Opinion
4:21-CR-21-CDL-MSH
06-07-2023
UNITED STATES OF AMERICA, v. GEORGE W. SNIPES, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant George W. Snipes' motion for a reduction of his sentence and for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (ECF No. 27). For the reasons stated below, it is recommended that his motion be granted, and his sentence be reduced to time served.
BACKGROUND
On June 23, 2021, Snipes waived indictment and pleaded guilty under an information to a single count of mail fraud pursuant to 18 U.S.C. § 1341. Information 12, ECF No. 1; Plea Sheet 1, ECF No. 7. In the plea agreement, Snipes stipulated the Government could prove that two clients-J.W. and L.C.-retained Snipes to represent them after they were jointly involved in an automobile accident. Plea Agreement 9, ECF No. 6. Without either client's knowledge or authorization, Snipes settled their case with USAA Insurance Company for $48,000 and directed the settlement checks to be sent to his office. Id. at 9-10. Snipes kept the funds for himself and converted them for personal use. Id. at 10. For purposes of his plea, Snipes admitted that, from 2017 to the date of the Information, with the intent to defraud, he placed, in an authorized depository for mail, a request for funds for the payment of J.W.'s and L.C.'s medical expenses and lost wages, knowing those funds would not reach the intended recipients, all in violation of 18 U.S.C. § 1341. Id. at 10-11. Further, Snipes stipulated he made numerous unauthorized distributions from his Interest on Lawyers Trust Account (“IOLTA”), including distributions for personal use, a business rental company, Parent-Teacher Associations, storage facilities, cash withdrawals, and checks written to Snipes. Id. at 10.
Following Snipes' guilty plea, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) (ECF No. 14) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). The maximum term of imprisonment for the offense for which he pleaded guilty is twenty years. PSR ¶ 75, ECF No. 14; 18 U.S.C. § 1341. Snipes' offense level was 26, and he had a criminal history category of I; therefore, the guideline imprisonment range was 63 to 78 months. PSR ¶ 76. After considering an increase for monetary loss to the victims and a three-level reduction for acceptance of responsibility by pleading guilty, the total offense level was 24 and the guideline range was decreased to 51 to 63 months. PSR ¶¶ 77-78. On October 20, 2021, the Court sentenced Snipes to 51 months' imprisonment followed by three years of supervised release. Judgment 2-3, ECF No. 20. Later, Snipes was credited for the 362 days he spent in state custody following his arrest, leaving him with a total term of imprisonment of 39 months and 3 days. Mot. for Credit 1-9, ECF No 23; Order 1, Oct. 14, 2022, ECF No. 24.
The Court received Snipes' motion to reduce his sentence and for compassionate release on April 17, 2023 (ECF No. 27), and an amendment to his motion on May 12, 2023 (ECF No. 29). The Government responded on May 17, 2023 (ECF No. 32). Snipes' motion is ripe for review.
DISCUSSION
I. Defendant's Motion
Snipes moves, through counsel, for a reduction of his sentence and for compassionate release under 18 U.S.C. § 3582(c)(1)(A), citing “the significant risks to [his] life due to his present and pre-existing medical conditions.” Mot. for Compassionate Release 5, ECF No. 27. Snipes claims his health conditions, including Type 2 diabetes, coronary artery disease, stent in his artery, high blood pressure, diabetic neuropathy, torn meniscus, chronic kidney disease, and recent diagnosis of colon cancer are “extraordinary and compelling” circumstances that warrant his release. Id. at 2, 5-12.
Snipes argues the sentencing factors set forth in 18 U.S.C. § 3553(a) show he is “deserving” of release, and that the Court should find there are “extraordinary and compelling reasons” for his release pursuant to Note 1 of § 1B1.13. Id. at 6-12. In an amendment to his motion for compassionate release, Snipes' counsel uncovered further medical problems that developed since Snipes has been incarcerated, including the need for a wheelchair and a colostomy bag, as well as a statement from a close friend of Snipes indicating he is “too weak” for a needed surgery. Am. Mot. for Compassionate Release 12, ECF No. 29.
The Government responded and argued Snipes has not met his burden to show his medical conditions are an “extraordinary and compelling reason” for his release, therefore the Court need not consider the 18 U.S.C. § 3553(a) sentencing factors or any policy considerations. Gov't's Resp. 2-19, ECF No. 32. The Court disagrees with the Government and finds that Snipes' medical conditions meet the requirements for U.S.S.G. § 1B1.13 cmt. n.1(A), and he is eligible for release under the applicable policy considerations.
