Opinion
3:13-cr-00041-AN-1
01-11-2024
UNITED STATES OF AMERICA, v. ANTHONY DENNELL ARMSTRONG, Defendant.
OPINION AND ORDER
ADRIENNE NELSON, UNITED STATES DISTRICT JUDGE
Defendant Anthony Dennell Armstrong moves the Court to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). For the reasons set forth below, the motion is DENIED.
LEGAL STANDARD
A court generally "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). The "compassionate release" exception, however, permits a court to modify a term of imprisonment when the following conditions are met: (1) the defendant has fully exhausted all administrative remedies; (2) "extraordinary and compelling reasons warrant" a sentence reduction; (3) the reduction is "consistent with applicable policy statements issued by the Sentencing Commission[;]" and (4) the reduction is warranted after considering the applicable factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3582(c)(1)(A). A court must find that a defendant satisfies all requirements before granting a motion for compassionate release and may deny a motion for compassionate release if any requirements are not satisfied. United States v. Wright, 46 F.4th 938, 946 (9th Cir. 2022).
A. Administrative Exhaustion
Section 3582(c)(1)(A) requires a defendant to fully exhaust all available administrative remedies before they may seek relief before a court. The administrative exhaustion requirement is met when:
"(1) the Director of the [Bureau of Prisons ("BOP")] has filed the motion on the inmate's behalf, or (2) the inmate has requested that the BOP make such a motion and either (a) the
inmate has 'fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the [inmate]'s behalf,' or (b) 30 days have elapsed since the 'warden of the [inmate]'s facility' received a compassionate-release request from the inmate."United States v. Keller, 2 F.4th 1278, 1281 (9th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A)) (alterations in original).
The exhaustion requirement is a mandatory-claim processing rule, not a jurisdictional bar, and as such, the requirement is waivable. Id. at 1282. However, when the administrative exhaustion requirement is properly raised by the government, a court must enforce the requirement. Id.
B. Extraordinary and Compelling Reasons
The Federal Sentencing Guidelines (the "Guidelines") provide criteria for determining whether extraordinary and compelling reasons exist justifying compassionate release. In determining whether compassionate release is warranted, this Court must consider the following criteria:
"Extraordinary and compelling reasons exist under any of the following circumstances or a combination thereof:
(1) Medical Circumstances of the Defendant.--
(A) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end-of-life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(B) The defendant is--
(i) suffering from a serious physical or medical condition,
(ii) suffering from a serious functional or cognitive impairment, or
(iii) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
(C) The defendant is suffering from a medical condition that requires longterm or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death.
(D) The defendant presents the following circumstances--
(i) the defendant is housed at a correctional facility affected or at imminent risk of being affected by (I) an ongoing outbreak of infectious disease, or (II) an ongoing public health emergency declared by the appropriate federal, state, or local authority;
(ii) due to personal health risk factors and custodial status, the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing
outbreak of infectious disease or the ongoing public health emergency described in clause (i); and
(iii) such risk cannot be adequately mitigated in a timely manner.
(2) Age of the Defendant.--The defendant
(A) is at least 65 years old;
(B) is experiencing a serious deterioration in physical or mental health because of the aging process; and
(C) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(3) Family Circumstances of the Defendant.--
(A) The death or incapacitation of the caregiver of the defendant's minor child or the defendant's child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition.
(B) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(C) The incapacitation of the defendant's parent when the defendant would be the only available caregiver for the parent.
(D) The defendant establishes that circumstances similar to those listed in paragraphs (3)(A) through (3)(C) exist involving any other immediate family member or an individual whose relationship with the defendant is similar in kind to that of an immediate family member, when the defendant would be the only available caregiver for such family member or individual. For purposes of this provision, ‘immediate family member' refers to any of the individuals listed in paragraphs (3)(A) through (3)(C) as well as a grandchild, grandparent, or sibling of the defendant.
(4) Victim of Abuse.--The defendant, while in custody serving the term of imprisonment sought to be reduced, was a victim of:
(A) sexual abuse involving a “sexual act,” as defined in 18 U.S.C. 2246(2) (including the conduct described in 18 U.S.C. 2246(2)(D) regardless of the age of the victim); or
(B) physical abuse resulting in 'serious bodily injury,' as defined in the Commentary to § 1B1.1 (Application Instructions);
that was committed by, or at the direction of, a correctional officer, an employee or contractor of the Bureau of Prisons, or any other individual who had custody or control over the defendant."
For purposes of this provision, the misconduct must be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding, unless such proceedings are unduly delayed or the defendant is in imminent danger.
(5) Other Reasons.--The defendant presents any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1) through (4), are similar in gravity to those described in paragraphs (1) through (4).
