Opinion
No. 3:12-cr-00292-HZ
2023-03-22
UNITED STATES of America, Plaintiff, v. Sid Edward WILLIS Jr., Defendant.
Kelly Alexandre Zusman, United States Attorney's Office, 1000 SW 3rd Avenue, Suite 600, Portland, OR 97204, Attorney for Plaintiff. Elizabeth G. Daily, Jessica Greenlick Snyder, Office of the Federal Public Defender, 101 S.W. Main Street, Suite 1700, Portland, OR 97204, Attorneys for Defendant.
Kelly Alexandre Zusman, United States Attorney's Office, 1000 SW 3rd Avenue, Suite 600, Portland, OR 97204, Attorney for Plaintiff. Elizabeth G. Daily, Jessica Greenlick Snyder, Office of the Federal Public Defender, 101 S.W. Main Street, Suite 1700, Portland, OR 97204, Attorneys for Defendant. OPINION & ORDER HERNÁNDEZ, District Judge:
Defendant Sid Edward Willis Jr. moves the Court to reduce his sentence to time served under 18 U.S.C. § 3582(c)(1)(A)(i). ECF 173. The Government opposes Defendant's motion. Because Defendant has established extraordinary and compelling reasons to reduce his sentence and a reduced sentence complies with the sentencing factors under 18 U.S.C. § 3553(a), the Court grants Defendant's motion.
BACKGROUND
On July 22, 2013, Defendant pleaded guilty to one count of Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Plea Agr., ECF 54. On December 24, 2013, the Court sentenced Defendant to a mandatory minimum of 180 months imprisonment under the Armed Career Criminal Act ("ACCA") followed by a three-year term of supervised release. J. & Commitment, ECF 68. His term of imprisonment was to be served consecutively with a 60-month term of imprisonment for violating supervised release related to a prior case. Defendant is currently incarcerated at USP Victorville. Govt. Resp. 3, ECF 175.
In March 2016, Defendant filed a Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255, in which he asserted ineffective assistance of counsel, due process violation, and selective prosecution as grounds for relief. ECF 91, 99. The Court denied his Motion on June 9, 2017. Opinion & Order, ECF 135. In December 2018, Defendant filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, which the Court construed as a Motion under 28 U.S.C. § 2255 based on the claims Defendant made in the petition. ECF 152. The Court denied Defendant's Motion as a second successive petition for which he had not sought authorization from the Ninth Circuit and in which he had not made a substantial showing of denial of a constitutional right. Opinion & Order, ECF 155.
On January 13, 2022, the Court granted a joint motion by Defendant and the Government to reduce Defendant's sentence under Section 404 of the First Step Act on the supervised release violation. Opinion & Order, ECF 169. The Court reduced Defendant's 60-month consecutive sentence to 36 months, which he would serve concurrently. Defendant has completed that sentence. He continues to serve his sentence on the felon in possession conviction, and his projected release date is June 22, 2025. Govt. Resp. 3.
Defendant filed this pro se Motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A)(i) on December 6, 2022, seeking to reduce his 180-month sentence on the felon in possession conviction to time served. After the Government filed a response in opposition, the Court appointed counsel for Defendant, who filed a reply in support of his motion.
Because more than thirty days had lapsed after Defendant requested compassionate release from the warden when he filed this motion, Defendant has satisfied the exhaustion requirement of the statute. See 18 U.S.C. § 3582(c)(1)(A).
