UNITED STATES v. ALSTON (2022)

ORDER

On February 16, 2022, Thomas Grandville Alston (“Alston” or “defendant”) moved for appointment of counsel [D.E. 93]. On March 8, 2022, the court appointed counsel for Alston pursuant to standing order 19-SO-3 [D.E. 94]. On July 18, 2022, Alston, through counsel, moved for compassionate release under the First Step Act (“First Step Act”), Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5238–41 (2018) (codified as amended at 18 U.S.C. § 3582) [D.E. 96] and filed a memorandum in support [D.E. 97]. On August 24, 2022, the government responded in opposition [D.E. 101]. On August 25, 2022, Alston replied [D.E. 102]. As explained below, the court denies Alston's motion for compassionate release.

I.

On April 11, 2011, pursuant to a written plea agreement, Alston pleaded guilty conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 (count one) and money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (count two). See [D.E. 15, 16, 18]. On February 8, 2012, the court held Alston's sentencing hearing and adopted the facts set forth in the Presentence Investigation Report (“PSR”). See Fed. R. Crim. P. 32(i)(3)(A)–(B); [D.E. 57]; Sent. Tr. [D.E. 64] 2–6. The court calculated Alston's total offense level to be 37, his criminal history category to be VI, and his advisory guideline range to be 360 months to life imprisonment on count one and 240 months’ imprisonment on count two. See Sent. Tr. at 2–6. After granting the government's downward departure motion and thoroughly considering all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Alston to 324 months’ imprisonment on count one and 240 months’ concurrent imprisonment on count two for a total sentence of 324 months’ imprisonment. See id. at 6–30. The court also announced that it would impose the same sentence as an alternative variant sentence if it miscalculated the advisory guideline range. Id. at 29–30.

On June 28, 2016, Alston moved to vacate, set aside, or correct his 324-month sentence [D.E. 66]. See 28 U.S.C. § 2255. In support, Alston argued that he was no longer a career offender due to Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). See [D.E. 66] 4–6.

On May 31, 2018, the court dismissed Alston's motion for numerous reasons. See [D.E. 78]. First, the court did not rely on Alston's status as a career offender in calculating his adjusted offense level or his total offense level. See id.; Sent. Tr. at 2–6; PSR ¶¶ 11, 27, 29, 54, 57, 60, 62. First, Alston trafficked 53 kilograms of cocaine and had a criminal history category of VI regardless of U.S.S.G. § 4B1.1. See PSR ¶¶ 11, 27, 29, 54, 57, 60, 62. Second, and alternatively, Beckles defeated Alston's claim that Johnson invalidated the court's ability to rely on Alston's convictions in paragraphs 16, 22, and 25 concerning his criminal history. See, e.g., Beckles v. United States, 580 U.S. 256, 137 S. Ct. 886, 892, 197 L.Ed.2d 145 (2017); United States v. Mack, 855 F.3d 581, 584–85 (4th Cir. 2017); United States v. Lee, 855 F.3d 244, 246–47 (4th Cir. 2017).

On July 8, 2019, Alston moved pro se for a sentence reduction under 18 U.S.C. § 3582(c), U.S.S.G. § 1B1.10(c), and U.S.S.G. Amendment 782 [D.E. 80]. The court calculated Alston's total offense level to be 35, his criminal history category to be VI, and his new advisory guideline range to be 292 to 365 months’ imprisonment. See [D.E. 85] 3; Resentencing Report [D.E. 82-3] 1; [D.E. 82] 5; U.S.S.G. § 2D1.1(c)(3); PSR ¶¶ 54–63. After considering the entire record, the parties’ arguments, the new advisory guideline range, and the section 3553(a) factors, the court denied Alston's motions for a sentence reduction. See [D.E. 85].

On May 8, 2020, Alston appealed the court's denial [D.E. 86]. On July 24, 2020, the United States Court of Appeals for the Fourth Circuit affirmed the court's judgment. See United States v. Alston, 813 F. App'x 132, 132–33 (4th Cir. 2020) (per curiam) (unpublished); [D.E. 90, 91, 92].

