United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE.
requested a sentence reduction under the First Step Act, 18
U.S.C. § 3582(c)(1)(A), alleging that he suffers from
“an incurable, progressive illness.” Doc. 191 at
4. The government filed a response which attached internal
Bureau of Prisons (“BOP”) tracking records
showing that Defendant had not exhausted his administrative
remedies. Doc. 193. Because exhaustion is required before a
court can entertain a request for sentence reduction under
the Act, see 18 U.S.C. § 3582(c)(1)(A), the
Court denied Defendant's request. Doc. 194.
then filed a brief stating that he had in fact exhausted his
administrative remedies. Doc. 195. He attached an appeal he
says he placed in the inmate mail system. Id. The
government again noted that the appeal does not appear on the
internal BOP grievance tracking system, and attached a copy
of the latest printout. Doc. 199. Out of an abundance of
caution, however, the government addressed the merits of
Defendant's request, asserting that he should not be
granted a reduction of sentence. Id. Defendant has
now filed a reply to the government's position on the
merits of his request. Doc. 200.
Defendant the benefit of the doubt, the Court will not
dismiss his request for non-exhaustion. The document provided
by Defendant suggests that he attempted to exhaust his
administrative remedies. Doc. 195 at 4. He asserts that he
never received a response to his internal appeal, and
therefore had no further administrative avenue for relief.
Id. at 2. The Court will address the merits of his
request for a sentence reduction.
First Step Act and Relevant Guidelines.
First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to
permit a defendant who has exhausted administrative remedies
to file a motion with the district court for a reduction in
sentence consistent with the factors outlined in 18 U.S.C.
§ 3553(a), if the court finds that:
(i) extraordinary and compelling reasons warrant such a
(ii) the defendant is at least 70 years of age, has served at
least 30 years in prison, pursuant to a sentence imposed
under section 3559(c), for the offense or offenses for which
the defendant is currently imprisoned, and a determination
has been made by the Director of the Bureau of Prisons that
the defendant is not a danger to the safety of any other
person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Defendant seeks relief under
1B1.13 of the Sentencing Guidelines sets forth the
Commission's policy statement on the reduction of
imprisonment under § 3582(c)(1)(A) for medical reasons.
Circumstances that may present extraordinary and compelling
reasons to reduce a defendant's sentence include “a
terminal illness (i.e., a serious and advanced illness with
an end of life trajectory)” or “a serious
physical or medical condition . . . that substantially
diminishes the ability of the defendant to provide self-care
within the environment of a correctional facility and from
which he . . . is not expected to recover.”
See U.S.S.G. § 1B1.13, Application Note 1. The
Guideline further states that the defendant should not be a
danger to the safety of any other person or to the community,
as provided in 18 U.S.C. § 3142(g). See
U.S.S.G. § 1B1.13(2). Thus, to be eligible for a reduced
sentence, Defendant must demonstrate both the existence of
extraordinary and compelling reasons and that he is not a
danger to the community.
alleges that he suffers from arthritis, sciatica, bulging
lumbar discs 2-5, scoliosis, and degenerative disease causing
central stenosis in his spine. Doc. 191 at 8. None of these
are terminal illnesses, so he must instead demonstrate
“a serious physical or medical condition” that
“substantially diminishes” his ability “to
provide self-care within the environment of a correctional
facility.” U.S.S.G. § 1B1.3, Application Note 1.
does not meet this criterion. BOP medical records describe
Defendant's spinal problems - the primary focus of his
briefing - as “mild” or “moderate.”
Docs. 191 at 13-14, 17-19, 22; 199-1 at 11. In some instances
the records describe “severe . . . neural foramina
narrowing” and “severe loss of disc height”
(Docs. 191 at 17, 21; 199-1 at 11), but the records state
that Defendant is “able to perform all of his
Activities of Daily Living without any issues” (Doc.
199-1 at 12). Defendant is in wheelchair, as he was at
sentencing, and has been assigned to a handicap cell. Doc.
199-1 at 12.
was convicted and sentenced for conspiracy to purchase a
human being to force into sexual slavery. He obtained
Scopolamine, a date-rape drug, that he intended to use to
keep the slave compliant. Doc. 155, ¶ 12. He drove from
California to Arizona to purchase the slave, and packed his
car with zip-ties, handcuffs, ropes, high-heeled shoes in the
size he believed the slave to be, and the Scopolamine in a
blue bulb applicator. Id. His attempted slave
purchase was part of an FBI sting operation, but he
previously was convicted of false imprisonment with violence
when he handcuffed a victim while trying to have sex with
her, pulled a knife, told her he was ...