II. Compassionate Release Standard
A district court “‘may not modify a term of imprisonment once it has been imposed except' under certain circumstances.” United States v. Harris, 989 F.3d 908, 909 (11th Cir. 2021) (quoting 18 U.S.C. § 3582(c)). One circumstance is the compassionate release exception provided in 18 U.S.C. § 3582(c)(1)(A). Id. at 909-10. Under that section, a prisoner may obtain compassionate release if, “after considering the factors set forth in [18 U.S.C § 3553(a)],” the district court finds that “extraordinary and compelling reasons warrant such reduction . . . and that such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). A district court need not assess the requirements in a particular order. United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021) (“[N]othing on the face of 18 U.S.C. § 3582(c)(1)(A) requires a court to conduct the compassionate-release analysis in any particular order.”). In addition to extraordinary and compelling reasons warranting a reduction, compassionate release may also be granted to a defendant who is over 70 years old and has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c). 18 U.S.C. § 3582(c)(1)(A)(ii).
Prior to enactment of the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115391, 132 Stat. 5194 (2018), compassionate release was available only upon a motion from the Director of the Bureau of Prisons (“BOP”). The First Step Act authorized prisoners to move directly for a sentence reduction in district court after exhausting all administrative remedies. Pub. L. No. 115-391, § 603(b)(1), 132 Stat. 5194, 5239; Harris, 989 F.3d at 909-10. Prisoners are permitted to bring such motions “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility.”
Here, the Government does not dispute Snipes exhausted his administrative remedies prior to filing his motion for compassionate release. See Gov't's Resp, n.2. Having determined Snipes is authorized to bring his own motion for compassionate release, the Court must make three findings to grant him a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Tinker, 14 F.4th at 1237-38. First, there must be an extraordinary and compelling reason for release; second, a sentence reduction must be consistent with the policy statement listed in U.S.S.G. § 1B1.13; and third, the factors listed in § 3553(a) must weigh in favor of compassionate release. Id.; see also United States v. Giron, 15 F.4th 1343, 1347 (11th Cir. 2021). The Court concludes the requirements for these three findings are met; therefore, it is recommended that Snipes' motion be granted, his sentence be reduced to time served, and he be granted compassionate release.
A. Extraordinary and Compelling Reasons
The Sentencing Commission policy statement provides four circumstances that constitute extraordinary and compelling reasons for a sentence reduction. U.S.S.G. § 1B1.13 cmt. n.1. If any of the circumstances are met, extraordinary and compelling circumstances exist. Id. The first is a qualifying medical condition. U.S.S.G. § 1B1.13 cmt. n.1(A). A medical condition qualifies if “[t]he defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory).” U.S.S.G. § 1B1.13 cmt. n.1(A)(i). A defendant need not show a “probability of death within a specific time period,” and “[e]xamples include a metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.” Id. In the alternative, a defendant's medical condition qualifies if he or she 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.U.S.S.G. § 1B1.13 cmt. n.1(A)(ii).
Snipes argues his circumstances meet the requirements of a qualifying medical condition. Mot. for Compassionate Release 6-7. The Court agrees. As described above, Snipes has several diagnosed medical conditions from which he is not expected to recover, including Type 2 diabetes, coronary artery disease, high blood pressure, diabetic neuropathy, and chronic kidney disease. Id. at 2, 6-7. Further, since he entered prison, Snipes' health has only deteriorated. He has been diagnosed with and operated on for colon cancer. Id. at 6. He has lost over fifty pounds since he started his sentence. Id. Counsel later learned that Snipes now requires a colostomy bag, is bound to a wheelchair, and he suffered complications from his first surgery that required a second procedure. Am. Mot. for Compassionate Release 1-2; Gov't's Resp. n.5.
