United States v. Smith

• Citation: 538 F.Supp.3d 990
• Decision Date: 11 May 2021
• Docket Number: Nos. 2:98-cr-00009-KJM-CKD,2:96-cr-00450-KJM,s. 2:98-cr-00009-KJM-CKD
• Parties: UNITED STATES of America, Plaintiff, v. Jason Ellis SMITH, Defendant.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

538 F.Supp.3d 990

UNITED STATES of America, Plaintiff,

v.Jason Ellis SMITH, Defendant.

Nos. 2:98-cr-00009-KJM-CKD

2:96-cr-00450-KJM

United States District Court, E.D. California.

Signed May 11, 2021

ORDER

Kimberly Mueller, CHIEF UNITED STATES DISTRICT JUDGE

Jason Ellis Smith moves to reduce his prison sentence to time served under 18 U.S.C. § 3582(c)(1)(A). He argues he is at risk of infection and severe disease from COVID-19, and he contends recent changes to federal firearms laws make his sentence unjustly lengthy and harsh. Although the court concludes that Smith's risk of severe COVID-19 is not an "extraordinary and compelling" reason under § 3582(c)(1)(A)(i), the circumstances of his sentence and offense warrant a reduction under that section and the factors of § 3553(a). His motion is granted .

I. BACKGROUND

When Smith was twenty-four, he was part of two armed credit union robberies. Mot. at 2, 7, ECF No. 129; Opp'n at 2–3, ECF No. 133.¹ He was charged in both cases with robbery under 18 U.S.C. § 2113 and with the use of a firearm under 18 U.S.C. § 924(c). Mot. at 2; Opp'n at 3–4. In the first case, he pled guilty to both charges under a plea agreement. See No. 96-cr-450, ECF No. 45. Another judge of this court imposed a 51-month sentence for the robbery conviction and a five-year sentence for the firearm conviction. Mot. at 2 & Mot. Ex. 1, ECF No. 129-1 (reproducing the Judgment); Opp'n at 3–4. Smith was convicted of the second set of robbery and firearms charges after a jury trial. Verdict, ECF No. 44. The judge imposed a 100-month sentence for the robbery conviction and a twenty-year sentence for the firearms conviction. See Mot. at 2 & Mot. Ex. 2, ECF No. 129-2 (reproducing the Judgment); Opp'n at 4.

The judgment in the second case set the robbery sentences to run concurrently. See Judgment at 2. The firearms sentences, however, were to run consecutively, because at the time, § 924(c) not only imposed a mandatory twenty-year minimum sentence for a second conviction, but also required the second sentence to run consecutively to the first. See generally Deal v. United States , 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), superseded by statute as stated in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2324 n.1, 204 L.Ed.2d 757 (2019). This meant Smith was sentenced to a term of more than 33 years in prison. He will also serve a five-year term of supervised release. See Judgment at 3. According to the Bureau of Prisons's records, Smith's projected release date is in October 2022. See Inmate Data at 1 (Apr. 24, 2021), Opp'n Ex. 1, ECF No. 133-1. He will then be 51 years old.

Smith is serving his sentence in USP Lompoc. Opp'n at 4. He has served more than 80 percent of the full term and more than 90 percent of his statutory term, i.e., after reductions for credits. Id. Since he entered the prison, he has completed his GED and has taken hundreds of hours of math, writing, financial literacy and career courses. See Inmate Educ. Data, Mot. Ex. 4 (provisionally sealed² ). He has also completed work assignments well and has paid his special assessment and restitution. See Summary Rep. at 1, 4, Mot. Ex. 5 (provisionally sealed). He has a short disciplinary history of minor offenses, none violent and none since 2012, although about sixteen years ago, officers found a lock in a sock during a random search of Smith's cell. See generally Inmate Disc. Data, Mot. Ex. 4. Smith said that he had used the lock to crush soap to make laundry detergent. Id. at 4. Staff did not find this explanation sufficient to exonerate him because a lock in a sock is a common makeshift weapon. See id. He lost time credits and spent two months in disciplinary segregation. Id. But this offense appears not to have caused the Bureau any concern about his success when released; it has recommended that he finish the entire last year of his custodial sentence in a halfway house. See Summary Rep. at 4; Mot. at 12.

Smith now moves to reduce his sentence under 18 U.S.C. § 3582(c)(1)(A). He argues his height and weight put him very near the ranges the CDC has found to increase the risk of severe COVID-19. See Mot. at 9–10. He argues similarly that his race puts him at greater risk of severe disease if he contracts COVID-19; he is Black. See id. at 10–11. And finally, he argues his sentence is harsh and drastic and would be much lower if imposed today. See Mot. at 6–9 (citing the First Step Act § 403(a), Pub. L. 115-391, 132 Stat. 5222 (2018) ). He contends these circumstances, taken together, make for "extraordinary and compelling reasons" justifying reducing his sentence to time served under § 3582(c)(1)(A). The government opposes the motion. It argues Smith is not at risk of severe disease, among other reasons because at the time of the government's briefing he had already received his first dose of the coronavirus vaccine, and it argues the sentencing factors in 18 U.S.C. § 3553(a) weigh against a reduction. Opp'n at 12–13. The government also argues the sentencing changes passed in 2018 were expressly nonretroactive, so they cannot serve as the basis for a motion under § 3582(c)(1)(A). See Opp'n at 7–10. The motion is fully briefed and was submitted without oral argument. See Reply, ECF No. 139, Minute Order, ECF No. 132.

