Wise v. United States
| Decision Date | 20 May 2020 |
| Docket Number | Criminal No. ELH-18-72 |
| Parties | MARVIN WISE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Maryland |
This Memorandum Opinion resolves a "Motion For Order Granting Compassionate Release And Modifying Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)," filed by counsel on behalf of defendant Marvin Wise. ECF 172 (the "Motion"). It is supported by one exhibit. ECF 172-1. In the Motion, Wise asks the Court to "reduce his term of incarceration to time served and to require him to serve an additional period of time on home confinement." ECF 172 at 2. The government opposes Wise's Motion (ECF 180) and has submitted nine exhibits. ECF 172-1 to ECF 172-8; ECF 182 (Sealed). Wise has replied. ECF 184. And, the government supplemented its response, docketed at ECF 185.
The Motion is fully briefed and no hearing is necessary to resolve it. For the reasons that follow, I shall grant the Motion.
I. Background
On February 7, 2018, a federal grand jury returned an Indictment (ECF 1) charging Wise and three codefendants1 with crimes relating to the operation of a drug trafficking organization in northwest Baltimore between May 2017 and February 2018. In particular, Wise was charged inCount One with conspiracy to distribute and possess with intent to distribute 100 grams or more of a substance containing a detectable amount of heroin, as well as cocaine and marihuana, in violation of 21 U.S.C. §§ 841, 846 and 18 U.S.C. § 2. On April 26, 2019, the government charged Wise with the same offense in a Superseding Information. ECF 133. But, the offense was limited to heroin, and no drug quantity was specified.
Wise entered into a plea agreement with the government (ECF 135) and, on April 29, 2019, he tendered a plea of guilty to the Superseding Information, charging conspiracy to distribute heroin. ECF 137. According to the Factual Stipulation, ECF 135, ¶ 6, Wise facilitated a drug transaction in November 2017 between a member of the conspiracy and an undercover agent. Id. Based on surveillance, phone analysis, and controlled purchases, defendant agreed that the evidence would establish that he conspired to distribute over 100 grams of heroin. Id. Wise faced a maximum term of imprisonment of 20 years. Id. ¶ 3.
Of relevance here, the plea agreement stipulated that Wise qualified as a Career Offender, pursuant to the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G"), § 4B1.1(a), because his instant crime was a "controlled substance offense" and he had two prior felony convictions for controlled substance offenses. Id. ¶ 7(b); see U.S.S.G. § 4B1.1(a). Thus, defendant stipulated to a base offense level of 32. ECF 137, ¶ 7(c). Under U.S.S.G. § 3E1.1, Wise was entitled to a three-level reduction of his offense level for acceptance of responsibility, resulting in an offense level of 29. Id. ¶¶ 7-8.
The Presentence Investigation Report ("PSR," ECF 150) similarly deemed Wise a Career Offender under U.S.S.G. § 4B1.1. Id. ¶ 16.
In the absence of the Career Offender designation, Wise's base offense level would have been 24. Wise's status as a Career Offender resulted in an eight-level upward adjustment, froman offense level of 24 to 32. Id. ¶ 22. Given the three-level reduction for acceptance of responsibility, the PSR set Wise's final offense level at 29. Id. ¶ 25.
Defendant's designation as a Career Offender also affected his criminal history category. Were Wise not a Career Offender, he would have had a Criminal History Category of V. ECF 150, ¶ 41. But, because of his Career Offender status, he had a Criminal History Category of VI. Id.; see U.S.S.G. § 4B1.1(b).
Sentencing was held on July 23, 2019. ECF 155. The Court, consistent with the PSR, found that Wise qualified as a Career Offender under U.S.S.G. § 4B1.1(a). ECF 174 (Sentencing Tr.) at 7. Accordingly, based on a total offense level of 29 and criminal history category VI, the Court determined that the Guidelines called for a sentence ranging from 151 to 188 months' imprisonment. Id.
The parties agree that, if Wise were not a Career Offender, his final offense level would have been 17. And, with a Criminal History Category of V, his Guidelines would have been 51 to 63 months.
Both sides recommended a term of imprisonment below the Guidelines range. The government argued that a sentence of 72 months' imprisonment was appropriate in light of Wise's personal circumstances: he was 58-years-old, participated in the drug conspiracy "to fuel his own addiction," lacked a history of violent crime, never served a significant period of incarceration, and was recently diagnosed with kidney cancer. Id. at 10-11. By contrast, Wise sought a sentence of 48 months' imprisonment. See id. at 17.
