Opinion
16 CR 609 (LAP)
07-24-2024
UNITED STATES OF AMERICA, v. ANDRE MAYARD, Defendant.
OPINION AND ORDER
LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE
Before the Court is Andre Mayard's motion pursuant to 18 U.S.C. § 3582(c) for compassionate release. (Dkt. no. 60). The Government opposed the motion, (dkt. no. 62 [the “Opp."]), and Defendant replied, (dkt. no. 64). For the reasons set forth below, the motion is denied.
I. Background
A. Defendant's Criminal Conduct
In 2011, Defendant was affiliated with the East Gangsta Brims (“EGB") set of the Bloods gang and sold crack and marijuana with other EGB members in the vicinity of White Plains Road and 241st Street in the Bronx. (See Final Presentence Investigation Report, dated June 16, 2018, dkt. no. 32 [“PSR"] ¶ 8.) Around that same time, EGB had an active rivalry with the Bloodhound Brim set of the Bloods, whose members also sold drugs near White Plains Road and 241st Street. (See id.)
On July 28, 2011, a member of the Bloodhound Brims named Scott Williams engaged in an argument with Defendant on the corner of White Plains Road and 241st Street. (See Id. ¶¶ 8-9.) During the argument, Williams pulled out a gun and insisted that Defendant could not sell drugs in that area. (See id.) Rather than walking away and avoiding further confrontation, the Defendant spent the next thirty minutes retrieving his own .45 caliber handgun and then traveling back to White Plains Road, planning to ambush Williams. (See Id. ¶ 10.) When he returned to the vicinity of White Plains Road and 241st Street, Defendant went directly up to Williams. (See id.) Before Williams even realized what was happening, Defendant pulled out his gun and opened fire in the middle of a crowded commercial street. (See id.) Williams fled for his life across White Plains Road, through several commercial' storefronts, and around the corner onto 241st Street. (See Id.) The Defendant hunted Williams down, chasing him through the street and firing shot after shot at his back. (See id.) Defendant only stopped firing when his gun was empty, at which point he left the scene, leaving Williams to die. (See Id.) Defendant ultimately shot Williams eight times: three bullets entered his back, one struck his hip, three struck his arm, and one ripped off the tips of his fingers. (See id.) Williams collapsed on the sidewalk and died at the hospital later that night. (See id.)
On September 12, 2016, a sealed indictment was filed in this District charging the Defendant with murdering Scott Williams through the use of a firearm in furtherance of a narcotics crime, in violation of 18 U.S.C. § 924 (j). (See Dkt. No. 1). On September 14, 2016, the Defendant was arrested, and the indictment was unsealed. (See Dkt. Nos. 2, 4).
B. Defendant's Plea, Sentencing, and Appeal
On March 27, 2018, the Defendant pleaded guilty, pursuant to a plea agreement with the Government, to a superseding information containing one count of distributing crack cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(C), and one count of conspiracy to distribute crack cocaine and marijuana, in violation of 18 U.S.C. § 371. (See PSR ¶¶ 1-5.) Under the plea agreement, the Defendant agreed to waive the statute of limitations that would otherwise apply to these two charges and further agreed that his guilty plea would include his admission that he murdered Scott Williams on July 28, 2011, in furtherance of the Defendant's distribution of crack cocaine. (See Id. ¶ 5 n.1.) In essence, the plea agreement allowed the Defendant to limit his sentencing exposure for the murder to a statutory maximum of 25 years imprisonment, instead of the maximum of life that would have applied to the charges contained in the Indictment.
On November 20, 2018, the Defendant appeared before this Court for sentencing. (See Dkt. No. 47 ["Sentencing Tr."].) After hearing from the parties, the Court agreed with the United States Sentencing Guidelines ("U.S.S.G.") calculation contained in both the PSR and the plea agreement. (See Id. at 27:24-28:2; see also PSR at 15.) Pursuant to U.S.S.G. § 3D1.2(b), both counts were treated as a single group (“the Group"). (See PSR ¶ 16.) The Guideline applicable to the Group was U.S.S.G. § 2D1.1. (See Id. ¶ 17.) Pursuant to U.S.S.G. § 2Dl.l(d)(1), because a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial jurisdiction of the United States, U.S.S.G. § 2A1.1 applied to the Group. (Id.) Pursuant to U.S.S.G. § 2Al.l(a), the base offense level was 43. (Id.) Because the Defendant accepted responsibility through his timely guilty plea, a three-level reduction was warranted. (See Id. ¶¶ 24-25.) Accordingly, the applicable offense level was 40. (See Id. ¶ 26.) Because the Defendant had two prior misdemeanor convictions resulting in two criminal history points, he fell within Criminal History Category II. (See Id. ¶¶ 28-32.) At offense level 40 and Criminal History Category II, the Guidelines range would have been 324 to 405 months imprisonment. (See Id. ¶ 59.) Because the plea agreement permitted the Defendant to plead to counts of conviction with a total maximum penalty of • 300 months, however, the applicable Guidelines range became the statutory maximum of 300 months imprisonment. (See Id. ¶¶ 58-60.)
