United States v. Wiley

Decision Date17 September 2020
Docket Number4:06CR3145
Parties UNITED STATES of America, Plaintiffs, v. O'Dari Zandaghe WILEY, Defendants.
CourtU.S. District Court — District of Nebraska

Sara E. Fullerton, Assistant United States Attorney, Lincoln, NE, for Plaintiffs.

John J. Velasquez, Velasquez Law Office, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

Mr. Wiley seeks compassionate release. (Filing no. 163.) I grant the motion.

I have come to this conclusion after consulting all the medical records (filing no. 173), the compassionate release report from the probation officer (filing no. 174), the excellent briefs of counsel1 (filing no. 167, filing no. 176 and filing no. 179) and publicly available data.2

Background

Mr. Wiley is now 35 years of age. Remembering, with irony, that he described his medical condition as "good" during the preparation of the presentence report when his age was 21, his medical condition has since plummeted. On June 22, 2020, the Bureau of Prisons made the following note when he was seen at the "Chronic Care Clinic":

[Wiley has a] history of Hypertension

, Hyperlipidemia, Coronary Artery Disease. Chronic Unstable Angina, Coronary Arteriosclerosis, and an Acute Myocardial Infarction3 in November 2018 resolved with a PTCA stent. Inmate has been scheduled with the Cardiology follow ups twice a year and has been sent out to local ER hospitals for episodes of Angina several times. Inmate's brother was deceased at age 38 from an Acute MI.4 Inmate is current on his medications and needs follow up labs.

(Filing no. 173-1 at CM/ECF p. 9.)

As defense counsel points out, the record is replete with evidence of ongoing and serious heart complications:

(See, e.g. , ECF 173-2 at 1900 (BOP report from May 2019 attack of severe chest pain), 2044–46 (November 2019 cardiologist report listing diagnoses of CAD, hypertension

, angina, and cardiomyopathy, among others, as well as "Malformation of Coronary Vessels"), 2061–62 (August 2019 left heart catheterization showing that the LAD artery in which Mr. Wiley had his heart attack was "significantly aneurysmal," although not then obstructed), 2069 (August 2019 lab result "consistent with a diagnosis of [congestive heart failure ] in the appropriate clinical setting"), 2214–16 (March 2019 cardiologist treatment for chest pain and shortness of breath); 173-3 at 2372–73 ("Cardiovascular Procedure Report" from November 2018 heart attack and stent procedure), 2386 (hospital report from November 2018 showing that Wiley had chest pain for ten days before being taken to the hospital).)

(Filing no. 179 at CM/ECF p. 6.)

Mr. Wiley has sought and been denied compassionate release from the Bureau of Prisons. (Filing no. 169-6 at CM/ECF p. 2.) That is, he has exhausted his remedies as required by law.

On September 20, 2006, an Indictment was filed charging Mr. Wiley and co-defendant Tallas Lapaul Harris with one count of conspiracy to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 846 spanning the time period between January 1, 2002, and April 11, 2006. (Filing 1.) On May 10, 2007, Mr. Wiley pled guilty to Count I of the Indictment. At the time he was indicted, and as noted above, Mr. Wiley was only 21 years of age.

On June 5, 2007, a Petition for Action on Conditions of Pretrial Release was filed alleging Wiley had violated the terms of his pretrial release order by failing to report to his pretrial services officer that he had been arrested on state charges of second-degree murder5 and that he was being held in state custody. (Filing no. 60.) That petition was withdrawn as moot when I sentenced him. While he was on federal pretrial release for seven months, he was compliant. (Filing no. 84 at CM/ECF p. 4 ¶ 10.)6

On November 7, 2007, Mr. Wiley was sentenced by me to 151 months in prison. (Filing no. 86, Filing no. 92.) I could not consider the state charges at the time I sentenced Wiley because they were unresolved and unrelated. His Criminal History was II when he was sentenced by me. He had never done a day in prison.

Subsequently, the state charges, referred to above, were substantially reduced. He was sentenced for unlawful discharge of a firearm into an occupied vehicle. He was sentenced on June 30, 2009, to 20 to 20 years in prison.7 He was also sentenced to one year in prison for the misdemeanor charge of assault by a confined person without using a weapon. That charge had been reduced from a felony. The state judge ran her state sentences concurrently and, without specifically mentioning my case, "consecutive to any other sentence." The date the gun offense was committed was August 6, 2006, and the date the assault offense was committed was September 12, 2008.8 In other words, they did not occur when Wiley was on federal pretrial release, and they were outside the time period of the federal conspiracy charge.