STANDARDS
A federal district court generally "may not modify a term of imprisonment once it has been imposed[.]" 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 824-25, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Under 18 U.S.C. § 3582(c)(1)(A), Congress provided an exception, commonly known as compassionate release, to reduce a defendant's sentence for "extraordinary and compelling reasons." Under the original statute, only the Director of the Bureau of Prisons ("BOP") could file a § 3582(c)(1)(A) motion for a sentence reduction on a defendant's behalf. United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021). But with the passage of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5191 (2018), Congress amended § 3582(c)(1)(A) to also allow a defendant, after first requesting the BOP move for a reduction on his or her behalf, to directly move the district court for a sentence reduction:
[T]he court, . . . upon motion of the defendant 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, whichever is earlier, may reduce the term of imprisonment . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—
18 U.S.C. § 3582(c)(1)(A).(i) Extraordinary and compelling reasons warrant such a reduction; [. . .] and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
The United States Sentencing Commission's policy statement identifies categories of extraordinary and compelling reasons, including the defendant's age, medical condition, and "family circumstances." U.S.S.G. § 1B1.13 app. n.1(A)-(C). The Sentencing Commission's policy statement, however, only applies to § 3582(c)(1)(A) motions filed by the BOP Director on behalf of a defendant. Aruda, 993 F.3d at 802. On a defendant's direct motion for compassionate release, the policy factors "may inform a district court's discretion . . . , but they are not binding." Id. (citation omitted). As a result, the Court may consider any extraordinary and compelling reason for release that a defendant might raise. Id.
If the court finds extraordinary and compelling circumstances, it must then determine whether the circumstances warrant a reduction (and, if so, the amount of reduction), after considering the factors set forth in 18 U.S.C. § 3553(a) and after considering whether the defendant is 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(4).
DISCUSSION
I. Extraordinary and Compelling Reasons
Defendant argues for compassionate release based on the following combination of factors: (1) under recent case law, his 180-month mandatory minimum sentence was never lawfully imposed; (2) he has served his sentence under extremely harsh conditions because of the COVID-19 pandemic and a culture of racism at Victorville USP; and (3) he has exhibited significant rehabilitation. Defendant does not claim that any these factors alone justifies reducing his sentence under 18 U.S.C. § 3582(c)(1)(A). Rather, he contends that the combination of circumstances establishes an extraordinary and compelling reason for compassionate release.
A. Sentencing Disparity
Under the ACCA, a person who is convicted under 18 U.S.C. § 922(g) of being a felon in possession of a firearm and "has three previous convictions in any court . . . for a violent felony or a serious drug offense, or both" is subject to a mandatory minimum term of imprisonment "not less than fifteen years." 18 U.S.C. § 924(e)(1). Otherwise, the maximum statutory sentence for a first felon in possession conviction is ten years imprisonment.
The ACCA fifteen-year mandatory minimum was applied to Defendant based on four prior convictions for drug offenses. Between 1998 and 2001, Defendant had three separate convictions in Oregon state court for delivery of crack cocaine. In 2004, he was convicted on a federal charge of possession with intent to distribute five grams or more of cocaine. Defendant has never been convicted of a violent offense. He asserts that, based on case law after his sentence was imposed, his Oregon state convictions do not qualify as predicate "serious drug offenses" that trigger the ACCA mandatory minimum. Thus, Defendant argues that his sentence was never lawfully imposed and should be reduced accordingly.
The Government contends that 18 U.S.C. § 3582(c)(1)(A) does not authorize defendants to bring a legal challenge to their originally imposed sentences and that such challenges must be brought under 28 U.S.C. § 2255. According to the Government, defendants cannot avoid the statutory requirements of the federal habeas statutes by challenging their sentences through compassionate release motions. See United States v. Ferguson, 55 F.4th 262, 270 (4th Cir. 2022) ("Because § 2255 is the exclusive method of collaterally attacking a federal conviction or sentence, a criminal defendant is foreclosed from the use of another mechanism, such as compassionate release, to sidestep § 2255's requirements."); United States v. Crandall, 25 F.4th 582,586 (8th Cir. 2022) ("[Defendants] cannot avoid the restrictions of the post-conviction relief statute by resorting to a request for compassionate release instead."). Defendant has filed two unsuccessful motions under 28 U.S.C. § 2255. He is foreclosed from filing another § 2255 motion unless certified to do so by a Ninth Circuit panel based on either newly discovered evidence or on a new rule of constitutional law made retroactive by the Supreme Court. See 28 U.S.C. § 2255(h).
