UNITED STATES OF AMERICA v. HENRY KAPONONUIAHOPILI LII
CR. NO. 06-00143 JMS (01)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII
March 23, 2021
ORDER GRANTING DEFENDANT‘S MOTION
ORDER GRANTING DEFENDANT‘S MOTION FOR COMPASSIONATE RELEASE, ECF NO. 154
I. INTRODUCTION
In 2006, Defendant Henry Kapononuiahopili Lii (“Defendant“) pled guilty to three methamphetamine-related offenses that involved a total of 104.6 grams of actual methamphetamine. Based on two prior state court convictions for minor drug offenses, Defendant was sentenced to a mandatory minimum sentence of life in prison.1
Defendant now moves, pursuant to
II. BACKGROUND
On August 24, 2006, Defendant pled guilty to a three-count indictment charging him with: (1) conspiring to distribute and possess with intent to distribute 50 grams or more of methamphetamine in violation of
Under the United States Sentencing Guidelines (“Guidelines“), and based on this drug quantity, Defendant received a base level offense 32 and a three-level downward adjustment for acceptance of responsibility, resulting in a total offense level of 29. Id. at PageID # 1051. With a criminal history category VI at the time of sentencing, id. at PageID # 1052-57, Defendant‘s advisory Guideline range—before taking into account the mandatory minimum—was 151 to 188 months. Id. at ¶ 73,2 ECF No. 73 at PageID # 1060; see also Guideline Sentencing Table (2007).3 But because the Government filed a special information pursuant to
In 2006, when Defendant was sentenced, the filing of a
In this case, the Government‘s special information relied on two prior convictions, both stemming from 1988 arrests, when Defendant was 22 years old. Id. at ¶¶ 40-41, ECF No. 73 at Page ID ## 1052-54. First, Defendant was convicted in Hawaii state court in 1988 for promoting a dangerous drug in the second degree after he sold 0.27 grams of cocaine to an undercover police officer for $50. Id. at ¶ 40, ECF No. 73 at Page ID # 1052. This offense is a class B felony, punishable by a maximum term of imprisonment of 10 years. See
Defendant has now spent 15 years in Bureau of Prisons (“BOP“) custody. During that time, he has had a mixed record. In his favor, he has taken multiple educational classes, worked continuously, and has reportedly completed a non-residential drug treatment program. ECF No. 154-3; ECF No. 154-1 at PageID # 915. He has worked as a unit orderly since 2016, and his most recent program review states that he “[m]aintains the high standards of the Unit, assists in tasks that he is not assigned, and maintains Good work evaluations.” ECF No. 154-3 at PageID # 921.
Much less favorable, Defendant has received four disciplinary actions over the last fifteen years. ECF No. 160-1 at PageID ## 985-86. Three of these offenses—receiving money from another inmate‘s family, possessing intoxicants (which appear to be alcohol), and participating in a group demonstration—are of lesser concern than the fourth—possession of “card stock bindles laced [with] heroin” in January 2018. Id.; see generally ECF No. 175-1.
On March 23, 2020, Defendant applied to USP Atwater‘s Warden for compassionate release based on the First Step Act‘s sentencing reforms. ECF No. 149-1 at PageID # 863. USP Atwater‘s Warden denied Defendant‘s request on Aрril 23, 2020, id. at PageID # 864, and Defendant appealed (sought reconsideration) on June 8, 2020. ECF No. 149-2 at PageID # 865. That appeal, too, was denied by the Warden. Id. at PageID # 866. On January 6, 2021, Defendant, represented by counsel, moved for compassionate release before this court based both on the First Step Act change in law and health concerns related to COVID-19. ECF No. 154.
The Government filed its Opposition on January 21, 2021. ECF No. 160. Among other issues, the Government argued that Defendant failed to exhaust his administrative remedies because he had never sought compassionate release from BOP based on COVID-19 concerns. Id. at PageID ## 969-72. On January 25, 2021, Defendant submitted a request for compassionate release on COVID-19 grounds to the USP Atwater Warden, which was denied on February 10, 2021. ECF No. 173 at PageID # 1086. The parties now agree that Defendant has fully exhausted his administrative remedies. Id. at PageID # 1085.
