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United States v. Gray

United States District Court, S.D. Indiana, Terre Haute Division

September 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM CHARLES GRAY, Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge

         Pending before the Court is William Gray’s Motion for Compassionate Release, [Filing No. 96], 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. Mr. Gray asks the Court to reduce his currently-imposed life sentence and order that he be released on conditions to his daughter’s home in Arizona. For the reasons set forth below, the Court GRANTS Mr. Gray’s Motion.

         I.

         Background

         On August 28, 2003, Mr. Gray was sentenced to life imprisonment after a jury found him guilty of conspiracy to possess with intent to distribute methamphetamine. [Filing No. 39.] Since then, Mr. Gray has been in the custody of the Bureau of Prisons (the “BOP”). On June 26, 2019, Mr. Gray filed a motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A). [Filing No. 96.]

         Mr. Gray is 64 years old and in poor health. In late October of 2018 he was diagnosed with hepatocellular carcinoma-liver cancer-and is scheduled to begin treatment in late September or early October of 2019. [Filing No. 108; Filing No. 110 at 1.] Additionally, he has long suffered several “chronic debilitating medical conditions, ” including: (1) Type 2 Diabetes; (2)

         Hypertension; (3) Hyperlipidemia; (4) chronic constipation; and (5) Hepatitis C. [Filing No. 110 at 1.] As a result of these conditions, Mr. Gray has been in and out of the hospital multiple times in the past several months. Beginning January 3, 2019, he was hospitalized for sixteen days with acute abdominal pain, vomiting, and constipation. [Filing No. 11-1 at 6-13.] Upon his return to prison from the hospital, his condition deteriorated and he returned to the hospital temporarily. [Filing No. 11-1 at 13.] On January 23, Mr. Gray was again admitted to the hospital and presented with abdominal distention, liver cirrhosis (scarring), anasarca (swelling), and shortness of breath. [Filing No. 111-1 at 19.] He remained hospitalized for fourteen days. [Filing No. 111-1 at 14-21.] Two days after being discharged, Mr. Gray again returned to the hospital with severe abdominal pain, nausea, and constipation. [Filing No. 111-1 at 23.] He was released three days later. [Filing No. 111-1 at 24.] Throughout this time, Mr. Gray’s weight fluctuated drastically- on January 3, he weighed 140 pounds; on January 23, he was up to 163 pounds; and on February 11, he weighed only 128 pounds. [Filing No. 111-1 at 15; Filing No. 111-1 at 27.]

         Mr. Gray has since been hospitalized for multiple additional procedures. On May 18, 2019, he underwent surgery to repair an inguinal hernia. [Filing No. 110 at 3.] Then, on June 20, 2019, he underwent transarterial chemoembolization of a liver tumor-a form of cancer treatment. [Filing No. 110 at 3.] On September 9, 2019, Mr. Gray was hospitalized again for significant edema and fluid buildup in his liver. [Filing No. 113.] Mr. Gray remains hospitalized as of this date and is scheduled for surgery in the very near future. [Filing No. 113.]

         II.

         Discussion

         Mr. Gray argues that the Court should order that he be released based upon his serious medical conditions. [Filing No. 96.] In response, the Government disputes Mr. Gray’s characterization of his medical conditions and argues that, regardless, compassionate release is not appropriate because Mr. Gray has not exhausted his administrative remedies. [Filing No. 109.]

         18 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 finds that-
(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 § 3582(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-rather than solely 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 consider.

         As provided in § 1B1.13, consistent with the statutory directive in § 3582(c)(1)(A), the compassionate release analysis requires several findings. First, the Court must determine whether Mr. Gray has exhausted his administrative rights to appeal a failure of the BOP to bring a motion on his behalf for compassionate release or alternatively, whether 30 days have lapsed since the warden of Mr. Gray’s prison received such a request. 18 U.S.C. § 3582(c)(1)(A). Second, 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), (B)(3). Finally, the Court must consider the § 3553(a) factors, “to the extent they are applicable.” U.S.S.G. § 1B1.13.

         A. Exhaustion of Administrative Remedies

         The Government first argues that Mr. Gray has “not fully exhausted his administrative rights, ” and therefore, the Court should deny his motion. [Filing No. 109 at 3.] According to the Government, “[a] defendant bringing a motion for compassionate release under the First Step Act must demonstrate that he has ‘fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons . . . to bring a motion on the defendant’s behalf . . . .’” [Filing No. 109 at 2] (quoting 18 U.S.C. § 3582(c)(1)(A)). But in its response brief in opposition, the Government entirely ignores the second clause of § 3582(c)(1)(A), which provides an alternative where the defendant’s motion has been made after the “lapse of 30 days from the receipt of [a request that the BOP move for such modification] by the warden of the defendant’s facility.” 18 U.S.C. § 3582(c)(1)(A). This second situation is presented here.

         As the Government’s own filings show, the warden of Mr. Gray’s warden received such a request on January 28, 2019. [Filing No. 109 at 2.] The warden responded to the request-and denied it-on March 22, 2019, significantly longer than 30 days after the warden received the request. [Filing No. 109 at 2.] Therefore, Mr. Gray need not have exhausted his administrative remedies before the filing his motion on June 26, 2019. [Filing No. 96.]

         B. Extraordinary and Compelling Reasons

         The Government next argues that Mr. Gray has failed to meet his burden of proving that “extraordinary and compelling reasons exist that warrant a reduction in his sentence.” [Filing No. 109 at 3.] The Court must base its decision on whether “extraordinary and compelling reasons warrant” compassionate release in light of the policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A). The Application Notes to the policy statement contained in § 1B1.13 provide, in part:

         1. Extraordinary and Compelling Reasons.-. . . [E]xtraordinary and compelling reasons exist under any of ...


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