UNITED STATES v. ANDREWS (2024)

OPINION AND ORDER DENYING WITHOUT PREJUDICE MOTIONS TO REDUCE OR MODIFY SENTENCE (ECF NOS. 172, 173, 179) AND DENYING AS MOOT MOTION TO SUBMIT SUPPORTING EVIDENCE (ECF NO. 177)

Defendant Elan Andrews is serving a 396-month prison sentence after pleaded guilty to robbery under 18 U.S.C. § 1951 and related firearm charges under 18 U.S.C. 924(c). ECF No. 159. He filed motions to reduce or modify his sentence (“compassionate release motions”) under 18 U.S.C. § 3582(c)(1)(A). ECF Nos. 172, 173, 179. The matter has been briefed and is sufficient for determination without a hearing. ECF Nos. 172-76, 179, 182, 184-85; E.D. Mich. LR 7.1(f). For the reasons below, the Court denies the motions.

I. Background

Andrews robbed six fast-food restaurants in the metro-Detroit area. Over a span of a couple weeks in 2008, he and various accomplices committed the robberies in the same basic manner: two people would rush into the restaurant with at least one armed with a gun, while the third person acted as a getaway driver. One robbery involved a murder. See ECF No. 154, PageID.738. Officers ended Andrews’ string of robberies when they arrested him on April 13, 2008. In state court, he pleaded no contest to his first felonies—four counts of armed robbery—and, on August 13, 2008, was sentenced to 7 to 15 years of imprisonment.

After the government investigated the full scope of Andrews’ armed robberies, a federal grand jury charged him in December 2011 with several counts each of robbery in violation of 18 U.S.C. § 1951 and using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). See ECF No. 49; ECF No. 131, PageID.523. Under a plea agreement and at his change of plea hearing, Andrews admitted to using a gun for two robberies and pleaded guilty to two robbery and two § 924(c) charges. ECF No. 137; ECF No. 165, PageID.830-32. In May 2016, when Andrews was serving his eighth year in prison for his state sentence, the Court sentenced him to 33 years’ imprisonment—3 years for the two robbery charges, concurrent with his state sentence, followed by 30 years for the two § 924(c) charges. ECF No. 159. Andrews did not appeal or successfully seek collateral review. See ECF No. 170.

Through extended proceedings, Andrews seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A). In 2019 and 2020, he filed pro se compassionate release motions, asserting changes to the stacking provision of 18 U.S.C. § 924(c), “the Holloway Doctrine,” and his rehabilitation efforts as bases for release. ECF Nos. 172-73. The government responded, and Andrews replied, further asserting his vulnerability to COVID-19 as a basis for release. ECF Nos. 175-76, 178. Andrews also moved to submit evidence related to his COVID-19 vulnerability. ECF No. 177. In 2022 and with an attorney's help, he filed another compassionate release motion, relying again on changes to the stacking provision of 18 U.S.C. § 924(c). ECF No. 179. The government responded. ECF No. 184-85. In 2023, a year later, this matter came before the undersigned. Sept. 26, 2023 Text-Only Order Reassigning Defendant.

II. Standard of Review

Under 18 U.S.C. § 3582, a defendant may move for compassionate release after fully exhausting any available administrative remedies. 18 U.S.C. § 3582(c)(1)(A). The exhaustion requirement is not jurisdictional. United States v. Ruffin, 978 F.3d 1000, 1004 (6th Cir. 2020).

Upon motion, the district court may reduce or modify a defendant's sentence if it finds that (1) “extraordinary and compelling reasons warrant ․ a reduction,” (2) “a reduction is consistent with applicable policy statements issued by the Sentencing Commission,” and (3) the applicable sentencing factors set out in 18 U.S.C. § 3553(a) support a reduction. 18 U.S.C. § 3582(c)(1)(A), (c)(2); see also Ruffin, 978 F.3d at 1004. Under Section 1B1.13 of the Sentencing Guidelines, the following circumstances may provide extraordinary and compelling reasons for a sentence reduction: a defendant's serious medical conditions, advanced age, certain family circumstances, abuse in prison, a combination of circumstances “similar in gravity” to the aforementioned, or an “unusually long sentence” imposed before a change in sentencing law.¹ USSG § 1B1.13(b)(1)-(6).

