USA v. Flowers

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
ARNOLD WESLEY FLOWERS, II,
Defendant.
Case Nos. 3:16-cr-00035-SLG and
3:16-cr-00058-SLG
ORDER REGARDING MOTIONS FOR COMPASSIONATE RELEASE
Before the Court are multiple motions for compassionate release filed in
defendant Arnold Wesley Flowers, II’s two cases.
In case number 3:16-cr-00035-SLG at Docket 339 is Mr. Flowers’ pro se
Motion for Compassionate Release in Light of the Second Chance Act of 2007;
Pursuant to the First Step Act (P.L. 115-391) of 12/21/2018; and the Newly Passed
Cares Act, Section 12003(b)(2) Amends 18 U.S.C. § 2624(c)(2) of March 27, 2020.
Mr. Flowers filed a declaration in support of his motion at Docket 340. The U.S.
Probation Office filed a sealed Compassionate Release Investigation report at
Docket 341. The Federal Public Defender’s office filed an Amended Motion for
Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A) at Docket 344-1.
The government responded in opposition at Docket 347. With leave from the
Court, Mr. Flowers filed a reply at Docket 350.
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In case number 3:19-cr-00058-SLG at Docket 350 is Mr. Flowers’ Motion for
Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A), which was filed
by the Federal Public Defender’s office and is substantially similar to the amended
motion filed in the case discussed supra. Because the motions are substantially
similar, no separate response from the government is necessary for the Court’s
determination of this motion.1
Mr. Flowers is serving a 75-month sentence with an anticipated release date
of August 23, 2021; he is housed at Oklahoma City FTC.2 Mr. Flowers seeks an
order “granting a reduction in sentence to time served and releasing Mr. Flowers
on home confinement for a period of 12 months as a condition of supervised
release.”3
In 2017, this Court sentenced Mr. Flowers to 75 months imprisonment after
two trial juries—one in each of his two cases—convicted him of a total 14 counts
of drug, firearm, and wire fraud offenses.4 The sentences on all counts were to
run concurrently and concurrently with the sentence in the other case.5 In October
1 The government’s response in opposition lists both of Mr. Flowers’ case numbers. The Court
has considered the reply filed in case 3:16-cr-00035-SLG as applying in both cases.
2 www.bop.gov/inmateloc/ (last accessed July 31, 2020).
3 Case No. 3:16-cr-00035-SLG, Docket 344-1 at 1; Case No. 3:16-cr-00058-SLG, Docket 350 at
1.
4 Case No. 3:16-cr-00035-SLG, Docket 275 at 1–2; Case No. 3:16-cr-00058-SLG, Docket 278
at 1–2.
5 Case No. 3:16-cr-00035-SLG, Docket 275 at 2; Case No. 3:16-cr-00058-SLG, Docket 278 at
2.
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2019, this Court denied Mr. Flowers’ motion in which he sought a judicial
recommendation that the BOP allow him to spend the final 12 months of his
sentence in a halfway house.6 In December 2019, this Court denied Mr. Flowers’
motion to modify his sentence pursuant to the First Step Act and allow him to serve
his final 12 months at a residential re-entry center.7 In April 2020, this Court denied
another motion from Mr. Flowers seeking a judicial recommendation to the BOP to
place him in a residential reentry center or halfway house.8 The government
opposed all three motions, asserting that Mr. Flowers “has a long and dangerous
criminal history, full of duplicitous conduct and supervised release violations” and
that he “is a danger to the community.”9
I. Applicable law
The First Step Act of 2018 amended 18 U.S.C. § 3582(c)(1)(A) to allow
federal inmates to move the district court for a sentence reduction after exhausting
their administrative rights.10 18 U.S.C. § 3582(c)(1)(A) requires that an inmate
“fully exhaust[] all administrative rights to appeal a failure of the Bureau of Prisons
6 Case No. 3:16-cr-00035-SLG, Dockets 328 and 330 (motions); Docket 332 (order). Case No.
3:16-cr-00058-SLG, Docket 346 (motion); Docket 348 (order).