(6) Unusually Long Sentence.--If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an
extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances."U.S.S.G. § 1B1.13(b).
The Ninth Circuit previously held that "the [former] version of U.S.S.G. § 1B1.13 is not an 'applicable policy statement[ ]' for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant" and as a result, "[t]he Sentencing Commission's statements in [former] U.S.S.G. § 1B1.13 may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding." United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). As a result, "district courts are 'empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.'" Id. at 801 (quoting United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020)). U.S.S.G. § 1B1.13 was amended on November 1, 2023 and now reflects that a defendant may file a motion for compassionate release. However, the Ninth Circuit has continued to cite Aruda favorably. See United States v. Holmes, No. 23-420, 2023 WL 8108461 (9th Cir. Nov. 22, 2023) ("[T]he court properly treated § 1B1.13 as 'persuasive authority.'") (quoting Aruda, 993 F.3d at 802, for the proposition that "although § 1B1.13 is not binding, it 'may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant.'").
The Guidelines permit a court to consider changes in the law, including amendments to the Guidelines, in determining the extent of a sentence reduction, but a change in the law alone "shall not be considered" in determining whether extraordinary and compelling reasons exist. U.S.S.G. § 1B1.13(c). The Ninth Circuit has held that changes in post-sentencing decisional law, including non-retroactive changes, may be considered when assessing whether extraordinary and compelling circumstances exist. United States v. Roper, 72 F.4th 1097, 1103 (9th Cir. 2023); see also Concepcion v. United States, 597 U.S. 481, 484 (2022) ("[T]he First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act."). Courts in the Ninth Circuit may also consider non-retroactive changes in sentencing law when assessing whether extraordinary and compelling circumstances exist. United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022) ("We now . . . conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons[.]").
Rehabilitation, by itself, is not an extraordinary and compelling circumstance, but may be considered in combination with other circumstances. U.S.S.G. § 1B1.13(d).
In addition to outlining extraordinary and compelling reasons to reduce a sentence, the Guidelines require a court to determine that the defendant is "not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)" and that the sentence reduction is otherwise "consistent with this policy statement." U.S.S.G. § 1B1.13(a).
C. 18 U.S.C. § 3553(a) Factors
When deciding a motion for compassionate release, a court "must consider and weigh the factors set forth in 18 U.S.C. § 3553(a) to decide whether the requested sentence reduction is warranted 'under the particular circumstances of the case.'" Wright, 46 F.4th at 945 (internal citation and quotation marks removed). The factors include,
"among other things: (1) the defendant's personal history and characteristics; (2) his sentence relative to the nature and seriousness of his offense; (3) the need for a sentence to provide just punishment, promote respect for the law, reflect the seriousness of the offense, deter crime, and protect the public; (4) the need for rehabilitative services; (5) the applicable sentence guidelines; and (6) the need to avoid unwarranted sentencing disparities among similarly situated defendants."Id. at 945 n.4 (citing 18 U.S.C. § 3553(a)).
BACKGROUND
On August 15, 2013, defendant pleaded guilty to transportation of a minor in violation of 18 U.S.C. § 2423(a). Plea Pet. And Order Entering Plea, ECF [39]; J. & Commitment, ECF [46]. He was sentenced to a term of 200 months imprisonment and ten years supervised release. J. & Commitment. Defendant's projected release date is October 6, 2026. Gov't's Resp. to Def.'s Third Mot. to Reduce Sentence ("Gov't's Resp."), ECF [102], at 4.
On June 22, 2020, defendant moved to have his sentence reduced, expressing concern that his medical conditions may put him at increased risk if he were exposed to COVID-19 in a BOP facility. First Mot. to Reduce Sentence, ECF [65]. Specifically, defendant noted that he has "serious respiratory and circulatory conditions including 2 near fatal onsets of double lung pneumonia and a history of blood clotting" and was "seriously obese," increasing the risks associated with COVID-19. Id. at 2. Defendant also pointed to commendable efforts at rehabilitation, including completing a drug education course and serving for four years as a Suicide Watch Companion and mentor in the mental health unit. Suppl. Mem. in Supp. of First Mot. to Reduce Sentence, ECF [77]. Judge Michael Mosman denied the motion with leave to renew, noting that while defendant's motion did not merit immediate release, there might be "an argument for sentence reduction off the back end." Mins. of Proceedings, ECF [92]; Tr. of May 20, 2021 Proceedings, ECF [95], 14:16-17.
