Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA :
: 1:83-cr-00150-PAC-1 - against - :
: OPINION & ORDER GUY FISHER, :
Defendant. :
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HONORABLE PAUL A. CROTTY, United States District Judge:
Defendant Guy Thomas Fisher (“Defendant,” “Fisher”) is a 73-year-old inmate at FCI Yazoo City Medium (“FCI Yazoo City”) who moves for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). Fisher has served 38 years of a life sentence without parole imposed in 1984 after his conviction on charges related to a sprawling narcotics conspiracy. He argues that his age, health conditions, and the danger posed to him should he contract COVID-19 while in prison in conjunction with his decadеs of work to rehabilitate himself make him a candidate for a sentence reduction. Fisher also relies on his accomplishments while incarcerated, including obtaining his G.E.D., graduating from college, getting a master’s degree and receiving a doctorate in sociology. He has assisted other inmates as a tutor and mentor. The Government opposes the motion on the grounds that Fisher has not established “extraordinary and compelling reasons” permitting a sentence reduction, and that the gravity of his offenses counsel against release.
By his own efforts and the passage of decades, Fisher is no longer the 35-year-old drug kingpin who was sentenced nearly forty years ago. He has improved himself through education, has helped others, and says he will use whatever time is left to him to guide young people away from crime. He himself has stayed away from drugs and violence during his incаrceration. The men with whom he committed heinous crimes—which he undoubtedly did—are dead or like Fisher undone by time and fate. His motion for compassionate release is GRANTED.
BACKGROUND
Fisher was indicted in 1983 along with seven co-defendants in a 15-count, 45-page
Indictment that charged criminal acts in connection with the “ Council,” a group of seven
individuals who ran an extensive narcotics enterprise that operated in New York City from 1972
to 1983. Dkt. 89, Ex. B;
United States v. Thomas
,
“The Cоuncil’s purpose was to pool the members’ resources, share narcotics sources,
allocate sales territories, adjudicate disputes among members and handle the narcotics businesses
of jailed members.”
Thomas
,
Fisher’s 1983 Indictment represented the second time he faced criminal charges in
connection with his activities as a leader of t he Council—he was also indicted and tried in 1977
in a trial that resulted in prison terms for other Council members, but which ended in a hung jury
for Fisher.
[1]
United States v. Hayden
,
A six-week jury trial was held on the 1983 Indictment before Judgе Milton Pollack,
resulting, as relevant to Fisher, on guilty verdicts on five of the six counts against him, and a not
guilty verdict on Count Fifteen, charging conspiracy to murder government witnesses.
Thomas
,
Fisher’s conviction on Count One of the Indictment for conspiracy to distribute narcotics
in violation of 21 U.S.C. § 846, for which no sentence was imposed, was subsequently vacated
as a lesser included offense of 21 U.S.C. § 848, the Count Two CCE charge,
Fisher v. United
States
,
Fisher, who was 35 when he was sentenced, has spent the last 38 years in prison for his crimes. His fеllow drug traffickers have died. For almost four decades, Fisher dedicated himself to his education, earned multiple degrees, and kept his distance from violence and drugs while maintaining family relationships and helping fellow inmates. Dkt. 84, Exs. E–J, S.
On August 10, 2020, in the context of the ongoing COVID-19 pandemic, Fisher moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Dkt. 84. The Government opposed the motion, and the Court, upon review of the record and the Parties’ submissions, ordered supplemental briefing on the trial record regarding the Council’s violent conduct and the nature and extent of Fisher’s participation in it. The Government and Defendant both made additional filings. Dkts. 93, 94.
DISCUSSION
I. Compassionate Release Standard
The compassionate release provision of 18 U.S.C. § 3582(c)(1)(A) provides a limited
exception to the general rule that “[a] court . . . may not modify a term of imprisonment once it
has been imposed absent statutory authority.”