Meanwhile, Defendant filed his Reply to the Government‘s Opposition on January 27, 2021. ECF No. 163. After applying for leave to do so, the Government filed a Sur-Reply on February 18, and Defendant filed a Response to the Sur-Reply on February 23, 2021. ECF Nos. 167 & 171. An in-court hearing was held on March 8, 2021. ECF No. 174. At the court‘s request, the Government filed a Second Supplemental Brief on March 15, 2021. ECF No. 175.
III. DISCUSSION
A. Legal Framework
Both the compassionate release mechanism Defendant invokes and his argument as to why compassionate release is warranted stem from reforms implemented through the First Step Act of 2018. The court sets forth the pertinent provisions of the Act before turning to the substance of Defendant‘s arguments.
1. Compassionate Release
The First Step Act substantially increased the ability of federally incarcerated persons to seek reduction of their sentence under the “compassionate release statute,”
Thus, the court may reduce Defendant‘s sentence if: (1) Defendant has exhausted the required administrative remedies; (2) after consideration of the applicable
Because the Guideline policy statement was issued before the First Step Act provided defendants the ability to file motions for compassionate release, and because the Sentencing Commission has been unable to amend the Guidelines post-First Step Act due to a lack of a quorum, Guideline § 1B1.13 does not address defendant-filed motions for compassionate release. Nevertheless, the Government argues that Guideline § 1B1.13 is an “applicable policy statement” binding on the court as written. Thus, the Government asserts, courts lack the discretion that the Guideline grants to the BOP Director in its “catch-all” provision to find extraordinary and compelling reasons other than terminal illness, age, or care for dependent family members. ECF No. 175 at Page ID ## 1089-90. The court disagrees.
Contrary to the Government‘s position, a growing majority of courts have determined that the Guidelines lack any policy statement “applicable” to a defendant-filed motion for compassionate release. See United States v. Jones, 980 F.3d 1098, 1108 (6th Cir. 2020) (stating that “U.S.S.G. § 1B1.13 is not an ‘applicable’ policy statement
Previously, this court agreed that it could consider the “full slate” of extraordinary and compelling reasons, although for slightly different reasons. That is, the court determined that the Guideline commentary‘s fourth, catch-all provision empowering the BOP Director to determine whether other extraordinary and compelling reasons exist applies equally to the court when ruling on motions for compassionate release. See United States v. Hernandez, 2020 WL 3453839, at *4 (D. Haw. June 24, 2020). Regardless of the ultimate reasoning applied, the court determines that it is not bound by Guideline § 1B1.13‘s restrictions, but instead mаy make its own independent determination whether extraordinary and compelling reasons warrant a sentence reduction.
2. Mandatory Minimums
The First Step Act also made “[m]onumental... changes to sentencing calculations.” Brooker, 976 F.3d at 230. As relevant here, the First Step Act limited mandatory minimum enhancements based on prior drug convictions along two axes—the length of the mandatory minimums imposed and the range of offenses that trigger mandatory minimums in the first instance. For convictions under
Serious drug felonies are limited to (1) violations of specific federal statutes;6 and
B. Analysis
The court may grant Defendant‘s Motion for Compassionate Release if (1) Defendant has exhausted his administrative remedies; (2) extraordinary and compelling circumstances warrant release; and (3) release is consistent with any applicable
1. Extraordinary and Compelling Reasons
Defendant bears the burden to establish extraordinary and compelling reasons that justify compassionate release. See, e.g., United States v. Bogema, 2020 WL 6150467, at *3 (D. Haw. Oct. 20, 2020) (citations omitted). Defendant argues that compassionate release is appropriate because (1) his life sentence is grossly disproportionate to what Congress now considers fair for his conviction and prior criminal history in light of First Step Act reforms; and (2) his age, obesity, and possible hypertension place him at a high risk of severe complications, hospitalization, or death should he contract COVID-19 while incarcerated. ECF No. 154-1 at PageID ## 895-904.
