United States District Court, S.D. Indiana, Terre Haute Division
Jane Magnus-Stinson, Chief Judge United States District
before the Court is Oscar McGraw, Jr.'s Renewed Motion
for Compassionate Release, [Filing No. 81], filed
pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the
First Step Act of 2018, Pub. L. No. 115-391, § 603, 132
Stat. 5194, 5239, and the Court's Order dated March 1,
2019, which directed Mr. McGraw to renew his motion upon
receipt of an updated medical report, [Filing No.
79]. Mr. McGraw asks the Court to reduce his
currently-imposed life sentence and order that he be released
on conditions to his sister's home in Montana. For the
reasons set forth below, the Court GRANTS
Mr. McGraw's Motion.
August 28, 2003, Mr. McGraw was sentenced to life
imprisonment after a jury found him guilty of conspiracy to
possess with intent to distribute methamphetamine.
[Filing No. 1 at 8]; see United States
v. Gray, 410 F.3d 338 (7th Cir. 2005) (describing Mr.
McGraw's offense and affirming his conviction);
United States v. Lenover, 182 Fed.Appx. 563, 568
(7th Cir. 2006) (affirming Mr. McGraw's life sentence).
In 2017 and 2018, the Court received letters from Mr.
McGraw's sister and counsel requesting a recommendation
that the Bureau of Prisons (“BOP”) grant
Mr. McGraw's request for compassionate release based upon
his deteriorating physical condition. [Filing No. 56;
Filing No. 60.] Judge Larry J. McKinney made such a
recommendation in April 2017, [Filing No. 58], as
did the undersigned in July 2018, [Filing No. 61].
On both occasions, the Court made the recommendations without
the benefit of medical records or the input of the
Government; at the time, the sole authority to seek a
compassionate-release sentence modification rested with the
changed, however, with the passage of the First Step Act in
late 2018, which now provides an avenue for a defendant to
seek compassionate release from the Court after exhausting
administrative remedies. See 18 U.S.C. §
3582(c)(1)(A). Pursuant to the newly-amended provision, Mr.
McGraw, by counsel, filed his Motion for Compassionate
Release on January 24, 2019. [Filing No. 64.] On
February 12, 2019, the Court directed Mr. McGraw to
supplement the record with medical documentation, [Filing
No. 72], which Mr. McGraw did on February 14, 2019,
[Filing No. 73].
March 1, 2019, without objection, the Court directed that it
would hold this matter in abeyance to allow for Mr.
McGraw's BOP physician, Dr. Sara Beyer, to prepare a
report. [Filing No. 79.] The Government has now
filed Dr. Beyer's report and supporting medical
documentation. [Filing No. 80; Filing No.
80-1; Filing No. 80-2.] The entirety of Dr.
Beyer's report need not be repeated here, though several
of her findings, detailed below, are critical to the issue of
McGraw is 72 years old. [See Filing No. 73-1 at 1.]
He currently requires a wheelchair, although he can walk for
short distances. [Filing No. 80-1 at 3.] Mr. McGraw
also requires a portable oxygen machine. [Filing No. 80-1
at 3.] He suffers from a number of conditions,
including: “Type II Diabetes, insulin-dependent, with
peripheral neuropathy; hyperlipidemia; emphysema; chronic
kidney disease stage III; Hepatitis C type 1A (treatment
completed and no sign of disease noted); and chronic
pain.” [Filing No. 80-1 at 3.] Many of these
conditions, such as his diabetes and hypertension are fairly
well managed or controlled through the medical treatment Mr.
McGraw receives while incarcerated. [Filing No. 80-1 at
McGraw has at times suffered from bouts of severe,
uncontrollable diarrhea. [Filing No. 80-1 at 4;
Filing No. 80-2 at 13.] Loperamide treatment has
provided some improvement for the condition, though he
continues to have issues. [Filing No. 80-1 at 4;
Filing No. 80-2 at 13.] Mr. McGraw suffers from
chronic pain, but has refused fentanyl and Lyrica because he
does not want to be “doped up on drugs, ”
presumably due to the well-known side effects of such drugs.