On July 18, 2022, Alston, through counsel, moved for compassionate release. See [D.E. 96]. The government opposes the motion. See [D.E. 101].

II.

Under 18 U.S.C. § 3582(c)(1)(A), a court may reduce a defendant's term of imprisonment if (1) “extraordinary and compelling reasons warrant such a reduction” or (2) “the defendant is at least 70 years of age, has served at least 30 years in prison,” and the Director of the Bureau of Prisons (“BOP”) has determined the defendant is not a danger to another person or the community. 18 U.S.C. § 3582(c)(1)(A); see United States v. Hargrove, 30 F.4th 189, 194 (4th Cir. 2022); United States v. High, 997 F.3d 181, 185–86 (4th Cir. 2021); United States v. Kibble, 992 F.3d 326, 330 (4th Cir. 2021) (per curiam), cert. denied, ––– U.S. ––––, 142 S. Ct. 383, 211 L.Ed.2d 204 (2021); United States v. McCoy, 981 F.3d 271, 275–77 (4th Cir. 2020). A section 3582(c)(1)(A) sentence reduction must comport with the 18 U.S.C. § 3553(a) factors and applicable Sentencing Commission policy statements. See 18 U.S.C. § 3582(c)(1)(A); Hargrove, 30 F.4th at 194.

Before filing a motion under 18 U.S.C. § 3582(c)(1)(A), a defendant must “fully exhaust[ ] 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.” 18 U.S.C. § 3582(c)(1)(A). This requirement is nonjurisdictional, and the government waives a defense based on section 3582(c)(1)(A)’s exhaustion requirements if the government does not timely raise it. See United States v. Muhammad, 16 F.4th 126, 129–30 (4th Cir. 2021).

When considering a defendant's compassionate release motion, the court determines whether extraordinary and compelling circumstances exist and whether, in the court's discretion, those circumstances warrant relief in light of relevant factors in 18 U.S.C. § 3553(a) and applicable Sentencing Commission policy statements. See Hargrove, 30 F.4th at 194–95; High, 997 F.3d at 186; Kibble, 992 F.3d at 330–32. In evaluating the section 3553(a) factors, the court considers, inter alia, the nature and circumstances of the offense, the history and characteristics of the defendant, a defendant's post-sentencing conduct, the need to deter criminal behavior, the need to promote respect for the law, and the need to protect the public. See 18 U.S.C. § 3553(a); Chavez-Meza v. United States, ––– U.S. ––––, 138 S. Ct. 1959, 1966–68, 201 L.Ed.2d 359 (2018); Pepper v. United States, 562 U.S. 476, 480–81, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011); High, 997 F.3d at 186; Kibble, 992 F.3d at 331–32; United States v. McDonald, 986 F.3d 402, 412 (4th Cir. 2021); United States v. Martin, 916 F.3d 389, 398 (4th Cir. 2019). Although a court considers a defendant's post-sentencing conduct, rehabilitation alone is not an extraordinary and compelling reason for a sentence reduction. See 28 U.S.C. § 994(t); U.S.S.G. § 1B1.13 cmt.n.3; McCoy, 981 F.3d at 286 n.9.

No Sentencing Commission policy statement currently applies to a defendant's compassionate release motion. See Hargrove, 30 F.4th at 194; High, 997 F.3d at 186; Kibble, 992 F.3d at 330–31; McCoy, 981 F.3d at 281–82. U.S.S.G. § 1B1.13 is a policy statement that applies to compassionate release motions filed by the BOP Director. Nonetheless, section 1B1.13 “remains helpful guidance even when motions are filed by defendants.” McCoy, 981 F.3d at 282 n.7; see Hargrove, 30 F.4th at 194. Application Note 1 of U.S.S.G. § 1B1.13 lists several extraordinary and compelling circumstances, including (A) a defendant's serious medical condition, (B) a defendant's age, when coupled with serious physical or mental deterioration due to age and having served 10 years or 75 percent of his or her sentence, (C) certain family circumstances in which a defendant's minor children or incapacitated spouse or registered partner would otherwise have no caregiver, or (D) any other extraordinary and compelling reason. See U.S.S.G. § 1B1.13 cmt. n.1(A). “[A]n extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant” a sentence reduction. Id. § 1B1.13 cmt. n.2.

