UNITED STATES v. VEST (2024)

ORDER

Defendant has filed a second motion for reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A) of the First Step Act (“FSA”), commonly known as a motion for “compassionate release.”¹ Defendant claims extraordinary and compelling reasons support compassionate release, claiming: [1] prison conditions due to the COVID-19 virus and a heightened risk of infection due to his age and medical conditions which include obesity, hyperlipidemia, sleep apnea, and the need to use a continuous positive airway pressure machine; [2] an unusually long prison sentence due to a change in the law, specifically U.S.S.G. § 1B1.13(b)(6); [3] unusually harsh prison conditions due to staff shortages and a failure to control spread of COVID-91; [4] his age at the time he committed the offenses; [5] sentencing disparity compared with sentences imposed on co-defendants; [6] a change in the law under U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and [7] rehabilitation while imprisoned and community support. (Doc. 2034, pp. 9-27, 31-32).

Background

After a two-year investigation, defendant and more than twenty others, including three of defendant's brothers, were arrested in early 1994 for drug trafficking offenses. A criminal complaint was filed on February 25, 1994. (Doc. 1). Following further investigation and debriefings of several cooperating defendants and other witnesses, an indictment and, subsequently, two superseding indictments were filed, charging defendant and more than twenty others with related offenses, including: conspiracy to distribute cocaine and marijuana; operation of a continuing criminal enterprise; possession with intent to distribute cocaine; distribution of cocaine; distribution of marijuana; arson of a building used in interstate commerce; interstate transportation of property obtained by fraud multiple counts of money laundering; and multiple counts of capital murder under the continuing criminal enterprise statute. (Docs. 270, 399, 523).

By Notice filed on October 28, 1994, the Government stated intent to seek the death penalty for defendant under 21 U.S.C. § 848 (e)(1)(A) for the killing of Juan Bojorquez and Ernest Carbajal. (Doc. 1010).

On January 2, 1996, defendant pled guilty to all counts of the Indictment in which he was named as a defendant. (Doc. 1572; ¶ 1).

These included:

Count 1, Conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A) and 846;

Count 7, Possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A) and 18 U.S.C. § 2;

Counts 8 and 9, Murder in relation to a Drug Trafficking Offense, in violation of 21 U.S.C. §§ 848(e)(1)(A) and 18 U.S.C. § 2; and;

Count 19, Arson, in violation of 18 U.S.C. §§ 844(i) and ordered to pay restitution to the Carbajal family in the amount of $72,000 and $191,849.48; (Doc. 1802).

By a Judgment and Commitment filed on September 10, 1996, defendant was sentenced to a term of life on Counts 1, 7, 8, and 9; and ten years on Count 19. (Doc. 1802.) All terms to be served concurrently for a total term of life imprisonment, and defendant was committed to the custody of the U.S. Bureau of Prisons. (Id.). Defendant is currently incarcerated at the United States Penitentiary Leavenworth, Kansas, and he has no expected release date due to the life sentence imposed.

Discussion

Exhaustion of Administrative Remedies

Generally, a court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). As part of the Sentencing Reform Act of 1984, Title 18, United States Code, Section 3582(c), an exception to the general rule prohibiting modification of a previously imposed sentence, permitted a reduction based on a guidelines range subsequently lowered by the Sentencing Commission; if such a reduction is consistent with applicable policy statements issued by the Commission. United States v. Crandall, 2024 WL 945328 * 4 (N.D. Iowa Mar. 5, 2024); citing § 3582 (c)(2).

Another exception to the general rule is found under § 3582(c)(1)(A), which permits a reduction of sentence upon motion by the Director of the Bureau of Prisons, if extraordinary and compelling reasons warranted a reduction. Crandall, at *4. And, in the First Step Act of 2018, Congress amended § 3582(c)(1)(A) to allow defendants, as well as the BOP itself, to file motions for sentence reductions once they have exhausted their administrative remedies. Id.