Turning to the first argument, if sentenced today, Defendant would not be sentenced to mandatory life in prison. In 2006, Dеfendant was given a mandatory minimum sentence of life in prison based on two prior convictions for relatively minor drug crimes that were approximately 18 years old at the time. Defendant was first convicted in 1988 under Hawaii state law for promoting a dangerous drug in the second degree for selling 0.27 grams of cocaine to an undercover police officer for $50. PSR ¶ 40, ECF No. 73 at PageID # 1052. As Defendant and the United States agree, this offense qualifies as a “serious drug felony” under the First Step Act. See
Thus, had Defendant been sentenced today, both “axes” of First Step Act reforms would have lowered his sentence. Only one of his prior convictions, not two, would have triggered an enhanced mandatory minimum. And the mandatory minimum based on one prior offense is now 15 rather than 20 years.
District courts are split on the question of whether drastic sentencing disparities created by the First Step Act‘s reforms can constitute extraordinary and compelling reasons for the purpose of compassionate release.9 Several district courts have held that sentencing disparities cannot provide any basis for compassionate release because “the [sentencing reform] amendment is expressly not retroactive.” United States v. Andrews, 480 F. Supp. 3d 669, 680 (E.D. Pa. 2020). Thus, “[g]ranting a motion for compassionate release on the basis of the amendment to [§ 841] would supplant the retroactivity determination of courts—that the amendment should be applied retroactively on a case-by-case basis—for the retroactivity determination of Congress—that the amendment should not be applied retroactively.” Id. This outcome is impermissible, these courts hold, because “[w]hen Congress speaks on the retroactivity of the statute, its judgment is final.” Id.; see also, e.g., United States v. Jackson, 2020 WL 2812764, at *5 (D. Kan. May 29, 2020), reconsidered on other grounds, 2020 WL 4284312 (D. Kan. July 27, 2020) (holding courts cannot consider sentencing disparities on a motion for compassionate release becausе doing so would “effectively [provide the First Step Act] retroactive effect on a case-by-case basis.“); United States v. Goetz, 2020 WL 5423920, at *4 (S.D. Ind. Sept. 10, 2020) (denying compassionate release on the basis that defendants “may not use
The court agrees with this interpretation. As the Fourth Circuit set forth in McCoy:
The fact that Congress chose not to make [the sentencing reforms of] the First Step Act categorically retroactive does not mean that courts may not consider that legislative change in conducting their individualized reviews of motions for compassionate release under
§ 3582(c)(1)(A)(i) . As multiple district courts have explained, there is a significant difference between automatic vacatur and resentencing of an entire class of sentences – with its ‘avalanche of applications and inevitablе resentencings’ . . .- and allowing for the provision of individual relief in the most grievous cases.... Indeed, the very purpose of§ 3582(c)(1)(A) is to provide a ‘safety valve’ that allows for sentence reductions when there is not a specific statute that already affords relief but ‘extraordinary and compelling reasons’ nevertheless justify a reduction . . . . [W]e see nothing inconsistent about Congress‘s paired First Step Act judgments: that ‘not all defendants convicted under [the prior sentencing scheme] should receive new sentences,’ but that the courts should be empowered to ‘relieve some defendants of those sentences on a case-by-case basis.’
981 F.3d at 286-87 (“individualized reviews” emphasis added) (quoting United States v. Haynes, 456 F. Supp. 3d 496, 516 (E.D.N.Y. 2020); United States v. Jones, 482 F. Supp. 3d 969 (N.D. Cal. 2020)). Moreover:
In declining to give [the First Step Act‘s sentencing reforms] retroactive effect, Congress did
not express a broad intent to foreclose other avenues of relief to the class of defendants sentenced under the pre-First Step Act [§ 841]. Nor did it instruct courts to refrain from exercising their authority under § 3582(C)(1)(A) if, in so doing, they might coincidentally produce a result consistent with the retroactive application of [the First Step Act‘s sentencing reforms]. [Rather,] when Congress passed the original compassionate release statute in 1984, it provided that courts may consider whether a defendant is serving ‘an unusually long sentence’ when ruling on a motion for a sentence reduction.
United States v. Ezell, 2021 WL 510293, at *5 (E.D. Pa. 2021) (citing Brooker, 976 F.3d at 238 (quoting S. Rep. No. 98-225, at 55-56 (1984)) (identifying “unusual cases” in which a sentence reduction is justified, including, “cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence.“)). Thus, “it is not unreasonable for Congress to conclude that not аll defendants convicted [pre-First Step Act] should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis through compassionate release.” Id. (internal quotation and citation omitted).