On May 5, 2022, Alston applied to his warden for compassionate release and was denied the same day. See [D.E. 97-3]. The government agrees that Alston has met 3582(c)(1)(A)’s exhaustion requirements. See [D.E. 101] 4. Therefore, the court addresses Alston's motion on the merits. See Muhammad, 16 F.4th at 130.

Alston seeks compassionate release pursuant to section 3582(c)(1)(A) and cites the COVID-19 pandemic, his medical conditions (hypertension, renal disease, borderline obesity, prediabetes, hypothyroidism, and prostatitis), his rehabilitative efforts, his release plan, his time served, his supportive family, and his claim that he would no longer be a career offender under United States v. Norman, 935 F.3d 232 (4th Cir. 2019). See [D.E. 97] 4–17; [D.E. 97-7, 97-8, 97-9, 97-12, 97-13, 97-14, 97-15, 97-16, 97-17, 97-18]; [D.E. 102] 2–10.

As for the “medical condition of the defendant” policy statement, the policy statement requires that the defendant be “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). According to medical records, Alston has mild hypothyroidism, prediabetes, and renal disease. See [D.E. 97-7] 6, 32, 71–73. His prostatitis is under control. See id. at 75. The BOP is treating Alston for his other conditions. See, e.g., id. at 1–75. Alston argues his medical conditions put him at heightened risk of serious infection from COVID-19. See id. at 5–11; [D.E. 102] 3–10. Alston already had COVID-19 in February 2021 and recovered fully. See [D.E. 97-7] 75. And Alston has received two doses of the Pfizer COVID-19 vaccine and a Moderna booster. See id. at 83. The vaccine and Alston's natural antibodies provide protection. See, e.g., United States v. Jacques, No. 20-3276, 2022 WL 894695, at *2 (2d Cir. Mar. 28, 2022) (unpublished); United States v. Scalea, No. 21-2631, 2022 WL 795425, at *1 (3d Cir. Mar. 15, 2022) (unpublished) (noting that although “vaccination does not rule out reinfection ․ this does not diminish that vaccination mitigates the risk of COVID-19 complications”); United States v. Shettler, No. 21-10484, 2022 WL 620311, at *4 (11th Cir. Mar. 3, 2022) (per curiam) (unpublished); United States v. Ibarra, No. 21-10255, 2022 WL 229198, at *1 (9th Cir. Jan. 25, 2022) (unpublished); Garrett v. Murphy, 17 F.4th 419, 433 & n.7 (3d Cir. 2021) (discussing natural immunity as a result of recovering from COVID-19); United States v. Lemons, 15 F.4th 747, 751 (6th Cir. 2021) (“And following full vaccination, it is now well understood, both the likelihood of contracting COVID-19 and the associated risks should one contract the virus are significantly reduced” so that “an inmate largely faces the same risk from COVID-19 as those who are not incarcerated.”); United States v. Hald, 8 F.4th 932, 936 n.2 (10th Cir. 2021) (noting “there is certainly room for doubt” that being fully vaccinated or being offered a vaccine “would support a finding of ‘extraordinary and compelling reasons’ ” justifying compassionate release), cert. denied, ––– U.S. ––––, 142 S. Ct. 2742, 212 L.Ed.2d 798 (2022); United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021) (“[F]or the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.”); United States v. Baeza-Vargas, 532 F. Supp. 3d 840, 843–46 (D. Ariz. 2021) (collecting cases showing the “growing consensus” of district courts that have ruled that an inmate receiving a COVID-19 vaccine “weighs against a finding of extraordinary and compelling circumstances”); cf. United States v. Petway, No. 21-6488, 2022 WL 168577, at *2 (4th Cir. Jan. 19, 2022) (per curiam) (unpublished). And the wide availability of COVID-19 vaccines greatly diminishes the risk to Alston from COVID-19 whether he is in prison or not. See, e.g., Scalea, 2022 WL 795425, at *1; Ibarra, 2022 WL 229198, at *1; Lemons, 15 F.4th at 751; Hald, 8 F.4th at 936 n.2; Broadfield, 5 F.4th at 803; Baeza-Vargas, 532 F. Supp. 3d at 843–46. Therefore, reducing Alston's sentence because of his risk factors and the general risk of COVID-19 in the prison environment does not comport with application note 1(A). See 18 U.S.C. § 3582(c)(1)(A).