Courts liberally construe pro se pleadings and hold them to a less stringent standard than attorney-prepared pleadings. Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999); see also Crider v. United States, 2020 WL 4334967, at *2 (E.D. Mich. July 28, 2020) (liberally construing pro se compassionate release request). Accordingly, the Court does not require that Andrews specifically tie his pro se compassionate release motions to the circumstances listed under § 1B1.13.

III. Analysis

As a preliminary matter, Andrews requests release under “the Holloway Doctrine,” which he argues allows the Court to vacate his sentence in the best interests of justice. ECF No. 172, PageID.875-78. He cites United States v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014), and similar nonbinding cases, “in which the Government and District Court Judges have collaborated to vacate multiple [§] 924(c) convictions ․ in the ‘best interests of justice.’ ” But as Andrews acknowledges, even if the Court could follow Holloway, this case is different: The Court and the government have not collaborated to dismiss Andrews’ robbery or § 924(c) convictions or otherwise vacate his sentence, and the government expressly opposes Andrews’ sentence reduction request. See id. at 314-16; United States v. Brown, 2017 WL 10410063, at *1 (E.D. Mich. Sept. 1, 2017).

Andrews also requests release based on asserted extraordinary and compelling reasons. The filings to date, when liberally construed, indicates the following five circumstances as asserted reasons for release: (1) changes to § 924(c) stacking provisions; (2) rehabilitation; (3) risks from COVID-19; and as a catch-all reason, (4) these circumstances combined. But these circumstances fail to constitute an extraordinary and compelling reason for release at this time.

A. § 924(c) Stacking Changes

Andrews argues that the changes to § 924(c)’s stacking provision are an extraordinary and compelling reason for release because under the changed stacking provision, he would have been sentenced to a term of 8 years instead of his actual term of 33 years.

Thirty years of Andrews’ sentence was the result of “stacked” convictions under 18 U.S.C. § 924(c). At the time of his sentencing, § 924(c) required a mandatory minimum 25-year prison sentence for each § 924(c) conviction after the first, which carried a mandatory minimum 5-year sentence. See Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). Andrews received his first and second § 924(c) convictions at the same time, and the penalties on them stacked to become a mandatory minimum 30-year sentence. Sentences stacked like this are excessive and harsh in many cases. See also id. at 146 n.10, 113 S.Ct. 1993 (Stevens, J., dissenting) (“[P]unishing first offenders with twenty-five-year sentences does not deter crime as much as it ruins lives.”).

The First Step Act of 2018 reformed § 924(c) stacking. See Pub. L. No. 115-391 § 403. The Act changed § 924(c) so that only “a prior [§ 924(c)] conviction ․ [that] has become final” triggers a 25-year minimum sentence for a subsequent § 924(c) conviction. Id. § 403(a); 18 U.S.C. § 924(c)(1)(A) & (C)(i). Now, simultaneous first and subsequent § 924(c) convictions cannot result in stacked 25-year sentences. In Andrews’ case, § 924(c)’s stacking changes do not retroactively apply.² See Pub. L. No. 115-391 § 403(b); ECF No. 159. But had Andrews been sentenced on his two § 924(c) convictions today, he would have likely received 5 years, instead of 30 years. According to Andrews, this disparity presents an extraordinary and compelling reason.

