Opinion
No. 14-cr-212 (RJS)
03-01-2021
UNITED STATES OF AMERICA v. KEVIN MIZELL, Defendant.
ORDER
RICHARD J. SULLIVAN, Circuit Judge:
Before the Court are two pro se letters from Defendant Kevin Mizell (see attached). The first letter, which is dated January 27, 2021 but was received in Chambers on February 4, 2021, requests a compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), or, alternatively, seeks home confinement under 18 U.S.C. § 3624(c)(2), on the grounds that Mizell has contracted COVID-19. Mizell's second letter, dated February 1, 2021 but received in Chambers on February 5, 2021, asks the Court to recommend to the Bureau of Prisons ("BOP") that it deduct a year off Mizell's sentence in light of his successful completion of the Residential Drug Abuse Program ("RDAP"). For the reasons discussed below, Mizell's motions are DENIED.
Although Mizell also seeks the appointment of counsel to assist him in filing his motion for compassionate release, his request is mooted by the denial of his compassionate release.
Background
The facts are largely taken from the Presentence Report ("PSR") prepared in connection with Mizell's sentencing, as well as the submissions of the parties. Record citations to page numbers correspond to the page numbers provided in the ECF legend atop the filing, not to the filing's own pagination.
Around 2006, Mizell and four other individuals founded a violent street gang known as the Murda Moore Gangstas ("MMG") in the Bronx. ("PSR" ¶¶ 19-20.) Although MMG began as a small operation engaged in robberies and narcotics trafficking, the gang eventually expanded to include approximately 50 young men, several of whom shot and injured members of opposing gangs. (Id. ¶¶ 19-20, 29-32, 37, 40.) As a leader in MMG, Mizell organized and facilitated some of these shootings; at one point in 2013, for example, he provided his firearm to a co-conspirator who shot three members of a rival gang in the back and also shot one of the three victims in the face. (See id. ¶¶ 29, 34-35, 68.) Mizell also participated in an armed robbery (Id. ¶ 46), and on a different occasion, he personally fired five shots at a rival gang member (Sent'g Tr. at 21).
A grand jury eventually charged Mizell with one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d); one count of discharging a firearm in furtherance of that conspiracy in violation of 18 U.S.C. § 924(c)(1)(A)(iii); three counts of attempted murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5); and one count of Hobbs Act robbery in violation of 18 U.S.C. § 1951. (Doc. No. 163.) Pursuant to a plea agreement with the government, Mizell subsequently pleaded guilty to the racketeering conspiracy count and to a lesser-included offense of possessing a firearm in furtherance that conspiracy, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i). (See PSR ¶ 15.)
At sentencing, the Court calculated a Sentencing Guidelines range of 57 to 71 months' imprisonment for Mizell's racketeering offense, based partly on Mizell's leadership role in two aggravated assaults, both of which resulted in injuries to the victims, as well as Mizell's involvement in a gang-related robbery. (Sent'g Tr. at 11-13.) The Court also concluded that Mizell's unlawful possession of a firearm carried an additional, mandatory consecutive term of five years to be served after he finished serving his sentence on the racketeering conspiracy. (Id. at 13.) While the Court carefully considered Mizell's youth at the time of the offenses, his natural talents and intelligence, his apparent remorse and sincere desire to lead a law-abiding life, and his family support (see id. at 26, 33, 43), the Court nevertheless found that a sentence of ten years' imprisonment was "compelled" by the facts of the case in light of the seriousness of the offenses, Mizell's leadership role in them, and the need for specific and general deterrence (see id. at 35-36). Mizell is currently serving his sentence at FCI Fort Dix and, according to the BOP's public database, is scheduled to be released on October 9, 2022. See Find an Inmate https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results (last visited Feb. 28, 2021).
Analysis
In his letters, Mizell alternatively requests a sentencing reduction under the First Step Act, see 18 U.S.C. § 3582(c)(1)(A), home confinement under the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), see Pub. L. No. 116-136, § 12003(b)(2) (2020), or a recommendation from the Court that the BOP give him credit for completing the RDAP program. The Court will address each in turn.
A. Compassionate Release
It is well-established that a court "may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Roberts, No. 18-cr-528 (JMF), 2020 WL 1700032, at *1 (S.D.N.Y. Apr. 8, 2020). Section 3582(c)(1)(A) provides one such exception, permitting a court to reduce a defendant's sentence where (1) "extraordinary and compelling reasons warrant such a reduction," and (2) such relief would be consistent with both the objectives of sentencing set forth in 18 U.S.C. § 3553(a) and "applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A).
Before the Court can grant an inmate's motion for compassionate release, the inmate must exhaust his administrative remedies, or submit a request to the BOP for compassionate release and wait 30 days without receiving a response. See 18 U.S.C. § 3582(c)(1)(A). Mizell asserts that he applied to the Warden at Fort Dix for compassionate release on November 15, 2020, and had not yet received a response as of January 27, 2021. For purposes of deciding Mizell's motions, the Court takes his submission at face value and finds that he has exhausted his administrative remedies.