United States v. Brady
, S2 18 Cr. 316 (PAC),
After this exhaustion requirement has been met, the Court may grant a sentence reduction where “extraordinary and compelling reasons” warrant it. 18 U.S.C. § 3582(c)(1)(A)(i). The amendment of the compassionate release statute by the FSA “freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them” when seeking a sentence reduction. United States v. Brooker , No. 19-3218-CR, 2020 WL 5739712, at *7 (2d Cir. Sept. 25, 2020). The court must also consider “the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable.” 18 U.S.C. § 3582(c)(1)(A).
II. Application
A. Exhaustion
Fisher applied for compassionate release with the warden of FCI Yazoo City on July 10, 2020 and argues that the 30-day exhaustion period ran as of August 9, 2020. Dkt. 84, at 2 n.1. The Government does not oppose the motion on exhaustion grounds. The Court finds that the exhaustion requirement of 18 U.S.C. § 3582(c)(1)(A) has been met.
B. Extraordinary and Compelling Reasons
Fisher submits that his age and medical conditions combined with the threat posed to him by COVID-19 in a carceral environment and the efforts he has undertaken to refоrm himself in prison all amount to “extraordinary and compelling reasons” that permit this Court to exercise its discretion and consider a sentence reduction. Dkt. 84, at 7–13. Fisher asserts that, apart from the danger posed to him by COVID-19 as an individual in his 70s, he has experienced thickening of the lining of his lungs, has had high blood pressure and cholesterol readings, has been diagnosed with hyperlipidemia, and suffers continuing damage from a lung puncture sustained in a 1975 motorcycle accident. Dkt. 84, at 13.
The Government counters that Fisher’s motion fails because he has not demonstrated that
“extraordinary and compelling reasons” warrant a reduction in his case. Dkt. 89, at 7–11. The
Government argues that Fisher’s motion does not fit under U.S.S.G. § 1B1.13 comment n.1 (B)
or (D), and so the Court should find that he has failed to establish an “extraordinary and
compelling reason[] for purposes of 18 U.S.C. § 3582(c)(1)(A)(i). The Government’s approach
of rigidly applying the categories in U.S.S.G. § 1B1.13, which has not been amended to
recognize that a prisoner may now bring a motion on his own behalf, has not been the
interpretation accepted by this Court or others in the Southern District of New York.
See, e.g.
,
United States v. Jordan
, 1:19-cr-478-GHW,
Here, in addition to Fisher’s age, which increases his risk of serious illness or death
should he contract COVID-19, the Defendant has other medical conditions that while
individually are not of the most grievous nature would in combination with Fisher’s age stand to
result in serious illness or death should he contract COVID-19 while in prison. Finally, while the
Government points out that rehabilitation of the Defendant “is not, by itself,” sufficient to
support a finding of “extraordinary and сompelling reasons,” here the Court finds that the sum of
the Defendant’s age, his other health conditions, and the dire and particularized risk posed to him
should he contract COVID-19 in a prison facility, in combination with his exceptional
rehabilitation efforts, constitute “extraordinary and compelling reasons” under 18 U.S.C. §
3582(c)(1)(A)(i).
See Brooker
,
C. Section 3553(a) Factors
The Court therefore moves to consideration of whether the sentencing factors in 18 U.S.C. § 3553(a) permit a sentence reduction for Fisher. They do. 18 U.S.C. § 3582(c)(1)(A) charges this Court with making an independent consideration of the 18 U.S.C. § 3553(a) factors—that is the procedure that Congress chose. It allows room for judicial discretion, but no judge exercises that discretion lightly.
The Government contends that the “nature and circumstances of the offense,” “history and characteristics of the defendant,” and the need “to protect the public from further crimes of the defendant” are against a sentence reduction for Fisher. The Court addresses each in turn.
1. The Nature and Circumstances of the Offense
The Government in its opposition recounts violent acts of the most serious nature, including four murders that Fisher was said to have persоnally committed, three of which were listed as overt acts under Count One of the Indictment, and a fourth under Count Thirteen. Dkt. 89, Ex. B, at 1–28. The Indictment included allegations of discussing, conspiring toward, and attempting the murder of other individuals in pursuit of the Council’s illegal aims. Finally, Count Fifteen charged, among other offenses, that Fisher either directly acted or otherwise helped plan to murder government witnesses, and that he had at one time obtained poison that the Government says he intended to use on a testifying witness at trial. Dkt. 89, Ex. B, at 43–45.