The Government argues Snipes' medical conditions are not significant or lifethreatening enough to warrant a reduction in his sentence. Gov't's Resp. 6-14. Their argument focuses on the supposed seriousness of Snipes' conditions, that his cancer and kidney disease are not “advanced,” and that he can self-care and receive adequate treatment in prison. Id. at 7-14. The Government provided Snipes' medical records to bolster their argument he is ineligible for release, but these records only support Snipes' claim for a qualifying medical condition. The records show, and the Government recognizes, that while Snipes' cancer is classified as Stage I, he had low anterior resection surgery, which resulted in complications-including septic shock-that required a second surgery for a colectomy and a colostomy bag, which is permanent. Gov't's Resp. 7-8, n.5; Gov't's Ex. 18, 22, 30, 33, 38, 58, ECF No. 33. Further, the Government argues Snipes' chronic kidney disease is not serious, because it is only Stage 3. Gov't's Resp. 9. They note that, in some cases, Stage 3 kidney disease does not progress to kidney failure, especially “with treatment and healthy life changes.” Id. (citing Stage 3 chronic kidney disease (CKD), AMERICAN KIDNEY FUND, https://www.kidneyfund.org/all-about-kidneys/stages-kidney-disease/stage-3-chronic-kidney-disease-ckd (last visited June 5, 2023)).
Despite noting the existence of some of Snipes' health conditions, the Government fails to recognize the combined effect of these illnesses, as well as the effects of his many other health problems and the various medications he takes. Aside from cancer and chronic kidney disease, Snipes has Type II diabetes, hyperlipidemia (high cholesterol), heart failure, hypokalemia (low potassium), anxiety, stable infrarenal aortic aneurysm, malnutrition, and a Vitamin D deficiency-most of which require medications, including oxycodone. Gov't's Ex. 2-3 (pharmacy note from May 12, 2023). While Stage 3 kidney disease may not worsen for some people, the Government fails to consider the potential effects of Snipes' other health problems in combination with his kidney disease.
Ultimately, the Government improperly viewed Snipes' medical conditions in isolation and by their definitions alone without considering Snipes' overall health and the complications he has suffered because of his illnesses. Moreover, Snipes is 70 years old, and it is unlikely his health conditions will improve with “healthy life changes.” See, e.g., United States v. Asher, 467 F.Supp.3d 1285 (N.D.Ga. 2020) (granting compassionate release to 54-year-old prisoner who committed a non-violent offense, partly due to his long-term health conditions that were unlikely to improve).
The Court finds, viewing all Snipes' medical conditions together, he has shown he is “suffering from a serious physical or medical condition . . . 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.” U.S.S.G. § 1B1.13 cmt. n.1(A)(ii)(I); see United States v. Reynolds, No. 14-cr-80227-MIDDLEBROOKS, 2020 WL 4333504 (S.D. Fla. July 8, 2020) (granting compassionate release to inmate with multiple health conditions that required him to use a catheter and a wheelchair). Because Snipes' health problems are serious and he is not expected to recover from them, he has shown extraordinary and compelling reasons for the purposes of a sentence reduction. U.S.S.G. § 1B1.13 cmt. n.1.
B. Policy Considerations
After reviewing Snipes' motion, the Government's response, and the medical records submitted, the Court finds a sentence reduction is warranted and is consistent with the Sentencing Commission's policy statement for compassionate release found in U.S.S.G. § 1B1.13. Under that policy statement, a defendant must show he “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C § 3142(g).” U.S.S.G. § 1B1.13(2). Factors for consideration include:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including [] the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, [and] criminal history[]; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
First, it is undisputed that Snipes' crime was not one of violence. He pleaded guilty to a single count of mail fraud in violation of 18 U.S.C. § 1341. See Plea Sheet. While this crime is serious, as reflected by his four-year sentence, it did not involve violence, terrorism, minor victims, firearms, or any of the other considerations listed in § 3142(g)(1). See United States v. Bass, 462 F.Supp.3d 176, 188-89 (N.D.N.Y. 2020) (granting compassionate release and finding the § 3142(g) factors weighed in favor of defendant who was convicted for mail fraud).
Other factors weigh against Snipes being considered a danger to the community. He had no criminal history prior to pleading guilty to mail fraud. PSR ¶¶ 51-53. When he was arrested by state authorities and jailed, he surrendered his law license. Addendum to PSR 2, ECF No. 14-1. Snipes was formally disbarred by the Georgia Supreme Court in 2018, and he agreed he may not reapply for admission to the state bar; therefore, he lacks the means to commit the same crime again. Plea Agreement 6-7. Further, he is 70 years old. PSR 2 (listing Snipes' date of birth as June 9, 1953). He requires a wheelchair to get around and has a permanent colostomy bag. See Gov't's Ex. 11, 15, 17, 20, 27, 29, 30, 33 (BOP medical records referring to Snipes' wheelchair and colostomy bag). Given his condition, and his permanent inability to practice law in Georgia, he is unlikely to recidivate.