Here, Mizell argues that the COVID-19 pandemic, along with his chronic stomach pain, merits a sentencing reduction. But Mizell's medical issues fall far short of the "extraordinary and compelling" reasons required for a reduced sentence. For starters, he has already contracted the coronavirus, "which makes it unlikely that he w[ill] face the virus again." United States v. Epskamp, No. 12-cr-120 (RJS), 2021 WL 326971, at *2 (S.D.N.Y. Feb. 1, 2021); see also Reinfection with COVID-19 , Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/your-health/reinfection.html (updated Oct. 27, 2020). And while Mizell has developed stomach pain, his letter dated January 27, 2021 reports that he is receiving medical treatment to address that ailment. Moreover, stomach pain is not associated with increased risk of severe negative effects from the coronavirus. See People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-cond-itions.html (updated Feb. 22, 2021).
But even if Mizell could establish a compelling and extraordinary reason for a sentencing reduction, countervailing factors still compel denial of such relief. As noted above, before granting a motion for compassionate release, the Court must assess the § 3553(a) sentencing factors to determine "whether those factors outweigh the 'extraordinary and compelling reasons' warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence." United States v. Ogarro, No. 18-cr-373-9 (RJS), 2020 WL 5913312, at *2 (S.D.N.Y. May 13, 2020) (quoting United States v. Ebbers, No. 02-cr-1144 (VEC), 2020 WL 91399, at *7 (S.D.N.Y. Jan. 8, 2020)). Those sentencing factors include (1) "the nature and circumstances of the offense," (2) "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense," and (3) "the need for the sentence imposed . . . to afford adequate deterrence to criminal conduct." 18 U.S.C. § 3553(a).
Here, the same § 3553(a) factors that compelled the Court to impose a ten-year sentence apply with equal force today. As the Court underscored at sentencing, Mizell directed and participated in multiple, serious crimes of violence - crimes that resulted in physical injury to the victims who were shot (by a co-defendant using Mizell's firearm); crimes that could have caused death; and crimes that might, if charged differently, have carried a much higher mandatory minimum sentence. (Sent'g Tr. 18, 34-35.) Of course, the Court continues to appreciate the fact that Mizell has evidently turned his life around, and is pleased to hear that Mizell has maintained an exemplary prison record, earned a GED and an associate degree, and successfully completed RDAP. But the Court acknowledged Mizell's positive trajectory at the time of his original sentence and nevertheless concluded that a ten-year sentence was compelled by Mizell's leadership in serious and potentially deadly offenses, combined with the need for deterrence. The Court therefore concludes that "[g]ranting [Mizell's] compassionate-release motion, when he is more than a year away from completing his carceral term, would disserve these important § 3553(a) factors." United States v. Martinez, No. 12-cr-862-10 (AJN), 2020 WL 2079542, at *3 (S.D.N.Y. Apr. 30, 2020).
B. Other Requested Relief
Mizell further seeks home confinement under the CARES Act and a recommendation from the Court that the BOP reduce his sentence in light of his successful conclusion of RDAP.
The Court lacks any authority to deduct a year from Mizell's sentence for his completion of RDAP, because the BOP has the sole discretion over that decision. See 18 U.S.C. § 3621(e)(2)(B) ("The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons . . . ." (emphasis added)); see also United States v. Mcrae, No. 17-cr-643 (PAE), 2021 WL 142277, at *2 (S.D.N.Y. Jan. 15, 2021). Since, according to Mizell's letter dated February 1, 2021, the BOP has already determined that Mizell's crimes disqualify him from early release under § 3621(e), see 28 C.F.R. § 550.55 (noting that inmates are not qualified for earlier release for violent offenses like robbery and aggravated assault), the Court finds no basis for recommending that the BOP revisit its conclusion.
The CARES Act likewise provides no basis for the Court to order Mizell's requested relief. Though the CARES Act and the Attorney General's April 3, 2020 memorandum authorize the BOP to permit prisoners to finish the remainder of their sentence at home confinement, this remedy is exclusively within the discretion of the BOP; the Court lacks the authority to order home confinement. See Pub. L. No. 116-136, § 12003(b)(2) (2020); 18 U.S.C. § 3624(c)(2); United States v. Corley, No. 18-cr-454-3 (KPF), 2021 WL 242451, at *4 n.7 (S.D.N.Y. Jan. 25, 2021).
Conclusion
To the extent Mizell has not fully recuperated from the coronavirus, the Court wishes him a speedy recovery, and again, congratulates him on his recent accomplishments. Nevertheless, for the reasons set forth above, the Court must, respectfully, DENY Mizell's motions. The Clerk of Court is respectfully directed to mail Mizell a copy of this Order. SO ORDERED. Dated: March 1, 2021
New York, New York
/s/_________
RICHARD J. SULLIVAN
UNITED STATES CIRCUIT JUDGE
Sitting by Designation
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