REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE

Counsel for United States: Brittany M. Fisher, Assistant United States Attorney, United States Attorney Office, 721 Lakefront Commons, Suite 300, Newport News, VA 23606.

Counsel for Defendant: Keith Loren Kimball, Supervisory Assistant Federal, Public Defender, Office of the Federal Public Defender, 150 Boush Street, Suite 403, Norfolk, VA 23510.

MEMORANDUM ORDER

REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the court on the Defendant's "Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)" ("Motion"), filed through counsel on March 12, 2021. ECF No. 88.

I. Background

On May 22, 1996, the Defendant pled guilty to Counts Two, Three, Four, Six, Eight, Ten, Twelve, and Thirteen of a thirteen-count Indictment. ECF No. 14. Counts Two, Four, Six, Eight, Ten, and Twelve each charged the Defendant with Armed Bank Robbery, in violation of 18 U.S.C. § 2113(a), and Counts Three and Thirteen charged him with Use of a Short-barreled Shotgun During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1). On September 12, 1996, the court sentenced the Defendant to a total term of five hundred forty-eight (548) months imprisonment. ECF No. 21. On December 15, 1997, the sentence was reduced to a total term of four hundred eleven (411) months imprisonment. ECF No. 40.

The instant Motion was filed on March 12, 2021. ECF No. 88. The Defendant argues that he is serving a sentence that is at least ten (10) years longer than what would be imposed today for similarly-situated defendants due to the Defendant's "stacked" § 924(c) sentences. ECF No. 88 at 3. The United States filed a Response in Opposition to the Motion on April 13, 2021, to which the Defendant replied on April 27, 2021. ECF Nos. 98, 101.

II. Exhaustion of Remedies

Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the court may modify a term of imprisonment, if it finds that "extraordinary and compelling reasons warrant such a reduction." Before the court may consider such a motion, however, the defendant must have "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf," or there must have been a "lapse of 30 days from the receipt of such a request by the warden of the defendant's facility." Id. § 3582(c)(1)(A).

The Defendant submitted a request for compassionate release to the warden of his facility on June 29, 2020. See ECF No. 90-2. The warden denied the Defendant's request on July 10, 2020, stating that "[t]he Bureau of Prisons does not petition ... court[s] to address sentencing discrepancies and/or disparities on behalf of inmates." ECF No. 90-3. Therefore, the warden advised the Defendant that he could "submit a motion" to the court "seeking relief." Id. Thus, the court concludes, and the United States concedes, that the Defendant has complied with the requirement that he exhaust his administrative remedies before pursuing a motion for compassionate release in this court. See 18 U.S.C. § 3582(c)(1)(A).

III. Merits

Next, the court must consider whether the Defendant has shown "extraordinary and compelling reasons" that justify a reduction in his sentence. Any reduction under 18 U.S.C. § 3582(c)(1)(A) must be "consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A) ; see United States v. McCoy, 981 F.3d 271, 274-75 (4th Cir. 2020). However, in McCoy, the Fourth Circuit held that "there currently exists no ‘applicable policy statement’ " because the Commission has not issued a policy statement since the passage of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194. 981 F.3d at 281. Therefore, until the Sentencing Commission issues an updated policy statement, "district courts are ‘empowered to consider any extraordinary and compelling reason for release that a defendant might raise.’ " McCoy, 981 F.3d at 284 (alteration omitted) (quoting United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020) ).

Although the policy statement in U.S.S.G. § 1B1.13 is no longer binding on this court after the Fourth Circuit's decision in McCoy, the court finds certain provisions useful in addressing the instant Motion. For example, the court will still consider "the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable," U.S.S.G. § 1B1.13, and whether "[t]he defendant is ... a danger to the safety of any other person or to the community," id. § 1B1.13(2), because these considerations remain highly relevant to whether a reduction in sentence is warranted in this case.

A. Extraordinary and Compelling Reasons

The Defendant argues that he is serving a sentence that is at least ten years longer than what would be imposed if sentenced today, because his second § 924(c) conviction would carry a mandatory minimum of only ten years instead of twenty. ECF No. 88 at 3. He contends that this sentencing disparity constitutes an "extraordinary and compelling" reason warranting compassionate release under McCoy. Id. He also argues that his substantial incarceration and significant rehabilitation support his release. Id. The United States opposes the Motion and argues that McCoy "does not entitle the defendant to relief," but even if the court finds "extraordinary and compelling reasons" under § 3582(c)(1)(A)(i), the court should exercise its discretion and deny compassionate release based on the statutory sentencing factors in 18 U.S.C. § 3553(a). ECF No. 98 at 4.