Exhaustion occurs at the earlier of either [1] when the prisoner has “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion” on his behalf or [2] the lapse of 30 days from the receipt of such a request by the warden of the [prisoner's] facility. § 3582(c)(1)(A). To the extent they are applicable, the court must also consider the sentencing factors set forth in 18 U.S.C. § 3553.

The exhaustion requirement is a mandatory claim-processing rule. Id., at 1084; citing, Manrique v. United States, 581 U.S. 116, 121, 137 S.Ct. 1266, 197 L.Ed.2d 599 (2017) (mandatory claim-processing rules seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times); see also, United States v. Houck, 2 F.4th 1082, 1083-84 (8th Cir. 2021). As such, it must be enforced so long as the opposing party properly raises it. Manrique, at 121, 137 S.Ct. 1266.

Here, the Government has raised the exhaustion issue and argues that the issues asserted by defendant in the instant motion were not presented in his request to the Warden of the Bureau of Prisons (“BOP”).² The record shows that on August 29, 2021, defendant submitted a request for compassionate release under the First Step Act of 2018 to Warden Joseph. (Doc. 2034-1, p. 56). Defendant claimed there were extraordinary and compelling reasons for a sentence reduction stating that: [1] the sentencing guidelines were no longer mandatory under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); [2] his young age at the time of the offense; [3] a heightened risk of infection from COVID-19 due to prison conditions; [4] personal rehabilitation; [5] family members willing to provide his basic needs; and [6] he is not a danger to the community. (Id., pp. 57-59).

After evaluation, the Warden denied defendant's request for compassionate release finding he did not present extraordinary and compelling reasons. (Doc. 2034-1, p. 60).

In his current motion, defendant claims: [1] a heightened risk of health complications from the COVID-19 virus based on health issues specifically related to obesity, hyperlipidemia, sleep apnea, CPAP therapy; [2] a change in the law under U.S.S.G. § 1B1.13(b)(6); [3] unusually harsh prison conditions; [4] his age at the time of the offense; [5] sentence disparity related to co-defendants; [6] change in the guidelines under Booker; and [7] rehabilitation. (Doc. 2034, pp. 10-26).

In his request to the Warden, defendant complained of an inability to participate in rehabilitative and educational opportunities due to measures taken by the BOP to contain the spread of COVID and he claimed a generic heightened risk of COVID infection due to his medical condition[s]; however, he did not specify the conditions now presented in the instant motion. Medical records submitted with the instant motion indicate that defendant was recently provided a CPAP machine in 2023, but there is no diagnosis of obesity in the records provided. (Doc. 2040-1, p. 14). Additionally, the diagnoses of sleep apnea and hyperlipidemia were previously diagnosed in 2019 and 2006, respectively and therefore notice of these conditions could have been provided in defendant's 2023 request to the Warden. (Doc. 2040-1, p. 10). Defendant also did not claim a sentencing disparity compared to his co-defendants in his request to the Warden as he now asserts here.

Defendant's omission of the claims he failed to submit to the warden, presents a potential impediment to this Court's analysis. United States v. Travis, 2023 WL 2957446 *2 (D.Neb.)(if the prisoner does not include a reason for release in his request to the BOP, the BOP cannot determine whether it could bring a compassionate release motion); see also, United States v. Jenkins, 2020 WL 1872568 * 1 (D.Neb. Apr. 14, 2020)(the additional claims were not presented to the BOP and the court cannot consider a motion for compassionate release that is based on evidence or arguments that were not first presented to the BOP).

Defendant urges this court to find that it is not bound to consider only those grounds for compassionate release identified by defendant in his request to the BOP; citing, United States v. Ferguson, 55 F.4th 262, 268 (4th Cir. 2022).³ Defendant's argument is not persuasive.

