United States v. McGraw, 2:02-cr-00018-LJM-CMM

• Decision Date: 09 May 2019
• Docket Number: No. 2:02-cr-00018-LJM-CMM,2:02-cr-00018-LJM-CMM
• Citation: United States v. McGraw, No. 2:02-cr-00018-LJM-CMM (S.D. Ind. May 09, 2019)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. OSCAR B. MCGRAW, JR., Defendant.
• Court: U.S. District Court — Southern District of Indiana

UNITED STATES OF AMERICA, Plaintiff, v. OSCAR B. MCGRAW, JR., Defendant.

No. 2:02-cr-00018-LJM-CMM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION

May 9, 2019

-01

ORDER

Pending before the Court is Oscar McGraw, Jr.'s Renewed Motion for Compassionate Release, [FilingNo. 81], filed pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, Pub. L. No. 115-391, § 603,132 Stat. 5194, 5239, and the Court's Order dated March 1, 2019, which directed Mr. McGraw to renew his motion upon receipt of an updated medical report, [Filing No. 79].Mr. McGraw asks the Court to reduce his currently-imposed life sentence and order that he be released on conditions to his sister's home in Montana.For the reasons set forth below, the CourtGRANTS Mr. McGraw's Motion.

I.BACKGROUND

On August 28, 2003, Mr. McGraw was sentenced to life imprisonment after a jury found him guilty of conspiracy to possess with intent to distribute methamphetamine.[Filing No. 1at 8];seeUnited States v. Gray, 410 F.3d 338(7th Cir.2005)(describing Mr. McGraw's offense and affirming his conviction);United States v. Lenover, 182 F. App'x 563, 568(7th Cir.2006)(affirming Mr. McGraw's life sentence).In 2017 and 2018, the Court received letters from Mr. McGraw's sister and counsel requesting a recommendation that the Bureau of Prisons ("BOP") grant Mr. McGraw's request for compassionate release based upon his deteriorating physical condition.[FilingNo. 56;Filing No. 60.]Judge Larry J. McKinney made such a recommendation in April 2017, [Filing No. 58], as did the undersigned in July 2018, [Filing No. 61].On both occasions, the Court made the recommendations without the benefit of medical records or the input of the Government; at the time, the sole authority to seek a compassionate-release sentence modification rested with the BOP.

That changed, however, with the passage of the First Step Act in late 2018, which now provides an avenue for a defendant to seek compassionate release from the Court after exhausting administrative remedies.See18 U.S.C. § 3582(c)(1)(A).Pursuant to the newly-amended provision, Mr. McGraw, by counsel, filed his Motion for Compassionate Release on January 24, 2019.[Filing No. 64.]On February 12, 2019, the Court directed Mr. McGraw to supplement the record with medical documentation, [Filing No. 72], which Mr. McGraw did on February 14, 2019, [Filing No. 73].

On March 1, 2019, without objection, the Court directed that it would hold this matter in abeyance to allow for Mr. McGraw's BOP physician, Dr. Sara Beyer, to prepare a report.[Filing No. 79.]The Government has now filed Dr. Beyer's report and supporting medical documentation.[Filing No. 80;FilingNo. 80-1;FilingNo. 80-2.]The entirety of Dr. Beyer's report¹ need not be repeated here, though several of her findings, detailed below, are critical to the issue of compassionate release.

Mr. McGraw is 72 years old.[SeeFilingNo. 73-1at 1.]He currently requires a wheelchair, although he can walk for short distances.[FilingNo. 80-1at 3.]Mr. McGraw also requires a portable oxygen machine.[FilingNo. 80-1at 3.]He suffers from a number of conditions, including: "Type II Diabetes, insulin-dependent, with peripheral neuropathy; hyperlipidemia; emphysema; chronic kidney disease stage III; Hepatitis C type 1A (treatment completed and no sign of disease noted); and[] chronic pain."[FilingNo. 80-1at 3.]Many of these conditions, such as his diabetes and hypertension are fairly well managed or controlled through the medical treatment Mr. McGraw receives while incarcerated.[FilingNo. 80-1at 3-4.]