Mr. Wiley has completed his state time and has no parole obligation.9 He was given 364 days of "good time" and that, coupled with the "time served" credit of 766 days given by the sentencing judge, caused him to be released to the federal detainer on June 24, 2017. He has been in the Bureau of Prisons for slightly more than three years.

On March 5, 2012, Wiley filed a motion seeking a sentence reduction based on changes to the crack cocaine Guidelines. On April 11, 2012, the motion was granted, and Wiley's sentence was reduced to 121 months. (Filing no. 115, Filing no. 116.)

On December 4, 2014, Wiley filed a second request for a sentence reduction pursuant to changes in the Guidelines. (Filing no. 122.) On June 1, 2015, Wiley's sentence was reduced to 120 months. (Filing no. 130.) On October 26, 2015, Wiley filed a motion to correct that sentence reduction, seeking additional credit toward his sentence. (Filing no. 132.) That motion was denied on November 5, 2015. (Filing no. 135.)

Mr. Wiley filed a motion to reduce his sentence pursuant to the First Step Act on March 4, 2019. That motion was denied on March 6, 2019. (Filing no. 138, Filing no. 139.)

Mr. Wiley filed a second motion to reduce his sentence pursuant to the First Step Act on January 6, 2020. (Filing no. 152.) On February 25, 2020, that motion was granted in part and denied in part, and Wiley's sentence was reduced to 97 months. (Filing no. 159, Filing no. 160.) At that time, I was informed by the probation officer that according to the BOP, "his heart condition is something that would normally be seen in a man of 65 or 70 rather than his age of 34. It was also noted, Mr. Wiley has not been a disciplinary problem and is a normal functioning inmate with the exception of his heart condition." (Filing no. 158.)

Mr. Wiley is set to be released from federal prison on June 16, 2024, and he is currently being held at FCI Beaumont Medium.10 Out of 329 inmates tested at that facility, 96 have tested positive for COVID as September 15, 2020, the last time I checked using the BOP's tracker.11 That is, slightly more than 29% of the inmates who were tested had the virus. At that facility, 6 inmates and 6 staff members have currently confirmed active cases as of September 15, 2020.12

On June 22, 2020, the Bureau of Prisons denied Mr. Wiley entry into the RDAP (residential drug treatment) program although it acknowledged that he had served enough time to enter the program. The Bureau concluded that there was insufficient "evidence of a potential problem with alcohol or drugs in the 12 months prior to his arrest for the instant offense." (Filing no. 174 at CM/ECF p. 3.)

Mr. Wiley has a very good release plan with law-abiding parents who are willing to house him and help him without charge. The probation officer advised me of the following:

On August 10, 2020, the undersigned officer made telephone contact with the parents of Mr. Wiley, whom Mr. Wiley would reside with if released. Both Ms. And Mrs. Wiley confirmed they were willing and able to assist their son should his request for compassionate release be granted.
Mr. Wiley advised, he is a retired law enforcement officer and a Vietnam Veteran. There is no expectation for their son to pay rent or utilities. They advised; until he is approved for medical assistance through the state or benefits via employment, they would pay for all medical costs. Mr. Wiley reported Jonestown is a town of approximately 1,700 people with minimal criminal activity associated with where they live. If released, they would be able to provide transportation from the BOP to their home.
Mrs. Wiley13 reported, Mr. Wiley was a football player in high school and an honor roll student. She advised, he has obtained a welding certificate and was confident that with his experience, he would have no problems finding employment. However, both Mr. and Mrs. Wiley advised they would need to have Mr. Wiley evaluated by a specialist to determine Mr. Wiley's ability to be employed. They expressed a desire for him to work if medically cleared by a doctor.
Mr. and Mrs. Wiley denied there to be any drugs at their residence. They reported, Mr. Wiley was in possession of a firearm but upon learning of Mr. Wiley's relocation plan, they turned the firearm over to the chief of police.
Mrs. Wiley expressed great concern over her son's health as she has been diagnosed with the same disease as Mr. Wiley. She advised that she maintains good health through medications, exercise, and a good diet. She relayed that she can assist Mr. Wiley in maintaining the same lifestyle in an effort to control his symptoms.
Due to Mr. Wiley's release plans not being in the District of Nebraska, the probation office in the District of Northern Mississippi must approve of the release address as they would provide supervision of him should the compassionate release request be granted. On August 7, 2020, the undersigned officer submitted a request to the Mississippi probation office to conduct their own relocation investigation to determine suitability for release.
On August 10, 2020, The
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