In confronting this issue, the Seventh Circuit confirmed that proper exhaustion required an inmate to present the same or similar ground for compassionate release in a request to the BOP as in a motion to the court. United States v. Williams, 987 F.3d 700 (7th Cir. 2021)(If the prisoner does not include a reason for release in his request to the BOP, the BOP “cannot determine whether it could bring a compassionate-release motion” on the prisoner's behalf); see also, United States v. Taylor, 2024 WL 1538419 *1 (S.D.Ala. Apr. 09, 2024)(in order to properly exhaust, an inmate is required to present the same or similar ground for compassionate release in a request to the BOP as in a motion to the court; finding that any contrary approach would undermine the purpose of exhaustion).

As persuasively held by the Seventh Circuit Court of Appeals in Williams, and the Alabama district court in Taylor, as well as the district courts in this circuit in United States v. Travis, 2023 WL 2957446 (D. Neb. Apr. 14, 2023) and United States v. Bass, 2024 WL 3552030 (E.D. Mo. Jul. 26, 2024), I find that defendant has failed to properly satisfy the exhaustion prerequisite for the claims of a heightened risk of infection from COVID due to the medical conditions now presented, and sentencing disparity compared to the sentences of co-defendants.

Accordingly, analysis of defendant's claims of extraordinary and compelling reasons will proceed as to those that have been exhausted: [1] unusually lengthy sentence as it relates to a change in the law under U.S.S.G. § 1B1.13(b)(6); [2] unusually harsh prison conditions as to containment of the spread of COVID; [3] his age at the time of the offense; [4] the Booker issue; and [5] rehabilitation.

Discussion

 Extraordinary and Compelling Reasons

Defendant claims extraordinary and compelling reasons exist under U.S.S.G. § 1B1.13(b)(6) which arises if the defendant has received an unusually long sentence, served at least 10 years, and a change in the law produces a gross disparity between the sentence being served and the sentences likely to be imposed at the time the motion was filed, after considering the individual circumstances of the defendant. U.S.S.G. § 1B1.13(b)(6).

The Government argues that, among other things, subsection (b)(6) conflicts with § 3582(c)(1)(A)’s policy statement that a sentence reduction cannot be granted based on reasons that have not been listed by the Commission under § 3582(c)(1)(A). Thus, analysis will begin on this disputed point.

This question, under a change in the law argument, was considered by a district court in a case where, after conviction for bank robberies and firearm offenses, the defendant was sentenced to a total term of imprisonment of 562 months which included mandatory consecutive terms for using and carrying a firearm during a crime of violence under 18 U.S.C. § 924(c). United States v. Crandall, 2020 WL 7080309 (N.D. Iowa, Dec. 3, 2020).

Defendant sought a reduction of sentence based on compassionate release under § 3582(c)(1)(A) citing a provision of the FSA that eliminated the mandatory consecutive sentences for multiple firearms convictions under § 994(c). The starting point in defining extraordinary and compelling reasons under § 3582(c)(1)(A) is to be found in the Policy Statement USSG § 1B1.13. Crandall, at *3.⁴

The district court noted the split in courts on whether the policy statement is binding because it predates the FSA changes to § 3582(c)(1)(A) – which, as amended, permits consideration of a motion for sentence reduction filed by an individual defendant - the court concluded that § 1B1.13 did not constrain its assessment of whether extraordinary and compelling reasons existed. Id., at *3.⁵ The court reasoned that the factors listed in § 1B1.13 remain properly considered because the FSA did not change the statutory criteria for compassionate release, but merely changed the procedures so that the BOP no longer constrained a defendant from initiating compassionate release on his own. Id., at *5.

Yet, notwithstanding its conclusion that § 1B1.13 is not binding, the court was highly skeptical of expanding the compassionate release system into, essentially a discretionary parole system. Id., at *6. Thus, concluding that sentencing disparities created by non-retroactive changes in the law cannot constitute an extraordinary and compelling reason for compassionate release which hould be limited to health, age, family or other circumstances similarly personal and individualized. Id., at *7.

