United States v. Crosby

• Court: U.S. District Court — District of Maine
• Writing for the Court: JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
• Decision Date: 27 October 2020
• Docket Number: 1:17-cr-00123-JAW-01
• Citation: United States v. Crosby, 1:17-cr-00123-JAW-01 (D. Me. Oct 27, 2020)
• Parties: UNITED STATES OF AMERICA v. MYRON CROSBY, JR.

UNITED STATES OF AMERICA v. MYRON CROSBY, JR.

1:17-cr-00123-JAW-01

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

October 27, 2020

ORDER ON AMENDED PETITION FOR COMPASSIONATE RELEASE

A defendant serving one-hundred and sixty-eight months in federal prison for his involvement in a conspiracy to distribute heroin in central Maine moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A). The motion raises two questions. First, whether the defendant has met the procedural requirements to file his motion in court. Second, whether the Court should release him to compassionate release and home confinement. Although the defendant has met the procedural filing requirements and has serious medical conditions, the Court concludes the likelihood the defendant will reoffend, along with the short amount of time he has served in comparison with his sentence, and principles of just punishment and deterrence, weigh against his release. The Court denies the motion.

I. PROCEDURAL BACKGROUND

On August 2, 2018, a federal jury in Bangor, Maine convicted Myron Crosby, Jr. of one count of conspiracy to possess and distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. Jury Verdict Form (ECF No. 122). On July 30, 2019, the Court sentenced Mr. Crosby to one hundred and sixty-eight months in prison followed by a five-year term of supervised release, a $100 special assessment, and no fine. J. (ECF No. 162) (J.). On August 5, 2019, Mr. Crosby filed a notice of appeal to the Court of Appeals for the First Circuit. Def.'s Notice of Appeal (ECF No. 164). His appeal is still pending before the First Circuit.

On April 21, 2020, citing the dangers posed by the ongoing COVID-19 pandemic, Mr. Crosby filed an emergency motion for release. Emergency Mot. for Temporary Bail, Transfer to Home Confinement, or Compassionate Release. (ECF No. 177) (Emergency Mot.). Two days later, the Government responded and objected. Gov't's Resp. to Def.'s Mot. for Bail, or Compassionate Release, or for Transfer to Home Confinement (ECF No. 178) (Initial Gov't Opp'n). On April 27, 2020, Mr. Crosby filed some attachments to his initial motion. Emergency Mot. for Temporary Bail, Transfer to Home Confinement, or Compassionate Release, Attachs. 1-3 (ECF No. 179) (Def.'s Attachs.). In an order dated April 28, 2020, the Court dismissed Mr. Crosby's claim without prejudice due to deficiencies in his motion because his motion failed to show that he exhausted his remedies at the Bureau of Prisons (BOP) under 18 U.S.C. § 3582(c), and because his motion failed to address 18 U.S.C. § 3143(b)(1)(B)'s "substantial question" requirement. Order on Mot. for Release at 1 (ECF No. 180).

On May 13, 2020, Mr. Crosby petitioned the warden at FCI Fort Dix for compassionate release or home confinement under the CARES Act. Gov't's Resp. in Opp'n to Def.'s Am. Mot. for Compassionate Release or Modification of Imposition of Term of Imprisonment, Attach. 1, Inmate Req. to Staff, May 13, 2020 (ECF No. 197) (May 13 Request). Staff at Fort Dix responded to Mr. Crosby on May 18, 2020, denied his petition, and invited him to submit a more definite statement of reasons justifying his release and a plan for his release from confinement. Id., Attach. 2, Inmate Req.to Staff Resp., May 18, 2020 (ECF No. 197) (Prison Resp.). The BOP Staff also told Mr. Crosby that he could appeal the decision "through the Administrative Remedy process." Id. There is no evidence that Mr. Crosby did either.

Instead, Mr. Crosby mailed a pro se motion for Compassionate Release pursuant to the 2018 First Step Act, 18 U.S.C. § 3582(c) and (d) to the Court on June 11, 2020. Mot. for Modification of Imposed Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(1) (ECF No. 181) (Def.'s First Mot.). The Clerk of Court docketed his motion on June 17, 2020. Id. On July 7, 2020, the Court appointed Attorney Jeffrey M. Silverstein to represent Mr. Crosby and ordered Mr. Silverstein to file an Amended Petition for Compassionate Release on Mr. Crosby's behalf within seven days, or in the alternative notify the Court that Mr. Crosby intended to proceed on the initial pro se petition. Appointment of Counsel & Scheduling Order at 1 (ECF No. 185).