The policy statement applicable to compassionate release motions directly addresses the issue. Under § 1B1.13(b)(6), if a defendant received an “unusually long sentence” and “has served at least 10 years of the term of imprisonment,” the Court may consider non-retroactive changes in sentencing law as an extraordinary and compelling reason, subject to further requirements not relevant here. See USSG § 1B1.13(b)(6). Unless a defendant meets the requirements in § 1B1.13(b)(6), “a change in the law ․ shall not be considered for purposes of determining whether an extraordinary and compelling reason exists.” Id. § 1B1.13(c); see also United States v. McCall, 56 F.4th 1048, 1054 (6th Cir. 2022) (holding nonretroactive changes in the law, including those related to § 924(c) stacking, are not extraordinary and compelling circumstances that can form the basis of a sentence reduction).

Here, the Court sentenced Andrews to a 33-year prison term starting in 2016. To date, Andrews has served 8 years of his prison term. Because he does not meet § 1B1.13(b)(6)’s “clear-cut” requirement that he serve at least 10 years of his prison term, the Court cannot at this time consider the nonretroactive changes in § 924(c)’s stacking provision in determining whether there are extraordinary and compelling reasons for his release.³ United States v. Sandlain, 2024 U.S. App. LEXIS 8273, at *5 (6th Cir. Apr. 5, 2024); see USSG §§ 1B1.13(b)(6), (c).

B. Rehabilitation

Andrews next asserts his rehabilitation efforts as extraordinary and compelling. Andrews states that while incarcerated, he has “completed a number of self-rehabilitation courses,” “maintained employment[,] and attended school.” ECF No. 173, PageID.884. Despite these efforts, “rehabilitation ‘alone’ does not provide a proper basis for relief,” and the Court does not otherwise find extraordinary and compelling circumstances justify release. Ruffin, 978 F.3d at 1009 (quoting 28 U.S.C. § 994(t)); see United States v. Hunter, 12 F.4th 555, 563 (6th Cir. 2021) (noting that rehabilitation cannot serve as a “stand-alone” basis for compassionate release). The Court cannot find an extraordinary and compelling reason in Andrews’ rehabilitation efforts.

C. Risks from COVID-19

Andrews argues as extraordinary and compelling his vulnerability to serious COVID-19 illness. In 2020, at the height of the COVID-19 pandemic, Andrews represented that “due to morbid obesity, uncontrolled hypertension, diabetes, and high cholesterol,” he is “highly vulnerable to potential death” if he contracts COVID-19. ECF No. 176, PageID.947-48. Since then, Andrews has been fully vaccinated against the virus and up until 2022 had not tested positive for the virus. See generally ECF Nos. 185, 185-1 (showing COVID-19 vaccinations and negative COVID-19 tests between late-2020 to early-2022).

Because he received effective COVID-19 vaccines, Andrews’ health risks from the virus no longer present an extraordinary and compelling reason for release, even if he has serious medical conditions. See United States v. Traylor, 16 F.4th 485, 487 (6th Cir. 2021); United States v. Lemons, 15 F.4th 747, 751 (6th Cir. 2021). Because of the vaccine, Andrews’ risks from COVID-19 is largely the same whether inside or outside prison. See Lemons, 15 F.4th at 751.

D. Combined Circumstances

To the extent Andrews asserts that his circumstances in combination justify release, extraordinary and compelling circumstances may obtain when the defendant presents any other circumstance or combination of circumstances that “are similar in gravity” to extraordinary and compelling circumstances based on a defendant's serious medical conditions, advanced age, certain family circumstances, and abuse in prison. USSG § 1B1.13(b)(5).

