USA v. Divers et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DENYING DEFENDANT’S
) MOTION TO REDUCE SENTENCE
vs. )
)
Donald Lee Divers, ) Case No. 1:15-cr-185
)
Defendant. )
Before the Court is the Defendant’s pro se motion to reduce sentence pursuant to the First Step
Act of 2018, filed on June 15, 2020. See Doc. No. 299. The Government filed a response in opposition
to the motion on June 16, 2020. See Doc. No. 300. For the reasons set forth below, the motion is
denied.
I. BACKGROUND
On April 25, 2017, Divers pled guilty to one count of distribution of a controlled substance -
methamphetamine. See Doc No. 150. On October 12, 2017, the Court sentenced Divers to 120 months
imprisonment. See Doc. No. 215.
Divers has now filed a motion seeking a reduction of sentence and compassionate release under
18 U.S.C. § 3582(c)(1)(A) citing the COVID-19 pandemic as a “extraordinary and compelling” reason
for a sentence reduction. See Doc. No. 299. The Government filed a response in opposition to the
motion contending Divers has not provided an appropriate basis for compassionate release. Divers is
serving his sentence at Yankton FCI in South Dakota. His presumptive release date is July 25, 2024.
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II. LEGAL DISCUSSION
18 U.S.C. § 3582(c)(1)(A) allows the Court to modify a term of imprisonment under two
circumstances: by 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 Bureau of Prisons 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.” A defendant “may go directly to the court
if the warden of the inmate’s facility does not respond to the inmate’s compassionate-release request
within 30 days.” United States v. Rodd, No. 19-3498, 2020 WL 4006427, at *4 (8th Cir. July 16,
2020). It is undisputed Divers has exhausted his administrative remedies. See Doc. Nos. 300-2 and
300-3.
In considering a motion to reduce sentence, the Court must assess whether, after considering
the 18 U.S.C. § 3553(a) factors, “extraordinary and compelling reasons” exist which warrant a sentence
reduction, and if a sentence reduction is consistent with the Sentencing Commission’s applicable policy
statement. See 18 U.S.C. § 3582(c)(1)(A). There is no right to counsel in Section 3582(c) proceedings.
United States v. Brown, 565 F.3d 1093, 1094 (8th Cir. 2009). Nor is there a right to a hearing. See
Dillon v. United States, 560 U.S. 817, 827-28 (2010) (observing that, under Federal Rule of Criminal
Procedure 43(b)(4), a defendant need not be present at a proceeding under Section 3582(c)(2) regarding
the imposition of a sentencing modification). It should also be noted that the CARES Act does not
provide the Court with any expanded authority to grant a motion to reduce sentence under 18 U.S.C.
§ 3582(c). See CARES Act, Pub. L. No. 116-136, 134 Stat 281 (2020). The Court may consider
evidence of a defendant’s post-sentencing rehabilitation but is not required to reduce a sentence based
on rehabilitation. United States v. Sherman, 960 F.3d 978, 982 (8th Cir. 2020).
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Prior to the passage of the First Step Act in 2018, district courts could only grant compassionate
release sentence reductions based upon a motion filed by the director of the BOP. Such motions were
rarely filed. This all changed when the First Step Act was signed into law on December 21, 2018. The
relevant portion of the new law now reads as follows:
(c) Modification of an imposed term of imprisonment.--The court may not modify
a term of imprisonment once it has been imposed except that–
(1) in any case–
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon
motion of the defendant after the defendant has fully exhausted all
administrative rights to appeal a failure of the Bureau of Prisons to bring a
motion on the defendant's behalf or the lapse of 30 days from the receipt of such
a request by the Diversen 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–
(i) 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.A. § 3582(c)(1)(A)(I) (emphasis added).
Unfortunately, the First Step Act does not define “extraordinary and compelling reasons.” The
Sentencing Commission policy statement can be found at Section 1B1.13 of the 2018 Sentencing
Guidelines Manual. However, the policy statement pertains to the old law rather than the new law and
thus is of questionable applicability. See United States v. Beck, No. 1:13-CR-186-6, 2019 WL
2716505, at *6 (M.D.N.C. June 28, 2019) (concluding the old policy statement provides helpful
guidance but does not control the district court’s independent assessment of whether “extraordinary and
compelling reasons” warrant a sentence reduction.). The Eighth Circuit Court of Appeals has yet to
address the issue. See United States v. Rodd, No. 19-3498, 2020 WL 4006427, at *6 (8th Cir. July 16,
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2020). This Court agrees that the Sentencing Commission’s existing policy statement provides only
limited guidance. See United States v. Fox, No. 2:14-CR-03, 2019 WL 3046086, at *3 (D. Me. July
11, 2019). In addition, the Sentencing Commission will not be publishing a 2019 or 2020 Sentencing
Guidelines Manual for lack of a quorum. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *5 n.7. The
Application Note to U.S.S.G. § 1B1.13 provides as follows:
1. Extraordinary and Compelling Reasons.--Provided the defendant meets the
requirements of subdivision (2), extraordinary and compelling reasons exist
under any of the circumstances set forth below:
(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.