II. LEGAL STANDARD

The district court that imposed a custodial sentence can modify the term of imprisonment under 18 U.S.C. § 3582(c)(1)(A). The defendant must first exhaust administrative remedies. Id. § 3582(c)(1)(A). If a defendant has exhausted administrative remedies, the analysis is twofold. First, the court must find "extraordinary and compelling reasons warrant" the requested reduction. Id. § 3582(c)(1)(A)(i). Second, the court must consider the same factors that were applicable at the original sentencing, enumerated in 18 U.S.C. § 3553(a), to the extent they remain applicable. See id. § 3582(c)(1)(A).

Section 3582 further requires a reduction to be "consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A). In 2006, the Sentencing Commission issued a policy statement addressing what qualifies as "extraordinary and compelling reasons" to release a defendant from BOP custody. See U.S.S.G. § 1B1.13 (last amended November 1, 2018). The Ninth Circuit recently clarified that although this policy statement "may inform a district court's discretion," it is "not binding" because it "does not reference motions filed by a defendant." United States v. Aruda , 993 F.3d 797, 800, 802 (9th Cir. 2021) (per curiam).

Although the Ninth Circuit has not decided which party bears the burden in the context of a motion for compassionate under § 3582(c) after the First Step Act, "district courts that have done so," including this one, "agree that the burden remains with the defendant." United States v. Becerra , No. 18-0080, 2021 WL 535432, at *3 (E.D. Cal. Feb. 12, 2021).

III. ANALYSIS

The parties agree Smith has exhausted his administrative remedies. See Mot. at 4; Opp'n at 5. The court therefore begins with Smith's argument that he is at risk of severe COVID-19 within USP Lompoc.

A. The Risk of Severe COVID-19

Many federal district courts, including this court, have held over the last year that defendants can demonstrate "extraordinary and compelling reasons" for compassionate release under § 3582(c)(1)(A)(i) if they show (1) their health conditions put them at an increased risk of severe COVID-19 and (2) they are at risk of infection because their facility is currently suffering from a COVID-19 outbreak or is at risk of an outbreak, for example because it is a congregate living facility in which inmates and staff cannot consistently maintain safe physical distances.

See, e.g. , United States v. Terraciano , 492 F. Supp. 3d 1082, 1085–86 (E.D. Cal. 2020). Many courts have also found that people who have a body mass index within the ranges defined as "overweight" or "obese" are at greater risk of severe COVID-19. See, e.g. , id. at 1086 (finding that a body mass index "at or near the level described as ‘obese’ " can increase a person's risk of hospitalization and death); United States v. Richardson , No. 17-00048, 2020 WL 3402410, at *3 (E.D. Cal. June 19, 2020) (finding "obesity

alone" places a defendant "at higher risk of COVID-19 complications"). According to the CDC, "[t]he risk of severe COVID-19 illness increases sharply with elevated BMI," and being overweight can make severe illness from COVID-19 more likely. U.S. Ctrs. for Disease Control & Prevention, "People with Certain Medical Conditions" (Apr. 29, 2021).³

These decisions and authorities would support Smith's claim that he is at greater risk of severe COVID-19 if he could show his body mass index were within the "overweight" range or higher. The government argues he has not; Smith has not submitted recent evidence of his height and weight. The court assumes without deciding Smith could supply the necessary proof. As explained below, even if Smith's body mass index is within the "overweight" or "obese" range, the court would not grant his motion on the basis of his greater risk of severe COVID-19.

Smith's medical records show he recently received his first dose of the Moderna COVID-19 vaccine, and he has agreed to receive the second dose, which he should receive shortly. See Opp'n Ex. 2, ECF No. 138 (filed under seal). The "vast majority" of federal courts have found that vaccination

against COVID-19 changes the calculus for defendants who claim that their medical conditions and incarceration are "extraordinary and compelling reasons" to grant a motion under § 3582(c)(1)(A). United States v. Harris , No. 05-0061, 2021 WL 1516012, at *2 (D. Md. Apr. 16, 2021). The court agrees for two reasons.

First, according to all available evidence, "[a]lthough vaccines are not one hundred percent effective," they are " ‘highly effective at protecting vaccinated people against symptomatic and severe COVID-19.’ " United States v. Singh , ...