As explained, the Court cannot meaningfully consider the disparity in Andrews’ sentence due to § 924(c)’s changes at this time or his COVID-19-related health risks. Andrews remaining basis for compassionate release—rehabilitation—cannot alone constitute extraordinary and compelling circumstances. The Court recognizes that Andrews has made sincere efforts at rehabilitation and indicated that he accepts full responsibility for his crimes. It also recognizes that by the time it sentenced Andrews in 2016, he had already spent several years in prison on his state sentence for the same conduct underlying his federal sentence. Indeed, as punishment for two weeks of robberies as a young adult without prior felonies, Andrews is unfortunately on course to spend over 40 years total in prison. Andrews would leave prison elderly, and his child would grow well into adulthood without his father. However, as unfortunate as these circumstances are, the Court cannot find them as deeply serious as an impending debilitating or terminal illness, the death or incapacitation of close family, or ongoing sexual or physical abuse. See USSG § 1B1.13(b)(1)-(4). As a result, the Court cannot find an extraordinary and compelling reason based on Andrews’ combined circumstances. See id. § 1B1.13(b)(5).

IV. Conclusion

For the reasons above, Andrews’ compassionate release motions (ECF Nos. 172, 173, 179) are DENIED WITHOUT PREJUDICE. Because the Court denies compassionate release based on Andrews’ COVID-19-related health risks, the Court also DENIES AS MOOT his motion to submit evidence in support (ECF No. 177).

To be clear, the Court cannot currently find an extraordinary and compelling reason based on Andrew's asserted circumstances, including the nonretroactive changes in § 924(c)’s stacking provision. But after May 2026, when Andrews has served at least 10 years of his federal prison term, Andrews may move again for compassionate release based on the changes in § 924(c)’s stacking provision. See supra note 3.

FOOTNOTES

1.   Before an amendment to § 1B1.13 became effective on November 1, 2023, no policy statement applied to compassionate-release motions brought by defendants, so district courts had “discretion to define ‘extraordinary and compelling’ on their own initiative.” United States v. Thompson, 2024 U.S. App. LEXIS 613, at *4 (6th Cir. Jan. 9, 2024) (quoting United States v. Elias, 984 F.3d 516, 519-20 (6th Cir. 2021)). The amended § 1B1.13 now makes clear certain issues, including to what extent and under what circumstances a court may consider nonretroactive changes in sentencing law as extraordinary and compelling. See USSG § 1B1.13(b)(6), (c). See generally United States v. Brown, ––– F. Supp. 3d ––––, ––––, 2024 WL 409062, at *3-6 (S.D. Ohio Feb. 2, 2024) (explaining in detail why amended § 1B1.13, and not contrary Sixth Circuit authority, controls when considering changes in sentencing law); United States v. Sandlain, 2024 U.S. App. LEXIS 8273, at *5 (6th Cir. Apr. 5, 2024) (applying one of amended § 1B1.13’s requirements for considering changes in sentencing law).

2.   “Far from suggesting that its amendment clarifies what § 924(c) has always meant, Congress has, in essence, drawn a line in the sand. Defendants sentenced after December 21, 2018, may benefit from Congress's amendment to § 924(c), but defendants sentenced before that date cannot.” United States v. Richardson, 948 F.3d 733, 748 (6th Cir. 2020). Accordingly, the Court rejects Andrews’ issue framing—that the First Step Act merely clarified § 924(c)’s stacking provision—and finds irrelevant his citation to Concepcion v. United States, 597 U.S. 481, 142 S. Ct. 2389, 213 L.Ed.2d 731 (2022), which held that courts may consider changes of law in reducing a sentence under a provision of the First Step Act that “explicitly applied retroactively” and is “different and unrelated” to the one at issue here. United States v. McCall, 56 F.4th 1048, 1061 (6th Cir. 2022).

3.   If Andrews moves for compassionate release based on § 924(c)’s stacking changes after May 2026, the Court may further assess whether his sentence is unusually long such that it is an extraordinary and compelling circumstance under § 1B1.13(b)(6). Depending on that assessment, Andrews will also have to demonstrate that, among other things, his history, characteristics, training or education, and attitude towards the law and authority weigh in favor of a sentence reduction. See 18 U.S.C. §§ 3553(a), 3582(c)(1)(A). Demonstrated rehabilitation will be vitally important.

SHALINA D. KUMAR, United States District Judge