Applying the sentencing factors set forth in 18 U.S.C. § 3553(a), I "agree[d] with the government, that in the context of this case, the career offender designation frankly would be draconian and, therefore, that is not influencing my sentence." Id. at 18. Further, I acknowledgedthat Wise had "significant health issues" and a "long history of drug abuse." Id. at 20. And, I observed that, despite Wise's long history of criminal convictions in Maryland courts, he had never served a lengthy period of incarceration. However, I also noted that Wise's role in the conspiracy and his Guidelines calculations were comparable to one of his codefendants, who had received a sentence of 72 months. Id. at 24. Therefore, I sentenced Wise to a period of incarceration of 72 months, followed by three years of supervised release. Id. at 25; see also ECF 156 (Judgment). Wise received credit for time served from August 31, 2018 to September 6, 2018, and from May 20, 2019, to July 23, 2019. Id.
Defendant is currently serving his sentence at Allenwood Low FCI in Allenwood, Pennsylvania. It is a low security correctional institution maintained by the Bureau of Prisons ("BOP"). His projected release date, according to the BOP, is June 22, 2024, just over four years away.
Wise, who will turn 60 in July, suffers from Type 2 diabetes, heart disease, hypertension, chronic kidney disease, asthma, arthritis, and gout. While on pretrial release in this case, he was diagnosed with kidney cancer and underwent surgery to remove one of his kidneys. See ECF 182. Wise has also suffered three heart attacks, including one that occurred after sentencing in 2019, while in transit to BOP. According to Wise's counsel, he uses an inhaler for his asthma and takes seven medicines on a daily basis. See ECF 172 at 20 n.22. And, Wise's counsel avers that he needs blood work every two months and semi-annual chest x-rays and CT scans. Id. at 20.
On March 25, 2020, Wise requested compassionate release from the Warden of Allenwood Low FCI. His request was denied on April 15, 2020. ECF 172-1. Thereafter, on March 27, 2020, Wise, who was then self-represented, moved for a sentence reduction. ECF 165. Then, through counsel, he filed the Motion at issue. ECF 172.
Additional facts are included, infra.
Ordinarily, a court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020); United States v. Jackson, 952 F.3d 492, 495 (4th Cir. 2020); United States v. Martin, 916 F.3d 389, 395 (4th Cir. 2019). But, "the rule of finality is subject to a few narrow exceptions." Freeman v. United States, 564 U.S. 522, 526 (2011). One such exception is when the modification is "expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B); see Jackson, 952 F.3d at 495.
Commonly termed the "compassionate release" provision, 18 U.S.C. § 3582(c)(1)(A)(i) provides a statutory vehicle to modify a defendant's sentence. Section 3582 was adopted as part of the Sentencing Reform Act of 1984. It originally permitted a court to alter a sentence only upon a motion by the Director of the BOP. See Pub. L. No. 98-473, § 224(a), 98 Stat. 2030 (1984). Thus, a defendant seeking compassionate release had to rely on the BOP Director for relief. See, e.g., Orlansky v. FCI Miami Warden, 754 F. App'x 862, 866-67 (11th Cir. 2018); Jarvis v. Stansberry, No. 2:08CV230, 2008 WL 5337908, at *1 (E.D. Va. Dec. 18, 2008) ().
However, for many years the safety valve of § 3582 languished. BOP rarely filed motions on an inmate's behalf. As a result, compassionate release was exceedingly rare. See Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm'n 66 (2016) (statement of Michael E. Horowitz, Inspector General, Dep't of Justice) ( that, on average, only 24 inmates were granted compassionate release per year between 1984 and 2013).
In December 2018, Congress significantly amended the compassionate release mechanismwhen it enacted the First Step Act of 2018 ("FSA"). See Pub. L. 115-391, 132 Stat. 5239 (2018). As amended by the FSA, 18 U.S.C. § 3582(c)(1)(A) permits a court to reduce a defendant's term of imprisonment "upon motion of the Director of [BOP], or upon motion of the defendant after the defendant 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 occurs first.
It is undisputed that Wise has properly exhausted his administrative remedies. See ECF 180 at 11 n.3. Wise petitioned the Warden of Allenwood FCI for compassionate release, and his request was denied on April 5, 2020. ECF 172-1. Therefore, the Motion is properly before this Court.
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