Opinion
CRIMINAL ACTION NO. 1:89-cr-00001-AT-ALC-1
2020-12-30
UNITED STATES of America, v. Alan Sam POULNOTT
F. Gentry Shelnutt, Jr., Christopher Bly, Office of United States Attorney Northern District of Georgia, D'Juan B. Jones, DOJ-USAO, Atlanta, GA, for United States of America.
F. Gentry Shelnutt, Jr., Christopher Bly, Office of United States Attorney Northern District of Georgia, D'Juan B. Jones, DOJ-USAO, Atlanta, GA, for United States of America.
ORDER
Amy Totenberg, United States District Judge
On December 8, 2020, Defendant Alan Sam Poulnott filed a Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A). [Doc. 58.] The Court ordered the Government to respond to the motion and on December 29, 2020, the Government filed a brief stating that it "does not oppose Defendant's motion." (Non-Opposition Response, Doc. 61 at 1.) For the reasons that follow, the Defendant's motion is GRANTED subject to the particular release terms and modifications set forth below.
I. BACKGROUND
In July 1989, the Defendant was convicted of twelve counts relating to a string of bank robberies – six counts for the robberies, and six counts for the corresponding use of a firearm in violation of 18 U.S.C. § 924(c). (See Presentence Report at ¶ 53 ("PSR").) The Defendant was sentenced to 70 months for the bank robberies, and an additional 780 months for the violations of 18 U.S.C. § 924(C). (Order Amending Judgment and Commitment, Doc. 58-1 at 1.) At the time, the use of a firearm during a crime of violence ( 18 U.S.C. § 924(c)(1) ) created a mandatory 5-year sentence for the first conviction. Then, each additional conviction under section 924(c) was "stacked" on top of the first one such that the next four convictions each added a consecutive 10-year sentence, and the sixth conviction added a consecutive 20-year sentence. Although the bank robberies themselves resulted in a sentence of just under six years of imprisonment, the section 924(c) convictions – of course inextricably tied to the bank robbery charges – accounted for 65 additional years of imprisonment. In other words, the Defendant was sentenced to over ten times as long in prison for carrying a gun as he was for actually robbing banks. Prior to this, the Defendant had only one prior conviction, for shoplifting a few small items worth less than $12.00. (PSR at ¶ 46.)
The Defendant now seeks compassionate release pursuant to the First Step Act. The Defendant states that a confluence of issues necessitates his compassionate release, including that he has served approximately 32 years in prison, and that "he is 58 years old and has developed several serious medication conditions during his decades of incarceration." (Motion, Doc. 58 at 4; see also BOP Health Problems, Doc. 58-3.) Notably, the Defendant has Type 2 Diabetes, hyperlipidemia, and severe periodontal disease. (Id. ) These conditions exacerbate one another and result "in a high risk of heart disease and a shortened life span[,]" according to the Defendant. (Id. ) The Defendant supplied a letter from Dr. Arnold Seto, a cardiologist, who finds that the Defendant is "at risk of developing atherosclerotic cardiovascular disease" and that without proper treatment, his diabetes places him at risk of "kidney disease, blindness, and peripheral vascular disease." (Seto Declaration, Doc. 58-4.) The Defendant also supplied a letter from a dentist, Dr. Doyle, who attests that the Defendant's periodontal disease is "atypically severe for his age[,]" and results in a suppressed immune system, putting him at greater risk of severe illness or death if he were infected with COVID-19. (Motion, Doc. 58 at 5–6; and Doyle Declaration, Doc. 58-5.)
Despite his health concerns, the Defendant has dedicated himself to rehabilitation while in prison, completing a drug education program, beating his own drug addiction, earning a GED, and working for UNICOR. (Motion, Doc. 58 at 6–7; Inmate Profile, Doc. 58-6; Education Certificates, Doc. 58-9.) The Defendant has worked himself up to the highest attainable position at the UNICOR factory, a position he has held successfully for over 20 years. (Id. ) The Defendant's supervisors and managers supplied letters of recommendation attesting further to his rehabilitation, and his likelihood of success upon release. (Letters, Doc. 58-7.) Additionally, the Defendant has worked to maintain a relationship with his family, and has tried to provide support to his son and the rest of his family. (Doc. 58 at 9; Family Letters, Doc. 58-10.)