Despite the Government's contention, the Ninth Circuit recently held that a criminal defendant may challenge their original sentence through a motion under 18 U.S.C. § 3582(c)(1)(A). United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022). In Chen, the Ninth Circuit addressed an emerging circuit split and held that courts may consider non-retroactive changes in sentencing law along with other extraordinary and compelling factors in determining whether to grant compassionate release. Id. at 1096-98.
On one side of the circuit split, the Third, Seventh, and Tenth Circuits have held that the First Step Act's non-retroactive changes may not be considered reasons to grant compassionate release, "whether offered alone or in combination with other factors. Id. at 1096. According to the Third Circuit, "the duration of a lawfully imposed sentence does not create an extraordinary and compelling circumstance" because "the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence." United States v. Andrews, 12 F.4th 255, 261 (3d. Cir. 2021) (citation omitted). Thus, "we will not construe Congress's nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release." Id. The Eighth Circuit concluded that "[t]he compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy." Crandall, 25 F.4th at 586.
In Chen, the Ninth Circuit joined the First, Fourth, and Tenth Circuits in concluding 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 for the purposes of § 3582(c)(1)(A)." 48 F.4th at 1098. The Ninth Circuit reasoned that, apart from two specifically expressed exceptions, Congress granted courts discretion to consider any factors or combination of factors particular to the defendant when determining whether to grant compassionate release. Id. "By not restricting the district court's ability to consider non-retroactive changes in sentencing law as an extraordinary and compelling reason under § 3582(c)(1)(A), Congress itself left open that possibility." Id. at 1101. But changes that impact a defendant's sentence are only one factor in the compassionate release analysis, which must be individualized for each defendant. Id. at 1100. Thus, a non-retroactive change in sentencing law may be a factor for courts to consider in combination with other factors specific to the individual defendant. Id. at 1101.
In his compassionate release motion, Defendant argues that he would not qualify as an armed career criminal under the ACCA if he were sentenced today. Based on case law subsequent to his sentencing, Defendant asserts that his three Oregon state court convictions for delivery of a controlled substance are not "serious drug offenses" under the ACCA and should not be predicate felonies that would trigger a fifteen-year mandatory minimum sentence.
In Chen, the court held that statutory changes to stacked sentencing under 18 U.S.C. § 924(c) that would change a defendant's sentence could be considered a factor in determining whether to grant compassionate release. 48 F.4th at 1094. The same rationale applies here, where case law has changed whether Defendant's prior drug offenses qualify as predicate felonies that trigger a fifteen-year mandatory minimum sentence under § 924(e). Thus, the Court is not prohibited from considering Defendant's argument as a factor for compassionate release.
A state criminal offense is a "serious drug offense" under the ACCA if it "involve[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). Courts use a categorial approach to determine whether a particular state offense meets the ACCA definition. Shular v. United States, — U.S. —, 140 S. Ct. 779, 784, 206 L.Ed.2d 81 (2020). Under the categorical approach, "[a] court must look only to the state offense's elements, not the facts of the case or labels pinned to the state conviction." Id. This Court has determined that the Oregon state offense of delivery of controlled substances punishes a broader range of conduct than that described in 18 U.S.C. § 924(e)(2)(A)(ii). See United States v. Young, No. 1:17-cr-00125-MC, 2019 WL 1928484, at *5 (D. Or. Apr. 30, 2019) (holding that the Oregon controlled substances statutes, which permit conviction based on "mere solicitation" are broader than the federal definition of "distribution"); Ernst v. United States, 293 F. Supp. 3d 1242, 1250 (D. Or. 2017) (concluding that "Oregon's drug delivery statute is not categorically a serious drug offense under the ACCA"). Thus, the Oregon statute under which Defendant was sentenced "is categorically overbroad for the purposes of the ACCA." Young, 2019 WL 1928484, at *5.
