USA v. Cannon

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
) ORDER DENYING MOTION TO
Plaintiff, ) REDUCE SENTENCE
)
vs. ) Case No. 3:17-cr-208
)
Clifton Terrell Cannon, )
)
Defendant. )
Before the Court is Defendant Clifton Terrell Cannon’s motion for “18 U.S.C. 3582
‘Compassionate Release’” filed on June 16, 2020. Doc. No. 124. The Government responded in
opposition to the motion on June 30, 2020. Doc. No. 126. Cannon seeks a reduction in his sentence
to time served based on “extraordinary and compelling reasons” under 18 U.S.C. § 3582(c)(1)(A),
as amended by the First Step Act of 2018 (“FSA”). For the reasons below, the motion is denied.
I. BACKGROUND
On September 21, 2017, the grand jury returned a three-count indictment against Cannon.
Doc. No. 1. The indictment charged Cannon with (1) conspiracy to possess with intent to distribute
and distribute a controlled substance resulting in serious bodily injury, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), and 846; (2) distribution of a controlled substance resulting in serious
bodily injury, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3) distribution of a
controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Id. On January 9,
2019, Cannon pleaded guilty to all three counts pursuant to a plea agreement.1 Doc. No. 100.
1 In exchange for Cannon’s guilty pleas, the Government agreed to withdraw a previously filed
certification under 21 U.S.C. § 851 “for all of the defendant’s felony drug offenses that might have
otherwise qualified” and subjected Cannon to a mandatory minimum of life imprisonment. Doc.
No. 96, ¶ 17(c); see also Doc. No. 14.
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The Presentence Investigation Report (“PSR”) prepared by the United States Probation
Office included the following unobjected-to description of the offense conduct:
5. Between 2014 and 2015, the defendant, Clifton Cannon, was charged in two
separate North Dakota offenses, both involving the distribution of controlled
substances (e.g. heroin, cocaine, methamphetamine, and hydromorphone).
Ultimately, those criminal offenses resulted in the removal of three minor children
from the care of the defendant and his girlfriend, Tiffany Valnes. The defendant
was convicted and served time in custody. In February 2017, Mr. Cannon was
released to the community, and he moved into a residence in North Dakota with
Ms. Valnes. After his release, Child Protective Services provided an opportunity
for Ms. Valnes and the defendant to resume parental responsibilities for their
children under the stipulation that Ms. Valnes and the defendant show sobriety and
stability. Unfortunately, Ms. Valnes had fallen behind on bills while the defendant
was in custody, and the household was in disarray.
6. To try [to] resolve the financial issues in the household, the defendant began
distributing drugs. Specifically, he obtained and sold heroin and hydromorphone
in North Dakota. The defendant typically sold one-point (.1 gram) quantities of
heroin for around $50 and half-gram quantities for $150. The defendant sold 4
milligram and 8 milligram hydromorphone tablets for $20 and $40 per tablet. The
defendant obtained heroin and hydromorphone from various sources, located in
Fargo, ND, Alexandria, MN, and Minneapolis[,] MN.
7. On June 17, 2017, Mr. Cannon distributed one-point of heroin to [J.P.] for
between $30 and $50 cash. After purchase, [J.P] intravenously injected a portion
of the heroin, then travelled to a nearby gas station. At the gas station, she injected
an additional quantity of heroin. Shortly thereafter, bystanders observed [J.P]
collapse in the parking lot of the gas station. Emergency medical services were
contacted and prior to arrival, a bystander began providing CPR to [J.P.]
Eventually, an ambulance arrived, and medical staff administered a dose of
NARCAN to revive [J.P.] She was transported to a hospital for further medical
treatment.
8. Later that day, law enforcement officers arranged for a controlled purchase of
heroin from Mr. Cannon. During the controlled purchase, a confidential informant
purchased a half-gram quantity of heroin from Mr. Cannon. Following the
controlled purchase, a probation search was conducted at Mr. Cannon’s residence.
No additional drugs were found during the search, but $800 cash was seized. The
defendant was arrested and criminally charged in North Dakota. He remained in
state custody until execution of the federal arrest warrant on September 25, 2017.
Doc. No. 106, ¶¶ 5–8.
