall under the “elements” or “force” clause of 18 U.S.C. § 924(c)(3)(A) and not the “residual” clause of 18 U.S.C. § 924(c)(3)(B).

Although Cash complied with the exhaustion requirement before filing the instant motion, nothing in his motion indicates that extraordinary and compelling reasons exist to release him from confinement.

B. Criteria for Release

The United States Court of Appeals for the Fifth Circuit has held that when a defendant moves for compassionate release, he must establish three criteria. United States v. Shkambi, 993 F.3d 388, 392 (5th Cir. 2021). First...