Put another way, when undertaking an “individualized assessment” as to a defendant‘s circumstances, courts may properly consider both the “sheer and unusual length” of a sentence given under the former sentencing regime and the “gross disparity” between that sentence and the sentence “Congress now believes to be an appropriate penalty for the defendants’ conduct.” McCoy, 981 F.3d at 285; see also United States v. Urkevich, 2019 WL 6037391, at *4 (D. Neb. Nov. 14, 2019) (“A reduction in [defendant‘s] sentence [may be] warranted by ... the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed.“); Williams, 2020 WL 5834673, at *8 (“Both the striking disparity between the short duration of [Defendant‘s] prior state court sentences and his federal mandatory life sentence and subsequent recognition by Congress that a mandatory life sentence is not warranted under these circumstances establish extraordinary and compelling reasons to vacate [his] life sentence.“). Along with considering the sentencing disparity in an individual defendant‘s case, courts undertake “full consideration of the defendant‘s individual circumstances,” including the length of the sentence the defendant had served at the time of their motion, as well as their institutional records and any steps taken toward rehabilitation. McCoy, 981 F.3d at 286; see also Ezell, 2021 WL 510293, at *4 (“Having concluded that [defendant‘s] sentence was indeed harsh, the Court thus examines whether, in combination with other factors related to [defendant‘s] rehabilitation, the nature of [defendant‘s] sentence constitutes an ‘extraordinary and compelling’ reason meriting a sentence reduction under
Here, Defendant was convicted of distributing and possessing with intent to distribute approximately 100 grams of methamphetamine. At most, this offense suggests that Defendant was a low- to mid-level distributor of methamphetamine. For this conviction alone, Defendant would have faced a mandatory minimum of 10 years imprisonment and a Guideline range of 157 to 188 months (130 to 162 months if sentenced today). Instead, he was sentenced to life in prison under the pre-First Step Act sentencing scheme based on two prior state court convictions for relatively minor drug offenses (selling 0.27 grams of cocaine for $50 and possessing 3.09 grams of cocaine, 0.06 grams of marijuana, and two glass pipes).
Defendant‘s case stands in contrast to a situation where a defendant‘s offense conduct was more serious—perhaps warranting a Guideline range approaching a life sentence; or a situation in which the First Step Act sentencing disparity was much lower—perhaps a change from 20 to 15 years. Here, the severity of a life sentence, the enormous disparity between the sentence Defendant received and the one he would receive today, and the fact that Defendant was a low to mid-level distributor of methamphetamine makes this a “grievous cases” for which “individual relief” is appropriate under the compassionate release statute,
Defendant‘s other “individualized circumstances” further support a finding that compassionate release is appropriate. First, Defendant has already served 15 years in prison—the full term of the mandatory minimum applicable today. This suggests that Defendant has already served a fair sentence and that the goals of incarceration have been achieved. See, e.g., Ledezma-Rodriguez, 472 F. Supp. 3d at 504-05 (noting that the defendant was only serving a life sentence because the government “chose to flag two prior drug convictions under
Morеover, Defendant was relatively young when convicted of his underlying drug offenses—in his early 20‘s—and he has no convictions for crimes of violence. See, e.g., McCoy, 981 F.3d at 286 (finding the defendants’ relative youth—from 19 to 24 years old—at the time of their offenses militated in favor of granting compassionate release); Williams, 2020 WL 5834673, at *9 (same); United States v. Redd, 444 F. Supp. 3d 717, 728 (E.D. Va. 2020) (finding that defendant‘s “relatively minor, non-violent” criminal history supported compassionate release); United States v. Blanco, 2020 WL 7350414, at *6 (N.D. Cal. Dec. 14, 2020) (finding compassionate release was warranted despite defendant‘s serious but non-violent criminal history based on his disproportionate sentence and evidence of rehabilitation while incarcerated).
