Opinion
CRIMINAL NO. 2:11cr73
2021-05-11
UNITED STATES of America, v. Montarius MURRY, Defendant.
Counsel for United States: Emily Rebecca Gantt, Assistant United States Attorney, 101 W. Main Street, Suite 8000, Norfolk, VA 23510. Counsel for Defendant: Keith L. Kimball, Wilfredo Bonilla, Jr., Assistant Federal Public Defender, 150 Boush Street, Suite 403, Norfolk, VA 23510, Andrew James Frisch, Jolene Frederique LaVigne-Albert, Schlam Stone & Dolan, LLP, 26 Broadway, 19F, New York, NY 10004, Richard Nash Pratt Naylor, Murphy & McGonigle, PC, 4870 Sadler Road, Suite 301, Glen Allen, VA 23060.
Counsel for United States: Emily Rebecca Gantt, Assistant United States Attorney, 101 W. Main Street, Suite 8000, Norfolk, VA 23510.
Counsel for Defendant: Keith L. Kimball, Wilfredo Bonilla, Jr., Assistant Federal Public Defender, 150 Boush Street, Suite 403, Norfolk, VA 23510, Andrew James Frisch, Jolene Frederique LaVigne-Albert, Schlam Stone & Dolan, LLP, 26 Broadway, 19F, New York, NY 10004, Richard Nash Pratt Naylor, Murphy & McGonigle, PC, 4870 Sadler Road, Suite 301, Glen Allen, VA 23060.
MEMORANDUM 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 through counsel on February 5, 2021. ECF No. 470.
I. Background
On October 21, 2011, the Defendant pled guilty to Counts One and Five of a five-count Indictment. Count One charged him with Conspiracy to Interfere with Commerce by Robbery, in violation of 18 U.S.C. § 1951, and Count Five charged him with Using and Carrying a Firearm During and in Relation to a Crime of Violence Causing Death, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1). On February 2, 2012, the court sentenced the Defendant to two hundred forty (240) months imprisonment and three (3) years supervised release on Count One, and five hundred sixteen (516) months imprisonment and five (5) years supervised release on Count Five, to be served concurrently with Count One. On September 17, 2012, the court reduced the Defendant's term of imprisonment to one hundred twenty (120) months on Count One and two hundred fifty-eight (258) months on Count Five.
On February 5, 2021, the Defendant filed the instant Motion for Compassionate Release, and various exhibits and filings in support. ECF Nos. 470, 471, 475, 481. The United States filed a Response in Opposition on March 22, 2021, and the Defendant filed a reply on April 13, 2021. ECF Nos. 491, 500.
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." Id. 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 requested compassionate release from the warden of his facility on June 11, 2020. See ECF No. 475 at 3-4. On June 25, 2020, he received an unusual response that his request could not be considered because it was not sufficiently specific. See ECF No. 475 at 4. Thereafter, the Defendant submitted another request "in the weeks following June 25, 2020," attempting to correct the deficiency in his prior request. ECF No. 475 at 5. The Bureau of Prisons ("BOP") has not responded to that request, nor did the BOP respond to a follow-up email from the Defendant dated January 16, 2021. See U.S. Resp. at 9; ECF No. 475 at 6. Therefore, the United States concedes that 30 days have lapsed since the BOP received the Defendant's request for compassionate release, and the court concludes that he has satisfied the exhaustion requirement under 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 § 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. Dec. 2, 2020). 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. 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.’ " Id. at 284 (alteration omitted) (quoting United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020) ).
A.
The Defendant requests immediate release because of the dangers posed by the Coronavirus ("COVID-19") pandemic and because he argues that his conviction on Count Five is now unconstitutional under United States v. Taylor, 979 F.3d 203 (4th Cir. 2020), where the Fourth Circuit held that attempted Hobbs Act robbery is not a "crime of violence" under § 924(c), and therefore, is not a valid predicate offense for the Defendant's § 924(c) conviction.
Related to his arguments under Taylor, the Defendant currently has a habeas appeal pending in the Fourth Circuit directly related to that case, and that appeal is being held in abeyance pending a decision by the Supreme Court to grant or deny certiorari review in Taylor. The Defendant argues that the instant Motion for Compassionate Release "is one for expediting" his "impending release" under Taylor. However, this court will not predict what affect the disposition of the Defendant's appeal will have on his total sentence, because even if the Defendant's conviction on Count Five is vacated, this court could decide to resentence the Defendant on Count One. See United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) (noting that "the most ‘appropriate’ remedy" for § 2255 defendants is "to permit resentencing"). Therefore, the court will address issues related to the validity of the Defendant's sentence when the Fourth Circuit has disposed of his appeal. For the purposes of the instant Motion, this court will focus on the Defendant's primary argument for a sentence reduction based on the dangers posed by the COVID-19 pandemic.
B.