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On April 18, 2019, Cannon appeared before this Court2 for sentencing. Doc. No. 109. The
Court adopted the PSR without change. Doc. No. 113, p. 1. With a total offense level of 41 and
a criminal history category of IV, Cannon’s advisory guideline range was 360 months to life
imprisonment. Id. The Court sentenced Cannon to 360 months’ imprisonment on Counts 1 and 2
and 240 months’ imprisonment on Count 3, all to be served concurrently. Doc. No. 112. Cannon
did not file a direct appeal, but he does have a pending 28 U.S.C. § 2255 motion. See Doc. No.
123.
The Bureau of Prisons (“BOP”) placed Cannon at FCI McKean. Now 32 years old, Cannon
has a projected release date of March 9, 2044. Cannon asserts the following medical concerns:
“an asthmatic patient with high blood pressure, high cholesterol, close to having diabetes,
hypertension, liver function elevated, TSH low, A1C elevated, black-outs 1-2 times per month
with headaches.” Doc. No. 124, p. 1 (cleaned up).
On April 22, 2020, Cannon submitted a request for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A) to the warden at FCI McKean. Doc. No. 126-1. The warden denied the request
on April 27, 2020. Doc. No. 126-2.
II. DISCUSSION
Because sentences are final judgments, a court ordinarily “may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). As one narrow exception to that
rule, a court “may reduce the term of imprisonment” when “extraordinary and compelling reasons”
exist and the “reduction is consistent with applicable policy statements issued by the Sentencing
2 The Honorable Karen E. Schreier, District Judge of the United States District Court for the
District of South Dakota, sitting by designation.
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Commission.”3 18 U.S.C. § 3582(c)(1)(A)(i). The 18 U.S.C. § 3553(a) factors also must support
the reduction. Id. The burden to establish that a sentence reduction is warranted under 18 U.S.C.
§ 3582(c) rests with the defendant. See United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016).
A. Administrative Exhaustion
Previously, only the BOP Director possessed the authority to bring a compassionate release
motion on a defendant’s behalf. With the enactment of the FSA, however, Congress has now
permitted courts to grant compassionate release “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.” 18 U.S.C. § 3582(c)(1)(A). Because 30
days have lapsed since Cannon submitted his request for compassionate release, the Court will
proceed to the merits.
B. Extraordinary and Compelling Reasons
The compassionate release statute does not define what constitutes “extraordinary and
compelling reasons.” Instead, Congress has dictated that the Sentencing Commission, through a
policy statement, “shall describe what should be considered extraordinary and compelling reasons
for sentence reduction, including . . . a list of specific examples.” 28 U.S.C. § 994(t). To meet its
statutory obligation, the Commission has promulgated USSG § 1B1.13. The policy statement
itself largely mirrors the compassionate release statute’s language. See USSG § 1B1.13(1)-(3).
3 In lieu of extraordinary and compelling reasons, the statute also permits a sentence reduction
where a defendant is at least 70 years old and certain additional conditions are met. See 18 U.S.C.
§ 3582(c)(1)(A)(ii). Cannon is 32 years old, so this avenue for relief is foreclosed.
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More pertinent here is Application Note 1 to the policy statement. So long as a defendant
does not pose “a danger to the safety of any other person or to the community, as provided in 18
U.S.C. § 3142(g),” the Application Note delineates four instances that demonstrate extraordinary
and compelling reasons for compassionate release. USSG § 1B1.13(2); id. app. n.1. The first
three circumstances set out in subdivisions (A) through (C) pertain to a defendant’s medical
condition, age, or family circumstances, respectively. See id. app. n.1(A)-(C). Subsection (D)—
the catch-all provision—authorizes a sentence reduction when “[a]s determined by the Director of
the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason
other than . . . the reasons described in subdivisions (A) through (C).” Id. app. n.1(D). Cannon’s
motion appears to rest on subdivision (D)’s catch-all provision.4
The Sentencing Commission, currently lacking a quorum, has yet to update § 1B1.13 since
Congress amended § 3582(c)(1)(A). The policy statement still contemplates a motion for
compassionate release originating solely from the BOP Director—clearly no longer the case. See
USSG § 1B1.13. Seizing on this vacuum, several district courts have concluded that the discretion
vested in the BOP Director under the catch-all provision now belongs coextensively to federal
judges. See, e.g., United States v. Fox, Criminal No. 2:14-cr-03-DBH, 2019 WL 3046086, at *3
(D. Me. July 11, 2019); United States v. Beck, 1:13-CR-186-6, 2019 WL 2716505, at *5-6
(M.D.N.C. June 28, 2019); United States v. Cantu, Criminal Action No. 1:05-CR-458-1, 2019 WL
4 When raising concerns about being at a higher risk for serious illness due to COVID-19, some
inmates in compassionate release motions filed in this Court and in other courts have relied instead
or additionally upon subdivision (A), arguing that they have a “serious physical or medical
condition . . . that substantially diminishes [their] ability . . . to provide self-care within the
environment of a correctional facility” in light of the circumstances created by the COVID-19
pandemic. See USSG § 1B1.13, app. n.1(A)(ii)(I). The Court would come to the same conclusion
in this case if it were to consider the criteria in subdivision (A).
