United States v. Kerby
| Decision Date | 09 November 2022 |
| Docket Number | 8:02CR336 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JEREMIAH J. KERBY, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on the defendant's motion for compassionate release/sentence reduction under 18 U.S.C § 3582(c)(1)(A), Filing No. 136. The United States opposes the motion. Filing No. 143. The Court appointed the Public Defender's office to represent defendant and requested that the United States Probation Office (“Probation”) file a compassionate release investigation report. Filing No. 138. More than 30 days have passed since Kerby made a request for compassionate release to the Warden, which was denied, thus exhausting his administrative remedies. Id.; Filing No. 136-1, Ex C at 67.
Kerby argues that his youthful age at the time he committed the crimes, the length of the sentence imposed on him, his rehabilitative efforts while in prison, and the existence of the COVID-19 pandemic combine to establish extraordinary and compelling reasons to reduce his sentence. He contends he deserves a sentence reduction because at the time he committed the crimes at issue, he was an immature young man who made irrational and irresponsible choices that he deeply regrets today. He also argues he has rehabilitated himself while incarcerated by taking numerous classes and completing many programs, as shown in Bureau of Prisons (“BOP”) records. Filing No. 138, Ex. A.
The Government opposes the motion, arguing that Kerby has not shown “extraordinary and compelling reasons” as required under § 3582(c)(1)(A). The government also contends that Kerby is a danger to the community under 18 U.S.C. § 3142(g). Further, it argues Kerby's action is foreclosed by the Eighth Circuit Court of Appeals' recent case finding that the Sentencing Commission's amendment to the Guidelines that eliminates “stacking” under 18 U.S.C. § $ 924 (c) does not furnish an extraordinary and compelling reason to reduce a sentence.[1] SeeUnited States v.Crandall, 25 F.4th 582, 583 (8th Cir. 2022). Probation also advises against release, noting that Kerby has already had Covid 19 and has been vaccinated. However, Probation acknowledges that Kerby's SENTRY records, his motion, and letters of support indicate he has matured while in prison. Filing No 142, Compassionate Release Investigation Report at 4.
Defendant Jeremiah J. Kerby was convicted in connection with two armed bank robberies-one in Iowa, the other in Nebraska. Kerby was arrested in Iowa on March 28, 2001, and later charged in the Northern District of Iowa, together with co-defendants Sandy Curtis, Michael Davis, Domanik Tenny, and Justin Copley, with the armed robbery of Wells Fargo Bank in Sioux City, Iowa, in violation of 18 U.S.C. § 2113, and possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c), unlawful transportation in interstate commerce, of a stolen vehicle and aiding and abetting such transportation, in violation of 18 U.S.C. §§ 2312 and 2, and conspiracy to violate 18 U.S.C. §§ 2113(a), 2113(d), 924(c), and 2312. United States v. Kerby, No. 01CR4013 (“hereinafter, U.S. v. Kerby (Iowa)”), Filing No. 95, Presentence Investigation Report (“Kerby PSR”) at 3 (N. D. Iowa Dec. 26, 2001); Id., Filing No. 57, Second Superseding Indictment.
In the Iowa case, Kerby entered a plea of guilty to the bank robbery and firearm counts and the Government dismissed the other charges. Id., PSR at 4-5. In the plea agreement, the parties agreed to a Guidelines computation of base offense level 28 to 30 for the bank robbery count (Base Offense Level 20, plus 2 for offense involving financial institution, plus 1 for loss between $10,000 and $50,000, plus at least three for aggravated role, leaving the government free to argue for a 4-level enhancement, plus two for obstruction of justice, and a two-level enhancement for reckless endangerment was to be determined by the court, minus 3 for acceptance of responsibility). Id. at 5. Probation had assessed Kerby 15 criminal history points, resulting in Criminal History Category VI.[2] Id. at 16.
Judge Donald J. O'Brien sentenced Kerby, under the then-mandatory Guidelines, to 235 months (roughly 12 and a half years) of imprisonment for armed bank robbery, followed by the statutory mandatory minimum consecutive sentence of 84 months (7 years) for brandishing a firearm during a crime of violence. United States v. Kerby, No. 01CR4013, Filing No. 90, Judgment (N. D. Iowa Dec. 24, 2001). Kerby argues that, at the time, Judge O'Brien expressed misgivings about the length of the sentence.[3] Filing No. 136, Motion at 2.
At the time of his sentencing for the Iowa bank robbery, the FBI was investigating Kerby in connection with a similar bank robbery in Omaha, Nebraska on March 15, 2001. Id., Filing No. 95, Justin Copley PSR (“Copley PSR”) at 4. One of Kerby's co-defendants, Justin Copley, had admitted to committing that robbery with Kerby. Id. at 4, 6.