Defendant renewed his motion to reduce sentence on September 20, 2021, asking the Court to reconsider his motion before the United States Sentencing Commission promulgated an "applicable policy statement" limiting the Court's discretion in considering what can constitute an extraordinary and compelling reason warranting compassionate release. Renewed Mot. to Reduce Sentence, ECF [93], at 45. He highlighted the continued health risks and restrictions in custody and requested a four-year reduction in his sentence. Id. at 7-9. Judge Mosman denied the renewed motion, noting that defendant had not pointed to any appellate authority or changed conditions that would support compassionate release based on the conditions in custody during the COVID-19 pandemic. Order Denying Renewed Mot. to Reduce Sentence, ECF [98], at 2.
Defendant now moves again for a sentence reduction. Third Mot. to Reduce Sentence, ECF [100]. The government opposes the motion. Gov't's Resp. 11.
Although defendant did not move for appointment of counsel at the time he filed the motion, he requests counsel in his reply brief. Def.'s Reply to Gov't's Resp. ("Def.'s Reply"), ECF [103], at 2. This request was not properly raised, and, furthermore, defendant has clearly articulated his claims, fully briefed the matter, and has not shown a likelihood of success on the merits, so appointment of counsel would not be appropriate.
DISCUSSION
A. Administrative Exhaustion
Defendant states he submitted a "cop-out request" to the warden at FCI Sheridan on July 17, 2023. Third Mot. to Reduce Sentence 1. The government assumes for purposes of the motion that defendant has exhausted his administrative remedies. Gov't's Resp. 5. Defendant has, therefore, met the administrative exhaustion requirement.
B. Extraordinary and Compelling Reasons
Defendant argues, as he did in his prior motions, that conditions of confinement at FCI Sheridan during the COVID-19 pandemic warrant compassionate release. The motion, which appears to be a boilerplate form, highlights conditions of confinement unforeseen at the time of sentencing, such as regular lockdowns, restrictions on programming, and staff, medication, and food shortages. Id. at 1. Defendant notes that FCI Sheridan is a defendant in numerous lawsuits related to these conditions, and that other FCI Sheridan inmates "have received partial reductions to their sentences for the conditions of confinement there." Id. Defendant also describes troubling conditions unrelated to the COVID-19 pandemic, such as lack of running water for four days, inmate deaths unrelated to COVID-19 infection, and violent retaliation against inmates who filed lawsuits against FCI Sheridan. Id. at 3. He argues that these conditions are excessively punitive and warrant a sentence reduction to time served or any other amount the Court deems appropriate. Id. at 1-2.
Defendant and the government dispute whether, at the time of briefing, FCI Sheridan had returned to a regular schedule of programming and visitation. See Gov't's Resp. 7-8; Def.'s Reply 9-11.
Defendant specifically cites United States v. Westwolf, No. CR-19-41-GF-BMM, 2023 WL 3305102, at *4 (D. Mont. May 8, 2023) (reducing defendant's term of imprisonment by four months because "his deteriorating eyesight and related medical complications warrants a small sentence reduction"), United States v. Lira, No. CR-17-34-GF-BMM, 2023 WL 3626430 (D. Mont. May 24, 2023), at *3 (reducing defendant's term of imprisonment by fifteen months due to defendant's "age, lack of disciplinary history, and serious medical conditions"), and United States v. Beltran, No. CR 19-35-GF-BMM, 2023 WL 3851047, at *4 (D. Mont. June 6, 2023) (reducing defendant's term of imprisonment by twelve months due to the "BOP's potential failure to award Beltran credit for time served" and because defendant "likely would have been subjected to a shorter term of custody were he to be sentenced today, in light of intervening and anticipated changes in the Sentencing Guidelines."). The Court was unable to locate "United States v. Hazard". Third Mot. to Reduce Sentence 1.
In the time since defendant's previous motions to reduce sentence, courts in this district have generally concluded that general conditions not specific to a particular defendant related to COVID-19 do not, on their own, warrant a reduction in sentence. See United States v. Willis, No. 3:12-CR-00292-HZ, 2023 WL 2625530, at *5 (D. Or. Mar. 22, 2023) ("General conditions in a prison related to COVID-19, without some circumstance individual to a particular defendant, 'are not sufficient to reduce [the] defendant's sentence.'") (quoting United States v. Martinez, No. 15-CR-1299-2-GPC, 2022 WL 126306, at *4 (S.D. Cal. Jan. 13, 2022)); United States v. Whitzel, No. 3:20-CR-00505-IM-3, 2023 WL 6476599, at *2 (D. Or. Oct. 5, 2023) (collecting cases); United States v. Sandoval, No. 3:11-CR-00455-HZ, 2023 WL 6255679, at *1 (D. Or. Sept. 26, 2023) ("[G]eneralized concerns about the pandemic are not “extraordinary and compelling reasons” justifying compassionate release."). Accordingly, defendant's generalized allegations of prison conditions at FCI Sheridan related to COVID-19 are not sufficient to justify compassionate release.