Beyond his health concerns and substantial showing of rehabilitation the Defendant notes also that he had no serious prior criminal history at the time of his conviction, and that he would likely be sentenced to a dramatically lower period of incarceration for the same crimes were he to be sentenced today.
II. STANDARD OF REVIEW
Before the enactment of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 ("First Step Act"), compassionate release was only available if the Bureau of Prisons ("BOP") filed a motion requesting it. See 18 U.S.C. § 3582 (2002) ; see also U.S.S.G. § 1B1.13 ("Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce the term of imprisonment."). Now, however, the First Step Act enables a defendant to file a motion for compassionate release directly with the sentencing court, provided he has "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of [his] facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A).
Where the exhaustion requirement is satisfied, the First Step Act authorizes a court to modify a term of imprisonment if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent they are applicable, the court determines that,
(1)(A) extraordinary and compelling reasons warrant the reduction; or
(B) The defendant
(i) is at least 70 years old; and
(ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned;
(2) 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
(3) the reduction is consistent with this policy statement.
U.S.S.G. § 1B1.13. Section (1)(B)(ii) deals with sentences imposed under section 3559(c), and is not relevant to the Court here. The Sentencing Commission's policy is found in § 1B1.13 of the Guidelines and that section's accompanying Application Notes. Application Note 1 to this section lists three specific circumstances that would qualify as "extraordinary and compelling:" (1) medical condition; (2) advanced age; and (3) family circumstances. Id. § 1B1.13 cmt. n.1. Application Note 1 includes a residual clause whereby the BOP may determine "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons" set out above. Id.
Section 3559 reads as follows:
(c) Imprisonment of certain violent felons.
(1) Mandatory life imprisonment.--Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if
(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of
(i) 2 or more serious violent felonies; or
(ii) one or more serious violent felonies and one or more serious drug offenses; and
(B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.
18 U.S.C. § 3559.
The Sentencing Commission has not updated this policy statement since the passage of the First Step Act. Section 1B1.13 therefore does not reflect the change in the procedural requirements for compassionate release. See United States v. Ebbers , 432 F. Supp. 3d 421, 427 (S.D.N.Y. 2020). Courts across the country – including this Court – still rely on § 1B.1.13 for guidance as to the "extraordinary and compelling reasons" that may warrant a sentence reduction. See United States v. Drummond , No. 1:97-cr-0019, Doc. 118 at 5 (N.D. Ga. Sept. 27, 2019) (viewing § 1B.1.13 as "non-binding guidance"); see also United States v. Solis , No. 16-015-CG-MU, 2019 WL 2518452, at *2–3 (S.D. Ala. June 18, 2019) ; United States v. Heromin , No. 8:11-cr-550-T-33SPF, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019). However, the Court is not limited to the technical requirements set forth in § 1B1.13 in assessing whether a defendant's application for compassionate release provides "extraordinary and compelling reasons" for a sentence reduction under § 3582(c)(1)(A)(i). See, e.g., United States v. Maria Ullings , No. 1:10-cr-406-MLB, Doc. 34 at 6, 2020 WL 2394096 (N.D. Ga. May 12, 2020) (citing United States v. Perez , 451 F. Supp. 3d 288, 294 (S.D.N.Y. 2020) ); United States v. Beck , 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019) ("While the old policy statement provides helpful guidance, it does not constrain the Court's independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A)(i)."); United States v. Beard , No. 1:16-CR-285-SCJ, Doc. 176 at 6-7, 10 (N.D. Ga. June 25, 2020); United States v. Kowalewki , No. 2:13-CR-45-RWS, Doc. 251 at 10 (N.D. Ga. Apr. 30, 2020); United States v. Hill , No. 1:05-CR-0081-LMM, Doc. 45 at 4 (N.D. Ga. June 10, 2020); United States v. Noble , No. 1:09-CR-315-MHC, Doc. 58 at 3-6 (N.D. Ga. Nov. 24, 2020).
III. DISCUSSION
As the District Court for the Eastern District of New York put it, "Congress has spoken. Loudly. It has clarified its intended deployment of § 924(c) and expressly outlawed the stacking option responsible for [Defendant's] incarceration today." United States v. Haynes , 456 F. Supp. 3d 496, 518 (E.D.N.Y. 2020). As a result of the First Step Act, if the Defendant were sentenced today, he would be sentenced to a dramatically shorter period of incarceration, and would potentially have already served that sentence.