7 Case No. 3:16-cr-00035-SLG, Docket 333 (motion); Docket 335 (order).
8 Case No. 3:16-cr-00035-SLG, Docket 336 (motion); Docket 338 (order).
9 Case No. 3:16-cr-00035-SLG, Docket 331 at 2; Docket 334 at 2; Docket 337 at 2. Case No.
Case No. 3:16-cr-00058-SLG, Docket 347 at 2.
10 First Step Act of 2018, PL 115-391, Dec. 21, 2018, 132 Stat 5194. Prior to this amendment,
only the Director of the Bureau of Prisons could bring a motion to reduce an inmate’s sentence.
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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 . .
. .” If the defendant has exhausted their administrative rights, a district court must
consider the motion on the merits. The relevant considerations are the factors set
forth in 18 U.S.C. § 3553(a) to the extent they are applicable.11 If a court finds that
the § 3553(a) factors support a sentence reduction the court must also find 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.”12
II. Exhaustion of administrative rights
Mr. Flowers maintains that he made a request to prison officials at Oklahoma
City FTC “that he be considered for placement on home confinement,” but it
appears he is not eligible for home confinement because his risk-assessment
score is too high.13 The government does not contest that Mr. Flowers has
11 In Pepper v. United States, 562 U.S. 476, 490–93 (2011), the Supreme Court held that when
resentencing a defendant whose sentence has been set aside on appeal, “a district court may
consider evidence of a defendant’s rehabilitation since his prior sentencing and that such
evidence may, in appropriate cases, support a downward variance from the advisory Guidelines
range.”
12 18 U.S.C. § 3582(c)(1)(A).
13 Case No. 3:16-cr-00035-SLG Docket 344-1 at 2, 4–5; Docket 344-2; Docket 340 at 1, ¶¶ 3, 4.
Case No. 3:16-cr-00058-SLG, Docket 350 at 2; Docket 350-1.
The BOP utilizes the Prisoner Assessment Tool Targeting Estimated Risk and Needs
(PATTERN) to try and predict whether an inmate poses a risk of reoffending based on certain
risk factors.
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exhausted his administrative rights, and it appears that Mr. Flowers has exhausted
his administrative rights.
III. Section 3553(a) factors
In considering a motion for compassionate release, the § 3553(a) factors
are a lens through which the Court considers the continued appropriateness of the
imposed sentence in light of the COVID-19 pandemic. Here, in considering the §
3553(a) factors, the Court finds that they do not support a reduction in sentence.
Mr. Flowers’ criminal behavior involved possession of cocaine, illegally possessing
firearms, and engaging in insurance fraud by falsely reporting that household items
were stolen during a robbery.14 Mr. Flower’s criminal behavior in this case is
compounded by his prior criminal history and poor performance on supervised
release.15 While Mr. Flowers maintains that he has been “a model inmate,” he only
submitted his education/class transcript and did not submit his disciplinary record
to support that assertion.16 In contrast, the Probation Office has concluded that
Mr. Flowers poses a threat to the community: “the defendant’s overall criminal
history is serious in nature . . . . During this period of incarceration, the defendant
demonstrated his general inability to comply with Court conditions, as he received
14 Case No. 3:16-cr-00035-SLG, Docket 274 at 7–11.
15 Case No. 3:16-cr-00035-SLG, Docket 341 at 3; Docket 274 at 17–25.
16 Case No. 3:16-cr-00035-SLG, Docket 344-1 at 17; Docket 344-7. Case No. 3:16-cr-00058-
SLG, Docket 350 at 4.
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one disciplinary infraction while imprisoned.”17 Moreover, while not binding on this
Court, it is informative that the BOP’s risk-assessment tool ranked Mr. Flowers as
a medium risk for reoffending. In light of the foregoing, the Court remains of the
view that the sentence that was imposed continues to reflect the seriousness of
the offense, promote respect for the law, afford adequate deterrence, protect the
public, and provide just punishment.18
IV. Extraordinary and compelling reasons
A district court cannot reduce a sentence unless 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.”19 Mr. Flowers bears the burden of establishing that compelling and
extraordinary reasons exist that justify compassionate release.20 The relevant
policy statement, U.S.S.G. § 1B1.13, sorts extraordinary and compelling reasons
into four categories: (1) the medical condition of the defendant, (2) the age of the
defendant, (3) family circumstances, and (4) other reasons as determined by the
director of the BOP that amount to extraordinary and compelling reasons, other
than or in combination with the previous three categories. Whether the policy
17 Case No. 3:16-cr-00035-SLG, Docket 341 at 3.
18 18 U.S.C. § 3553(a)(2).