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2498923, at *5 (S.D. Tex. June 17, 2019). Other district courts disagree. See, e.g., United States
v. Lynn, CRIMINAL NO. 89-0072-WS, 2019 WL 3805349, at *4 (S.D. Ala. Aug. 13, 2019);
United States v. Gutierrez, No. CR 05-0217 RB, 2019 WL 2422601, at *2-3 (D.N.M. June 10,
2019); United States v. Shields, Case No. 12-cr-00410-BLF-1, 2019 WL 2359231, at *4 (N.D.
Cal. June 4, 2019). Indeed, this Court recently determined that § 3582(c)(1)(A)’s plain language
mandates adherence to the policy statement as written. United States v. Rivera, Case No. 1:16-cr-
00239, Doc. No. 61 (D.N.D. Nov. 25, 2019). Nevertheless, even assuming arguendo that the Court
possesses the authority to find other extraordinary and compelling reasons for purposes of this
motion, Cannon does not meet the burden to demonstrate that such reasons exist here.
While sympathetic to Cannon’s concerns regarding the effects 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. 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, e.g., United States v.
Eberhart, Case No. 13-cr-00313-PJH-1, 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. . . .”).
Cannon has not sufficiently demonstrated that he is currently at higher risk for severe
illness if he were to contract COVID-19. It is true that the Centers for Disease Control and
Prevention has identified moderate-to-severe asthma, diabetes, and hypertension as underlying
conditions that do lead or may lead to a higher risk for severe illness. See People with Certain
Medical Conditions, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/
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coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited
July 22, 2020). However, Cannon has largely not substantiated these three conditions.5 Cannon’s
medical records lack any mention of asthma and consistently note no respiratory complaints. See
Doc. No. 127, pp. 3, 9, 22, 55, 87. While Cannon’s lab tests have yielded mildly elevated A1C
levels on multiple occasions, Cannon has not been diagnosed with diabetes, he has consistently
denied having diabetes, and his levels consistently have fallen into the prediabetic range. See id.
at 3, 9, 18, 22, 33, 42–44, 47–48, 51, 55, 81, 87, 98, 102, 112, 122. The medical records list
multiple blood pressure readings from 2019 and 2020 that indicate elevated blood pressure or
hypertension; however, it appears that at least a few of these readings are connected to a surprise
wisdom tooth extraction that caused some anxiety and Cannon’s use of K2 (synthetic marijuana)
while in prison. See id. at 24–25, 37–39, 42, 47–48, 72–73, 94–95, 119. Moreover, the records
consistently note no history of hypertension, and an April 20, 2020, doctor’s note states that
Cannon’s blood pressure has stabilized. See id. at 3, 9, 22, 31, 34–35, 42–44, 51, 55, 87. Even if
there were some evidence in the record of these relatively common conditions among federal
inmates, Cannon has not shown that the conditions cannot be adequately treated by the facility.
See United States v. Ramos, No. 14 Cr. 484 (LGS), 2020 WL 1685812, at *2 (S.D.N.Y. Apr. 7,
2020) (denying compassionate release for a 41-year-old chronic and severe asthmatic where
medical records showed no new asthma attacks and condition being treated by BOP); United States
v. Gileno, No. 3:19-cr-161-(VAB)-1, 2020 WL 1307108, at *4 (D. Conn. Mar. 19, 2020) (denying
5 Cannon’s other claimed medical conditions—high cholesterol, elevated liver function, low TSH
(thyroid-stimulating hormone), blackouts, and headaches—are supported to some extent by the
medical records but do not qualify under the CDC criteria. The Court also notes that the records
suggest some connection between Cannon’s issues with blackouts and headaches and his illicit use
of K2 while in prison. See Doc. No. 127, pp. 24–28, 31–33, 37–39.
