United States v. Pemberton
| Decision Date | 14 July 2021 |
| Docket Number | No. 1:18-cr-00099-JAW,1:18-cr-00099-JAW |
| Parties | UNITED STATES OF AMERICA v. CARLOS PEMBERTON |
| Court | U.S. District Court — District of Maine |
An inmate serving a forty-six-month sentence for possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) moves for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). The Court dismisses the motion without prejudice because the inmate has not shown extraordinary and compelling reasons to justify his release from incarceration and the factors under 18 U.S.C. § 3553(a) do not support compassionate release.
On March 26, 2018, law enforcement in Down East Maine performed a welfare check on some children at the request of their grandmother. Id. ¶ 9. The children's mother was incarcerated, and their grandmother expressed concern to lawenforcement about the amount of traffic at the children's residence and her fear that a man named "Pepa" was selling drugs there. Id.
As a result of the welfare check, Mr. Pemberton was arrested in a bedroom at a residence on Alder Lane in Indian Township, Maine with $3,180 in small bills on his person. Id. Inside a duffel bag owned by Mr. Pemberton, law enforcement found approximately one pound of marijuana, $4,086, nine small bags of heroin each containing 0.4 grams of heroin for a total of 3.6 grams of heroin, a Comet toilet cleaner container with a false bottom, forty-six two-milligram Xanax pills, and a bag with 18.7 grams of a substance containing heroin and fentanyl. Id. Authorities also seized several cell phones from the residence. Id. A search of the cellphone revealed text messages consistent with drug trafficking. Prosecution Version of the Offense at 1 (ECF No. 157) (Prosecution Version). Law enforcement found no firearms in the residence but did locate a .40 caliber Smith & Wesson bullet in the bedroom where they arrested Mr. Pemberton. PSR ¶ 9.
Another occupant of the Indian Township residence possessed a metal wallet containing heroin paraphernalia. Id. Authorities learned that Mr. Pemberton gave that occupant two "tickets" of heroin, or approximately 0.2 grams, earlier that day. Id. A cooperating witness would testify that earlier on March 28, 2018, Mr. Pemberton not only possessed heroin, but also distributed it. Prosecution Version at 1.
Mr. Pemberton was known to law enforcement. His PSR details his impressive scope of drug dealing activity with different individuals and organizations over the years preceding his arrest in Indian Township. PSR ¶¶ 5-12. A fair reading of the PSR suggests that Mr. Pemberton may have been part of a drug trafficking organization (DTO) led by Luis Padilla and Damian Perry in Penobscot County, Maine. PSR ¶ 5. However, direct evidence of Mr. Pemberton's involvement in this conspiracy is scant and, despite his peripheral involvement, the PO concluded "there [was] insufficient evidence to determine by a [preponderance] of the evidence what [Mr. Pemberton] was personally involved in, or what conduct arose out of his joint agreement with others that was foreseeable to him that is relevant conduct to the instant offense." Id. ¶ 12. Moreover, there was a "lack of evidence to show [Mr.] Pemberton was involved in trafficking in a continuous nature." Id.
Among other facts recited in the PSR are statements from a confidential source (CS) that Mr. Padilla, Mr. Perry, and Mr. Pemberton began trafficking drugs out of Sherri Chen's2 house for an unknown duration; however, they moved to a different residence around November 2016. Id. ¶ 10. According to some CSs, Mr. Pemberton sometimes transported heroin and cocaine base from Waterbury, Connecticut toMaine. Id. Another CS said that Mr. Pemberton paid the CS a couple grams of heroin for transportation around Bangor, Maine. Id.
Also, in June 2018, law enforcement learned that, in the years prior to June 2018, Mr. Pemberton was "partners" with another individual, Rene Montalvo, in Connecticut who distributed heroin. Id. ¶ 11. Mr. Pemberton and Mr. Montalvo planted a third person in Maine to sell heroin for their organization. Id. Authorities do not know if that DTO is related to the Perry-Padilla DTO, although there are overlapping conspirators. Id. About two to three years before June 2018, Mr. Montalvo cut Mr. Pemberton out of that DTO. Id.
After Mr. Pemberton pleaded guilty on January 7, 2020 to heroin distribution, he was incarcerated at the Piscataquis County Jail (PCJ) pending the imposition of sentence. Id. ¶ 15A. At his October 22, 2020 sentencing hearing, the Court found that in March 2020, Mr. Pemberton was involved in some fashion in the smuggling of Suboxone strips and cocaine into the PCJ and that his unauthorized possession of a cellphone while at the PCJ was connected to his jail-based drug smuggling. Statement of Reasons at 1 (ECF No. 182). Based on these findings. the Court denied acceptance of responsibility to Mr. Pemberton because he had continued to engage in criminal activity after pleading guilty and before his sentencing hearing. Id. Attach. 1, Findings Affecting Sentencing at 1-2.