 Change In The Law

On appeal, the defendant challenged the district court's conclusion that non-retroactive changes in the law cannot be extraordinary and compelling reasons for a reduction in sentence – specifically, a provision of the FSA that eliminated mandatory consecutive sentences for multiple firearms convictions under 18 U.S.C. § 924(c). United States v. Crandall, 25 F.4th 582, 583-84 (8th Cir. Feb. 9, 2022). The defendant claimed that his sentence would be shorter under current conditions because the FSA eliminated mandatory consecutive sentences for multiple firearms convictions under 18 U.S.C. § 924(c); and, due to an intervening decision in Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), defendant would not have been sentenced as a career offender under the sentencing guidelines. Id.

Judge Colloton reasoned that the governing statute 18 U.S.C. § 3582(c)(1)(A) requires that a reduction, among other things, must be consistent with applicable policy statements issued by the Sentencing Commission. Id., at 584. Additionally, a non-retroactive change in the law under 18 U.S.C. § 924(c) cannot be an extraordinary and compelling reason that justifies compassionate release. Id., at 585.⁶ Acknowledging disagreement among the circuits as to whether a district court is constrained by the Policy Statement in § 1B1.13, Judge Colloton held that because the district court correctly denied Crandall relief on other grounds the issue was “academic.” Id., at 584-85.

In the instant motion defendant seeks a sentence reduction under § 3582 claiming it was unusually long, pursuant to an amended version of § 1B1.13(b)(6). This question is similar to the defendant in Crandall, who in yet another appeal, claimed that, as amended, the policy statement permits a reduced sentence if one has been sentenced to an unusually long sentence. Crandall, 2024 WL 945328 (N.D. Iowa Mar. 5, 2024).

Pursuant to 28 U.S.C. § 994(t), Congress directed the Commission to define “extraordinary and compelling” reasons, and in 2006, the Commission promulgated Sentencing Guidelines Section 1B1.13 Policy Statement. Crandall, 2024 WL 945328, at *4. As amended In 2016, the policy statement described four categories of reasons that may be considered extraordinary and compelling: (1) the medical condition of the defendant; (2) the age of the defendant; (3) family circumstances; and (4) other reasons determined by the Director of the BOP to be extraordinary and compelling, other than, or in combination with reasons described in the other three categories.

On April 5, 2023, the Commission voted to promulgate amendments to the Guidelines Manual, including § 1B1.13’s policy statement by moving the list of extraordinary and compelling reasons from the Commentary to the Guidelines itself. Id., at *5.

Specifically, which is relevant here:

(b)(6) UNUSUALLY LONG SENTENCE.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances.

Because Congress did not act to modify or disapprove of the amendments, they became effective on November 1, 2023. Crandall, at *5.

Here, to support his claim of a disproportionate sentence, defendant relies on United States v. Capps, 2024 WL 880554 (E.D. Mo. Jan 31, 2024), where the defendant was sentenced to a mandatory life sentence for a non-violent drug offense. Judge Fleissig noted the Eighth Circuit's contrary view in Crandall, 25 F.4th 582, and United States v. Rodriguez-Mendez, 65 F.4th 1000 (8th Cir. Apr. 25, 2023), and held that the language in subsection (b)(6) specifically authorized district courts to consider non-retroactive changes in the law under a narrow set of circumstances – other than nonretroactive changes to the Guidelines Manual. Id., at *4. After considering various factors, Judge Fleissig concluded that extraordinary and compelling reasons warranted a sentence reduction from life to 180 months under subsection 1B1.13(b)(6). Id., at *4-*6.

Similarly, in United States v. Henderson, 2024 WL 881253 (E.D. Mo. Feb. 13, 2024), where the defendant was also sentenced for a non-violent drug offense, Judge Shaw determined that similar circumstances warranted a sentence reduction under the guidelines. Id., at *6-*8. The offenses charged and circumstances of the defendants presented in Capps and Henderson are distinguishable; here, defendant pled guilty to and was convicted of violent and far more serious offenses, and, thus, do not support defendant's claim of an unusually lengthy sentence under the amended Policy Statement.