Kerby was indicted in this Court in October 2002 for the armed bank robbery of Great Western Bank, Omaha, Nebraska, on March 15, 2001, in violation of 18 U.S.C. § 2113, and use of a firearm in connection during a crime of violence, in violation of 18 U.S.C. § 924(c). Filing No. 1, Indictment. Kerby entered into a binding Fed. R. Crim. P. 11(c)(1)(C) plea agreement. Filing No. 61, Plea Agreement. Kerby agreed to a 120-month (10 years) term of imprisonment consecutive to “all terms of incarceration for which the defendant has presently been ordered to serve,” that being the 235 month (nineteen and a half years) sentence that had been imposed in the Northern District of Iowa, for a total sentence of 29 years and 7 months. Id. The government agreed to dismiss Count II, Brandishing a Firearm During a Crime of Violence (18 U.S.C. § 924(c)). Id. Kerby was sentenced in accordance with the plea agreement. Filing No. 58, Judgment.
In entering into the plea agreement, defense counsel would have assumed that, absent the plea agreement, the defendant could have been sentenced to the statutory mandatory minimum of twenty-five years for a second firearms violation under 18 U.S.C. § 924(c), consecutive to the bank robbery charge. The bank robbery charge carried a statutory maximum of twenty years. No PSR was prepared in the District of Nebraska, but the PSR in Iowa indicated that the Guideline range for the bank robbery count was 120 months (10 years) to 150 months (12 and a half years). See Filing No. 142, Compassionate Release Investigation at 1; U.S. v. Kerby (Iowa), Filing No. 95, Kerby PSR at 19. Thus, the defendant faced the potential for a very heavy consecutive sentence under the then-mandatory guidelines. Correspondence in the record from Kerby's counsel in this case indicates that counsel believed that counsel believed the Iowa and Nebraska cases should have been consolidated in one case because both cases were part of a conspiracy to commit crimes as part of a common scheme or plan. Filing No. 136-1, Ex. D at 89.
The record shows that Kerby's co-defendants Sandra A. Curtis and Justin L. Copley (who also participated in the Iowa bank robbery) were also charged in this district with armed bank robbery and possession or use of a firearm during a crime of violence. Filing No. 1, Indictment. Curtis entered a plea of guilty to the bank robbery charge and was sentenced to a term of imprisonment of 84 months (7 years), to be served concurrently to the 37-month (three years and one month) sentence imposed in Iowa for aiding and abetting armed bank robbery, followed by a consecutive 84-month (7 years) sentence for aiding and abetting possession of a firearm during crime of violence. Filing No. 88, Judgment; Filing No. 86, Curtis PSR (sealed) at 19. Copley entered a plea of guilty to an Information charging him with misprision of a felony and was sentenced to imprisonment for thirty-six months (three years) consecutive to the term of incarceration of 40 months (three years and four months) he was then serving on the Iowa bank robbery charge. Filing No. 90, Copley PSR (sealed) at 12; Filing No. 66, Information; Filing No. 91, Judgment.
Kerby has a long criminal history beginning at the age of 7. U.S. v. Kerby (Iowa), Filing No. 95, Kerby PSR at 12. At the time of his sentencing, his criminal history included shoplifting, flight to avoid arrest, possession of methamphetamine, criminal trespassing, and 3rd degree assault. Id. at 12-17; see infra at 3 n.2. Correspondence to the Court from Kerby's mother indicates that Kerby had a difficult childhood. When he was sentenced for the Iowa robbery, his father was incarcerated in the State of Iowa for a murder conviction. U.S. v. Kerby (Iowa), Filing No. 95, Kerby PSR at 17. According to the Kerby, his father had been physically abusive to him and to his mother. Id. Following the separation of his parents when he was 9, he remained with his mother until he was "kicked out" at approximately age 12. Id. During the defendant's teenage years, he had several juvenile placements which included: the Boys & Girls Home, South Sioux City, Nebraska, for two months; Rivendell Psychiatric Center, Seward, Nebraska, for three months; Boys Reformatory, Kearney, Nebraska, for six months; and he was also placed in foster care in Lincoln, Nebraska. Id.
While incarcerated for the bank robberies, Mr. Kerby has participated in the following educational programs according to SENTRY records: beginning, intermediate and advanced drums; personal finance; money management; sport injury prevention; card making; FDIC money smart; Financial Peace University; basic astrology; basic earth and space 1 and 2 power basic biology 1 and 2; comparative...
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