As for the “other reasons” policy statement, Alston's claim that he would not be a career offender after Norman is not an extraordinary and compelling reason warranting compassionate release. This claim attacks the validity of Alston's sentence and is not properly raised in a motion for compassionate release. See United States v. McCoy, 981 F.3d 271, 287 (4th Cir. 2020) (“[T]he very purpose of [section] 3582(c)(1)(A) is to provide a ‘safety valve’ that allows for sentence reductions when there is not a specific statute that already affords relief ․”); United States v. Handerhan, 789 F. App'x 924, 926 (3d Cir. 2019) (per curiam) (unpublished) (“[Section] 3582(c)(1)(A) provides a mechanism to seek a reduction in the term of a sentence, not to challenge its validity.”); United States v. Shull, No. 1:04-cr-18, 2022 WL 179141, at *3 (W.D.N.C. Jan. 19, 2022) (unpublished); United States v. Ferguson, No. 3:04-cr-13-01, 2021 WL 1701918, at *4 (E.D. Va. Apr. 29, 2021) (unpublished) (“The compassionate release statute allows the court to consider extraordinary and compelling reasons warranting compassionate release, but it does not replace the established mechanism for challenging the validity of a sentence. Nor does it allow the defendant to make arguments that were, or could have been, raised in direct appeal or collateral review.”).

Alternatively, in rejecting Alston's section 2255 motion filed on June 28, 2016, and motion for a sentence reduction filed on July 8, 2019, the court explained that it did not rely on Alston's status as a career offender in calculating his adjusted offense level or his total offense level. See Sent. Tr. at 2–6; PSR ¶¶ 11, 27, 29, 54, 57, 60, 62; [D.E. 78] 2; [D.E. 85] 2. The Fourth Circuit affirmed the court's denial of a sentence reduction. See Alston, 813 F. App'x at 132–33.

Under the “other reasons” policy statement, the court assumes without deciding that the COVID-19 pandemic, Alston's medical conditions, his rehabilitative efforts, his release plan, his time served, his new advisory guideline range if sentenced today,¹ and his supportive family are compelling reasons under section 3582(c)(1)(A). Cf. United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (“[T]he mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP's statutory role, and its extensive and professional efforts to curtail the virus's spread.”). However, the section 3553(a) factors counsel against reducing Alston's sentence. See Hargrove, 30 F.4th at 194–95, 198–200; High, 997 F.3d at 186; Kibble, 992 F.3d at 331–32.

Alston is 52 years old and engaged in serious and prolonged criminal conduct. See PSR ¶¶ 1–12. Alston was a major cocaine trafficker in North Carolina from 2006 to January 25, 2011. See id. ¶¶ 5–11; Sent. Tr. at 23–25. Alston led five or more individuals to traffic an astonishing 53 kilograms of cocaine. See PSR ¶ 11. In 2009, Alston was sentenced to incarceration for being a felon in possession of a firearm and hid approximately $400,000 in illegal drug proceeds from law enforcement authorities. See id. ¶ 9. Moreover, Alston has a deplorable, violent criminal record. See id. ¶¶ 14–25; Sent. Tr. at 25–28. Before his federal conviction, Alston amassed state convictions for assault with a deadly weapon, fictitious information to an officer, assault with a deadly weapon inflicting serious injury, financial card fraud, possession of cocaine, simple assault (two counts), possession with intent to sell and deliver cocaine, possession of a firearm by a felon, assault inflicting serious injury, maintaining a vehicle, dwelling, or place for controlled substances, possession with intent to sell and deliver marijuana, and trafficking in cocaine (two counts). See id. ¶¶ 14–25. Shortly after he was released from state custody in 2010, Alston returned to drug trafficking and traveled to Texas with $100,000 of his hidden drug proceeds to purchase cocaine. See id. ¶ 9. Alston also has an appalling history on probation. In 2002 and 2009, Alston obtained new, violent charges while on probation. See id. ¶¶ 19, 22. In 2007, while on house arrest for violating probation, Alston solicited a woman to deliver drugs for him. See id. ¶ 8. Alston is a committed drug dealer who learned nothing from state custody. See Sent. Tr. at 25–27.

