United States v. Stephenson

• Decision Date: 21 May 2020
• Docket Number: 3:05-CR-00511
• Citation: 461 F.Supp.3d 864
• Parties: UNITED STATES of America, Plaintiff, v. Edward Earl STEPHENSON, Defendant.
• Court: U.S. District Court — Southern District of Iowa

461 F.Supp.3d 864

UNITED STATES of America, Plaintiff,

v.Edward Earl STEPHENSON, Defendant.

3:05-CR-00511

United States District Court, S.D. Iowa.

Signed May 21, 2020

Melisa Kay Zaehringer, United States Attorney's Office - DAV, 131 East 4th Street, Suite 310, Davenport, IA 52801, 563-449-5426, 563-449-5433 (fax), melisa.zaehringer@usdoj.gov, Andrew H. Kahl, United States Attorney's Office - DSM, 110 E Court Ave, Suite 286, Des Moines, IA 50309, 515 473 9300, 515 473 9292 (fax), Andrew.Kahl@USDOJ.gov, for Plaintiff.

ORDER GRANTING COMPASSIONATE RELEASE

ROBERT W. PRATT, Judge Before the Court is Defendant Edward Earl Stephenson's pro se Motion for Compassionate Release filed on April 17, 2020. ECF No. 157. The Government filed its response on April 20. ECF No. 158. Per the Southern District of Iowa's Administrative Order No. 20-AO-9-P, the Federal Public Defender entered an appearance and filed a supplemental brief in favor of release on May 5. ECF No. 165. The Government then filed a response, as the Administrative Order permits, on May 18. ECF No. 167. The matter is fully submitted.

I. BACKGROUND

In 2005, Defendant pleaded guilty to one count of conspiracy to distribute and manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. ECF No. 53. Given his prior drug conviction and then-controlling statute, he faced a mandatory minimum of twenty years imprisonment. ECF 166 ¶ 106. The Court sentenced him to 270 months imprisonment and ten years of supervised release. ECF No. 114

Defendant has done about as well as one can while incarcerated. He earned an associate degree from Indiana State University and obtained job skills from prison work along with "satisfactory or higher work performance reports." ECF No. 157-1 at 1–2. He also "has been very active" in Federal Bureau of Prisons (BOP) programming, including a 500-hour Residential Drug Abuse Program that would have led to a sentence reduction but for Defendant's specific offense conduct. ECF No. 157-1 at 2; ECF No. 165 at 13. His BOP records show no disciplinary violations. ECF No. 157-1 at 2.

Today, Defendant is held at FMC Rochester, the Minnesota medical facility for federal prisoners. ECF No. 157. At the time of sentencing, the Court was aware Defendant was diagnosed with hepatitis C

. See ECF No. 166 ¶ 83; ECF No. 167 at 6. The Court, however, was not aware of how hepatitis C weakens one's immune system, Trinity Coll. Dublin, How Hepatitis C ‘Ghosts’ Our Immune System , Science Daily (June 5, 2019), https://www.sciencedaily.com/releases/2019/06/190605105940.htm, and that this weakness may continue even after one has been "cured," Benedikt Strunz et al., Chronic Hepatitis C Virus Infection Irreversibly Impacts Human Natural Killer Cell Repertoire , 9 Nature Comm. 2275 (2018), https://www.nature.com/articles/s41467-018-04685-9; see also Immune System Does Not Recover Despite Cured Hepatitis C Infection , Karolinska Inst. (June 11, 2018), https://news.ki.se/immune-system-does-not-recover-despite-cured-hepatitis-c-infection.

The Court also was not aware that fifteen years into Defendant's incarceration the world would be consumed by a global pandemic. In two months, the virus known as COVID-19 has killed more than 93,000 Americans and infected at least 1.55 million. Mortality Analysis , Johns Hopkins U. & Med. (May 21, 2020, 5:46 AM), https://coronavirus.jhu.edu/data/mortality. We shut down courts, schools, churches, theaters, "non-essential" businesses, and Major League Baseball—places where there are too many people and too little space to keep the virus from spreading through air and surfaces. That also sounds a lot like federal prison. Already "tinderboxes for infectious disease," prisons now are even more dangerous than we typically accept. United States v. Rodriguez , No. 2:03-CR-00271-AB-1, 451 F.Supp.3d 392, 393–94, (E.D. Pa. Apr. 1, 2020).