Accordingly, Defendant's state convictions for delivery of a controlled substance would not qualify as predicate felonies under the ACCA if he were sentenced today. And if his state drug convictions are not considered predicate felonies, Defendant would not be subject to the ACCA 180-month mandatory minimum sentence that he received for his felon in possession conviction. He would face a sentence of no more than 120 months imprisonment.
At the time he filed this motion, Defendant had served 126 months. Thus, Defendant has served a longer time for his felon in possession conviction than he would have without the ACCA enhancement. The Court finds that the disparity between the mandatory minimum sentence Defendant received and the maximum sentence he would face under current case law is an extraordinary and compelling reason to reduce his sentence.
But a subsequent change in law that would impact Defendant's original sentence does not on its own justify compassionate release. See Chen, 48 F.4th at 1098 (emphasis added) ("[D]istrict 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 for the purpose of § 3582(c)(1)(A)"). Thus, the Court must determine whether other factors, along with the sentence disparity, justify granting Defendant's motion for compassionate release under the totality of circumstances.
B. Other Factors
i. Conditions at Victorville USP
Defendant contends that he has served his sentence at Victorville USP under uniquely harsh conditions. He first asserts that the response by Victorville USP to the COVID-19 pandemic created particularly restrictive conditions of confinement, in which prisoners were locked down for 23 hours per day over several months. Defendant notes that the prison's pandemic response dramatically restricted prisoners' access to medical care, mental health care, and rehabilitative programming. Defendant also describes general concerns about racism among staff at Victorville USP. He presents as evidence a newspaper article describing an investigation into racial and gender discrimination by staff against other prison employees. See Def. Reply Ex. B, ECF 180-1.
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." United States v. Martinez, No. 15-CR-1299-2-GPC, 2022 WL 126306, at *4 (S.D. Cal. Jan. 13, 2022). As another court stated regarding the conditions at Victorville,
While the Court is sympathetic to the heightened stressors and hardships during the pandemic and diminished access to rehabilitative programming, the changed conditions adopted by the Bureau of Prisons ("BOP") in response to the pandemic are unlikely to constitute extraordinary and compelling reasons for compassionate relief when not taken in combination with other individual circumstances, because such conditions apply to most, if not all, federal inmates in BOP custody.Id.; see United States v. Bolden, No. CR16-320-RSM, 2020 WL 4286820, at *7 (W.D. Wash. July 27, 2020) ("[G]eneral conditions that affect inmates indiscriminately throughout the prisons are insufficient to support an individual defendant's claim for compassionate release.").
The pandemic-related prison conditions at Victorville USP applied to all prisoners, not just Defendant. And besides noting that he is a racial minority, Defendant does not explain how the concerns about racism among staff affect him individually. He does not point to any specific incidents in which he has been the target of racial hostility. Thus, the conditions under which Defendant has served his sentence do not on their own constitute an extraordinary and compelling reason to reduce his sentence.
Nonetheless, the generally harsh conditions at Victorville USP under which Defendant has served contributes to the analysis of extraordinary and compelling circumstances. See United States v. Brown, No. ELH-01-377, 2020 WL 5747194, at *11 (D. Md. Sept. 25, 2020) (internal quotation and citation omitted) (finding that a defendant's incarceration at Victorville "in the midst of a global pandemic has sufficiently increased the severity of the sentence beyond what was originally anticipated"). Combined with the fact that Defendant is serving a sentence that is longer than what would be imposed under current case law, the conditions under which he has been incarcerated justifies compassionate release. See Martinez, 2022 WL 126306, at *5 (holding that the "conditions within BOP facilities" combined with the other compelling factors constitutes "extraordinary and compelling circumstances").
ii. Defendant's Rehabilitation
Defendant acknowledges that in isolation, rehabilitation alone cannot be considered an extraordinary and compelling reason to reduce his sentence. See 28 U.S.C. § 994(t). But Defendant argues that his rehabilitation at Victorville USP contributes to extraordinary and compelling circumstances that favor compassionate release. See United States v. Kanohokula, 572 F. Supp. 3d 895, 904 (D. Haw. 2021) (holding that a defendant's rehabilitation may be considered by the Court "alongside other reasons."). Since 2014, Defendant has received no disciplinary citations. He has participated in rehabilitative programs, taken educational classes, participated in apprenticeships, and graduated from nonresidential drug treatment.
