United States v. Noble

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: Amy Totenberg, United States District Judge
• Citation: United States v. Noble, 512 F.Supp.3d 1341 (N.D. Ga. 2021)
• Decision Date: 08 January 2021
• Docket Number: CRIMINAL ACTION NO. 1:18-CR-319-AT-2
• Parties: UNITED STATES of America v. Breanna NOBLE, Defendant.

512 F.Supp.3d 1341

UNITED STATES of America

v.Breanna NOBLE, Defendant.

CRIMINAL ACTION NO. 1:18-CR-319-AT-2

United States District Court, N.D. Georgia, Atlanta Division.

Signed January 8, 2021

ATTORNEYS FOR GOVERNMENT: Michael V. Herskowitz, Teresa Marie Stolze, Office of the United States Attorney-ATL600, Northern District of Georgia, 600 United States Courthouse, 75 Ted Turner Dr., S.W., Atlanta, GA 30303, 404-581-6071.

ATTORNEYS FOR DEFENDANT: Gretchen M. Stork, Federal Defender Program Inc.-Atl, Suite 1500, Centennial Tower, 101 Marietta Street, NW, Atlanta, GA 30303.

ORDER

Amy Totenberg, United States District Judge

This case comes before the Court on Defendant Breanna Noble's Amended Motion for Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), as amended by Section 603 of the First Step Act [Doc. 20]. The Government has filed a Response in Opposition [Doc. 23], and Defendant Noble has filed her Reply [Doc. 24]. Having reviewed the record and applicable legal authority, the Court enters the following Order.

I. Background

On August 20, 2018, Ms. Noble plead guilty to one count of Hobbs Act Armed Robbery and one count of possession of a firearm during a crime of violence. (Doc. 3.) On November 16, 2018, Ms. Noble was sentenced to ninety-three months of incarceration (with a recommendation to the BOP for the final year to be served in a halfway house), and two years of supervised release. (Doc 11.) Her sentence was later reduced to 77 months on November 23, 2020 through a separate matter. (Docs. 16-19.)

Ms. Noble's charges flow from her involvement in several armed robberies. Ms. Noble acted as a getaway driver for her co-defendant, who was also her abusive boyfriend. (PSR ¶ 9.) On one occasion, Ms. Noble "cased" a restaurant prior to the planned robbery. (Id. ¶ 9.) Ms. Noble did not possess or brandish a gun; however, her co-defendant did, and fired two gunshots towards a restaurant employee at one of the robberies. (PSR ¶ 18.) At sentencing, this Court noted that Ms. Noble was extraordinarily influenced by her co-defendant boyfriend, who abused her physically and sexually and who was the father of her unborn child. (Doc. 15 at 16-17.) This abuse was the latest in Ms. Noble's long and distressing history of abuse and trauma at the hands of men. (PSR ¶¶ 68, 71, 77.)

Currently, Ms. Noble is housed at Atwood Satellite Camp, FMC Lexington in Lexington, Kentucky. There is apparently a discrepancy regarding what percentage of her sentence Ms. Noble has served. Ms. Noble contends that she has served over 61.5 percent of her sentence, including good time. (Mot. for Comp. Release, Doc. 20 at 5; Reply, Doc. 24 at 17.) The Government asserts that Ms. Noble has served only 46 percent of her anticipated sentence; however, it acknowledges that "any doubts regarding this issue should be resolved in favor of Noble's calculation." (Gov. Resp., Doc. 23 at 3, n.1.) The BOP's calculation of Ms. Noble's release date is January 27, 2023 for a total term of 65.5 months. Ms. Noble is over 40 months into that sentence, or over 60 percent.

On November 24, 2020, Ms. Noble filed an Amended Motion for Compassionate Release, arguing that her numerous medical conditions — including chronic asthma, obesity, major depressive disorder, post-traumatic stress disorder ("PTSD"), anxiety disorder, an additional mood disorder, elevated blood pressure, borderline diabetes, and latent tuberculosis — render her acutely vulnerable to severe illness from COVID-19. (Doc. 20 at 2-3.) Ms. Noble also argues that she is more susceptible to the virus because she is Black. (Id. at 3.) Further, Ms. Noble highlights the worsening conditions at the location where she is housed, Lexington FMC (Reply at 3-4) and argues that the Section 3553(a) factors weigh in favor of release. (Id. at 30-35.)

In opposing Ms. Noble's Motion, the Government argues that there are not extraordinary and compelling reasons to reduce Ms. Noble's sentence. Although the Government acknowledges that Ms. Noble's obesity places her at increased risk of severe illness from COVID-19 (Gov. Resp. at 8), it argues that none of her other medical conditions constitute increased risk factors (id. at 9). In addition, the Government argues that the factors specified in 18 U.S.C. § 3553(a) factors do not weigh in favor of release because the current sentence is necessary to reflect the seriousness of the offense and to provide specific and general deterrence. (Gov. Resp. at 10.) The Government requests, however, that the Court order a 14-day quarantine period and medical clearance in the event it grants Ms. Noble's motion. (Id. at 11.)