The court begins its consideration of the Defendant's Motion with a discussion of the Fourth Circuit's analogous McCoy decision. In McCoy, the defendants were each convicted of multiple offenses under 18 U.S.C. § 924(c). 981 F.3d at 277-79. At the time of their sentencing hearings, § 924(c)(1)(C) required a so-called "stacked" sentence--that is, an enhanced mandatory minimum sentence of twenty-five years--for a "second or successive conviction" under § 924(c). See id. Pursuant to then-applicable case law, "a conviction was treated as ‘second or successive,’ triggering the 25-year minimum sentence, even if the first § 924(c) conviction was obtained in the same case." Id. at 275. The First Step Act "ended this practice ... by clarifying that the 25-year mandatory minimum applies only when a prior § 924(c) conviction arises from a separate case and already has become final." Id. (emphasis added).

Although this provision of the First Step Act does not apply retroactively, the defendants in McCoy filed motions for compassionate release, requesting that they be resentenced without the "stacked" sentences they had each received. Id. at 274. The district courts granted the motions, reducing the sentences to time served. Id. The United States appealed, and the Fourth Circuit affirmed, holding that courts are empowered, when deciding a motion for compassionate release, to consider "the length of the defendants' sentences and the fact that those sentences would be dramatically shorter today." Id. at 285.

Like in McCoy, the instant Motion concerns the Defendant's "stacked" § 924(c) sentences. Under then-applicable law, the Defendant received a ten-year mandatory minimum sentence for his first § 924(c) (Count Three), and a consecutive, twenty-year mandatory minimum sentence for his second § 924(c) conviction (Count Thirteen). If the First Step Act's provision against sentence stacking had been in effect at the time of the Defendant's sentencing, however, the Defendant's mandatory minimum sentence on Count Thirteen would have been ten (10) years consecutive, rather than twenty (20) years, and his Guidelines range would therefore be reduced by ten (10) years. See McCoy, 981 F.3d at 275.

In McCoy, the Fourth Circuit "f[ound] that the district courts permissibly treated as ‘extraordinary and compelling reasons’ for compassionate release the severity of the defendants' § 924(c) sentences and the extent of the disparity between the defendants' sentences and those provided for under the First Step Act." Id. at 286. Likewise, this court finds that the Defendant's sentence is ten (10) years longer than "the sentence[ ] Congress now believes to be an appropriate penalty for the [Defendant's] conduct." Id. at 279. Thus, the court finds that the Defendant has demonstrated "extraordinary and compelling reasons" that potentially warrant a sentence reduction under § 3582(c)(1)(A)(i).

B. Section 3553(a) Factors

The foregoing conclusion does not automatically entitle the Defendant to a reduction in his sentence because "a district court may not grant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) without ‘considering the factors set forth in section 3553(a) to the extent that they are applicable.’ " United States v. Kibble, 992 F.3d 326, 329-32 (4th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A) ).

The Defendant contends that his release "does not present a security risk" because of the substantial length of his incarceration, his relative youth at the time of the offense, and his "exceptional rehabilitation," as evidenced by the overwhelmingly supportive letters on the Defendant's behalf. ECF No. 88 at 10-19. In opposition, the United States argues that the nature and circumstances of the offense and the Defendant's history and characteristics weigh against a sentence reduction. ECF No. 98 at 8.

In McCoy, the Fourth Circuit emphasized that in granting compassionate release, the lower courts "relied not only on the defendants' § 924(c) sentences but on full consideration of the defendants' individual circumstances." 981 F.3d at 286. Factors considered by the lower courts included the defendants' youth at the time of the offense, their length of incarceration, and defendants' conduct while incarcerated. Id. Although the United States is correct that McCoy does not "entitle" the Defendant to a sentence reduction, the United States concedes "that the defendant's case resembles the four cases considered in McCoy." ECF No. 98 at 8.

In considering the § 3553(a) factors, this court first acknowledges that the Defendant's offense conduct, including multiple armed bank robberies, was extremely serious. See PSR ¶ 7-21. Still, § 3582(c)(1)(A) "permits a district court to reduce a sentence in ‘any case’ -- ... not just in cases involving low-level or non-violent offenses." Kibble, 992 F.3d at 334 (Gregory, C.J., concurring). The Defendant's "relative youth" at the time of his offenses weighs in his favor. McCoy, 981 F.3d at 286. At eighteen years old, the Defendant was younger than the McCoy defendants. Cf. id. (defendants ranged in age from 19 to 24 years old). The Defendant is now forty-four and has been incarcerated for over twenty-five years, which is well over half his life and virtually all of his adult life. See ECF 101 at 5, n. 3; Cf. McCoy, 981 F.3d at 286 (describing as "substantial" the amount of time defendants had been incarcerated, which ranged from "17 to 25 years"). The Defendant also had no "significant ... criminal history" prior to the instant offenses, which was another factor considered by the lower courts in McCoy. See id. at 274, 277. Lastly, as detailed below, the Defendant "ha[s] established [an] excellent institutional record[ ] and taken substantial steps toward rehabilitation." Id. at 286.

