United States v. Purvis

• Decision Date: 16 April 2020
• Docket Number: Case No. 17-40111-01-DDC
• Citation: 454 F.Supp.3d 1125
• Parties: UNITED STATES of America, Plaintiff, v. Adam Wayne PURVIS, Defendant.
• Court: U.S. District Court — District of Kansas

454 F.Supp.3d 1125

UNITED STATES of America, Plaintiff,

v.Adam Wayne PURVIS, Defendant.

Case No. 17-40111-01-DDC

United States District Court, D. Kansas.

Signed April 16, 2020

Gregory G. Hough, Office of United States Attorney, Topeka, KS, for Plaintiff.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

This matter comes before the court on prisoner Adam Wayne Purvis's Emergency Motion for Release Pending Appeal(Doc. 90).Mr. Purvis currently is incarcerated in Federal Correctional Institute ("FCI")Forrest City, Arkansas.Mr. Purvis seeks immediate release to home confinement in his mother's house in Topeka, Kansas because of the COVID-19 pandemic.The government has responded (Doc. 92) and Mr. Purvis has filed a Reply (Doc. 93).Mr. Purvis explicitly waived any right he had to a hearing on this motion.Doc. 90at 1.For reasons explained below, the court denies Mr. Purvis's motion.

I.Background

On November 15, 2017, a grand jury returned a one-count Indictment charging Mr. Purvis with possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(A),21 U.S.C. § 846, and18 U.S.C. § 2. Doc. 1at 1–2.On May 29, 2018, without a plea agreement, Mr. Purvis pleaded guilty to Count 1, the sole count in the Indictment.Doc. 28.Mr. Purvis faced a minimum term of imprisonment of 10 years and a maximum term of life imprisonment.SeeDoc. 37at 30(Presentence Investigation Report¶ 119).The Presentence Investigation Report ("PSR")—which Mr. Purvis never objected to in any respect—calculated a base offense level of 33 and a criminal history category of IV.Id. at 30(PSR ¶ 120).These two uncontested findings produced a Guidelines sentencing range of 188 to 235 months’ imprisonment.Id.

The court held a sentencing hearing on December 17, 2018.Doc. 60.Mr. Purvis sought a variance, requesting a 48-month sentence.Doc. 87at 7–8(Tr. Sentencing Hr'g Dec. 17, 2018 7:24–8:4).A 48-month sentence would have represented a 140-month reduction—almost 75%—below the bottom end of the Guidelines range.The court, on the government's motion, departed well below the Guidelines range.It sentenced Mr. Purvis to 142 months’ imprisonment—a 46-month departure—some 25% lower than the bottom end of the Guidelines range.Doc. 62.

On January 3, 2019, Mr. Purvis filed his notice of appeal (Doc. 64).On appeal, Mr. Purvis challenged the court's decision denying his motion for a variance based on a policy disagreement with the methamphetamine ratios in the drug guidelines.SeeDoc. 90at 7.He asserts in his appeal that the court"failed to appreciate its discretion to vary from the guidelines range based on a disagreement with the methamphetamine guideline."Id.

Mr. Purvis now seeks immediate release pending his appeal.He has informed his mother, Patricia Purvis, that he was exposed to COVID-19 through his former cellmate, who, he told her, has tested positive for COVID-19. Doc. 90at 2–3.Mr. Purvis asserts that his health problems and obesity place him at greater risk of severe illness if he contracts the virus.Doc. 93at 2.On April 9, 2020, the Bureau of Prisons ("BOP") reported that 20 inmates at Forrest City Low—Mr. Purvis's facility—have tested positive for the virus.Doc. 93-1at 1.The government reports that Mr. Purvis has not tested positive for COVID-19. Doc. 90at 10.The government also asserts that BOP has screened him for eligibility for direct home confinement, and he did not qualify for release to home confinement.Id.Mr. Purvis then filed the current motion.He proposes home confinement in his mother's home in Topeka, Kansas, because he is at "extraordinary risk" if he contracts the virus.Doc. 90at 1.He asserts that the court should release him under 18 U.S.C. § 3143and§ 3145.The court considers Mr. Purvis's arguments, in turn, below.

II.Release Pending Appeal under 18 U.S.C. § 3143(b)

Mr. Purvis first asserts he is entitled to release pending appeal under 18 U.S.C. § 3143(b)(1).This statute mandates detention pending appeal unless the court finds that (A) the person is not a flight risk or a danger to the safety of any other person in the community if released, and (B) the appeal is not for the purpose of delay, raises a substantial question of law or fact, and that if the substantial question is decided favorably to defendant on appeal, that decision is likely to result in (i)"reversal,"(ii)"an order for a new trial,"(iii)"a sentence that does not include a term of imprisonment," or (iv)"a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process."18 U.S.C. § 3143(b)(1)(A)–(B).