However, there were no special verdicts returned in this case and Fisher obtained an acquittal on Count Fifteen, the only count that required the jury to find that he had committed a violent act. Dkt. 92, at 3–4. As a result, the Court cannot know whether the jury thought the Government carried its burden of proof beyond a reasonable doubt on any of the murder allegations. The jury may well have reachеd guilty verdicts on all the Counts on which Fisher was convicted without finding that he had engaged in any of the heinous acts of violence the Government describes.
This question was present at the time of Fisher’s sentencing. Sent’g Tr. at 4:12–6:2. The Government’s explanation in 1984 was that the jury must have acquitted on Count Fifteen because it found that the Government had not proven a murder within the five-year statute of limitations. Id. at 16:13–17:10 (“[I]t is crystal clear . . . that that acquittal was based on a stаtute of limitations problem.”). But this is wholly the prosecutors’ surmise. The Government also argues, as it did in 1984, that Count Fifteen “only dealt with four of the ten murders we proved at trial”—but again, there is nothing in the record indicating that the jury found the Government to have carried its burden on any of the murders or other violent conduct alleged. Sent’g Tr. at 16:18–25; Dkt. 89, at 16. The sentencing judge did not say what weight he gave to the alleged murders and other violent conduct when he imposed a life sеntence on Count Two, the CCE count.
The same problems present themselves with the Government’s accusations that Fisher bribed a juror [4] to obtain an acquittal at his 1977 trial—conduct that was not charged in the Indictment and of which he was not convicted. Dkt. 89, at 3 n.3. There is no evidence in the record that this alleged conduct factored into Judge Pollack’s decision to impose a life sentence on the CCE count at sentencing in 1984.
What is clear bеyond contestation is that, whether it was with a gun or the drugs he sold,
Fisher stole away the lives of others. But he was aided in these acts by his co-defendants and
other members of the Council. If the Court looks to his co-defendants, as courts frequently do at
sentencing, it becomes apparent that there is a danger of creating a disparity in sentencing here,
where Fisher’s co-defendant Rice, who was also convicted and sentenced by Judge Pollаck to
life imprisonment without parole on the same CCE count as Fisher, was granted compassionate
release by Judge Lorna G. Schofield on August 5, 2020.
[5]
Rice
,
Weighing all these considerations, the Court finds this factor to be somewhat against Fisher.
2. The History and Characteristics of the Defendant The prison door closed firmly behind Fisher in 1984, and yet for the next half of his life he rehabilitated himself “despite having . . . no realistic hope of release.” Millan , 2020 WL 1674058, at *8. Fisher obtained his G.E.D. while incarcerated at U.S.P. Leavenworth in 1991 and then his bachelor’s degree in 1993. Dkt. 84, at 8. He obtained a master’s degree in 2006 and a doctorate in sociology in 2009. Id. But more important, he dedicated himself to helping others, earning a meritorious good time award in 2011 for his work as a tutor. Id. at 9. The Government acknowledges that Fisher’s “academic and other accomplishments (including earning a PhD and writing screenplays and books), clean disciplinary records, and community service are imprеssive,” but contends that Fisher should nevertheless not be granted a sentence reduction because his motion does not “express remorse for . . . the multiple victims that he murdered or the many more murders that he approved as a member of the Council.” Dkt. 89, at 13–14.
Fisher submits numerous letters from friends and family who say they will help him adjust to society. Dkt. 84, Exs. O–AA. He lays out a release plan under which he will live with his sister and her husband at their home in Deltona Beach, Florida, and sаys he will spend his time working in his community and directing young people away from the life of crime he chose and for which he has paid a heavy price. Dkt. 84, at 12.