On July 15, 2020, Mr. Crosby and his counsel filed an unopposed motion to extend the time to file an amended motion. Def.'s Mot. to Enlarge the Time Within Which to File Am. Mot. for Compassionate Release (ECF No. 188). Also, on July 15, 2020 Mr. Crosby filed his Amended Motion for Compassionate Release. Am. Mot. and Mem. in Supp. of Mot. for Compassionate Release or Modification of Imposition of Term of Imprisonment (ECF No. 189) (Def.'s Second Mot.). He attached several exhibits to the petition, including two BOP medical records. Id., Attachs. 1-2, Medical Record dated March 3, 2020; Medical Record dated April 7, 2020 (ECF No. 189). He also attached his request to prison staff for compassionate release dated April 13,2020. Id., Attach. 3, Inmate Req. to Staff, April 13, 2020 (ECF No. 189). Additionally, he attached the response he received from BOP staff at Fort Dix. Id., Attach. 4, Inmate Req. to Staff Resp. (ECF No. 189) (BOP Resp.). Finally, he attached a letter from his eldest daughter, describing her plans to support him after his release. Id., Attach 5., Daughter Letter (ECF No. 189).

After a series of extensions, the Government filed its opposition to Mr. Crosby's petition on August 12, 2020. Gov't's Resp. in Opp'n to Def.'s Am. Mot. for Compassionate Release or Modification of Imposition of Term of Imprisonment (ECF No. 197) (Gov't's Opp'n). To correct minor details, Mr. Crosby submitted a revised version of his amended motion for compassionate release on August 17, 2020. Revised Am. Mot. and Mem. in Supp. of Mot. for Compassionate Release or Modification of Imposition of Term of Imprisonment (ECF No. 200) (Def.'s Third Mot.). Mr. Crosby filed his reply to the Government's response on the same day. Def.'s Reply Mem. in Supp. of Am. Mot. for Compassionate Release or Modification of Term of Imprisonment (ECF No. 201) (Def.'s Reply).

II. POSITIONS OF THE PARTIES

A. Myron Crosby's Motion

Mr. Crosby argues that his sentence be reduced "to time-served and an imposition of an extended term of Supervised Release." Def.'s Third Mot. at 1. He argues that several factors weigh in his favor, namely his "poor health, his age (57 years of age), COVID-19 high risk, Fort Dix infection rates, the fact that [Mr.] Crosby is serving a sentence for a non-violent offense . . .," and that his daughter "is fullyprepared to supervise and care for [Mr.] Crosby for the remainder of his sentence neutralizing any otherwise apparent danger to the community." Id.

Mr. Crosby notes that he has "four significant underlying health conditions which place him at an increased risk of severe illness from COVID-19." Id. at 2. Specifically, he had a heart attack while in BOP custody, "has a documented history of kidney issues," "is severely obese," and "has Type-2 diabetes." Id. He states that, according to the Centers for Disease Control and Prevention (CDC), each of these conditions makes a person more susceptible to serious illness resulting from COVID-19. Id. He claims to also have high blood pressure and high cholesterol. Id. at 3.

After detailing his physical issues, Mr. Crosby observes that 18 U.S.C. § 3582(c)(1)(A) empowers the Court to reduce his sentence. Id. at 4. First, he addresses the § 3582(c)(1)(A)'s exhaustion requirement. Id. He argues that he has satisfied the requirement because he submitted his request for compassionate release to the warden at FCI Fort Dix on May 13, 2020. Id. The warden's office responded on May 18, 2020 and asked him for more information about which BOP Program Statement 5050.50 criteria applied to his request for release. Id. at 5. He states that "[b]y only requesting more information, the Warden expressly failed to either approve or deny the request." Id. Thus, he concludes that "[Mr.] Crosby has, as of mid-June 2020, met the 30-day requirement set forth in § 3582(c)(1)(A)." Id.

Mr. Crosby then describes "extraordinary and compelling reasons" weigh in favor of his release. Id. He observes that courts decide whether such factors arepresent with the help of two clarifications from the United States Sentencing Guidelines. Id. at 6. The first is that "extraordinary and compelling reasons 'need not have been unforeseen at the time of sentencing.'" Id. (citing U.S.S.G. § 1B1.13, Application Note 2). The second is that rehabilitation alone is not an extraordinary and compelling reason, but "may be considered with other factors." Id. (citing U.S.S.G. § 1B1.13, Application Note 3).

Mr. Crosby contends that his underlying health conditions put him at risk for severe complications from COVID-19. Id. at 6-7. He discusses how the spread of the virus at Fort Dix, including the presence of fifteen infected inmates at Fort Dix, endangers him. Id. at 7-8. However, he notes that "COVID-19 does not need to be rampant or prevalent in a facility to be considered a factor in granting compassionate release." Id. at 8 (citing cases where courts granted compassionate release for prisoners incarcerated in facilities with no reported COVID-19 cases).

Mr. Crosby next avers that he does "not pose a danger to the community." Id. at 10. While acknowledging that his conviction for involvement in a conspiracy to distribute heroin is a "serious offense," he argues that it was "a non-violent matter for which there were no unwitting victims." Id. He suggests that the Court impose home confinement and GPS monitoring to mitigate any potential concern about his continuing involvement in criminal activity. Id. He also points out that his daughter has offered that he can live with her, that she will support him financially, and that she will ensure that he obtains any necessary medical care. Id. Moreover, he informs the Court that his daughter, through her employer, can...