19 18 U.S.C. § 3582(c)(1)(A).
20 United States v. Fuller, No. CR17-0324JLR, 2020 WL 2557337, at *4 (W.D. Wash. May 20,
2020).
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statement is binding or merely provides guidance to courts is a matter of
disagreement among district courts.21 However, the Court need not determine
whether § 1B1.13 is binding or advisory because it would reach the same
conclusion in this case regardless of the application of the policy statement.
Mr. Flowers, who is 45 years old, asserts that “being locked in a cell eight
(8) feet by ten (10) feet cell for count or overnight, with another inmates [sic]” during
the COVID-19 pandemic constitutes an extraordinary and compelling reason to
reduce his sentence.22 Mr. Flowers also maintains that the federal transfer center
where he is housed “currently houses 32 inmates who have tested positive for the
coronavirus, and currently employs 3 staff members who have tested positive.”23
However, Mr. Flowers does not claim in any of his compassionate release motions
that he suffers from any medical issues, let alone any medical issues that would
elevate his risk of death or serious illness from COVID-19.24 The generalized risks
of COVID-19, even to someone in a correctional facility where COVID-19 cases
21 Compare, e.g., United States v. Beck, 2019 WL 2716505 at *6 (M.D. N.C. June 28, 2019)
(“While the old policy statement provides helpful guidance, it does not constrain the Court’s
independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence
reduction under § 3582(c)(1)(A)(i)”) with United States v. Shields, 2019 WL 2359231 at *4 (N.D.
Cal. June 4, 2019) (rejecting argument that the court may disregard § 1B1.13 because it has not
yet been amended pursuant to the First Step Act); see also United States v. Schmitt, 2020 WL
96904 at *3, Case No. CR12-4076-LTS (N.D. Iowa Jan. 8, 2020) (listing cases split on whether
the policy statement is binding).
22 Case No. 3:16-cr-00035-SLG, Docket 339 at 3.
23 Case No. 3:16-cr-00035-SLG, Docket 344-1 at 2. Case No. 3:16-cr-00058-SLG, Docket 350
at 2.
24 The Compassionate Release Investigation report indicates that “[p]er BOP medical records,
the defendant mainly suffers from chronic foot pain . . . .” Docket 431 at 3.
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have been reported, do not constitute extraordinary and compelling reasons that
would justify compassionate release.25
Mr. Flowers also maintains that his efforts toward rehabilitation warrant his
release. But 28 U.S.C. § 994(t) provides that “[r]ehabilitation of the defendant
alone shall not be considered an extraordinary and compelling reason.” Thus,
while the Court commends Mr. Flowers for completing several classes, this cannot
serve as the basis for compassionate release.
In light of the foregoing, IT IS ORDERED that in case number 3:16-cr-00035-
SLG, the motion at Docket 339 and the amended motion at Docket 344-1 are
DENIED. IT IS FURTHER ORDERED that in case number 3:16-cr-00058-SLG
the motion to file a reply at Docket 349 is DENIED as moot and the motion at
Docket 350 is DENIED.
DATED this 3rd day of August, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
25 Fuller, No. CR17-0324JLR, 2020 WL 2557337, at *5 (holding “vague claims that conditions
of confinement are ‘ripe’ for COVID-19 infections” and generalized concerns about COVID-19
pandemic insufficient to establish, extraordinary and compelling reasons necessary to justify
compassionate release); cf. United States v. Boatwright, No. 219CR00301GMNDJA, 2020 WL
1639855, at *5 (D. Nev. Apr. 2, 2020) (“The Court is mindful of the unprecedented magnitude of
the COVID-19 pandemic and the extremely serious health risks it presents, particularly within
the jail and prison setting. However, in that context, a defendant should not be entitled to
temporary release under § 3142(i) based solely on generalized COVID-19 fears and
speculation.”).
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