The Defendant submitted a Request for Compassionate Release to the Warden of the prison on October 29, 2020. (See Tinto Declaration, Doc. 58-11 at 2.) Over thirty days have passed since the Defendant made his request, so he is entitled to file directly with this Court, and he is considered to have exhausted his administrative filing requirements. See 18 U.S.C. § 3582(c)(1)(A). Accordingly, the Defendant now properly invokes section 3582(c)(1)(A) and requests that this Court grant him a reduction in his sentence to time served.
a. Section 3553(a) factors
Defendant satisfied the exhaustion requirement, so the Court moves on to consider the factors set forth in section 3553(a). The Court has considered those factors, and specifically the Defendant's history (including lack of serious prior criminal history) and personal characteristics; the nature and circumstances of his offense; the need for the sentence to reflect the seriousness of the offense and provide just punishment; the need for the sentence to afford adequate deterrence, both generally and specifically; the range of sentences available for the Defendant's crimes; and pertinent policy statements. See 18 U.S.C. § 3553(a). The Court further considered the fact that the Defendant has to date already served approximately 32 years in prison for his crimes.
b. Extraordinary and compelling circumstances
The possibly dramatic difference between the sentence the Defendant received in 1989 and the sentence that the Defendant would receive today is itself an extraordinary and compelling reason to provide the relief sought by the Defendant. United States v. Young , 458 F. Supp. 3d 838, 848 (M.D. Tenn. 2020) (finding that "the drastic change effected by the First Step Act's amendment of § 924(c) constitutes an extraordinary and compelling reason for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)" when combined with Defendant's advanced age and rehabilitation) (citing United States v. Maumau , No. 2:08-CR-758-TC, 2020 WL 806121, at *7 (D. Utah Feb. 12, 2020) ("[T]his court concludes that the changes in how § 924(c) sentences are calculated is a compelling and extraordinary reason to provide relief ...."); and United States v. Urkevich , No. 8:03CR37, 2019 WL 6037391, at *4 (D. Neb. Nov. 14, 2019) ("A reduction in his sentence is warranted by extraordinary and compelling reasons, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed.")). When combined with the Defendant's age, lack of serious prior criminal history, and current health concerns especially in light of the Coronavirus, the extraordinary reasons become yet more compelling.
The COVID-19 pandemic does not, standing alone, create an extraordinary and compelling reason for compassionate release under § 3582(c)(1)(A). United States v. Arey , 461 F. Supp. 3d 343, 351 (W.D. Va. 2020).
Of particular interest to the Court is that the Defendant has already served a substantial portion of time in prison – approximately 32 years – and is at heightened risk for an adverse health event in prison. The benefits of keeping the Defendant in prison are "minimal, and the potential consequences of doing so are extraordinarily grave." United States v. Fedor – Wilson Perez , No. 1:17-cr-513-AT (S.D.N.Y. Apr. 1, 2020) (Doc. 98 at 7). Furthermore, the Court finds 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). The reduction crafted herein by this Court is consistent with the policy statement found in section 1B1.13 of the Guidelines.
IV. CONCLUSION
For the reasons set forth in this Order, the Defendant's Motion for Compassionate Release Pursuant to U.S.C. § 3582(c)(1)(A) is GRANTED subject to the following specifications . [Doc. 58.]
The Defendant's sentence to the custody of the Bureau of Prisons is reduced to TIME SERVED . All other provisions of the original sentence remain the same. The implementation of this Order is stayed for up to fifteen days. During this period, Defendant shall quarantine 14 days within his current BOP facility to ensure his safe release to his family. Also during this period, Probation shall verify Defendant's residence and/or establishment of a release plan, ensure appropriate travel arrangements have been made, and work with Defense counsel to ensure the Defendant's safe release. The Defendant shall be released as soon as Defendant's quarantine is completed and it is safe for the Defendant to travel. If more than fifteen days from this date are needed to make appropriate travel arrangements and ensure the Defendant's safe release, the parties shall immediately notify the court and show cause why the stay should be extended.
The Assistant United States Attorney in this matter or his designee is DIRECTED to contact the Bureau of Prisons immediately on this date (December 30, 2020) to notify an appropriate representative of the issuance of this Order and its requirements.
IT IS SO ORDERED this 30th day of December, 2020.