United States v. Hicks

Decision Date27 April 2021
Docket NumberCriminal Action No. 93-97-2 (BAH)
CourtU.S. District Court — District of Columbia

Chief Judge Beryl A. Howell


Having served approximately 340 months of a life sentence of imprisonment, defendant Eric A. Hicks now seeks compassionate release "to reduce his risk of dying from Covid-19" at Federal Correctional Institute Schuylkill ("FCI Schuylkill"), where he is currently incarcerated, and "to recognize his substantial and commendable work towards rehabilitation while imprisoned." Def.'s Emergency Mot. Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A) ("Def.'s Mot.") at 5, ECF No. 732. Defendant was sentenced, in 1994, to life in prison after a jury found him guilty of drug trafficking and racketeering conspiracy offenses, stemming from his leadership of the "First Street Crew," which, from early 1988 until the arrest of defendant and other members approximately five years later, "sold crack cocaine and engaged in 'violent activities'" in Washington, D.C. United States v. White ("White II"), 413 F. Supp. 3d 15, 18 (D.D.C. 2019), rev'd, 984 F.3d 76 (D.C. Cir. 2020) (quoting United States v. White ("White I"), 116 F.3d 903, 909-11 (D.C. Cir. 1997)). The government opposes defendant's early release. Gov't's Opp'n Def.'s Emergency Mot. Compassionate Release ("Gov't's Opp'n") at 1, ECF No. 737. For the reasons set forth below, defendant's motion is denied.1


Starting in early 1988, for approximately five years until his arrest, defendant was a member of the "First Street Crew," a street gang that "sold 'large amounts of crack' in the area of First and Thomas Streets, N.W." in Washington, D.C. White II, 413 F. Supp. 3d at 19 (quoting White I, 116 F.3d at 909). He "eventually 'took charge when . . . [his co-defendant] White was out of the neighborhood, i.e., in prison.'" Id. (omission in original) (quoting White I, 116 F.3d at 909). "The First Street Crew's 'drug operation' involved 'violent activities,' including the murder and intimidation of witnesses against them." Id. (quoting White I, 116 F.3d at 909).

In March 1993, defendant, along with four co-defendants, was charged in a 26-count indictment with, inter alia, "conspiracy to distribute cocaine base, RICO conspiracy, and numerous individual counts of drug distribution." White I, 116 F.3d at 909-10; see also Indictment (Retyped) (Jan. 28, 1994) at 2-36, ECF No. 228. At the conclusion of a three-month jury trial, in February 1994, defendant was found guilty of (1) conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846 (1993) (Count 1); (2) Racketeer Influenced and Corrupt Organization ("RICO") conspiracy, in violation of 18 U.S.C. § 1962(d) (1993) (Count 5); (3) distribution of, or unlawful possession with intent to distribute, on different dates, a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (1993) (Counts 8 and 10); and (4) unlawful distribution of, or unlawful possession with intent to distribute, five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) (1993) (Count 11). See Judgment & Commitment Order at 1, ECF No. 301.

The presiding Judge sentenced Hicks to life in prison, highlighting his "very large distribution of . . . twenty-one kilos" of crack cocaine and the Crew's "intimidation or worse of witnesses." Sentencing Tr. (May 11, 1994) ("May 11 Sentencing Tr.") at 93:1-2, 12-13, ECF No. 354; see also id. at 132:8-12. In assessing the then-mandatory applicable sentencing range under the U.S. Sentencing Commission's Guidelines Manual, the court calculated that defendant's base offense level of 42 was enhanced by ten levels for possession of a weapon, his leadership role in the First Street Crew, id. at 132:8-133:3, obstruction of justice for "brib[ing]" a First Street Crew member "not to give information up to the grand jury" investigating defendant for murder, Sentencing Tr. (May 9, 1994) at 84:6-7, ECF No. 353; see also id. at 84:3-85:1; May 11 Sentencing Tr. at 133:1-3, and fleeing from law enforcement in a high-speed car chase that led to crashes with four vehicles, resulting in a total offense level of 52, May 11 Sentencing Tr. at 133:4-6; see Presentence Report ("PSR") ¶¶ 71, 90, ECF No. 713. This total offense level was reduced to the maximum level of 43 pursuant to U.S.S.G. § 5A, comment (n.2.). May 11 Sentencing Tr. at 133:7-8; PSR ¶ 94. Defendant's criminal history category was III, "based on a prior conviction for stealing a car and the fact that he was charged in this federal criminal case while on probation in an unrelated D.C. Superior Court case." White II, 413 F. Supp. 3d at 25 (internal quotation marks and citations omitted). His total offense level of 43, combined with his criminal history category of III, resulted in a mandatory sentencing range under the Guidelines of life imprisonment. May 11 Sentencing Tr. at 133:8-17; PSR ¶ 117.