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compassionate release for a defendant with high blood pressure, high cholesterol, asthma, and
allergies who had not shown that the facility was specifically unable to adequately treat his
conditions). At 32 years old, Cannon’s age also does not independently place him among those at
higher risk for severe illness. See Older Adults, Ctrs. for Disease Control
& Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-
adults.html (last visited July 22, 2020).
Further, the BOP has undertaken an extensive response effort to prevent and mitigate the
spread of COVID-19 in its facilities, including screening, visitation, and social distancing
measures. See BOP Implementing Modified Operations, Fed. Bureau of Prisons,
https://www.bop.gov/coronavirus/covid19_status.jsp (last visited July 22, 2020). These measures
evidently have been successful at FCI McKean to this point, with the facility having yet to report
even a single case of COVID-19 in either an inmate or staff member. BOP: COVID-19 Update,
Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/index.jsp (last visited July 22, 2020).
In sum, Cannon’s generalized assertions regarding the risk of contracting COVID-19 while
incarcerated do not present an extraordinary and compelling reason for a sentence reduction.
C. Danger to the Safety of Others or the Community
As previously mentioned, a reduction in sentence must be “consistent with applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). USSG §
1B1.13, the relevant policy statement, contains a requirement not directly stated in §
3582(c)(1)(A): that “the defendant is not a danger to the safety of any other person or to the
community, as provided in 18 U.S.C. § 3142(g).” USSG § 1B1.13(2). “In making this
determination, courts should consider ‘(1) the nature and circumstances of the offense
charged . . . ; (2) the weight of the evidence against the person; (3) the history and characteristics
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of the person . . . ; and (4) the nature and seriousness of the danger to any person or the community
that would be posed by the person’s release.” United States v. Hylander, No. 18-CR-60017, 2020
WL 1915950, at *3 (S.D. Fla. Apr. 20, 2020) (quoting 18 U.S.C § 3142(g)).
Cannon has not met his burden to show that he is not a danger to the safety of any other
person or the community. At sentencing on the instant offense, the Court found that Cannon had
a criminal history category of IV. Doc. No. 106, ¶ 39. One of Cannon’s prior convictions was for
terrorizing, an offense described by the PSR as follows: “Police reports indicate the defendant
threatened to kill his girlfriend, [T.V.] During the interaction with law enforcement, [T.V.] was
observed with a black eye and a large bump on her head.” Id. ¶ 31. His probation in that case was
revoked for multiple violations. Id. Cannon also committed the instant offense while under
criminal justice sentences for multiple drug convictions, id. ¶ 38, and his pretrial release in this
case was revoked after a series of violations, Doc. No. 56. And as previously mentioned, Cannon
has continued to use illicit substances while in BOP custody, leading to a disciplinary report.6 See
Doc. No. 126-4.
D. 18 U.S.C. § 3553(a) Sentencing Factors
Lastly, the Court must “consider[] the factors set forth in section 3553(a).” 18 U.S.C. §
3582(c)(1)(A). Section 3553(a) requires the Court to consider:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed—
6 Cannon denied being under the influence of any substance during this April 12, 2020, incident,
but prison medical staff found that his “erratic behavior and physical signs [were] consistent with
being under the influence of an unknown substance,” and he had previously reported K2 use in
other instances. See Doc. No. 126-4; Doc. No. 127, p. 33, 39, 47.
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(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established [by the Guidelines]—
. . . .
(5) any pertinent [Sentencing Commission] policy statement—
. . . .
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
The Court finds that the § 3553(a) factors strongly weigh against release in this case.
Cannon was sentenced just over 15 months ago to a total of 30 years of imprisonment. As such,
accounting for credit for time served and potential future Good Conduct Time, his projected release
date is still over 23-and-a-half years away. Release at this time would therefore create a
substantially unwarranted sentencing disparity and fail to account for the seriousness of the instant
offense in which the victim suffered a serious drug overdose that required CPR, the administration
of Narcan, and hospitalization. The need for deterrence and community protection also point
against a sentence reduction in this case. So too does the need for rehabilitation of the defendant,
as he has had little time to take advantage of the BOP’s programming and treatment opportunities,
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and he was recently disciplined for the incident of suspected K2 use. In short, the applicable §
3553(a) factors, taken as a whole, favor continued incarceration.
III. CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority.
For the reasons above, Cannon’s motion to reduce sentence (Doc. No. 124) is DENIED.
IT IS SO ORDERED.
Dated this 23rd day of July, 2020.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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