The Defendant's extensive employment history, volunteerism, and educational accomplishments are "nothing short of exceptional." ECF No. 101 at 2. Specifically, the Defendant completed (and taught) various educational courses, learned multiple vocations and foreign languages, played piano for worship services for over thirteen years, completed a Healthcare Sanitary Technician Apprenticeship, served as a suicide prevention specialist for fellow inmates, mentored mentally challenged defendants for nine years, was instrumental in the Inmate Companion Program for eight years, and is currently employed as an operating room safety technician. See ECF No. 88 at 12 ; ECF No. 90-8; ECF No. 90-12 at 1.

Numerous memoranda and character letters drafted by various Bureau of Prisons ("BOP") staff members over the years have been filed with the court and illustrate the Defendant's innumerable contributions and accomplishments while incarcerated. See generally ECF No. 90-11. These letters, as well as the Defendant's personal letter to the court, reveal that the Defendant has not only shown tremendous personal growth, but that he "cares for his fellow man," provides much-need assistance to BOP staff and inmates with positivity and "without any complaints," and demonstrates a level of "professional skill" and diligence in all his tasks and endeavors. Id. at 4, 8, 10. The Defendant is described as "dependable," "a role model," "an exemplary model individual," and "clever and imaginative when confronted with obstacles." Id. at 3-5, 7, 10. He "has demonstrated strong leadership skills, initiative, and a marked interest" with assignments, and "is a man of accountability and character." Id. at 2, 5. "His quality of work is outstanding," and he "goes above and beyond in his assigned duties." Id. at 4. A progress report from 2019 noted that the Defendant "has a good rapport with both staff and inmate peers," that "[h]e is a self-starter and does his job with excellence," and that he "needs little supervision." ECF No. 90-10. One BOP staff member commented that the Defendant is "courteous and polite" to staff and inmates, "has a great work ethic, and has always shown tact and diplomacy" in his interactions. ECF No. 90-11 at 3.

A clinical psychiatric therapist at Yale University, Daniel Varley, who met the Defendant in 2012 while they were both incarcerated, submitted a letter to the court explaining that, when he met the Defendant, he "noticed something different in [him] than that of many other men [he] had encountered." ECF No. 101-1 at 2. Mr. Varley "was so inspired" by the Defendant's volunteer hospice service for end-of-life inmates, that Mr. Varley himself signed up for the program. Id. Mr. Varley expresses that the Defendant "is the quintessential example of an individual that managed to do more than just time." Id.

Another BOP staff member put it frankly: "In my 27 years of correctional experience ... I have never once entertained the thought of writing a letter of reference for an inmate. However, I have never encountered an inmate like Darius Bailey." ECF No. 90-11 at 7. It is clear that the Defendant "has used his incarceration to effect his and other inmates' lives in a positive manner and continues to do so on a daily basis." Id.

Furthermore, the court must also consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). The Defendant's sentence is at least ten (10) years longer than similarly-situated defendants sentenced after the First Step Act. Nothing in the record of this case satisfies the court that the Defendant should serve a substantially longer sentence as compared to an identical defendant who committed the same crimes subsequent to the passage of the First Step Act. Simply put, the Defendant's continued incarceration "would be disproportionate to both ‘the seriousness of the offense and to what Congress now deems appropriate for this kind of conduct.’ " McCoy, 981 F.3d at 279.

The need to avoid unwarranted sentencing disparities further weighs in favor of the Defendant because his co-defendant, Lamar Mumford, was granted compassionate release and sentenced to time served, in part because the co-defendant's sentence also included stacked § 924(c) convictions. See ECF No. 108 at 6-9.

IV. Conclusion

In sum, the court has considered the First Step Act's limitation on sentence stacking for § 924(c) convictions, although taking effect after the Defendant's sentence was imposed; the Defendant's relative youth at the time of his offenses; his lack of prior significant criminal history; his lengthy incarceration to date; and his remarkable rehabilitation while incarcerated. As such, the court concludes that a sentence of time served as of July 30, 2021, is sufficient but not greater than necessary to reflect the seriousness of the Defendant's offenses, to promote respect for the law, to provide just punishment, to afford adequate deterrence to criminal conduct, and to protect the public. 18 U.S.C. § 3553(a)(2)(A)-(C). Therefore, the Motion for Compassionate Release, ECF No. 88, is GRANTED . The court REDUCES the Defendant's sentence to TIME SERVED as of July 30, 2021. Prior to his release, the United States and the BOP shall verify the Defendant's residence and his release plan. Other than this sentence reduction, the judgment entered on September 16, 1996, as modified by the Order dated December 15, 1997, remains in full force and effect.

IT IS SO ORDERED.