Alston has taken positive steps while federally incarcerated. He has completed over 450 hours of courses on parenting, employment skills, and personal finance, among other topics. See [D.E. 97] 13; [D.E. 97-13] 2; [D.E. 97-14]. He is also a suicide watch observer and has worked as an orderly. See [D.E. 97-14] 1; [D.E. 97-15]. He is in the process of applying for a patent for a medication dispenser. See [D.E. 97] 15; [D.E. 97-16] 2–3, 5–6. He has not incurred any infractions while federally incarcerated. See [D.E. 97] 15; [D.E. 97-13] 3; [D.E. 97-17].

The court must balance Alston's positive efforts while federally incarcerated with his serious and prolonged criminal conduct, his serious and violent criminal history, his history of terrible performance on probation, the need to punish him, the need to promote respect for the law, the need to protect society, and the need to deter others. Cf. Concepcion v. United States, ––– U.S. ––––, 142 S. Ct. 2389, 2403–04, 213 L.Ed.2d 731 (2022); Pepper, 562 U.S. at 480–81, 131 S.Ct. 1229; United States v. Roane, 51 F.4th 541, 551–53 (4th Cir. 2022); United States v. Swain, 49 F.4th 398, 400–03 (4th Cir. 2022); High, 997 F.3d at 187-91; McDonald, 986 F.3d at 412; Martin, 916 F.3d at 398. The court also has considered Alston's potential exposure to COVID-19, his vaccinated status, his recovery from COVID-19, his medical conditions, his rehabilitative efforts, his release plan, his time served, his new advisory guideline range if sentenced today, and his supportive family. Alston has a release plan that includes living with his mother in Sanford, North Carolina, and applying for employment at the Blind Industries & Services of Maryland's factory in Raleigh, North Carolina. See [D.E. 97] 1, 16. The court recognizes that Alston has a supportive family. See [D.E. 97-18]. Having considered the entire record, the extensive steps that the BOP has taken to address COVID-19, the section 3553(a) factors, Alston's arguments, the government's persuasive response, the need to punish Alston for his serious criminal behavior, to incapacitate Alston, to promote respect for the law, to deter others, and to protect society, the court denies Alston's motion for compassionate release. See, e.g., Concepcion, 142 S. Ct. at 2403–04; Chavez-Meza, 138 S. Ct. at 1966–68; Roane, 51 F.4th at 551–53; Swain, 49 F.4th at 403–04; High, 997 F.3d at 187–9; United States v. Ruffin, 978 F.3d 1000, 1008–09 (6th Cir. 2020); United States v. Chambliss, 948 F.3d 691, 693–94 (5th Cir. 2020); United States v. Hill, No. 4:13-CR-28-BR, 2020 WL 205515, at *2 (E.D.N.C. Jan. 13, 2020) (unpublished), aff'd, 809 F. App'x 161 (4th Cir. 2020) (per curiam) (unpublished). Notably, Alston's sentence on count one remains within the new advisory guideline range that would apply if Alston were resentenced today. Cf. Swain, 49 F.4th at 403–04.

III.

In sum, the court DENIES defendant's motion for compassionate release [D.E. 96] and DENIES as moot the government's motion for an extension of time to respond to defendant's motion for compassionate release [D.E. 100].

SO ORDERED. This 7th day of November, 2022.

FOOTNOTES

1.   If sentenced today, Alston's advisory guideline range on count one would be 292 to 365 months’ imprisonment based on his total offence level of 35 and a criminal history category of VI. See [D.E. 97] 4–5.

JAMES C. DEVER III, United States District Judge