REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE

Sherrie S. Capotosto, United States Attorney's Office, Norfolk, VA, for United States of America.

MEMORANDUM OPINION AND ORDER

REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the court on the Defendant's Motion for Compassionate Release ("Motion"), filed on September 9, 2020. ECF No. 112. In the Motion, the Defendant requests that his sentence be reduced because of the spread of the novel Coronavirus ("COVID-19"). He also argues that his sentence should be reduced because he would receive a much shorter period of imprisonment, if he were sentenced today for the same crime for which he was sentenced in this case.

I. Procedural History

On May 3, 2011, the Defendant pleaded guilty to Count One of a thirteen-count Indictment. ECF No. 38. Count One charged the Defendant with Conspiracy to Distribute and Possess with Intent to Distribute 28 Grams or More of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), and 846. ECF No. 1. On August 10, 2011, the court sentenced the Defendant to two hundred thirty-five (235) months in prison and five (5) years of supervised release. ECF No. 55.

On September 9, 2020, the Defendant filed the instant Motion for Compassionate Release. ECF No. 112. The United States filed a Response in Opposition on October 12, 2020. ECF No. 118. The Defendant filed a Reply on October 26, 2020. ECF No. 122. On December 7, 2020, the court entered an Order permitting the parties to file supplemental briefs in light of United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). ECF No. 123. The Defendant submitted a Supplemental Memorandum on December 28, 2020, ECF No. 124, and the United States filed a Supplemental Response on January 22, 2021, ECF No. 127. The court also received the Defendant's letter, ECF No. 128, and a letter from the Defendant's counsel directing the court to United States v. Trice, No. 7:13cr34, 2021 WL 402462 (W.D. Va. Feb. 3, 2021), ECF No. 129.

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).

With the Motion, the Defendant filed documentation showing that he requested a compassionate release from the warden of his facility, and he stated that the warden did not act on that request within thirty (30) days. ECF Nos. 112 at 3, 112-1. The United States does not dispute the Defendant's assertion in its response. See ECF No. 118. Accordingly, the court finds that the Defendant has satisfied the administrative exhaustion requirement of 18 U.S.C. § 3582(c)(1)(A).

III. Merits of the Motion for Compassionate Release

The court now considers whether the Defendant has shown "extraordinary and compelling reasons" that justify a reduction in his sentence. Any reduction under § 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, 276 (4th Cir. 2020). In McCoy, the Fourth Circuit held that "there currently exists no ‘applicable policy statement’ " because the Sentencing Commission has not issued a policy statement since the passage of the First Step Act. Id. 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.’ " Id. 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 of its 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. See United States v. Dean, Case No. 15-CR-0339(1), 2020 WL 7055349, at *1-2 (D. Minn. Dec. 2, 2020) (citing McCoy and stating that "the court will treat § 1B1.13 as providing useful guidance about how the Court should exercise its discretion under § 3582(c)(1)(A), but the Court will not treat its provisions as binding").

A. Career Offender

The Defendant argues that the court should reduce his sentence because, were he sentenced today, he would not have received a "career offender" enhancement in light of the Fourth Circuit's decision in United States v. Norman, 935 F.3d 232, 237-39 (4th Cir. 2019) (holding that conspiracy to possess with intent to distribute a controlled substance is not a "controlled substance offense" pursuant to the career offender Guideline). According to the Defendant, the applicable Guideline sentence would have been cut in half, approximately, if he had not been designated as a career offender at the time of his sentencing. ECF No. 124. The Defendant asserts that the Fourth Circuit's decision in McCoy permits court "to consider changes in sentencing law as part of the ‘extraordinary and compelling reasons’ inquiry," id., and he asks that the court reduce his sentence to reflect the disparity between the sentence that he received and the sentence that an identically situated defendant would receive today.

Pursuant to U.S.S.G. § 4B1.1, a defendant is a career offender for sentencing purposes if (1) he is eighteen years old at the time of the instant offense; (2) he has two prior felony convictions that qualify as a crime of violence or a controlled substance offense; and (3) the instant offense is a crime of violence or a controlled substance offense. At sentencing, the court determined that the Defendant was at least eighteen years old at the time of the offense and that he had two prior convictions that qualified as controlled substance offenses. See PSR ¶ 76. The court also concluded, without objection by the Defendant, that the crime of conviction -- conspiracy to possess with intent to distribute cocaine and cocaine base -- was a controlled substance offense. Id. However, that crime is precisely the offense that the Fourth Circuit held in Norman is not a controlled substance offense. 935 F.3d at 237-39. Therefore, the Defendant is correct that he would not be designated a career offender in light of Norman, and the United States does not contest this conclusion.