Although general conditions in a prison related to COVID-19 are not sufficient, without circumstances particular to an individual defendant, to warrant a sentence reduction, "the generally harsh conditions" under which a defendant serves "contribute[] to the analysis of extraordinary and compelling circumstances." Willis, 2023 WL 2625530, at *5 (citation omitted). The Court accordingly keeps defendant's allegations about the conditions at FCI Sheridan in mind while considering other bases for sentence reduction.
In addition to the COVID-19 pandemic and the conditions of his confinement, defendant states that he seeks a reduction in sentence for "medical/psych," "sentencing changes," "family circumstances," and "time served." Third Mot. to Reduce Sentence 6. Although defendant does not describe his medical concerns in more detail, the Court understands from previous filings that defendant cites respiratory issues, high blood pressure, and obesity as putting him at a higher risk for COVID-19 complications. These medical issues do not constitute extraordinary and compelling circumstances. See United States v. Felix-Rodriguez, No. 3:14-CR-100-HZ-2, 2023 WL 2447436 , at *3 (D. Or. Mar. 7, 2023) ("More recently, courts in the Ninth Circuit have held that with the wide availability of COVID-19 vaccines, medical conditions that increase the risk of severe COVID-19 do not constitute extraordinary and compelling circumstances that would warrant compassionate release."). Defendant does not describe any psychological conditions, and without more information, the Court is unable to determine whether a psychological condition constitutes an extraordinary and compelling circumstance.
Defendant does not describe what "family circumstances" warrant sentence reduction except to mention that he has two sons, ages twelve and fourteen, that he wishes to support, and that the limited visitation schedule at FCI Sheridan has made it more difficult for him to see his family. Def.'s Reply to Gov't's Resp. ("Def.'s Reply"), ECF [103], at 3. U.S.S.G. § 1B1.13(b), however, describes an extraordinary or compelling family circumstance as one in which a defendant is the only available caregiver for a minor child, spouse, or parent. Here, defendant does not say that he is the only available caregiver for his sons.
Defendant does not elaborate on the "sentencing changes" or why his "time served" qualifies as extraordinary and compelling circumstances. At the time that defendant was sentenced, a violation of 18 U.S.C. § 2423 could result in a term of imprisonment ranging from ten years to life. At sentencing, taking into account the seriousness of the offense, defendant's criminal history, and defendant's youth, the Court imposed a term of imprisonment of 200 months. Tr. of Proceedings, ECF [61], 12:1717:10. The Court is unaware of any changes to the law or the Guidelines that would impact the calculation of that range such that, if sentenced today, defendant might receive a shorter term of imprisonment, and such a change, on its own, is not sufficient to warrant a sentence reduction.
Finally, defendant describes his efforts at rehabilitation. He has "read hundreds of selfhelp books, taken several classes . . . been a suicide companion for several years, a mental health ally for several years," and worked in the commissary for over two years. Def.'s Reply 6. Defendant also learned sign language in order to serve as an interpreter for deaf people in his unit. Id. Defendant's rehabilitation, in particular his participation in suicide prevention and mental health ally programs, as well as his service as a unit interpreter, is admirable. Rehabilitation alone, however, is not an extraordinary and compelling circumstance warranting a sentence reduction. U.S.S.G. § 1B1.13(d).
Defendant has not demonstrated that extraordinary and compelling reasons justify a reduction in his sentence.
C. 18 U.S.C. § 3553(a) Factors
Defendant argues that the 18 U.S.C. § 3553(a) factors weigh in favor of a sentence reduction, noting "the national trend toward rehabilitation and away from punishment" and that defendant has had good conduct in prison. Third Mot. to Reduce Sentence 4. The government takes the position that the nature and circumstances of defendant's offense, his criminal history, and his conduct in custody and under supervision, weigh against a sentence reduction. Gov't's Resp. 8-9.
The nature and circumstances of defendant's offense are serious. In addition, while the Court applauds defendant's efforts at rehabilitation and recognizes that defendant had a difficult childhood and was young at the time of his offense, his post-arrest conduct, including contacting his victim repeatedly in violation of his terms of supervision and, more recently, being sanctioned for having a razor blade in his cell, weighs against a sentence reduction. Gov't's Resp., Ex. A. Accordingly, any reduction in sentence at this time would be inconsistent with the 18 U.S.C. § 3553(a) factors.
CONCLUSION
For the foregoing reasons, defendant's Motion to Reduce Sentence, ECF [100], is DENIED.
IT IS SO ORDERED.