UNITED STATES v. MERRIWETHER (2022)

DECISION AND ORDER

Defendant Shermart D. Merriwether (hereinafter “Defendant”) has filed a pro se motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 106). Defendant—who is 27 years old (Dkt. 102 at 2)—pleaded guilty on September 27, 2021, pursuant to the terms and conditions of a plea agreement, to distribution of fentanyl in violation of 21 U.S.C. § 841(a)(1). (Dkt. 90; Dkt. 91). As part of his plea agreement, Defendant admitted to being involved in a fentanyl distribution drug trafficking organization and distributing fentanyl on January 14, 2018, to a 24-year old female that resulted in a non-fatal overdose. (Dkt. 90 at ¶ 5). There were several other overdoses associated with this drug trafficking organization, including one fatal overdose. (See Dkt. 102 at ¶¶ 76-103).

On January 12, 2022, the undersigned sentenced Defendant to 15 years in prison to be followed by three years supervised release. (Dkt. 104).¹ At the time of his sentencing, Defendant had previously been convicted of two prior state court drug felonies in 2015 resulting in a criminal history category under the Sentencing Guidelines of IV. (See Dkt. 102 at ¶¶ 131-35).

Defendant is currently housed at FCI Loretto (“Loretto”) in Pennsylvania, and his scheduled release date is September 29, 2032. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Nov. 27, 2022). According to the Bureau of Prison's (“BOP”) website tracking COVID-19 cases in its facilities, no inmates at Loretto are currently testing positive for COVID-19. See COVID-19: Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Nov. 27, 2021).

Defendant bases his motion for compassionate release on the COVID-19 pandemic and his medical condition of asthma. (Dkt. 106). Defendant states that he previously was diagnosed with COVID-19 while housed locally, and he is concerned about contracting the virus again. (Id. at 1). The presentence investigation report confirmed that Defendant was diagnosed with asthma as an infant and he used an Albuterol inhaler before workouts and every other day before bed. (Dkt. 102 at ¶ 163).²

The government opposes Defendant's motion on various grounds, including that he failed to satisfy the administrative exhaustion requirements. (Dkt. 108 at 6-7). The government represents that “BOP regional counsel has confirmed that the defendant has not submitted [a request to the warden]․” (Id.). The Court agrees with the government that Defendant has failed to establish that he has met this statutory requirement, and as a result, the motion is denied without prejudice.

“A court may not modify a term of imprisonment once it has been imposed except pursuant to statute.” United States v. Gotti, 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:

The court may not modify a term of imprisonment once it has been imposed except that ․ the court, upon motion of the Director of the [BOP] ․, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] ․ 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 (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ․ extraordinary and compelling reasons warrant such a reduction ․ and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term.³ “The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute.” United States v. Roney, No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd, 833 F. App'x 850 (2d Cir. 2020).

The Second Circuit has held that the exhaustion requirement of § 3582(c)(1)(A) is not a jurisdictional limitation, but rather constitutes a claim-processing rule that can be waived or forfeited by the government. United States v. Saladino, 7 F.4th 120, 123 (2d Cir. 2021). Here, Defendant has failed to establish that he complied with the administrative exhaustion requirements, and the government has properly raised this claim-processing rule in opposition to Defendant's motion. As a result, Defendant's motion is denied without prejudice for failure to exhaust administrative remedies as required by the statute.

SO ORDERED.

FOOTNOTES

1.   This sentence was consistent with the plea agreement entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) which called for a prison sentence between 168 and 188 months. (See Dkt. 90 at ¶ 14).

2.   The presentence investigation report also confirmed that, notwithstanding this asthma diagnosis, Defendant smoked seven to eight blunts of marijuana per day since the age of 14. (Dkt. 102 at ¶ 165).

3.   Although the statute references the Sentencing Commission's policy statements, the Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes “extraordinary and compelling.” United States v. Brooker, 976 F.3d 228, 236 (2d Cir. 2020).

ELIZABETH A. WOLFORD, Chief Judge