Ms. Noble has a release plan to live with her sister in Rochester, New York, and with her children. (Mot. for Compassionate Release at 34.) Ms. Noble's sister has confirmed to defense counsel that Ms. Noble is welcome to live with her; in addition, Ms. Noble's grandmother is nearby to her sister and plans to assist in Ms. Noble's transition, if she is granted release. (Id. )

II. Legal Standard

Before the enactment of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 ("First Step Act"), compassionate release was only available if the Bureau of Prisons ("BOP") filed a motion requesting it. See 18 U.S.C. § 3582 (2002) ; see also U.S.S.G. § 1B1.13 ("Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce the term of imprisonment."). Now, however, the First Step Act enables a defendant to file a motion for compassionate release directly with the sentencing court, provided she has "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of [his] facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A) (2018). Here, Ms. Noble has provided satisfactory evidence of exhaustion as she filed a request for compassionate release with the BOP on August 3, 2020. (Doc. 12 at 3.) On October 2, Ms. Noble was informed that her request was denied. (Doc. 20 Ex. 4, Administrative Remedy Request Denial.)

Where the exhaustion requirement is satisfied, the First Step Act authorizes a court to modify a term of imprisonment "after considering the factors set forth in section 3553(a) to the extent they are applicable, if it finds that—(i) extraordinary and compelling circumstances warrant a reduction .... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. The Sentencing Commission's policy is found in § 1B1.13 of the Guidelines and that section's accompanying Application Notes. This policy statement provides that a court may reduce a term of imprisonment "if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent they are applicable, the court determines that (1)(A) extraordinary and compelling reasons warrant the reduction; ... (2) the defendant is not a danger to the safety of any other person or to the community as provided in 18 U.S.C. § 3142(g) ; and (3) the reduction is consistent with this policy statement." U.S.S.G. § 1B1.13. Application Note 1 to this section lists three circumstances that would qualify as "extraordinary and compelling:" (1) medical condition; (2) advanced age; and (3) family circumstances. Id. § 1B1.13 cmt. n.1. Application Note 1 also includes a residual clause whereby the Director of the BOP may determine "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons" set out above. Id.

The Sentencing Commission has not updated this policy statement since the passage of the First Step Act. Section 1B1.13 therefore does not reflect the change in the procedural requirements for compassionate release. See United States v. Ebbers , 432 F. Supp. 3d 421, 427 (S.D.N.Y. 2020). Courts across the country—including this Court—still rely on § 1B.1.13 for guidance as to the "extraordinary and compelling reasons" that may warrant a sentence reduction. See United States v. Drummond , No. 1:97-cr-0019, Doc. 118 at 5 (N.D. Ga. Sept. 27, 2019) (viewing § 1B.1.13 as "non-binding guidance"); see also United States v. Solis , No. 16-015-CG-MU, 2019 WL 2518452, at *2–3 (S.D. Ala. June 18, 2019) ; United States v. Heromin , No. 8:11-cr-550-T-33SPF, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019).

However, the Court is not limited to the technical requirements set forth in § 1B1.13 in assessing whether a defendant's application for compassionate release provides "extraordinary and compelling reasons" for a sentence reduction under § 3582(c)(1)(A)(i). See, e.g., United States v. Maria Ullings , No. 1:10-cr-406-MLB, Doc. 34 at 6 (N.D. Ga. May 12, 2020) (citing United States v. Perez , 451 F. Supp. 3d 288, 293–94 (S.D.N.Y. 2020) ); United States v. Beck , 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019) ("While the old policy statement provides helpful guidance, it does not constrain the Court's independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A)(i)."); United States v. Beard , No. 1:16-CR-285-SCJ, Doc. 176 at 6-7, 10 (N.D. Ga. June 25, 2020); United States v. Hill , No. 1:05-CR-0081-LMM, Doc. 45 at 4 (N.D. Ga. June 10, 2020); United States v. Noble , No. 1:09-CR-315-MHC, Doc. 58 at 3-6 (N.D. Ga. Nov. 24, 2020); United States v. Evans , No. 1:07-CR-119-CAP-1, Doc. 219 at 5 (N.D. Ga. Oct. 13, 2020) ("Stated otherwise, the court finds it is ‘authorized to consider the enumerated circumstances, as well as circumstances other than, or in combination with, the enumerated circumstances.’ ") (citing United States v. Kowalewki , No. 2:13-CR-45-RWS, Doc. 251 at 10 (N.D. Ga. Apr. 30, 2020)). The Court therefore considers the § 3553(a) factors, the Sentencing Commission's guidance in § 1B1.13, and the individual situation and circumstances presented by Ms. Noble's Motion.

III. DISCUSSION

A...