On July 18, 2018, a District of Maine grand jury issued a one-count indictment charging Mr. Pemberton with possession with intent to distribute a substance containing heroin and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Indictment (ECF No. 2). Although Mr. Pemberton initially pleaded not guilty and nearly went to trial, on January 7, 2020, he pleaded guilty to the heroin distribution charge. Min. Entry (ECF No. 159). On October 22, 2020, the Court sentenced Mr. Pemberton to forty-six months imprisonment, three years supervised release, a $100 special assessment, and a $5,000 fine. Min. Entry (ECF No. 180); J. at 2-7 (ECF No. 181).
On April 14, 2021, Mr. Pemberton filed a pro se motion for compassionate release and requested appointment of counsel. Mot. for Reduction of Sentence Pursuant to 18 U.S.C. Section 3582(c)(1)(A)(i) (ECF No. 183). On April 20, 2021, the Court appointed Attorney Donald Brown to represent Mr. Pemberton. Appointment of Counsel & Scheduling Order (ECF No. 186). On May 6, 2021, Attorney Brown filed an amended motion for compassionate release on behalf of Mr. Pemberton. Def. Carlos Pemberton's Mot. for Compassionate Release/Or Alternatively, Modify His Sentence to Home Confinement (ECF No. 191) (Def.'s Mot.). On May 12, 2021, the Government responded in opposition to Mr. Pemberton's motion. Gov't's Obj. to Def.'s Mot. for Compassionate Release/Or Alternatively, Modify His Sentence to Home Confinement (ECF No. 192) (Gov't's Opp'n). Mr. Pemberton did not file a reply.
Mr. Pemberton first contends that he has "exhausted his administrative remedies" by filing "a request for compassionate release with the superintendent of [FCI] Danbury, which was denied." Def.'s Mot. at 3-4. Therefore, he urges the Court to consider the merits of his motion for compassionate release. Id. at 4.
Turning to the merits, Mr. Pemberton argues that he "is eligible for compassionate release," id., and that his obesity, asthma, "compromised immune system," and risk of serious complications from COVID-19 infection are extraordinary and compelling reasons for his release. Id. at 2, 4-7. He stresses that he is "particularly vulnerable in the prison setting" due to its dense population and inability to practice effective social distancing. Id. at 7. Mr. Pemberton cites a number of cases considering an inmate's health diagnoses and conditions of confinement as relevant factors supporting a grant of compassionate release. Id. at 7-8.
Separate from his medical conditions, Mr. Pemberton insists the COVID-19 pandemic is an extraordinary and compelling reason to release him under 18 U.S.C. § 3582(c)(1)(A). Id. at 8. Citing caselaw almost exclusively from the spring of 2020, and none from 2021, Mr. Pemberton says "the number of courts agreeing the COVID-19 pandemic constitutes an extraordinary and compelling reason for release is vast and continues to grow exponentially." Id. at 9.
Mr. Pemberton also concludes that "18 U.S.C. § 3142(g) weighs in favor of release." Id. at 11. While "Mr. Pemberton concedes that his plea to a drug charge . . . would weigh against release" he claims "a multitude of factors weigh in favor of release." Id. at 12. He notes that "[t]his Court made no findings, nor did the PSR indicate that Mr. Pemberton is violent or presents a danger to society." Id. Moreover, Mr. Pemberton claims that he "has a suitable place to reside if he was released, in his home state" but does not detail specific living arrangements. Id. In addition, Mr. Pemberton says that "any concerns that the Court would have for [him] are alleviated by the fact that he will be on intense supervision upon his release and he has an incentive to stay out of prison." Id.
As an alternative to compassionate release, Mr. Pemberton asks the Court to modify his sentence to a term of home confinement. Id. at 13-16. He says that the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No 116-136, 134 Stat. 281 (2020), also known as the "CARES Act," "places decision making authority [concerning home confinement] solely within the discretion of the Attorney General and Director of the Bureau of Prisons (BOP)" but nevertheless "asks the Court to modify his sentence to allow for home confinement." Id. at 13. Mr. Pemberton says that home confinement is appropriate because "he is at a higher risk of [COVID-19] not just due to his health, but also his race." Id. at 15. He contends that "as a 44-year old Black or African American male" he is "is inarguably a 'vulnerable inmate.'" Id. at 16. Thus, he asks the Court to exercise...
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