The Government argues that as instructed by Congress, 18 U.S.C. § 3582(c)(1)(A)(i) defined extraordinary and compelling reasons, and no reasonable interpretation of that statute encompasses nonretroactive or intervening changes in the law. (Doc. 2040, pp. 11-12). The Government further argues that because subsection (b)(6) permits a court to consider - an unusually long sentence - when a nonretroactive change in the law represents a gross disparity from a sentence likely to be imposed today; it conflicts with the plain text, context and purpose of § 3582(c); relying on, United States v. Crandall, 25 F.4th 582, 585-586 (8th Cir. 2022), and as noted in Subsection (c) of 1B1.13:

(c) LIMITATION ON CHANGES IN LAW.—Except as provided in subsection (b)(6), a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) shall not be considered for purposes of determining whether an extraordinary and compelling reason exists under this policy statement. However, if a defendant otherwise establishes that extraordinary and compelling reasons warrant a sentence reduction ․ a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) may be considered for purposes of determining the extent of any such reduction.

Judge Fleissig considered the restricting language in subsection (c), but disagreed with the Eighth Circuit's ultimate decision, finding that it predated the amendment. Capps,

Conversely, however, and subsequent to the amended language in § 1B1.13, the court in Crandall found that a reading of subsection (b)(6) together with subsection (c) appeared to reflect the Commission's intention that a court may consider some nonretroactive changes in the law, but not others, and only when claiming an unusually long sentence as a ground for relief. Crandall, 2024 WL 945328, at * 7. The court further found the Commission's approach to compassionate release for unusually long sentences to be unprincipled, inconsistent, and unreasonable, and it would allow courts to consider changes in the law that Congress could have, but chose not to, apply retroactively. Id., at *8.

The court also held that § 1B1.13(b)(6) violates the Separation of Powers Doctrine because it impairs Congress's determination of what changes in sentencing laws it deems should apply retroactively. Id., (it is for Congress, not the courts, to determine whether to apply a change in a sentencing statute prospectively or retrospectively). Id.

The court further reasoned that § 1B1.13(b)(6) unworkably vague, specifically as to what would constitute a “gross disparity” between the sentence the offender received and the sentence the offender would receive today, which could create monumental problems with considering nonretroactive changes in the law in determining what sentence an offender would receive today; the terms here lack any form of definition and invite arbitrary application. Id., at *9. In any event, the Government states that that no disparity exists here because with a total offense level of 43 and a criminal history category II, defendant's sentence falls within the current guidelines range which is Life. (Doc. 2040, p. 14).

The court concluded that § 1B1.13(b)(6) is inconsistent with § 1B1.13(c) and is contrary to the Eighth Circuit's prior decision in 25 F.4th. Id. Thus, to the extent defendant here seeks compassionate release based on the ground he received an “unusually long sentence,” the motion is denied; relying on, Crandall, 2024 WL 945328, at *9.

 Intervening Change In Law Under “Booker”

Defendant concedes that Booker is not retroactive, but claims that consideration of intervening changes of law or fact allows the court discretion in the reduction of a sentence under the FSA; citing, Concepcion v. United States, 597 U.S. 481, 142 S.Ct. 2389, 213 L.Ed.2d 731 (2022). In that case the Court concluded that the broad discretion of federal courts to consider all relevant information at an initial sentencing hearing also carries forward to later proceedings that may modify an original sentence. 597 U.S. at 491, 142 S.Ct. 2389.

Nonetheless, in United States v. Crandall, 2024 WL 945328 at * 6, the court concluded that the Concepcion ruling did not explicitly or implicitly overrule its ruling. Id.; citing, United States v. Rodriguez-Mendez, 65 F.4th 1000, 1003-04 (8th Cir. Apr. 25, 2023)(while considering the then-pending 2023 guideline amendments in §§ 1B1.13(b)(6) and 1B1.13(c), the court concluded that those amendments would not change its reasoning as held in by its prior ruling in Crandall); see also, United States v. Rogers, 92 F.4th 760, 763 (8th Cir. Feb. 9, 2024) (recognizing the Court's acknowledgement in Concepcion that a district court's discretion may be limited by statute because Congress did not otherwise make a change in § 841(b)(1)(A) retroactive, therefore, the defendant is still subject to the mandatory term of life imprisonment as applied under the statute at the time of his offense.