Defendant's clean prison record and steps toward rehabilitation are only relevant to the analysis if other factors are extraordinary and compelling. Such is the case here. As one court that addressed a similar combination of factors noted:
The Court is not compelled to reduce Defendant's sentence based on the sentencing disparity. Nor is the Court [ ] permitted to grant a reduction due to rehabilitation alone. However, it is the combination of these two factors, in conjunction with the effect of COVID-19 on the BOP operations and conditions, that persuades the Court that Defendant's circumstances are extraordinary and compelling such that his continued incarceration is no longer equitable.United States v. Hector Ortiz, 17cr2283-MMA-1, 2023 WL 2229262, at *7 (S.D. Cal. Feb. 24, 2023) (citations omitted). Thus, taken together, the Court finds that Defendant's set of circumstances constitutes an extraordinary and compelling reason to reduce Defendant's sentence to time served.
II. Sentencing Factors Under 18 U.S.C. § 3553(a)
Before modifying an imposed term of imprisonment, a Court must consider the sentencing factors set forth in 18 U.S.C. § 3553(a). Those factors include the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence imposed "(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes by the defendant; and (D) to provide the defendant with needed educational and vocational training, medical care, and other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2). A district court's "overarching statutory charge . . . is to impose a sentence sufficient, but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; and to protect the public." United States v. Lizarraras-Chacon, 14 F.4th 961, 966 (9th Cir. 2021) (internal quotation and citation omitted).
Here, the same conditions that establish extraordinary and compelling circumstances satisfy the § 3553(a) requirements for a sentence reduction. "In a § 3553(a) factor analysis, a district court must [ ] use the fullest information possible concerning subsequent developments in the law, such as changes in sentencing guidelines, legislative changes to a mandatory minimum, and changes to a triggering predicate offense to ensure the punishment will 'fit the crime.' " Id. at 967 (emphasis added). Subsequent developments in the law that affect whether a mandatory minimum sentence should have been imposed "are relevant . . . to the nature and circumstances of the offense, the seriousness of the offense, the needs to provide just punishment for the offense, and to afford adequate deterrence to criminal conduct." Id. (internal quotations and citation omitted). Accordingly, because Defendant would not receive a 180-month ACCA mandatory minimum sentence based on current case law and would be subject to no more than a 120-month prison term for his felon in possession conviction, a reduced sentence complies with the § 3553(a) factors.
In addition, Defendant's post-sentencing rehabilitation informs the Court's findings under § 3553(a). A court's analysis of the § 3553(a) factors should consider the defendant's post-sentencing and post-offense rehabilitation. Pepper v. United States, 562 U.S. 476, 480, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). Evidence of rehabilitation may inform whether a reduced sentence still affords adequate deterrence to criminal conduct and protects the public from future crimes by the defendant. Id. at 491, 131 S.Ct. 1229; see United States v. Alston, No. 6:19-cr-00039-MC-1, 2021 WL 851877, at *2 (D. Or. Mar. 5, 2021) (quoting Pepper, 562 U.S. at 477, 131 S.Ct. 1229) ("[P]ostsentencing conduct . . . sheds light on the likelihood that [the defendant] will engage in future criminal conduct."). Defendant's good conduct and demonstrated rehabilitation along with subsequent developments in sentencing law show that a sentence reduced to time served is sufficient, but not greater than necessary to accomplish the sentencing purposes set forth in § 3553(a)(2).
CONCLUSION
The Court GRANTS Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) [173]. Defendant's sentence of imprisonment is reduced to time served. As part of his supervised released, Defendant must reside in and participate in a program at a residential reentry center for not more than 180 days, to be released at the direction of the probation officer.
IT IS SO ORDERED.