United States v. Howard
Decision Date | 06 May 2020 |
Docket Number | No. 4:15-CR-00018-BR,4:15-CR-00018-BR |
Court | U.S. District Court — Eastern District of North Carolina |
Parties | UNITED STATES OF AMERICA v. LORNE HOWARD |
This matter is before the court on defendant's third motion for compassionate release, (DE # 120), which he supplemented, (DE # 121). The government filed a response in opposition, (DE # 112), to which defendant filed a reply, (DE # 126), and a supplemental reply (DE # 127).
In 2016, defendant pled guilty to possession with intent to distribute methamphetamine ("meth") and aiding and abetting the same. The court sentenced defendant to 70 months imprisonment, representing a 35% reduction below the bottom of the sentencing guidelines range, and three years supervised release and ordered him to pay a special assessment and $6,000 restitution. He is currently incarcerated at FCI Butner Low and is scheduled for release in August 2021.
In October 2019, defendant filed his first motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018 ("First Step Act"),1 based on his serious medical conditions. In December 2019, the court held a hearing on the motion, atwhich defendant testified via videoconference technology. The court denied the motion because defendant had not satisfied the exhaustion/lapse period requirement of § 3582(c)(1)(A) and, alternatively, because his medical conditions, while significant, did not constitute extraordinary and compelling reasons to warrant a reduction in his term of imprisonment. (DE # 105.)
A week later, defendant requested that the court reconsider its ruling based on a recent hospital stay and the Bureau of Prison's ("BOP") failure to transfer him to a tertiary care hospital. The court declined to disturb its earlier ruling and noted that defendant still had not shown he satisfied § 3582(c)(1)(A)'s exhaustion/lapse period requirement. (DE # 111.)
One month later, defendant filed his second motion for compassionate release, again pursuant to § 3582(c)(1)(A) and based on his serious medical conditions. Although defendant submitted evidence to show he had satisfied the exhaustion/lapse period requirement, he did not rely on any new medical evidence or information. The court denied defendant relief. (DE # 119.)
One month later, defendant filed the instant motion.
Defendant again seeks compassionate release pursuant to § 3582(c)(1)(A).2 That statute provides in relevant part:
18 U.S.C. § 3582(c).
The relevant policy statement is United States Sentencing Guideline § 1B1.13, "Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)."3 It "requires: (1) extraordinary or compelling reasons to warrant a reduction in a defendant's sentence, (2) that the defendant is not a danger to the safety of others or the community, and (3) that release from custody complies with § 3553(a) factors." United States v. Lake, No. CR 5:16-076-DCR, 2019 WL 4143293, at *2 (E.D. Ky. Aug. 30, 2019) (citing U.S.S.G. § 1B1.13 (2018)).
Under the policy statement, extraordinary and compelling reasons justifying a sentence reduction exist based on any of following circumstances:
U.S.S.G. § 1B.13, cmt. n.1.
As an initial matter, the court notes that the government does not dispute that defendant has met the exhaustion/lapse requirement. In support of the merits of his motion, defendant argues that he is seriously ill and that his serious medical conditions make him particularly vulnerable to COVID-19, justifying his release. (See DE # 120, at 1-3; DE # 121, at 1; DE # 126, at 2.) Although defendant initially requested that his imprisonment term be reduced to time served so he could begin his supervised release term, (see DE # 120, at 3), he is amenable to serving the remainder of his imprisonment term on home confinement4 (after a 14-day quarantine in the BOP), (DE # 126, at 2), before beginning his supervised release term. Thegovernment contends defendant's medical conditions are not extraordinary or compelling reasons to justify his release because none of his conditions are terminal or serious enough to affect his ability to care for himself. (DE # 122, at 13-15.) It also claims the BOP is addressing the spread of COVID-19 within its prisons, including, in appropriate cases, releasing vulnerable inmates to home confinement, and therefore, the BOP is adequately protecting defendant from contracting the virus. (See id. at 7-8, 17-19.) Finally, the government requests the court deny relief upon consideration of the § 3353(a) factors, citing defendant's involvement in a drug trafficking operation and his prior state drug trafficking conviction. (Id. at 21.)
To determine whether defendant has shown extraordinary and compelling reasons to justify a sentence reduction, the court begins by considering defendant's health conditions. As established by defendant's testimony at the December 2019 hearing and his BOP medical records submitted at that hearing and filed on the record, defendant is 52 years old and has numerous physical and medical conditions, the most serious of which are chronic obstructive pulmonary disease ("COPD"), Type II diabetes, obesity, Stage 3 kidney disease, edema, open wounds on his les, and a diaphragmatic hernia. Defendant is in constant pain and needs additional surgeries on his legs before he can have surgery to correct the hernia. He has been hospitalized five times since 2018, for a total of 12 weeks.
As the government correctly points out, and as this court has recognized in prior orders, defendant is not terminally ill. (See DE ## 105, 111.) Also, as the court has previously found, despite his numerous health issues, defendant can engage in most of his daily activities without assistance. (See DE # 105.) Now, however, there is an added variable—the COVID-19 pandemic. Having COPD, obesity, and diabetes cause defendant to be at a higher risk of severeillness from COVID-19. See Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited May 5, 2020). While the BOP has undertaken efforts to prevent the virus's spread throughout its prison population, the number of positive inmates at FCI Butner Low, where defendant is housed, has steadily increased, and the numbers at the greater Butner complex are among the highest in the nation. See Federal Bureau of Prisons, COVID-19 Coronavirus, https://www.bop.gov/coronavirus/ (follow "COVID-19 Cases" hyperlink for "full breakdown and additional details") (last visited May 5, 2020). The court concludes that these circumstances constitute extraordinary and compelling reasons warranting a sentence reduction.
Turning to an assessment of defendant's dangerousness and the applicable § 3353(a) factors, defendant's involvement in the instant drug trafficking offense was as a "smurf," providing pseudoephedrine and other supplies needed to manufacture meth to his co-defendant in return for meth, and he did not use or possess firearms. (See DE # 68, at 4-6.) He has been incarcerated nearly four years, and with good time credit, he has served almost 75% of his sentence. He has completed the Residential Drug Abuse Program, and his security classification is minimum. (12/11/19 Hrg, Gov't Ex. 1.) Although defendant committed the instant offense 12 years after having been convicted in state court of a drug trafficking offense, (DE # 68, at 8), given the amount of time he has been incarcerated, his...
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