Opinion
6:19-CR-06061 EAW
2022-10-17
UNITED STATES of America, v. Willie J. WOFFORD, Defendant.
Charles E. Moynihan, Government Attorney, Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for United States of America.
Charles E. Moynihan, Government Attorney, Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Defendant Willie J. Wofford (hereinafter "Defendant") has filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 116). For the reasons set forth below, the motion is denied.
I. BACKGROUND
Pursuant to the terms and conditions of a plea agreement, on June 22, 2021, Defendant pleaded guilty to a two-count Superseding Information charging a violation of 21 U.S.C. § 841(a)(1) (possession of cocaine with intent to distribute) and a violation of 18 U.S.C. § 922(g)(3) (unlawful user of a controlled substance in possession of a firearm and ammunition). (Dkt. 98; Dkt. 99). The firearm offense related to Defendant's possession of a loaded semiautomatic pistol on February 20, 2018—the same date he was in possession of cocaine and marijuana for the purposes of distribution. (Dkt. 98 at ¶ 5). The conduct of February 20, 2018, occurred after Defendant was the victim of an armed robbery on September 11, 2017, involving the theft of marijuana possessed by Defendant and his vehicle. (Dkt. 105 at ¶¶ 25-26). Subsequent surveillance of Defendant after the reported robbery led to the conclusion that he was engaged in the sale of narcotics out of his vehicle. (Id. at ¶ 27). The plea agreement was entered into pursuant Federal Rule of Criminal Procedure 11(c)(1)(C) and called for a prison sentence of 72 months. (Dkt. 98 at ¶ 13).
Defendant is 46 years old, and according to the PSR, he has a prior criminal record (including a felony conviction adjudicated youthful offender) but no criminal history points and, therefore, he is a criminal history category I. (Dkt. 105 at ¶¶ 64-68). On January 10, 2022, the undersigned accepted the plea agreement and sentenced Defendant to 72 months in prison with three years of supervised release to follow. (Dkt. 112; Dkt. 114). This sentence was above the calculated Sentencing Guideline range of 21 to 27 months in prison (based on an offense level of 16 and a criminal history category of I), and reflected the government's agreement not to pursue a charge pursuant to 18 U.S.C. § 924(c)(1)(A)(i). (See Dkt. 105 at ¶¶ 73-75).
Defendant bases his request for relief on the conditions of the facility where he is housed which "is in Red Zone for COVID-19" and the lack of ventilation and smokey environment which makes it "extremely difficult to breathe" due to Defendant's asthma and "respiratory issues from long-COVID." (Dkt. 116 at 5). Defendant contends that he passed out on June 9, 2022, due to these conditions and his pre-existing medical conditions, which include hypertension. (Id. at 5, 8; see also Dkt. 121 (letter from Curtis W. Newsome, M.Div., MSW); Dkt. 123 (Defendant's letter with enclosure medical records)). Defendant subsequently filed an addendum to his request "based on a recent extraordinary tragic event" involving the murder of Defendant's son on July 5, 2022, and the devastating impact that this has had on Defendant's family. (Dkt. 119; see also Dkt. 120; Dkt. 122). Defendant has subsequently filed additional letters in further support of his request for compassionate release. (Dkt. 125; Dkt. 126; Dkt. 127; Dkt. 128).
Defendant is presently housed at United States Penitentiary Lewisburg ("USP Lewisburg") in Pennsylvania, and his projected release date is December 15, 2026. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Oct. 16, 2022). According to a BOP website, USP Lewisburg has two inmates currently testing positive for COVID-19, and no staff members currently testing positive. See COVID-19: Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Oct. 16, 2022).
The government opposes Defendant's motion, arguing that Defendant's medical conditions do not rise to the level of extraordinary and compelling circumstances justifying his release, and furthermore that the factors set forth at 18 U.S.C. § 3553(a) do not justify Defendant's release. (Dkt. 118).
In addition to the submissions from the parties, the Court received a memorandum from the United States Probation Office ("USPO") dated July 13, 2022. (Dkt. 130). According to the USPO, the Bureau of Prisons has designated Defendant as a Medical Care Level 2, indicating that his medical concerns are stable but do require follow up care. (Id. at 2; Dkt. 130-1 at 4). The USPO also reported that Defendant has been offered both the Moderna and Pfizer-BioNTech vaccines for COVID-19, and he has refused both. (Dkt. 130 at 2).
II. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti, 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that . . . the court, upon motion of the Director of the [BOP] . . . , or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] . . . 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 . . . 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). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term. "The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney, No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd, 833 F. App'x 850 (2d Cir. 2020).
Although the statute references the Sentencing Commission's policy statements, the Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker, 976 F.3d 228, 236 (2d Cir. 2020).
Here, there is no dispute that Defendant has fully exhausted his administrative remedies and, therefore, the exhaustion requirement does not bar the relief sought by Defendant.
However, the Court concludes that Defendant has failed to establish extraordinary and compelling reasons, and further that the § 3553(a) factors do not support the relief sought by Defendant.
Although the Court concludes that on the present record Defendant has established that his existing medical conditions present a risk factor for severe illness or death from COVID-19, given that USP Lewisburg appears to have the virus under control, and the additional fact that Defendant has refused to be vaccinated against this virus, offering no sound reason for said refusal, the Court concludes that Defendant has failed to meet the standard of establishing extraordinary and compelling reasons. Moreover, as Defendant's submission acknowledges, he previously contracted the virus causing COVID-19 prior to his sentencing in this case—thus demonstrating that even if released from custody, there is no guarantee that he will not be exposed to this virus. Since being incarcerated, despite the close living conditions and Defendant's refusal to be vaccinated, according to the USPO, he has not tested positive for COVID-19. (Dkt. 130 at 2). In other words, releasing Defendant from prison would not insulate him from exposure to the virus causing COVID-19, and the rate of infection appears higher in the Rochester community than it is at USP Lewisburg. See Ctrs. for Disease Control and Prevention, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/ (last visited Oct. 16, 2022) (noting that, as of October 16, 2022, Monroe County was at a medium level of community transmission, as defined by the CDC, of the virus that causes COVID-19, with surrounding counties to the east at the high level of community transmission).
In addition, given the underlying nature of Defendant's conviction, coupled with his criminal history, the Court continues to believe that the 72-month agreed-upon prison sentence is reasonable and appropriate. In other words, the § 3553(a) factors do not support Defendant's release. The Court's assessment at the time of sentencing, and its continued assessment, is that Defendant's conduct presents a significant risk of danger to the community— namely engaging in drug trafficking while possessing a firearm. Moreover, based on the underlying offense conduct, it is evident that Defendant continued to engage in this activity after his initial arrest by state authorities on February 20, 2018. (See Dkt. 105 at ¶¶ 35-38). The loss of Defendant's son while he has been incarcerated, combined with the devastating impact that Defendant's absence has had on his family, is tragic. But actions have consequences, and unfortunately for Defendant's family, it is Defendant's own actions that have placed his family in this situation.
Under the circumstances, the § 3553(a) factors do not warrant a sentence reduction. As a result, granting compassionate release would not be consistent with the factors set forth at 18 U.S.C. § 3553(a), and it would seriously undermine the fairness and purpose of the original sentence.
III. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 116) is denied.
SO ORDERED.