Both Fisher’s crimes and the regret he shows must be viewed from the present day, after 38 years of rehabilitation he undertook wholly for its own sake and without hope of relief. Furthermore, he was acquitted on Count Fifteen. Fisher recognizes the damage he inflicted and expresses “remorse . . . fоr the negative impact I have had on myself, my loving family, my community, and society as a whole.” Dkt. 84, Ex. D, at 2. He points to his educational accomplishments, which support a very positive conclusion concerning his rehabilitation. And he wants to use what he has learned to mentor others and show that “an education can transition one[’]s world-view and change the decision-making process for an individual such as myself.” Id. The letters from his friends and family show that he will be supported in his re-entry to his society and describe Fisher as a man who has continued to be active in their lives despite 38 years behind prison walls.
Fisher plans to spend his life after release “counseling young people to avoid his fate.” Dkt. 84, at 22. He has provided letters from individuals who say they will support him in these efforts. Id. at 12. If Fisher uses his remaining days in pursuit of these aims, he will have worked to heal the wounds he inflicted, made good use of the еducation he obtained in prison, and vindicated the chance provided by the compassionate release statute.
Together Fisher’s considerable and sustained efforts to rehabilitate himself bespeak a
changed man.
See Pepper v. United States
,
3. The Need to Protect the Public from Further Crimes of the Defendant
Fisher’s age and time removed from criminal activity, along with his clean disciplinary
record, lessen the need for further specific deterrence or to “protect the public from further
crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(B)–(C). Fisher’s age makes the risk of
recidivism extremely remote.
See Rodriguez
,
There is no evidence Fisher has engaged in violence or maintained his criminal activities in prison. Nor is there evidence that he has fostered a desirе for revenge over his nearly four decades of incarceration. There is nothing to suggest that he has maintained his criminal contacts and will exact reprisals if released. In fact, many of his confederates, including Barnes, who testified against him, have pre-deceased Fisher. The great likelihood is that his reentry into the world he left so long ago, and in which he caused so much harm, will be a lonely one.
This factor, too, favors a reduction for Fisher.
CONCLUSION
Weighing all these considerations, the 38 years in prison Fisher has served are “sufficient, but not greater than necessary” to recognize the seriousness of his crimes, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(1), (a)(2)(A).
Fisher’s motion for compassionate release is GRANTED, and his sentence is reduced to time served. Fisher will live at his sister’s house in Deltona Beach, in the Middle District of Florida. Additionally, a term of supervised release of fifteen years is imposed, pursuant to 18 U.S.C. § 3582(c)(1)(A). Fisher is to be supervised in the district of his residence. He must participate in an outpatient mental health treatment program approved by the United States Probation Office as a condition of his supervised release. Fisher must continue to take any prescribed medications unless otherwise instructed by the health care provider. He must contribute to the cost of services rendered based on his ability to pay and the availability of third- party payments. The Court authorizes the release of available psychological and psychiatric evaluations and reports, including the presentence investigation report, to the health care provider.
Fisher will undergo a 14-day quarantine period and medical clearance prior to release to minimize the possibility of any spread of COVID-19 from Fisher to the public.
The Clerk of Court is directed to close the motion at Dkt. 84.
Dated: New York, New York SO ORDERED
October 9, 2020
________________________ PAUL A. CROTTY United States District Judge
Notes
[1] Among those convicted at the 1977 trial was Leroy “Nicky” Barnes (“Barnes”), a founding
member of t he Council.
United States v. Barnes
,
[2] A review of the Bureau of Prison s' “Inmate Locator” indicates that both James and Muhаmmed each appear to be have died more than a decade ago.
[3] Rice was convicted of the same offenses as Fisher.
Thomas
,
[4] The Government, in support of its motion for an anonymous jury at the 1983 trial (which was
granted), submitted an affidavit from an Assistant United States Attorney stating that former
Council leader Barnes “had informed the affiant that [Fisher] had bribed a juror” at the 1977 trial
that ended in a hung jury for Fisher.
Thomas
,
[5] Another court in the Southern District of New York recently granted a sentence reduction under
18 U.S.C. § 3582(c)(1)(A) for a 54-year-old inmate who, along with his co-defendant, ran a
cocaine and heroin racketeering enterprise and who, unlike Fisher, was found guilty by a jury of
having participated in the torture and murder of a government confidential informant.
United
States v. Rodriguez
, 00 Cr. 761-2 (JSR),