United States v. Scott

• Decision Date: 15 May 2020
• Docket Number: Case No. 17-CR-156
• Citation: 461 F.Supp.3d 851
• Parties: UNITED STATES of America, Plaintiff, v. Jerry SCOTT, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

461 F.Supp.3d 851

UNITED STATES of America, Plaintiff,

v.Jerry SCOTT, Defendant.

Case No. 17-CR-156

United States District Court, E.D. Wisconsin.

Signed May 15, 2020

Zachary John Corey, United States Department of Justice (ED-WI) Office of the US Attorney, Milwaukee, WI, for Plaintiff.

DECISION AND ORDER

LYNN ADELMAN, District Judge

Defendant Jerry Scott moves for "compassionate release" pursuant to 18 U.S.C. § 3582(c)(1)(A). That statute permits the court to reduce a term of imprisonment, on the motion of the Director of the Bureau of Prisons ("BOP"), or upon motion of the defendant after he has exhausted administrative rights to appeal a failure of the BOP 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, if it finds that "extraordinary and compelling reasons" warrant such a reduction.

The government opposes release in this case, on procedural grounds and on the merits. For the reasons that follow, while I conclude that the "exhaustion" required by the statute may in some circumstances be excused or waived, defendant has not demonstrated that "extraordinary and compelling reasons" support a reduction of his sentence.

I. FACTS AND BACKGROUND

On September 19, 2017, the government obtained a three-count indictment charging defendant with felon in possession of a firearm, 18 U.S.C. § 922(g)(1) ; possession of methamphetamine and marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) ; and possession of a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 924(c). On December 18, 2017, pursuant to an agreement with the government, defendant pleaded guilty to counts one and two. The government agreed to dismiss the § 924(c) count, which would have required a mandatory 5-year consecutive sentence.

The plea agreement set forth the following factual basis:

On April 12, 2017, Milwaukee police officers executed a state search warrant at [xxxx] N 83rd St. in Milwaukee, Wisconsin. During the execution of the search warrant, Jerry Scott and a child came out of the west room in the basement, and Sheila Johnson and Raymond McClendon were found upstairs. Scott had $477 on his person. Jerry Scott has been previously convicted of two felonies (both for burglary in 2006 in Milwaukee County Circuit Court).

In the search of the west room basement, officers found: two cell phones, which Scott stated belonged to him; a plate with marijuana residue with a box of latex gloves next to it; and 15 methamphetamine pills. Just outside of the west room in the basement, officers found a backpack, which contained: a box of sandwich bags; a digital scale; a bowl with marijuana residue; a jar containing marijuana; an orange bag with 34 individually wrapped corner cuts of marijuana; a loaded Hi Point, model JHP, .45 caliber pistol, bearing serial number 4211854, with a round in the chamber; a hair brush; and a Motorola cellular phone. A total of 264.3 grams of marijuana was found in the backpack. Scott intended to distribute the marijuana.

Case agents identified Scott's fingerprint on the jar containing marijuana that was in the backpack containing the gun. The Motorola cellular phone recovered in the backpack contained emails, text messages, photographs, and videos that indicate it is Jerry Scott's phone.

Case agents interviewed an individual who had recently purchased marijuana from the residence, and the individual provided a phone number for the person he called in order to arrange that purchase; that phone number was associated with one [of] Scott's phones. Case agents then executed a state search warrant on the two cell phones found in the west bedroom of the basement and found numerous text messages related to the sale of drugs.

(R. 16 at 3.)

The pre-sentence report ("PSR") calculated an advisory sentencing guideline range of 57-71 months. Grouping the two counts, the PSR set a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A) based on defendant's prior conviction for a controlled substance offense; added 4 levels under U.S.S.G. § 2K2.1(b)(6)(B) based on his possession of the firearm in connection with another felony, i.e., drug trafficking; and then subtracted 3 levels for acceptance of responsibility under U.S.S.G. § 3E1.1, for a final offense level of 21.¹ The PSR further determined a criminal history category of IV, based on two prior burglary convictions, each of which scored 3 criminal history points; a prior conviction of possession with intent to distribute marijuana, which scored 1 point; and defendant's commission of the instant offense while on supervision, which added 2 points.

On April 6, 2018, on the parties’ joint recommendation, I imposed a sentence of 36 months’ imprisonment running concurrently with a state sentence after revocation defendant was then serving. Defendant took no appeal. According to the BOP's inmate locator, his release date is November 8, 2020, but defendant indicates that he is slated for release to a halfway house on July 1, 2020. (R. 38 at 1-2.)

On April 14, 2020, defendant filed a pro se request for compassionate release. I referred the motion to Federal Defender Services, which filed a § 3582(c)(1) motion on defendant's behalf on May 1, 2020. In that motion, defendant requests that his sentence be reduced to time served, followed by three years of supervised release with a condition of six months’ house arrest. He generally relies on the COVID-19 pandemic in seeking this modification. (R. 38 at 1.) I ordered the government to respond, and on May 6, 2020, it filed a response opposing relief procedurally and on the merits. (R. 39.) Defendant filed a reply on May 12 (R. 40), and the matter is ready for decision.

II. DISCUSSION

A. Compassionate Release Standards

Motions for "compassionate release" are authorized by 18 U.S.C. § 3582(c)(1), which provides, in pertinent part:

The court may not modify a term of imprisonment once it has been imposed except that—

(1) in any case—

(A) the 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).²

The statute does not define the term "extraordinary and compelling reasons." Rather, Congress provided that:

The [Sentencing] Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.

28 U.S.C. § 994(t).

The Commission's policy statement provides:

Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that 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. The commentary to the policy statement provides that extraordinary and compelling reasons exist under these circumstances:

(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.

(C) Family Circumstances.—

(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.

(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.

(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).

U.S.S.G. § 1B1.13 cmt....