Removing the Defendant's career offender designation would reduce his Total Offense Level to twenty-five (25), and his Criminal History Category would remain VI. See U.S.S.G. § 2B1.1. This yields a sentencing range of one hundred ten (110) to one hundred thirty-seven (137) months. As a career offender, the Defendant had a Total Offense Level of thirty-four (34) and a Criminal History Category of VI, resulting in a sentencing range of one hundred eighty-eight (188) to two hundred thirty-five (235) months. The Defendant argues that the court should exercise its discretion by reducing the Defendant's sentence in light of this disparity.

1. United States v. McCoy

As a threshold matter, the United States asserts that the Defendant's argument is essentially a request for retroactive application of the Norman decision and therefore must be brought under 28 U.S.C. § 2255 as a collateral attack on the validity of the Defendant's sentence. According to the United States, "[n]othing in McCoy expanded the scope of § 3582(c)(1)(A) to accommodate § 2255 arguments." ECF No. 127 at 11.

This argument is not persuasive in light of the Fourth Circuit's decision in United States v. Foote, 784 F.3d 931 (4th Cir. 2015). In Foote, the court addressed the following question:

whether Petitioner, who was sentenced as a career offender under U.S. Sentencing Guideline § 4B1.1, but who in fact was not a career offender in light of Simmons v. United States, can assert a cognizable claim under 28 U.S.C. § 2255, seeking to challenge a sentence that was below the statutory maximum that would still apply.

784 F.3d at 935 (alteration omitted). The Fourth Circuit answered this question in the negative. See id. at 940-44. Therefore, "improper application of the career offender guideline is not a fundamental defect cognizable in a § 2255 proceeding." Holt v. United States, No. DKC 13-0204-004, 2020 WL 134536, at *2 (D. Md. Jan. 13, 2020) (citing Foote, 784 F.3d at 935 ).

Given that it would have been futile for the Defendant to make his Norman argument in a § 2255 petition, the court cannot agree with the United States’ assertion that such a petition is the Defendant's only possible avenue of relief. Indeed, the Fourth Circuit made clear in McCoy that § 3582(c)(1)(A)(i) was intended "to capture the truly exceptional cases that fall within no other statutory category." 981 F.3d at 287 (emphasis added). Because misapplication of the career offender Guideline does not fall within the scope of § 2255, see Foote, 784 F.3d at 940-44, or any other statute for that matter, the court concludes that the Defendant may raise this argument in a motion for compassionate release under § 3582(c)(1)(A)(i).

2. Merits

Next, the United States argues that, even if the Defendant's Norman argument is cognizable under McCoy, the Defendant has not shown "extraordinary and compelling" circumstances that justify a reduction in sentence. ECF No. 127 at 11-19.

The Defendant is correct that he would not receive the career offender enhancement under U.S.S.G. § 4B1.1, if he were sentenced today. That alone, however, does not automatically entitle the Defendant to a reduction in sentence. In McCoy, the Fourth Circuit held only that the district courts had discretion to consider "the severity of the defendants’ ... sentences and the extent of the disparity between the defendants’ sentences and those provided for under [current law]," when deciding a motion for compassionate release. 981 F.3d at 286. Nothing in McCoy, however, requires the court to reduce a defendant's sentence once the defendant shows that new statutory or case law would have benefitted the defendant, if such law had existed at the time of the defendant's sentencing. See id. Therefore, the court will decide whether to reduce the Defendant's sentence based on a "full consideration of the [Defendant's] individual circumstances." Id.

Weighing the Defendant's Norman argument, the sentencing factors in 18 U.S.C. § 3553(a), and the record of this case, the court concludes that the Defendant has not shown extraordinary and compelling reasons for a reduction in sentence. First, the Defendant's offense conduct was serious. The offense conduct involved conspiring with others to distribute at least one hundred ninety (190) grams of cocaine base. PSR ¶¶ 7-32. The conspiracy involved a large number of transactions with multiple buyers. See PSR ¶¶ 7-16, 18-23, 26-29. The court must consider the seriousness of the Defendant's conduct in deciding whether to grant his request for compassionate release. See 18 U.S.C. § 3553(a)(1), (2)(A). More significant with respect to this case are the "history and characteristics of the [D]efendant." Id. § 3553(a)(1). The Defendant has an exceptionally lengthy adult criminal history dating back to 1995. The PSR describes twenty-one adult criminal convictions, some of which involved multiple counts. See PSR ¶¶ 42-62. These prior convictions included the following:

• In 1995, Possession of Cocaine with Intent to Distribute and Possession of a Firearm while in Possession of Cocaine, see PSR ¶ 50;

• In 2003, Possession of Cocaine Base with Intent to Distribute, Felon in Possession of a Firearm, and Possession of a False Identification Document, see PSR ¶ 59; and

• In 2007, Possession of Cocaine, see PSR ¶ 61.