After calculating the Guidelines range and hearing from the parties, the victim's aunt and mother, and the Defendant, the Court analyzed the factors under 18 U.S.C. § 3553(a). (See generally Sentencing Tr.) In explaining the analysis of those factors, the Court emphasized that nature and circumstances of the offense, noting that this case involved as “serious an offense as one can have, taking the life of another human being." (Id. at 25:2526:3.) The Court further highlighted how the Defendant “made the decision to pick up his own gun to return to the scene and to begin shooting in a very crowded area" and emphasized that “the seriousness of this offense is the most weighty characteristic and factor here." (Id. at 26:8-15.) Taking all of those factors into account, the Court imposed a Guidelines sentence of 300 months imprisonment, to be followed by five years supervised release. (See Id. at 27:2-9.)
Judgment was entered on November 28, 2018. (Dkt. No. 44.) On November 30, 2018, Defendant filed a timely notice of appeal. (Dkt. No. 46.) On October 7, 2020, the Court of Appeals issued a Mandate dismissing Defendant's appeal as barred by the appeal waiver in his plea agreement and affirming the judgment of conviction. (Dkt. No. 56.)
Defendant is currently serving his sentence at F.C.I. Ray Brook. He has served approximately seven years of his twenty-five-year sentence. According to the Bureau of Prisons (“BOP") website, Defendant's projected release date is February 25, 2037.
C. Defendant's Compassionate Release Motion
On May 23, 2023, Defendant filed a pro se motion for compassionate release pursuant to Title 18, United States Code, Section 3582(c) (See dkt. no. 60 [the “Motion"].) After receiving the Motion, the Government was informed by BOP legal counsel that on or about May 11, 2023, Defendant submitted an application for compassionate release to the Warden of F.C.I. Ray Brook and that on or about May 22, 2023, the application was denied. (See Opp. at 3.) Accordingly, Defendant exhausted his administrative remedies before filing the Motion.
In his Motion, Defendant suggests that compassionate release is warranted because of the conditions at F.C.I. Ray Brook, his troubled childhood, the length of his sentence, and his postconviction rehabilitation. (See generally Motion.) With respect to conditions of confinement, Defendant argues both that his incarceration increases his risk of contracting and dying from COVID-19 and that the conditions of confinement during the pandemic have been so arduous as to be extraordinary and compelling. (See Id. at 11-16.) .
After receiving the Motion, consistent with the Crime Victims' Rights Act, 18 U.S.C. § 3771, the Government notified Scott Williams's family of the Motion, in response to which Mr. Williams's mother verbally indicated that she strongly opposes any early release of Defendant. (See Opp. at 3.) The victim's mother also submitted a written victim impact statement opposing Defendant's motion. (See id.)
II. Applicable Law
Where a defendant has exhausted his administrative remedies, a court may reduce the defendant's sentence if it finds that “extraordinary and compelling reasons warrant such a reduction" and “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). In doing so, the Court must also consider “the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable." Id. “Application of the § 3553(a) factors requires an assessment of whether the relevant factors outweigh the extraordinary and compelling reasons warranting compassionate release and whether compassionate release would undermine the goals of the original sentence." United States v. Daugerdas, 613 F.Supp.3d 807, 812 (S.D.N.Y. 2020) (cleaned up) (internal quotation marks omitted).
In the Second Circuit, courts are “free ... to look to § 1B1.13," which contains the U.S.S.G.'s relevant policy statement, “for quidance in the exercise of their discretion" as to whether any purported reasons for release are, in fact, extraordinary and compelling. United States v. Castelle, 2021 WL 1199471, at *2 (S.D.N.Y. Mar. 30, 2021) (internal quotations and citations omitted); see also United States v. Feliz, 2023 WL 8275897, at *4-6 (S.D.N.Y. Nov. 30, 2023) (denying motion for compassionate release upon concluding defendant's motion was not consistent with the Policy Statement found in § 1B1.13).