Mr. McGraw has at times suffered from bouts of severe, uncontrollable diarrhea.[FilingNo. 80-1at 4;FilingNo. 80-2at 13.]Loperamide treatment has provided some improvement for the condition, though he continues to have issues.[FilingNo. 80-1at 4;FilingNo. 80-2at 13.]Mr. McGraw suffers from chronic pain, but has refused fentanyl and Lyrica because he does not want to be "doped up on drugs," presumably due to the well-known side effects of such drugs.[FilingNo. 80-1at 5.]He has also in the past suffered from swelling and ulcers, [FilingNo. 80-1at 5], and complained of bruising and scabs on his hands during a recent medical visit, [FilingNo. 80-2at 1].Ultimately, Dr. Beyer opines that Mr. McGraw suffers from serious, chronic medical conditions, though he is able to function in the correctional facility with assistance.[FilingNo. 80-1at 5-6.]Dr. Beyer does not believe that Mr. McGraw suffers from a "terminal illness."[FilingNo. 80-1at 6.]

On March 14, 2019, after the Government filed Dr. Beyer's report, Mr. McGraw renewed his Motion for Compassionate Release as directed.[Filing No. 81.]That Motion is now fully briefed and ripe for decision.

II.DISCUSSION

Mr. McGraw argues that the Court should order that he be released based upon his serious medical conditions, explaining that the U.S. Probation Office in Montana has approved Mr. McGraw's sister's home for placement.[Filing No. 81.]In response, the Government disputes Mr. McGraw's characterization of his medical conditions and argues that, regardless, compassionate release is not appropriate because Mr. McGraw poses a danger to the community and because the 18 U.S.C. § 3553(a) factors do not favor release.[Filing No. 85at 8-9.]

18 U.S.C. § 3582(c) provides in relevant part:

[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons 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 . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission . . . .

18 U.S.C. § 3582(c)(1)(A).Congress directed the Commission to "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples."28 U.S.C. § 994(t).The Sentencing Commission has promulgated a policy statement regarding compassionate release under § 3581(c), contained in U.S.S.G. § 1B1.13 and the accompanying Application Notes.While that particular policy statement has not yet been updated to reflect that defendants(and not just the BOP) may move for compassionate release, courts have universally turned to U.S.S.G. § 1B1.13 to provide guidance on the "extraordinary and compelling reasons" that may warrant a sentence reduction.E.g., United States v. Casey, 2019 WL 1987311, at *1(W.D. Va.2019);United States v. Gutierrez, 2019 WL 1472320, at *2(D.N.M.2019);United States v. Overcash, 2019 WL 1472104, at *2-3(W.D.N.C.2019).There is no reason to believe, moreover, that the identity of the movant(either the defendant or the BOP) should have any impact on the factors the Court should consider.

As provided in section 1B1.13, consistent with the statutory directive in § 3582(c)(1)(A), the compassionate release analysis requires several findings.First, the Court must address whether "[e]xtraordinary and compelling reasons warrant the reduction" and whether the reduction is otherwise "consistent with this policy statement."U.S.S.G. § 1B1.13(1)(A), (3).Second, the Court must determine whether Mr. McGraw is "a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)."U.S.S.G. § 1B1.13(2).Finally, the Court must consider the § 3553(a) factors, "to the extent they are applicable."U.S.S.G. § 1B1.13.

A.Extraordinary and Compelling Reasons

The Government first argues that Mr. McGraw does not meet the medical criteria for compassionate release.The Application Notes to section 1B1.13 provide, in part:

1.Extraordinary and Compelling Reasons.—. . . [E]xtraordinary and compelling reasons exist under any of the circumstances set forth below:

(A) Medical Condition of the Defendant.—

(i)The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory).A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required.Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(ii)The defendant is—

(I) suffering from a serious physical or medical condition, (II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

(B) Age of the Defendant.—The defendant(i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

. . .

2.Foreseeability of Extraordinary and Compelling Reasons.—For purposes of this policy statement, an extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment.Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration

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