The court recognizes Defendant‘s record while in BOP custody is mixed. While incarcerated, he has taken multiple educational classes, worked continually, and completed a non-residential drug treatment, suggesting a commitment to rehabilitation. ECF No. 154-3; ECF No. 154-1 at PageID # 915; see, e.g., United States v. Barron, 2020 WL 4196194, at *2 (C.D. Cal. July 9, 2020) (holding that a defendant‘s evident rehabilitation supported granting compassionate release where defendant had only three non-violent disciplinary actions in 19 years of custody and had taken multiple classes); Ezell, 2021 WL 510293, at *6 (concluding that by “continually work[ing] to better himself while in prison” “rather than dwelling on his life sentence,” the defendant demonstrated a commitment to rehabilitation that weighed heavily in favor of granting compassionate release).
But Defendant has also had four disciplinary actions while in BOP custody. Of greatest concern, Defendant was sanctioned for the possession of a heroin in 2018. See generally ECF No. 175-1. Although the court certainly understands the seriousness of drug offenses in a prison setting, Defendant‘s conduct while incarcerated does not counterbalance the “extraordinary and compelling” nature of Defendant‘s grossly disproportionate sentence. See Haynes, 2021 WL 406595, at *7 (finding that although “Defendant‘s crimes were inarguably serious and deserving of harsh punishment, and his record in prison is less than exemplary” compassionate release was still warranted based on his grossly disproportionate life sentence); Ledezma-Rodriguez, 472 F. Supp. 3d at 506 (“[R]ightly or wrongly, this country‘s criminal justice system is premised on the idea that a person can—and hopefully will—change after several years locked in prison.“); see also Musa v. United States, 2020 WL 6873506, at *7 (S.D.N.Y. Nov. 23, 2020) (finding that sentencing disparity alone could not justify compassionate releasе where defendant had “not demonstrated a prolonged track record of rehabilitation” and had “more than 60 disciplinary infractions while in BOP custody, including one for ‘threatening bodily harm.‘“). Further, while on supervised release the Defendant will undergo frequent drug testing and treatment. And should Defendant use any illegal narcotics, his supervision can be revoked.
Finally, Defendant is 55 years old, is obese to morbidly obese (BMI of 38 to 40), and possibly has hypertension. ECF No. 158 at PageID # 928, 934; PSR ¶ 58, ECF No. 73 at PageID # 1058; ECF No. 154-1 at PageID ## 895-96. These conditions place him at an increased risk should he contract COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html
Defendant‘s COVID risk factors, standing alone, would not justify compassionate release. By contrast, his grossly disproportionate sentence is enough to independently justify compassionate release. Nevertheless, that Defendant‘s request comes during an unprecedented global pandemic and that Defendant has elevated vulnerabilities to COVID-19 only adds weight to the court‘s conclusion that compassionate release is justified because of the enormous disparity between the life sentence Defendant received and the 15-year sentence he would have received today.
In short, Defendant has demonstrated that extraordinary and compelling reasons justify his early release from incarceration.
2. Section 3355(a) Factors
As relevant to this case, the
These factors have been discussed thoroughly above in considering whether Defendant‘s sentencing disparity warrants compassionate release. The court will not rehash the details here. But, in short, Defendant was convicted of possessing and distributing approximately 100 grams of actual methamphetamine and has a criminal history of only minor offenses, none of them violent. He has had infractions—one very serious—while in custody. But he has also taken steps toward rehabilitation despite his life sentence, including taking classes, maintaining continued employment, and seeking drug treatment. In addition, Defendant has put forth an appropriate release plan—to live with his sister, who will help him to secure employment. ECF No. 154-1 at PageID # 917. Finally, for all the reasons discussed above, the 15 years Defendant has served to date is sufficient to achieve the goals of sentencing under
IV. CONCLUSION
For the foregoing reasons, Defendant‘s Motion for Sentence Reduction under
- Defendant‘s sentence of incarceration is reduced to time served plus 14 days. To minimize COVID-19 risks, the court requests that the BOP place Defendant
in quarantine during his final 14 days in custody. - Upon release from custody, Defendant shall commence serving his ten-year term of supervised release as previously imposed; and shall abide by all mandatory, standard, and special cоnditions as approved and ordered by the Court on March 23, 2021, ECF No. 176.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 23, 2021
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
United States v. Lii, Cr. No. 06-00143 JMS (01), Order Granting Defendant‘s Motion for Compassionate Release, ECF No. 154