The relevant policy statement provides that a reduction is allowed if "[e]xtraordinary and compelling reasons warrant the reduction" and “the defendant is not a danger to the safety of any other person or to the community." U.S.S.G. § 161.13(a). Subsection 161.13(b) sets forth a number of possible circumstances that could constitute “extraordinary and compelling reasons," including terminal illness, other medical conditions causing serious decrease in functional or cognitive capacity, death or incapacitation of the caregiver of the defendant's minor children, and other similar subsequently developing major adverse circumstances. See Id. § 161.13(b).
But the “existence of 'extraordinary and compelling reasons' for a reduction does not mean that a district court must release the defendant." United States v. Madoff, 465 F.Supp.3d 343, 349 (S.D.N.Y. 2020) (emphasis in original). Even if a court finds that a defendant has established an extraordinary and compelling reason for a reduction in sentence, it still must then consider the Section 3553(a) factors. See 18 U.S.C. § 3582(c)(1)(A)(i). Those factors include, among others: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant"; (2) “the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense . . . [and] to afford adequate deterrence to criminal conduct"; (3) the need “to provide the defendant with needed . . . medical care"; and (4) “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).
As the proponent of the Motion, Defendant bears the burden of proving “extraordinary and compelling reasons" exist to justify early release and that the Section 3553(a) factors and all other relevant considerations warrant the Court exercising its discretion in his favor. See Madoff, 465 F.Supp.3d at 349; see also United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992) (“A party with an affirmative goal and presumptive access to proof on a given issue normally has the burden of proof as to that issue.").
III. Discussion
A. Defendant Has Not Demonstrated that Extraordinary and Compelling Circumstances Warrant Compassionate Release
In support of his motion, Defendant relies on (1) conditions within the BOP and COVID-19, (2) his remorse and rehabilitation, (3) his traumatic childhood, and (4) the length of his sentence. These four items, whether considered singularly or together, do not constitute extraordinary and compelling circumstances.
First, Defendant does not argue that he has any health conditions that make him particularly susceptible to COVID-19. Indeed, he has been vaccinated against the virus. (See Opp. at 5.) And because any harsh prison conditions imposed because of COVID-19 were shared by all prisoners, they were not extraordinary and compelling.
Second, Defendant expressed his remorse at the time of sentencing, and the Court took that into account in imposing its sentence. Also, although Defendant is to be commended for his attempts at rehabilitation, such efforts do not constitute extraordinary and compelling circumstances.
Although the Government argues that Defendant was sanctioned for assaulting another inmate in 2018 and possessing a dangerous weapon in 2017, (see Opp. at 7), Defendant notes in his reply that the assault charges were dropped and that the weapons charge resulted from his move into a new cell, (see dkt. no. 64 at 5) . Thus, the Court does not consider those charges in making its decision.
Third, the Court was aware at sentencing of the Defendant's traumatic childhood, including his witnessing the murder of a friend. The Court also took into account his relatively young age at the time he committed this murder. Those factors, however, do not constitute extraordinary and compelling circumstances at this stage.
Finally, in his reply, Defendant clarifies that his motion seeks "a small sentence reduction" from twenty-five years to twenty years. (Dkt. no. 64 at 1.) Even with that clarification, the length of Defendant's sentence is wholly appropriate to his crime and does not constitute extraordinary and compelling circumstances.
Even if the circumstances Defendant relies on constituted extraordinary and compelling circumstances, the Section 3553(a) factors counsel against release. As noted above, the Defendant's decision to murder Scott Williams was wholly premeditated. After encountering Williams and arguing about who could sell drugs in that particular area, Defendant retrieved his handgun, traveled back to the area, and opened fire on Williams in the middle of a crowded commercial street. Defendant chased Williams, firing until his gun was empty, leaving Williams to die. As noted above, Defendant shot Williams eight times. It is hard to imagine a more heinous crime than a wholly premeditated murder in a busy commercial area, and the effects of that murder continue today. As Mr. Williams' mother relates in her September 13, 2023, letter:
“My family and I will forever miss Scottie, we talk about him all the time, but sometimes I can't [be] cause when I do start to cry [and] I can't stop. Everyday every minute I see his face. I love him and miss him so. I can go on and on . . . [b]ut I'm not. What I ask is that Mr. Mayard stays behind bars until time served. No matter what good deed or classes he's taking that means nothing to me. He took my son's life, ran him down like a dog in the street. Every year, birthday, holiday I suffer. I'm not the same person at all. My daughter is still teaching in school but she suffers from anxiety and depression.(Dkt. no. 63 at 3-4.) (cleaned up). Because of the seriousness of Defendant's offense, he is not entitled to a reduction in sentence.
IV. Conclusion
For the reasons set forth above, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c), (see dkt. no. 60), is denied.
The Clerk of the Court shall close docket entry number 60 and mail a copy of this order to Defendant.
SO ORDERED.