 Other Factors Under U.S.S.G. 1B1.13(b)(5)

Defendant claims a sentence reduction is appropriate based on unusually harsh prison conditions (especially during the COVID pandemic), his age at the time of the offense, rehabilitation, and family support.

This court is sensitive to the restrictions in the prison setting and the associated difficulties to inmates in abiding by quarantine protocols. However, it is well established that this situation is not a ground for compassionate release. See United States v Topel, No. 18-cr-0363-BP (W.D. Mo. Feb. 16, 2022) (rejecting argument that compassionate release should be granted because measures taken by prison are “oppressive and at times ineffective”).

Age at the time of the offense, in and of itself, is not necessarily determinative as a ground for compassionate release. Defendant states that he was between 16 and 20 years old at the time he committed the offenses and that due his immaturity at the time a life sentence should have been rejected. This issue was considered by the court in United States v. Logan, 532 F.Supp.3d 725 (D. Minn. Apr. 1, 2021), under an “intrinsic” factor analysis because it is one that the sentencing judge considered or could have considered when deciding the defendant's sentence. Id., at 731(although not a prohibited factor under § 3582(c)(1)(A)(i), it generally deserves little weight because it was not enacted to provide courts with a mechanism to second-guess sentencing decisions made long ago).

In deference to Judge Rosenbaum who presided over the case for 14 months and knew more about the defendant, his co-defendants, his crimes, and his victims, Judge Schiltz was hesitant to use a § 3582(c)(1)(A) motion to substitute his judgment for the judgment of the sentencing judge. Id., 732-33. Judge Schiltz concluded that while the defendant was very young when he committed the crimes, received a very long sentence, and has been a model prisoner, he fails to meet the exceptionally high standard for relief set by § 3582(c)(1)(A)(i). Id., 740-41.

The seriousness of defendant's offenses at bar mirror the seriousness of those committed by the defendant in Logan who conspired with a number of others to obtain firearms, both legally and illegally; illegally transport those firearms interstate; and illegally sell the firearms to gang members and others. Thus, compassionate release on the basis of defendant's youth at the time he committed his offenses is inappropriate.

Rehabilitation of the defendant is not an extraordinary and compelling reason in and of itself but “may be considered in combination with other circumstances in determining whether and to what extent a reduction” in sentence is warranted. U.S.S.G. § 1B1.13(d). United States v. Hoskins, ––– F.Supp.3d ––––, ––––, 2024 WL 2362385 * 4 (S.D.Iowa. May 23, 2024).

 Sentencing Factors Under § 3553(a)

Defendant claims that factors to be considered for compassionate release weigh in his favor and he does not present a danger to anyone. (Doc. 2034, pp. 33-39; Doc. 2043, pp. 3-4). The § 3553(a) sentencing factors confirm that compassionate release here is not warranted. United States v. Martin, 2024 WL 1257174 *5-*6 (D.S.D. Mar. 25, 2024); see also, United States v. Ibrahim, 2024 WL 554548 (D.S.D. Feb. 12, 2024). The first factor to be considered under § 3553(a) is the nature and circumstances of the offense and the history and characteristics of the defendant. Here, defendant does not dispute the seriousness of his offenses, but claims that his post-sentencing conduct should be considered including his engagement in rehabilitation programs. Conversely, the Government states that defendant was involved in a large-scale drug distribution conspiracy from 1989 through 1994, and in the summer of 1992, defendant murdered two co-conspirators by using duct tape to bind their feet and warp their faces causing suffocation and death. (Doc. 2040, pp. 26-27). Beginning at the age of 17, defendant has been arrested for drug sales, burglary, attempted assault. (Id., p. 30). And, while imprisoned for the instant offenses defendant has incurred disciplinary reports for phone abuse, possession of drugs/alcohol, using drugs and alcohol, possessing a dangerous weapon, and assaulting with serious injury. (Id., p. 31).