Defendant was accordingly sentenced to concurrent terms of life in prison on the two conspiracy convictions and terms of years on the remaining counts, followed by concurrent terms of five years of supervised release on each count. Judgment & Commitment Order at 1-3. He pursued a direct appeal and collateral motions attacking his conviction and sentence, none ofwhich were successful. See White II, 413 F. Supp. 3d at 25-26. In 2019, defendant filed a motion for a sentence reduction pursuant to the First Step Act of 2018 ("First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194. See Def.'s Mot. Appointment of Counsel & Reduction of Sentence, ECF No. 684; Def.'s Emergency Suppl. Mot. Reduce Sentence Pursuant to the First Step Act of 2018, ECF No. 688. That motion was denied, except that defendant's sentence for his conviction on one of the drug distribution charges was reduced to time served. White II, 413 F. Supp. 3d at 52-53. On appeal, the D.C. Circuit reversed and remanded. United States v. White ("White III"), 984 F.3d 76, 93 (D.C. Cir. 2020). Defendant's renewed motion for reduction in sentence under the First Step Act is currently pending, with briefing under the schedule proposed by the parties to be completed by June 11, 2021. See Def.'s Suppl. Mot. Imposition of Reduced Sentence Under Section 404 of the First Step Act, ECF No. 731; Min. Order (Mar. 4, 2021); Min. Order (Apr. 26, 2021).

Due to the ongoing COVID-19 pandemic, on January 14, 2021, defendant submitted a request for consideration of compassionate release to the warden of his facility. Def.'s Mot., Ex. 13, Letter from Joanna Munson Perales, Att'y, Off. of Fed. Pub. Defender, D.C., to Warden, FCI Schuylkill (Jan. 14, 2021) ("Warden Request") at 1-2, ECF No. 732-2. That request was denied on February 8, 2021. Id., Ex. 13, Letter from Scott Finley, Warden, FCI Schuylkill, to Joanna Munson Perales, Att'y, Off. of Fed. Pub. Defender, D.C. (Feb. 8, 2021) ("Warden Denial") at 3-4, ECF No. 732-2.2 On February 16, 2021, defendant tested positive for COVID-19. Def.'s Mot. at 19; Gov't's Opp'n at 5; see also Def.'s Mot., Ex. 11, Bureau of Prisons ("BOP") Medical Records ("Medical Records") at 3-4, ECF No. 734. About six weeks later, on March 29, 2021,simultaneous with the submission of his renewed motion for reduction in sentence under the First Step Act, defendant filed the pending Emergency Motion for Compassionate Release. Def.'s Mot. The following day, he received his first dose of the Pfizer-BioNTech COVID-19 vaccine. Gov't's Opp'n, Ex. 1, BOP Health Services Immunizations ("Vaccination Record"), ECF No. 737-1. Under applicable guidance from the Centers for Disease Control and Prevention ("CDC"), he will receive his second dose within three to six weeks of the first dose, or by May 11, 2021. Id. at 14. The parties completed their briefing on the pending compassionate-release motion on April 20, 2021. See Def.'s Reply Supp. Compassionate Release ("Def.'s Reply"), ECF No. 738. The motion is now ripe for review.


"Federal courts are forbidden, as a general matter, to 'modify a term of imprisonment once it has been imposed;' but the rule of finality is subject to a few narrow exceptions." Freeman v. United States, 564 U.S. 522, 526 (2011) (quoting 18 U.S.C. § 3582(c)). As originally enacted, one such exception, codified in 18 U.S.C. § 3582(c)(1)(A), empowered the BOP Director to "petition the court for a reduction in sentence," S. Rep. No. 98-223, at 118 (1983), and gave courts the authority to grant those petitions if, "after considering the factors set forth in [18 U.S.C.] section 3553(a) to the extent that they are applicable," Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II, ch. II, § 212(a)(2), 98 Stat. 1837, they "found that the reduction was justified by 'extraordinary and compelling reasons,'" S. Rep. No. 98-223, at 118. The First Step Act expanded the exception in § 3582(c)(1)(A) to authorize a defendant directly to file a motion for such compassionate release with the district court after he exhausts any "administrative rights to appeal a failure of the [BOP] to bring a [compassionate-release]motion" on his behalf or he waits at least "30 days" after he delivers his request for compassionate release to "the warden of [his] facility." 18 U.S.C. § 3582(c)(1)(A).

In resolving motions for compassionate release, the court may reduce a term of imprisonment only "after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable," id., and upon making two findings: first, that "extraordinary and compelling reasons warrant such a reduction," id. § 3582(c)(1)(A)(i);3 and, second, "that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission," id. § 3582(c)(1)(A).4


Defendant contends that both (1) the risks associated with the COVID-19...

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