United States v. Johns

          ORDER

          Cindy K. Jorgenson United States District Judge.

         Pending before the Court is the Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(1)(A) and the First Step Act of 2018 (Doc. 875) filed by Lyle Gerald Johns (“Johns”). The government has filed a response (Doc. 885) and Johns has submitted a reply (Doc. 890). The parties presented evidence and argument to the Court on June 3, 2019. The government takes no position on whether Johns' request for compassionate release should be granted.

         Background

         A jury found Johns guilty of one count of possession and one count of conspiracy to possess with intent to distribute marijuana, and two counts of possession and one count of conspiracy to possess with intent to distribute cocaine. Johns was subsequently sentenced to 40 year terms of imprisonment on each of the two marijuana-related convictions and concurrent terms of life imprisonment on each of the three cocaine-related convictions.

         Johns is now 81 years old and has served almost 23 years of his sentence. Johns seeks compassionate release pursuant to Section 603(b)(1) of the First Step Act.

         During the June 3, 2019, hearing, evidence was presented to the Court. Clinical Director Heidi Haight-Biehler, D.O., testified she physically examined Johns with regards to his request for a reduction in sentence and reviewed his activities of daily living. Dr. Haight-Biehler testified BOP cannot provide conventional treatment that would substantially improve Johns' mental or physical condition because his medical condition is age-related.

         Counselor Aaron Nava testified Johns' mobility and ability to perform day-to-day activities have significantly declined over time. He also testified that he personally does not feel Johns is a danger to anybody.

         Additionally, medical records and letters in support of Johns were admitted into evidence. This includes a letter from Bud Riggs, who states Johns may reside with him.

         First Step Act

         The First Step Act went into effect on December 21, 2018. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Prior to the passage of the First Step Act, only the Director of the Bureau of Prisons (“BOP”) could file a motion for compassionate release. Section 603(b) of the First Step Act modified 18 U.S.C. § 3582(c)(1)(A) with the intent of “increasing the use and transparency of compassionate release.” Pub. L. No. 115-391, 132 Stat. 5194, at *5239 (capitalization omitted). That section now provides that a sentencing court may modify a sentence either upon a motion of the Director of the BOP “or upon motion of the defendant after [he] has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility . . . ” 18 U.S.C. § 3582(c)(1)(A). Johns and the government agree Johns has exhausted his administrative rights.

         Johns moves for compassionate release pursuant to this section. A sentencing court may grant such a request where “extraordinary and compelling reasons warrant such a reduction” and the “reduction is consistent with applicable policy statements issued by the Sentencing Commission . . . ” Id. The Application Notes of the U.S. Sentencing Guidelines § 1B1.13 provides, in relevant part, that extraordinary and compelling reasons exist if:

(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 medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process, 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.

(B) Age of the Defendant.__ The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

U.S.S.G. 1B1.13, App. Notes.

         In exercising discretion under § 3553(a) and the First Step Act, compassionate release “due to medical conditions” is generally treated as “a rare event.” White v. United States, - F.Supp.3d -, -, 2019 WL 2067223, at *2 (W.D. Mo. May 9, 2019); see also United States v. Clark, 2019 WL 1052020 (W.D. N.C. Mar. 5, 2019) (denying relief, which is “extraordinary”); United States v. Gutierrez, 2019 WL 1472320, at *2 (D.N.M. Apr. 3, 2019) (same); United States v. Casey, No. 1:06CR00071, 2019 WL 1987311, at *1 (W.D. Va. May 6, 2019) (same). Prisoners typically only obtain relief after serving a significant term of incarceration. See, e.g., ...