(C) Family Circumstances.--
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(i) The death or incapacitation of the caregiver of the
defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered
partner when the defendant would be the only available
caregiver for the spouse or registered partner.
(D) Other Reasons.--As determined by the Director of the Bureau of
Prisons, there exists in the defendant's case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).
2. Foreseeability of Extraordinary and Compelling Reasons.--For purposes of
this policy statement, an extraordinary and compelling reason need not have
been unforeseen at the time of sentencing in order to warrant a reduction in the
term of imprisonment. Therefore, the fact that an extraordinary and compelling
reason reasonably could have been known or anticipated by the sentencing court
does not preclude consideration for a reduction under this policy statement.
3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. § 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and compelling
reason for purposes of this policy statement.
4. Motion by the Director of the Bureau of Prisons.--A reduction under this
policy statement may be granted only upon motion by the Director of the Bureau
of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission encourages
the Director of the Bureau of Prisons to file such a motion if the defendant
meets any of the circumstances set forth in Application Note 1. The court is in
a unique position to determine whether the circumstances warrant a reduction
(and, if so, the amount of reduction), after considering the factors set forth in 18
U.S.C. § 3553(a) and the criteria set forth in this policy statement, such as the
defendant's medical condition, the defendant's family circumstances, and
whether the defendant is a danger to the safety of any other person or to the
community.
This policy statement shall not be construed to confer upon the defendant any
right not otherwise recognized in law.
5. Application of Subdivision (3).--Any reduction made pursuant to a motion by
the Director of the Bureau of Prisons for the reasons set forth in subdivisions (1)
and (2) is consistent with this policy statement.
U.S.S.G. § 1B1.13.
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Divers contends he has asthma which puts him at high risk should he contract COVID-19 while
incarcerated. Divers is 39 years of age and has approximately 48 months left on his 120 month
sentence. His presumptive release date is July 25, 2024. At sentencing Divers was found to have a
criminal history category IV. His advisory Sentencing Guideline range was 100-125 months with a 120
month mandatory minimum. A careful review of Divers’ medical records reveals no diagnosis of
asthma. See Doc. No. 301.
The mere existence of the COVID-19 pandemic, which poses a threat to every person in the
country, does not, in and of itself, provide a basis for a sentence reduction. As the Third Circuit Court
of Appeals recently commented, “the mere existence of COVID-19 in society and the possibility that
it may spread to a particular prison alone cannot independently justify compassionate release.” United
States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). District courts have concluded similarly. See United
States v. Eberhart, Case No. 13-cr-00313, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020)
(“General concerns about possible exposure to COVID-19 do not meet the criteria for extraordinary
and compelling reasons for a reduction in sentence”). This does not mean that COVID-19 is not
relevant to the Court’s totality of circumstances analysis when considering a motion for reduction of
sentence. All factors must be considered. COVID-19 is an extremely dangerous illness. It has caused
more than 160,000 thousand deaths in the United States to date along with severe societal and economic
disruption. In response to the pandemic, the BOP has taken significant measures to protect the health
of the inmates in its charge including working with the United States Centers for Disease Control to
minimize the risk of COVID-19 transmission with its facilities. The risk of infection is very real, both
within BOP facilities and in society in general. Release from prison does not abate the risk. While
sympathetic to Divers’ concerns regarding the presence of COVID-19 in the federal prison system, the
Court does not find that his circumstances clear the high bar necessary to warrant a sentence reduction.
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The Court finds a generalized fear of contracting COVID-19 is not an “extraordinary and
compelling reasons” for compassionate release or a sentence reduction within the meaning of Section
3582(c)(1)(A). The Court has carefully reviewed the entire record and concludes Divers has failed to
demonstrate “extraordinary and compelling reasons” that would warrant a sentence reduction. See
United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016) (noting the burden is on the defendant to
establish a sentence reduction is warranted under 18 U.S.C. § 3582(c)(2)).
III. CONCLUSION
Accordingly and for the reasons set forth above, the Defendant’s motion (Doc. No. 299) is
DENIED.
IT IS SO ORDERED.
Dated this 10th day of August, 2020.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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