The scale of this conspiracy, defendant's criminal history, and the inmate discipline data weigh heavily against release. Further, the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense outweighs a sentence reduction in this case.

Accepting defendant's claim of efforts at rehabilitation are laudable, he committed a serious crime and reducing his sentence at this time would not protect the public from further crimes if he resumed his criminal enterprise. After careful consideration, the court concludes that defendant's life sentence continues to be appropriate for the grossly seriousness of the crimes he committed.⁷

In sum, defendant bears the burden and has failed to satisfy that extraordinary and compelling reasons justify a sentence reduction.

Accordingly, defendant's second motion for compassionate release (Doc. 2033) is DENIED.

FOOTNOTES

1.   On November 23, 2020, defendant previously sought compassionate release claiming insufficient testing of inmates and staff, and inconvenient lock-downs during the COVID 19 pandemic; rehabilitative success; an unusually long prison sentence; and the needs of his family supported release. (Doc. 2016). Defendant also sought appointment of counsel. (Id.). The Government notes that on July 29, 2020, the Warden denied defendant's request. (Doc. 2019, p. 3, n. 1).Defendant was 48 years of age at the time and did not identify any specific medical challenges that placed him at increased risk of contracting the virus or a threat of serious harm due to medical conditions. The motion was reviewed by this court and after considering the nature and circumstances of the offenses, the motion was denied on the merits. (Doc. 2025), and summarily affirmed on appeal. (Doc. 2029).

2.   Because the Government has invoked the statute's exhaustion requirement, it has not forfeited its benefit. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007)(failure to exhaust administrative remedies is an affirmative defense, not a jurisdictional issue that the court must reach even if the litigants elect not to raise it); see also, United States v. Houck, 2 F.4th 1082, 1083-84 (8th Cir. 2021).

3.   The district court held that when a defendant files claims with the Warden of a prison, he is obligated to pursue the administrative process and that includes the filing of all claims at the same time United States v. Ferguson, 2021 WL 1701918 *4 (E.D.Va. Apr. 29, 2021). On appeal however, the court held that § 3582(c)(1)(A) is satisfied if a defendant requests the BOP to bring a motion on his behalf and either: (1) fully exhausts all administrative rights to appeal the BOP's decision or waits 30 days from the date of the initial request to file a motion in the district court. Ferguson, 55 F.4th at 268.

4.   This Policy Statement includes when a defendant is: (1) suffering from a terminal illness; (2) suffering from a serious physical or medical condition, a functional or cognitive impairment, or physically or mentally deterioration due to aging which substantially diminishes the defendant's ability to care for themselves within the facility and from which the defendant is not expected to recover; (3) at least 65 years old, experiencing serious deterioration due to age and has served at least 10 years or 75 percent of their sentence; (4) experiencing a change in family circumstances, namely the death or incapacitation of the caregiver of the defendant's minor child or the incapacitation of the defendant's spouse who now requires the defendant's care; (5) some other extraordinary and compelling reason as determined by the Director of the Bureau of Prisons. Crandall, at *3; citing USSG § 1B1.13.

5.   The district court also held that because Congress did not make the change in § 924(c) retroactive, defendant was ineligible for a reduction in sentence under § 3582(c)(1)(A). recited by Crandall, in 25 F.4th 582, 584.

6.   To the same effect (the 2024 decision is by the district court, and is being appealed).

7.   To the extent an appellate panel prefers to make a simple ruling on the merits, I again conclude, with the sentencing judge, that a life sentence is not currently inappropriate (rather than capital punishment, which was an issue). Whether relief might ultimately be granted by a warden or another judge in the event of a burdensome medical problem and an imminently life-threatening condition is, of course, a moot question.

HOWARD F. SACHS, UNITED STATES DISTRICT JUDGE