461 F.Supp.3d 343
W.D. Va.2020Background
- In 2004 Arey was arrested at age 47; police found methamphetamine, scales, $7,000, 27 firearms, ammunition, and a loaded pistol on him. He was convicted in 2006 of methamphetamine conspiracy/possession and multiple § 924(c) and § 922(g) firearms offenses.
- At sentencing the court attributed roughly nine kilograms of methamphetamine to Arey and found he perjured himself; he received a total term later reduced to 895 months. Approximately 20 years of his sentence was for drug offenses and 55 years derived from three stacked § 924(c) convictions.
- Arey (now 61) served ~14 years, completed prison programming, and petitioned for compassionate release under 18 U.S.C. § 3582(c)(1)(A) citing age, health, rehabilitation, the COVID-19 pandemic, and the harshness of stacked § 924(c) sentencing.
- Arey sought relief from the BOP on August 28, 2019; the BOP denied his request on January 14, 2020. He filed in district court on December 5, 2019 and later submitted COVID-19 supplemental materials.
- The government argued Arey failed to exhaust COVID-specific administrative claims and that Arey’s health/age did not meet the Sentencing Commission’s Application Notes; it also urged adherence to USSG § 1B1.13.
- The court found Arey exhausted administrative remedies, held that the First Step Act gives courts independent discretion beyond USSG § 1B1.13, concluded the change to § 924(c) was an extraordinary and compelling reason to reduce Arey’s sentence, and reduced his term to 390 months while denying immediate release.
Issues
| Issue | Arey’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Administrative exhaustion / consideration of COVID-19 | He exhausted BOP process and the court may consider COVID-19 supplemental facts even if not in the BOP request | Because COVID-19 was not raised to BOP, Arey failed to exhaust that ground | Court found exhaustion satisfied and permitted consideration of COVID-19 as supplemental to his motion |
| Applicability / binding effect of USSG § 1B1.13 | FSA removed BOP-only movant requirement; § 1B1.13 does not bind courts considering defendant-filed motions | USSG § 1B1.13 remains binding and limits relief without BOP motion | Court held § 1B1.13 is not binding post‑First Step Act; courts have independent discretion to assess "extraordinary and compelling" reasons |
| Extraordinary and compelling reasons: § 924(c) reforms, age/health, COVID-19 | The First Step Act’s elimination of "stacking," combined with his age, health, rehabilitation and COVID-19, make release warranted | His age/health/COVID do not independently meet the Application Notes; BOP did not move on his behalf | Court held the dramatic change to § 924(c) sentencing constitutes an extraordinary and compelling reason; COVID-19 alone does not, though it may substantiate risk |
| § 3553(a) factors and relief requested (including immediate release) | Requested resentencing/release given disparity between current and post‑FSA sentence; sought immediate release | Argued § 3553(a) factors weigh against immediate release and total denial | After weighing § 3553(a), court granted partial relief: eliminated stacked § 924(c) terms, resentenced to 390 months total (210 months drug + three consecutive 60‑month § 924(c) terms) and denied immediate release |
Key Cases Cited
- Dillon v. United States, 560 U.S. 817 (2010) (interpreting § 3582(c)(2) and relied upon by government to argue policy statement binding)
- Gall v. United States, 552 U.S. 38 (2007) (sentencing analysis requires recalculation of Guidelines when imposing a new sentence)
- United States v. Beck, 475 F. Supp. 3d 573 (M.D.N.C.) (district court reasoning that post‑FSA courts can independently assess extraordinary and compelling reasons)
- United States v. Wirsing, 943 F.3d 175 (4th Cir.) (explaining limitations of § 3582(c)(2) precedent in First Step Act context)
- Cantu‑Rivera v. United States, 423 F. Supp. 3d 345 (S.D. Tex.) (holding courts may evaluate other extraordinary and compelling reasons after the First Step Act)