[Filing No. 80-1 at 5.] He has also in the past
suffered from swelling and ulcers, [Filing No. 80-1 at
5], and complained of bruising and scabs on his hands
during a recent medical visit, [Filing No. 80-2 at
1]. Ultimately, Dr. Beyer opines that Mr. McGraw suffers
from serious, chronic medical conditions, though he is able
to function in the correctional facility with assistance.
[Filing No. 80-1 at 5-6.] Dr. Beyer does not believe
that Mr. McGraw suffers from a “terminal
illness.” [Filing No. 80-1 at 6.]
March 14, 2019, after the Government filed Dr. Beyer's
report, Mr. McGraw renewed his Motion for Compassionate
Release as directed. [Filing No. 81.] That Motion is
now fully briefed and ripe for decision.
McGraw argues that the Court should order that he be released
based upon his serious medical conditions, explaining that
the U.S. Probation Office in Montana has approved Mr.
McGraw's sister's home for placement. [Filing No.
81.] In response, the Government disputes Mr.
McGraw's characterization of his medical conditions and
argues that, regardless, compassionate release is not
appropriate because Mr. McGraw poses a danger to the
community and because the 18 U.S.C. § 3553(a) factors do
not favor release. [Filing No. 85 at 8-9.]
U.S.C. § 3582(c) provides in relevant part:
[T]he court, upon motion of the Director of the Bureau of
Prisons, or 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 (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
(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 . . . .
18 U.S.C. § 3582(c)(1)(A). Congress directed the
Commission to “describe what should be considered
extraordinary and compelling reasons for sentence reduction,
including the criteria to be applied and a list of specific
examples.” 28 U.S.C. § 994(t). The Sentencing
Commission has promulgated a policy statement regarding
compassionate release under § 3581(c), contained in
U.S.S.G. § 1B1.13 and the accompanying Application
Notes. While that particular policy statement has not yet
been updated to reflect that defendants (and not just the
BOP) may move for compassionate release, courts have
universally turned to U.S.S.G. § 1B1.13 to provide
guidance on the “extraordinary and compelling
reasons” that may warrant a sentence reduction.
E.g., United States v. Casey, 2019 WL
1987311, at *1 (W.D. Va. 2019); United States v.
Gutierrez, 2019 WL 1472320, at *2 (D.N.M. 2019);
United States v. Overcash, 2019 WL 1472104, at *2-3
(W.D. N.C. 2019). There is no reason to believe, moreover,
that the identity of the movant (either the defendant or the
BOP) should have any impact on the factors the Court should
provided in section 1B1.13, consistent with the statutory
directive in § 3582(c)(1)(A), the compassionate release
analysis requires several findings. First, the Court must
address whether “[e]xtraordinary and compelling reasons
warrant the reduction” and whether the reduction is
otherwise “consistent with this policy
statement.” U.S.S.G. § 1B1.13(1)(A), (3). Second,
the Court must determine whether Mr. McGraw 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(2). Finally, the Court must consider the §
3553(a) factors, “to the extent they are
applicable.” U.S.S.G. § 1B1.13.
Extraordinary and Compelling Reasons
Government first argues that Mr. McGraw does not meet the
medical criteria for compassionate release. The Application
Notes to section 1B1.13 provide, in part:
1. Extraordinary and Compelling Reasons.- .
. . [E]xtraordinary and compelling reasons exist under any of
the circumstances set forth below:
(A) Medical Condition of the Defendant.-
(i) The defendant is suffering from a
terminal illness (i.e., a serious and advanced illness with
an end of life trajectory). A specific prognosis of life
expectancy (i.e., a probability of death within a specific
time period) is not required. Examples include metastatic
solid-tumor cancer, amyotrophic lateral sclerosis (ALS),
end-stage organ disease, and advanced dementia.
(ii) The defendant is-
(I) suffering from a serious physical or
(II) suffering from a serious functional or