As a result of his criminal convictions, the Defendant had been incarcerated for substantial periods of time prior to the instant offense, including from July 22, 2003 until March 19, 2007, and from November 29, 2007 until August 14, 2009. See PSR ¶¶ 92, 95. Concerningly, the Defendant's conduct with respect to the instant offense began almost immediately after he was released from prison in August 2009. See, e.g., PSR ¶ 13. The Defendant's criminal history makes clear that he has a significant "pattern of committing crime while out of custody." United States v. Moton, No. 2:13cr173, slip op. at 7 (E.D. Va. Nov. 13, 2020) (Smith, J.). As a result, the Defendant's history and characteristics weigh heavily against a reduction in sentence. Furthermore, because the Defendant has demonstrated on several occasions that he is likely to return to criminal conduct shortly after his release from incarceration, the court also finds that a reduction in sentence would not "protect the public from further crimes of the [D]efendant." 18 U.S.C. § 3553(a)(2)(C).

Based on the foregoing, the court will not reduce the Defendant's sentence in light of the Fourth Circuit's decision in Norman.

B. COVID-19

The Defendant also argues that his sentence should be reduced because of the possibility that he will contract COVID-19 while he is incarcerated. The court concludes that the Defendant is not entitled to a sentence reduction on this basis for several reasons. First, the Defendant has not demonstrated that he is at a particularized risk and susceptibility to COVID-19 at this juncture. The Defendant, who is forty-seven (47) years old, attaches medical records to his Motion stating that he suffers from diabetes, obesity, hypertension, hyperlipidemia, glaucoma, and blindness in one eye, ECF No. 117, and he argues that these underlying conditions put him at a high risk of death were he to contract COVID-19 in prison. ECF 112 at 8-12. The United States responds that the defendant's conditions are well-treated by the Bureau of Prisons ("BOP"). ECF No. 118 at 12.

"In the context of the COVID-19 outbreak, courts have found extraordinary and compelling reasons for compassionate release when an inmate shows both a particularized susceptibility to the disease and a particularized risk of contracting the disease at his prison facility." United States v. Feiling, 453 F.Supp.3d 832, 841 (E.D. Va. 2020) (Novak, J.) (emphasis added). Based on the Defendant's medical records and other documentation, the BOP appears to be adequately treating the Defendant for his health issues. See ECF No. 331. The Defendant has not offered information regarding any specific shortcomings by his facility in handling his medical conditions. See United States v. Ayon-Nunez, No. 1:16cr130, 2020 WL 704785, at *2-3 (E.D. Cal. Feb. 12, 2020) ("Chronic conditions that can be managed in prison are not a sufficient basis for compassionate release."). Furthermore, the Defendant is currently incarcerated at FCI Edgefield, a facility that has only two (2) active COVID-19 cases among inmates as of the date of entry of this Memorandum Opinion and Order. Accordingly, the Defendant cannot show "extraordinary and compelling reasons" on this ground.

Second, the factors that the court considers in 18 U.S.C. § 3553(a) weigh against the Defendant's release, as discussed above. See supra Section III.A.2. Presently, the Defendant is not scheduled to complete his sentence until September 11, 2028. He has, therefore, served only about sixty percent of his sentence for a very serious offense. See ECF No. 112 at 1. For the reasons stated supra Section III.A.2, reducing the Defendant's sentence at this juncture would result in a sentence that is not sufficient to comply with the sentencing factors set forth in § 3553(a)(2). Therefore, the court will not reduce the Defendant's sentence.

IV. Conclusion

For the foregoing reasons, and in the exercise of its discretion, having considered the factors in 18 U.S.C. § 3553(a), the court concludes that the Defendant is not entitled to a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Accordingly, the Defendant's Motion for Compassionate Release, ECF No. 112, is DENIED .

IT IS SO ORDERED .