At least 2265 prisoners and 188 BOP staff, including one at Defendant's facility, tested positive for the virus. COVID-19 Cases , Fed. Bureau Prisons (May 21, 2020), https://www.bop.gov/coronavirus/. Fifty-eight of those inmates have died. Id. But it is hard to compare these numbers to those for the nation at large. First, as the Federal Public Defender notes—and the Court has noticed—the BOP case count appears to fluctuate both up and down because it only includes "open" cases. See ECF No. 165 at 10 n.4; COVID-19 Cases , Fed. Bureau Prisons (May 21, 2020), https://www.bop.gov/coronavirus/ (noting BOP "positive test numbers are based on the most recently available confirmed lab results involving open cases "); Christian Boone, Employee's Death Raises Questions About Conditions Inside Federal Pen , Atlanta J. Const. (May 4, 2020), https://www.ajc.com/news/local/employee-death-raises-questions-about-conditions-inside-federal-pen/3Enh61w6Di8rcT9YuY5PPK/ (quoting BOP spokesperson as saying "[t]he total number of open, positive test, COVID-19 cases fluctuates up and down"). And second, it remains unclear how likely BOP is to test an inmate at all. See BOP Expands COVID-19 Testing: Rapid Testing Available at Select Facilities , Fed. Bureau Prisons (April 24, 2020, 1:00 PM), https://www.bop.gov/resources/news/20200424_expanded_testing.jsp (describing testing of asymptomatic patients at "select facilities").

The BOP indeed faces a daunting task. It has undertaken emergency measures to halt the virus's spread. BOP Implementing Modified Operations , Fed. Bureau Prisons, https://www.bop.gov/coronavirus/covid19_status.jsp (last visited May 20, 2020). Social visits are cancelled, prisoner movement is limited, and legal visits are suspended subject to exception. Id. At the same turn, it is unclear what the future holds as states relax restrictions on free residents, including BOP employees.

The Attorney General has directed BOP to consider increased use of home confinement for at-risk inmates. Memorandum from U.S. Att'y Gen. William Barr to Dir. of Bureau of Prisons (Mar. 26, 2020). Defendant did not receive such a recommendation. Meanwhile, his wife battles her own liver complications, and his adult son requires support for autism

. ECF No. 165 at 14–15.

II. ANALYSIS

The First Step Act amended numerous provisions of the U.S. Code to promote rehabilitation of prisoners and unwind decades of mass incarceration. Cong. Research Serv., R45558, The First Step Act of 2018: An Overview 1 (2019). Congress designed the provision at issue here, § 3582(c)(1)(A), for "Increasing the Use and Transparency of Compassionate Release." § 603(b), 132 Stat. at 5239. Section 3582(c)(1)(A) allows defendants, for the first time, to petition district courts directly for compassionate release. Id. Under the old regime, defendants could petition only the BOP Director, who could then make a motion, at his or her discretion, to the district court. See U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.4 (U.S. Sentencing Comm'n 2018) [hereinafter U.S.S.G.]. The Director rarely did so. Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm'n (2016) (statement of Michael E. Horowitz, Inspector General, Dep't of Justice).

A. Exhaustion

The First Step Act's gate-keeping provision created two ways for a defendant to bring a compassionate release motion to a district court. The defendant may file a motion once he "has fully exhausted all administrative rights to appeal a failure of the [BOP] 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. "¹ § 3582(c)(1)(A) (emphasis added). With this second path, the statute's plain text states only that thirty days must past after the defendant requests compassionate release from the warden. No more. United States v. York , No. 3:11-CR-76, 2019 WL 3241166, at *5 (E.D. Tenn. July 18, 2019). Thus, while § 3582(c)(1)(a)'s gate-keeping provision often is described as an "exhaustion" requirement, it is not "an exhaustion requirement in the traditional sense ... as it allows a defendant to come to court before the agency has rendered a final decision." United States v. Haney , No. 19-CR-541 (JSR), 454 F.Supp.3d 316, 321, (S.D.N.Y. Apr. 13, 2020) (Rakoff, J.).

Here, Defendant has satisfied the statute's gate-keeping provision because thirty days have passed since Defendant filed a petition for compassionate release with his warden. ECF No. 165 at 5. The Government makes no argument to the contrary. See ECF No. 167. Thus, Defendant has satisfied the statute's gatekeeping provision and the Court may address the merits.

B. Extraordinary and Compelling Reasons

Compassionate release provides a path for defendants with "extraordinary and compelling reasons" to leave prison early. § 3582(c)(1)(A)(i). Such a sentence reduction must comply with the 18 U.S.C. § 3553(a) factors and "applicable policy statements issued by the Sentencing Commission." § 3582(c)(1)(A).

1. Definitions

Congress never defined what constitutes "extraordinary and compelling." 28 U.S.C. § 994(t). Instead, the statute directed the Commission to promulgate "the criteria to be applied and a list of specific" extraordinary and compelling examples. Id. Before the First Step Act, the Commission provided just three such examples, none of which apply here.²

The Commission also provided a catch-all provision that allows the BOP Director to determine "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)." § 1B1.13 cmt. n.1(D). That still begs the question: what is extraordinary and compelling?

Congress and the Commission gave two guideposts. Extraordinary and compelling reasons "need not have been unforeseen at the time of sentencing." § 1B1.13 cmt. n.2. For example, just because a judge believes a defendant will dramatically improve himself while incarcerated, that does not mean she cannot deem such...