Opinion
Case No. 6:91-cr-60156-MC
03-27-2020
UNITED STATES OF AMERICA Plaintiff, v. DAVID LINDON HARPINE, Defendant.
OPINION AND ORDER MCSHANE, Judge:
Defendant David Lindon Harpine originally moved for compassionate release on December 23, 2019. Now, because of the rapidly evolving COVID-19 pandemic, Mr. Harpine requests that the Court grant his compassionate release based on emergency circumstances. Because of the significant health concerns faced by Mr. Harpine and his demonstrated rehabilitation while incarcerated, Mr. Harpine's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(C)(1)(A)(i), ECF No. 204, is GRANTED.
LEGAL STANDARD
Congress, through the First Step Act, amended 18 U.S.C. § 3582(c)(1)(A) to allow a defendant to file a motion directly with the district court for compassionate relief after exhausting all administrative remedies. The Court may reduce a defendant's sentence if:
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served 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 BOP 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).
The pertinent policy statement for sentence reductions related to medical ailments is found at U.S.S.G. § 1B1.13. "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.'" United States v. Bunnell, No. CR1400119001PHXDGC, 2019 WL 6114599, at *1 (D. Ariz. Nov. 18, 2019) (quoting U.S.S.G. § 1B1.13, Application Note 1). The Court also considers whether the defendant is still a danger to the community by consulting the factors listed at 18 U.S.C. § 3142(g). U.S.S.G. § 1B1.13(2).
The Court may thus reduce Mr. Harpine's sentence under the First Step Act if it determines the existence of extraordinary and compelling reasons and that Mr. Harpine is no longer a danger to the community. Bunnell, 2019 WL 6114599, at *1.
DISCUSSION
The Court originally sentenced Mr. Harpine to an aggregate sentence of 465 months, which was reduced to 345 months in 2017. Or. Granting Mot. to Reduce Sentence, ECF No. 199. Mr. Harpine has served 282 months of his 345-month prison term, with an expected release date of December 14, 2020. United States' Resp. to Def.'s Mot. to Reduce Sentence 2, ECF No. 209.
At present, Mr. Harpine is 76 years old and has served at least 10 years of his prison term. Mr. Harpine suffers from multiple chronic health concerns, including Type-II diabetes mellitus, polyneuropathy, degenerative disc disease, degenerative joint disease, high blood pressure, and high cholesterol. Mr. Harpine cannot walk without the help of a cane or a walker.
Mr. Harpine's age and health also poses an increased concern because of the ongoing COVID-19 pandemic. On March 13, 2020, President Donald Trump declared a state of emergency because of the COVID-19 outbreak. Proclamation on Declaring a National Emergency the Novel Coronavirus Disease (COVID-19) Outbreak, (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. Ten days later, Oregon Governor Kate Brown ordered all Oregonians to stay home except for certain "essential needs." Executive Order: Stay Home Except for Essential Needs, (Mar. 23, 2020), https://govstatus.egov.com/or-covid-19. Although data on COVID-19 is changing each day, it is unquestionable that individuals over the age of 65 with underlying health conditions, such as lung disease, heart disease, and diabetes have higher rates of fatality. People at Risk for Serious Illness from COVID-19, CDC (Mar. 12, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html.
As of March 25, 2020, nearly 100 million Americans are under "stay-at-home" orders aimed at preventing the spread of COVID-19. Paige Winfield Cunningham, The Health 202: Nearly 100 Million Americans are Living Under Stay-at-Home Orders as Coronavirus Spreads, Wash. Post (Mar. 23, 2020), https://www.washingtonpost.com/news/powerpost/paloma/the-health-202/2020/03/23/the-health-202-nearly-100-million-americans-are-living-under-stay-at-home-orders-as-coronavirus-spreads/5e777c8e88e0fa101a74f039/. --------
Even before the COVID-19 outbreak, Mr. Harpine's health conditions made him a viable candidate for compassionate relief and the continuing pandemic only strengthens his contention that he has met the "extraordinary and compelling reasons" criteria listed in the Policy Statement. U.S.S.G. § 1B1.13, cmt. n.1(B). Thus, the only question here is whether Mr. Harpine remains a danger to the community.
When assessing whether a defendant remains a danger to the community, the Policy Statement from U.S.S.G. § 1B1.13 directs the Court to consult the factors listed in 18 U.S.C. § 3142(g), which includes: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including their physical and mental condition, past conduct, history relating to drug or alcohol abuse, criminal history; (4) and whether, at the time of the current offense, the person was on probation, on parole, or on other release pending completion of a sentence. See United States v. Spears, Case No. 98-cr-0208-SI-22, 2019 WL 5190877, at *5 (D. Or. Oct. 15, 2019). The Government argues that "Mr. Harpine's history paints a picture of a man who remains a danger." United States' Resp. to Def.'s Mot. to Reduce Sentence 7.
The Court disagrees. While the Government urges the Court to focus on Mr. Harpine's criminal behavior, his behavior while in federal custody has been nothing short of exemplary. For example, Mr. Harpine has never received an incident report for misconduct. Ex. C at 4. Mr. Harpine has also completed over 35 educational courses and spent seven years as a Suicide Watch Companion. Ex. G at 48; Ex. D at 1. Chief Psychologist Cynthia Lenning noted Mr. Harpine's transformation in prison, which included serving as mentor to fellow inmates. Ex. E at 1. Dr. Lenning further opined that Mr. Harpine's age and health "in combination with his effort toward change," establishes an "excellent . . . prognosis for making a successful transition to the community." Id. In similar situations, sister courts have granted compassionate release to individuals who have shown rehabilitation through their positive actions in prison. See United States v. Redd, No. 1:97-cr-00006-AJT, 2020 WL 1248493, at *10 (E.D. Va. Mar. 16, 2020) (granting compassionate release after recognizing "overwhelmingly positive" prison conduct that was "reflective of substantial rehabilitation"); United States v. Davis, No. PJM 00-424-2, 2020 WL 1083158, at *2 (D. Md. Mar. 5, 2020) (granting compassionate release and specifically recognizing that the defendant "has been incarcerated for close to twenty years without a single disciplinary infraction"); United States v. Perez, No. 88-10094-1-JTM, 2020 WL 1180719, at *3 (D. Kansas Mar. 11, 2020) (granting compassionate release based on time served and good conduct).
While the Court recognizes that Mr. Harpine's underlying offense occurred while he was on parole, the Court disagrees with the Government's contention that he "cannot meet his burden to show he is not a danger to the community." United States' Resp. to Def.'s Mot. to Reduce Sentence 8. Instead, "in light of the age of [Mr. Harpine's] previous convictions, [Mr. Harpine's] age, and [Mr. Harpine's] physical and mental condition, the Court does not find that . . . [Mr. Harpine] poses a significant risk to the community." Spears, 2019 WL 5190877, at *5 (citations omitted). Mr. Harpine has proved that a reduction in sentence is sufficient, but not greater than necessary, to accomplish the sentencing purposes set forth in 18 U.S.C. § 3553(a)(2).
CONCLUSION
For these reasons, Mr. Harpine's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(C)(1)(A)(i), ECF No. 204, is GRANTED. Mr. Harpine's sentence of imprisonment is reduced to time served, effective March 27, 2020. As part of his supervised release, Mr. Harpine will be permitted to reside at a reentry center for up to 120 days. All other conditions of his supervised release, as described in the Amended Judgment, shall remain unchanged. IT IS SO ORDERED.
DATED this 27th day of March, 2020.
s/Michael J. McShane
Michael J. McShane
United States District Judge