The government asserts that Mr. Purvis's reliance on § 3143(b)(1) is misplaced.Doc. 92at 11.The court agrees with the government on this point.Title 18 U.S.C § 3143(b)(1) explicitly provides that it applies, "[e]xcept as provided in paragraph (2) ...."Paragraph (2)—18 U.S.C § 3143(b)(2) —provides the court"shall order that a person who has been found guilty of an offense in a case described in [§ 3142(f)(1)(C) ] and sentenced to a term of imprisonment, and who has filed an appeal ... be detained."Section 3143(b)(2) applies to Mr. Purvis.He pleaded guilty to violating 21 U.S.C. § 841(a)(1).Title 21 U.S.C. § 841(b)(1)(A) provides the penalty provision for this offense, requiring a minimum term of 10 years’ imprisonment, and a maximum term of life imprisonment.Violations of § 841(a)(1) are violations of the "Controlled Substances Act" under 18 U.S.C. § 3142(f)(1)(C).¹Consequently, § 3143(b)(2) applies to Mr. Purvis's conviction and, with one exception, it mandates his detention pending appeal.

III.Release for "Exceptional Circumstances" under 18 U.S.C. § 3145(c)

As explained in Section I,§ 3143(b)(2) mandates Mr. Purvis's detention pending appeal.But he still has access to an avenue for release under 18 U.S.C. § 3145(c).This provision—the "exceptional circumstances exception"—provides, in pertinent part, that a person subject to mandatory detention under 18 U.S.C. § 3143(b)(2) and who meets the conditions of release set forth in § 3143(b)(1), "may be ordered released, under appropriate conditions ... if it is clearly shown that there are exceptional reasons why such a person's detention would not be appropriate."18 U.S.C. § 3145(c).To qualify for release under this analysis, Mr. Purvis must satisfy both the requirements of § 3143(b)(1) and the "exceptional circumstances" requirement of § 3145(c).The court first evaluates the § 3143(b)(1) prong of this standard, and then turns to the exceptional circumstances requirement in § 3145(c).

A.The First Prong: The § 3143(b)(1) Requirements

As referenced above, 18 U.S.C. § 3143(b)(1) mandates Mr. Purvis's detention pending appeal unless he proves, by clear and convincing evidence, that (A)he is "not likely to flee or pose a danger to the safety of any other person or the community," and (B) his appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (i)"reversal,"(ii)"an order for a new trial,"(iii)"a sentence that does not include a term of imprisonment," or (iv)"a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process."The court considers these factors, in turn, below.

1.Flight Risk or Danger to the Community

First, Mr. Purvis must show by clear and convincing evidence that he poses no danger to the safety of any other person or the community if released.18 U.S.C. § 3143(b)(1)(A).Mr. Purvis asserts that he never has been found to be a flight risk or a danger to the community.Doc. 90at 6.His pretrial release violation was his drug use and it, he asserts, posed no danger to others.Id.

Mr. Purvis's release plan calls for his mother, Patricia Purvis, to transport him from FCI Forrest City to her home in Topeka, Kansas, where he would remain confined.Id. at 18.He has a separate room in her home where he reports he would quarantine, if necessary.Id.For several reasons, this release plan falls short of "clear and convincing evidence" that Mr. Purvis poses no danger to the safety of any other person or the community if released.18 U.S.C. § 3143(b)(1)(A).

The conduct underlying Mr. Purvis's conviction was methamphetamine trafficking and Mr. Purvis trafficked methamphetamine from his mother's home in Topeka during 2017. Doc. 37at 5(PSR ¶ 13);Doc. 90at 18.Officers arrested him in his mother's home with 27 grams of methamphetamine and some $57,000 in his possession.Id. at 6, 26(PSR ¶¶ 16–19, 95).The PSR conservatively concluded—without objection—that Mr. Purvis had sold 4.36 kilograms of methamphetamine over a four-month period in 2017.Id. at 7(PSR ¶ 25).Patricia Purvis, his mother, has admitted that she used methamphetamine and knew that her son was distributing the drug before his arrest.Id. at 7(PSR ¶ 23).Indeed, Mr. Purvis conducted drug transactions in her home, and he supplied her with methamphetamine.²Id. at 7(PSR ¶ 22).Mr. Purvis never establishes that his mother's methamphetamine use has ceased since his incarceration began.He only asserts, vaguely, that "her focus is currently on Mr. Purvis's health and well-being."Doc. 90at 18.

Mr. Purvis also admitted to using marijuana and methamphetamine while on pretrial release, and later tested positive for those substances.Id. at 4, 5(PSR ¶¶ 8, 9).He informed his Pretrial Services Officer that he had arranged for those drugs to be delivered to him at his mother's home.Id. at 28–29(PSR ¶ 112).A bit later, in the last stages of his pretrial release, he provided non-human urine in an attempt to evade the consequences of a drug test.Id. at 5(PSR ¶ 9).He thus has failed to comply with his conditions of release—and tried to avoid detection of his violations—in the past.His release plan also requires contact with...