United States v. Dewitt
3:15-cr-00186-MGL
D.S.C.Mar 3, 2022Background
- Defendant Wayne Gary Kirby pled guilty in 2016 to one count of conspiracy to possess with intent to distribute heroin and was sentenced to the mandatory minimum 120 months under 21 U.S.C. § 841(b)(1)(B) and § 851. Counts Two and Three were dismissed.
- Kirby had prior felony drug convictions (1987 and 1995), which triggered the ten-year statutory minimum at sentencing.
- Kirby is incarcerated at FCI Petersburg Medium with a projected release in October 2023 and initially sought home confinement during the COVID-19 pandemic; that motion was dismissed without prejudice for failure to exhaust administrative remedies.
- Kirby subsequently exhausted BOP remedies and filed a pro se motion to reduce his sentence on two grounds: (1) risk from COVID-19 related to a hip condition and (2) an intervening change in law (First Step Act amendments) that would produce a lower guideline range if he were sentenced today.
- The Court construed the filings as a motion under 18 U.S.C. § 3582(c)(1)(A) (compassionate release) and denied relief after considering extraordinary-and-compelling reasons, BOP vaccination/infection data, and the § 3553(a) factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether COVID-19 and Kirby’s hip injury constitute "extraordinary and compelling" reasons for compassionate release | Kirby argues his debilitating hip injury and COVID-19 risk warrant release or home confinement | Government argues hip condition is not a CDC-listed high-risk condition; Kirby is vaccinated and FCI Petersburg has very few active cases; BOP vaccination rates mitigate risk | Denied — court finds no extraordinary and compelling reason given low facility infections, high vaccination rates, and Kirby’s vaccination; alternatively, §3553(a) factors weigh against release |
| Whether the First Step Act’s change to §841(b)(1)(B) constitutes an extraordinary and compelling reason to reduce Kirby’s sentence | Kirby contends that, under the First Step Act, he would not face a 10-year mandatory minimum today and that disparity justifies reduction | Government concedes guideline range would now be lower but argues the non-retroactivity and absence of a gross disparity mean this alone is not extraordinary and compelling | Denied — court adopts McCoy reasoning that no unusual length or gross disparity exists between Kirby’s 120-month sentence and the current guideline range (87–108 months); §3553(a) factors also counsel denial |
| Whether the §3553(a) factors support release | Kirby points to rehabilitation (RDAP, job skills) and claims he will not return to the same community | Government emphasizes the seriousness of the offense, extensive recidivism, and need for deterrence and public protection | Denied — court finds §3553(a) factors (nature of offense, criminal history, deterrence, public safety) heavily weigh against reduction |
Key Cases Cited
- United States v. McCoy, 981 F.3d 271 (4th Cir. 2020) (district courts may consider any extraordinary and compelling reason for compassionate release, including sentencing disparities)
- United States v. Kibble, 992 F.3d 326 (4th Cir. 2021) (§3582(c)(1) requires courts to consider §3553(a) factors but does not prescribe a specific substantive outcome)
- United States v. Zullo, 976 F.3d 228 (2d Cir. 2020) (district courts are empowered to consider extraordinary and compelling reasons raised by defendants for compassionate release)