In sum, Snipes' release would not pose any danger to the community. See United States v. Woolfolk, No. 5:19-cr-37-MTT, at 8-9 (M.D. Ga. Nov. 4, 2022) (granting compassionate release to defendant whose crime was nonviolent and was unlikely to recidivate); see also, e.g., United States v. Luna, 478 F.Supp.3d 859, 863 (N.D. Cal. 2020) (finding defendant's nonviolent offense, chronic health conditions, and older age made him less likely to recidivate and not a danger to the community).
C. § 3553(a) Factors
Finally, if the Court finds the prisoner is “not dangerous and his circumstances fit into an approved category, then he is eligible, and the court moves on to consider the Section 3553(a) factors in evaluating whether a reduction should be granted.” United States v. Bryant, 966 F.3d 1243, 1253 (11th Cir. 2021). In Snipes' case, a sentence reduction and compassionate release are appropriate in light of the factors set forth in 18 U.S.C. § 3553(a). These factors include:
(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; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.United States v. Macli, 842 Fed.Appx. 549, 552 n.1 (11th Cir. 2021) (per curiam) (citing 18 U.S.C. § 3553(a)).
“The weight given to any specific § 3553(a) factor is committed to the sound discretion of the district court.” Tinker, 14 F.4th at 1241 (citation and internal quotation marks omitted). A Court need not address each factor or all the evidence, and it is sufficient “that the district court considered a number of the factors such as the nature and circumstances of the offense [and] the defendant's history of recidivism[.]” Id.
The Court has considered the § 3553(a) factors, and to the extent they are applicable, finds they weigh in favor of reducing Snipes' sentence to time served. Notably, the nature and circumstances of the offense and Snipes' history and characteristics tend to show he is entitled to release. As discussed, Snipes pleaded guilty to the nonviolent offense of mail fraud, and he had no prior criminal record. See Plea Agreement; PSR ¶¶ 51-53. Further, there is no real need for deterrence in this case, given Snipes surrendered his law license, and his risk of recidivism is low. See United States v. Colvin, 451 F.Supp.3d 237, 241-42 (D. Conn. 2020) (finding a defendant convicted of mail fraud was not a danger to the community and the § 3553(a) factors weighed in favor of her release).
Finally, Snipes has already served the majority of his sentence. He was sentenced to 51 months' imprisonment and three years of supervised release. See Judgment 1-2. Later, he was credited the 362 days he spent in state custody prior to his sentencing. Mot. for Credit; Order, Oct. 14, 2022. He has been incarcerated from October 2021 until the present, plus the 362 days he was in state custody after his arrest, for a total of over 31 months (19 months, plus the 12 months credited). That is more than half of his 51-month sentence. The Government does not present any evidence Snipes has had disciplinary issues while incarcerated; to the contrary, the BOP records show he has been largely compliant with prison staff throughout his medical treatment. See Gov't's Ex. 12, 44.
Given the time Snipes has already spent incarcerated for his crime, the Court finds it would not serve the statutory goals of reflecting the seriousness of the offense, deterring future crimes, providing just punishment, and promoting respect for the law to keep him behind bars for the remainder of his sentence. See 18 U.S.C. § 3553(a); see also United States v. Bailey, No. 1:04-cr-17-WLS, at 15 (M.D. Ga. June 11, 2020) (granting compassionate release to chronically ill 75-year-old, even though convicted of a violent crime, because it would serve no “just purpose” to keep him incarcerated). Moreover, the goal of “provid[ing] the defendant with . . . medical care” can better be served by releasing Snipes so he can gain greater access to needed healthcare services for his serious medical conditions. 18 U.S.C. § 3553(a)(5). Accordingly, the Court finds that Snipes is not a danger to the community, and the § 3553(a) factors weigh in favor of his release.
CONCLUSION
For the foregoing reasons, it is recommended that Snipes' motion for compassionate release (ECF No. 27) be GRANTED, and his sentence of imprisonment be REDUCED to time served. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.