"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, No. 3:19cr112, 2020 WL 1821457, at *7, 453 F.Supp.3d 832 (E.D. Va. Apr. 10, 2020) (Novak, J.) (emphasis added). The Defendant, who is only 30 years old, argues that he is particularly susceptible to extreme illness or death from COVID-19 because he is overweight, has asthma for which he uses and inhaler, and is a former cigarette smoker. Mot. at 7-10. However, for various reasons, the Defendant fails to show that he is particularly susceptible to COVID-19 because of these medical conditions. Specifically, the Defendant's asthma appears to be "well-controlled," ECF No. 493, see ECF No. 481-1 at 14 ; he has not regularly smoked cigarettes in over ten years ago, and before that, only smoked from ages 15 to 19, see Mot. at 8-9; and he is not so overweight that he is considered obese, see Mot. at 10. Moreover, the Defendant has already tested positive for the virus and recovered without any serious complications, which undercuts the argument that he is particularly susceptible to extreme illness or death from COVID-19, as well as his assertion that the BOP would be ineffective in managing his illness in the off-chance he contracts COVID-19 again. See Mot. at 10; ECF No. 481-1.
Most importantly, the Defendant fails to show both a particularized susceptibility to COVID-19 and a risk of contracting the virus because he has now received the second and final dose of the highly effective Pfizer-BioNTech COVID-19 vaccine. ECF No. 504. The combined efficacy of the vaccine and the Defendant's previous COVID-19 infection strongly suggests that he has little, if any, risk of contracting or suffering serious illness from COVID-19, even if Fort Dix has another outbreak, which is speculative at best given the BOP's vaccination roll-out. See U.S. v. Sanders, No. CR SAG-06-087, 2021 WL 1428546, at *3 (D. Md. Apr. 15, 2021) (holding that defendant's "vaccination status remove[d] his other medical conditions from the category of risk constituting an ‘extraordinary and compelling reason,’ " and collecting cases concluding the same); United States v. Burks, No. 3:14-CR-208-MOC-1, 2021 WL 1394857, at *3 (W.D.N.C. Apr. 13, 2021) (holding that the continued threat of COVID-19 was not an extraordinary or compelling reason for release because "by accepting vaccination," the 74-year-old defendant with heart disease, diabetes, and hypertension, exercised "effective self-care against the virus"); United States v. Williams, No. 5:01-CR-00012-KDB, 2021 WL 966028, at *3 (W.D.N.C. Mar. 15, 2021) (finding that defendant did not show "extraordinary and compelling reasons" because he would not be particularly susceptible to COVID-19 after being fully vaccinated).
According to the Centers for Disease Control and Prevention ("CDC"), the Pfizer-BioNTech vaccine is 95% effective in preventing COVID-19 for individuals without previously confirmed COVID-19 infection. CDC, Pfizer-BioNTech COVID-19 Overview and Safety, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Pfizer-BioNTech.html.
C.
Furthermore, the factors in 18 U.S.C. § 3553(a) weigh against compassionate release at this juncture. The court acknowledges and credits the Defendant's participation in numerous rehabilitative, educational, and work programs while incarcerated. See Mot. at 24-25. However, at this juncture, these accomplishments do not outweigh the extreme seriousness of the Defendant's offense conduct, which resulted in the loss of life. The Defendant helped plan and recruit co-conspirators for a robbery of the Gold Shop in Portsmouth, Virginia. PSR ¶¶ 9-18. He received a two-level enhancement for recruiting a minor to commit a crime. Id. ¶ 23. Even more serious, the Defendant was only one of two individuals that physically entered the Gold Shop to carry out the armed robbery, which resulted in the death of an innocent employee after the Defendant's co-conspirator shot him with a firearm that the Defendant helped procure. Id. ¶¶ 10, 11, 16. At this juncture, reducing the Defendant's sentence or releasing him to home confinement under 18 U.S.C. § 3582(c)(1)(A) would not reflect the seriousness of the offense, promote respect for the law, protect the public, or provide adequate deterrence. See 18 U.S.C § 3553(a).
IV. Conclusion
The Defendant cannot demonstrate extraordinary and compelling reasons that warrant his immediate compassionate release, or a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Accordingly, the Defendant's Motion is DENIED .
The court is sympathetic to the Defendant's argument that incarceration during the COVID-19 pandemic has created unusually difficult conditions that make life in prison "harsher" than non-pandemic times, but the court does not find that this constitutes an extraordinary and compelling reason for compassionate release because such conditions are not particular to the Defendant. All inmates, as well as non-incarcerated individuals, have endured isolation, the fear of contracting the virus, limits on movement and programming, and restrictive protocols due to the pandemic. See United States v. Burks, No. 3:14-CR-208-MOC-1, 2021 WL 1394857, at *4 (W.D.N.C. Apr. 13, 2021).
After a full examination of the briefs and the record, the court has determined that a hearing is unnecessary because the facts and legal arguments are adequately presented, and the decisional process would not be aided significantly by oral argument. See E.D. Va. Local Crim. R. 47(J).