United States v. O'NeillUnited States v. O'Neill
1. COMPASSIONATE RELEASE PROCEDURAL HISTORY
On May 9, 2022, Defendant Kevin P. O’Neill (“Defendant”) filed a pro se motion for compassionate release or, alternatively, for a reduction in sentence. ECF No. 2285. On August 25, 2022, the Government moved to stay briefing on Defendant’s motion pending the Seventh Circuit’s decision in United States v. Williams, No. 22-1212 (7th Cir. Feb. 10, 2022). ECF No. 2303. In Williams, the Seventh Circuit considered an “unresolved legal question” that Defendant raised in his motion: “whether a life sentence mandated by the sentencing guidelines prior to [United States v. Booker, 543 U.S. 220 (2005)] is an ‘extraordinary and compelling reason’ for compassionate release.” Id. at 2. The Court granted the motion. ECF No. 2304. On April 13, 2023, the Seventh Circuit decided Williams and reiterated its holding in United States v. Thacker, 4 F. 4th 569 (7th Cir. 2021) that “a nonretroactive statutory sentencing change cannot be transformed into one that is retroactive by the device of compassionate release”; in other words, the Williams defendant’s life sentence mandated by pre-Booker sentencing guidelines was not an extraordinary and compelling reason for
Subsequent to the Court’s order staying briefing pending the Seventh Circuit’s decision in Williams, Defendant filed (1) a motion to compel the Bureau of Prisons (the “BOP”) to release surveillance video of three assaults described in Defendant’s motion for compassionate release, ECF No. 2317; (2) a motion for the Court to take judicial notice of certified transcripts from proceedings in a co-defendant’s case, ECF No. 2323; and (3) a declaration containing supplemental medical information, ECF No. 2332.
In light of these new filings, as well as additional “supplemental materials” that Defendant had served directly on the Government, on May 9, 2023, the Government moved for an extension of time to submit its response to the motion. ECF No. 2333. The Court granted the motion. ECF No. 2336. However, shortly thereafter, on May 19, 2023, Defendant moved for leave to submit supplemental briefing in support of his underlying compassionate release motion “after the [November 1, 2023 presumptive] effective date of the [United States] Sentencing Commission’s . . . promulgated amendments to
The Court granted Defendant’s motion. ECF No. 2341. Defendant filed his supplemental brief (styled as a supplemental “motion” for compassionate release or, alternatively, a reduction in sentence) on December 4, 2023. ECF No. 2356. The Government filed its omnibus
The matter is now ripe for the Court’s review. For the reasons set forth herein, the Court will deny Defendant’s underlying motion for compassionate release or a reduction in sentence, ECF No. 2285, as well as his supplemental motion for compassionate release or a reduction in sentence, ECF No. 2356. The Court will deny Defendant’s motion to compel the BOP to release surveillance videos, ECF No. 2317, but it will grant his motion for the Court to take judicial notice of certified transcripts from proceedings in a co-defendant’s case, ECF No. 2323.1
2. CRIMINAL CASE PROCEDURAL HISTORY
In June 2000, following a three-month jury trial, the jury convicted Defendant of six federal offenses: Count One, conducting the affairs of an enterprise, the Outlaws Motorcycle Club (the “Outlaws”), through a pattern of racketeering, in violation of
The criminal activity occurred during and as part of a violent war with rival motorcycle gangs over territory. PSR at 6–21. Defendant’s RICO convictions were based on eighteen proven racketeering acts, including murder; various attempted murders and conspiracies to commit murder of and/or arson towards rival bikers, including through the use of explosive devices; robbery and assault of rival biker club members and associates; and cocaine delivery. Id. at 1–4 (as to Defendant, proven racketeering acts were Acts 1, 2, 5, 6, 7, 9, 10, 11, 13, 14, 15, 16, 19, 20, 21, 22, 23, 34). On December 19, 2000, this Court sentenced Defendant to two concurrent life sentences on Counts One and Two; a concurrent 240-month sentence on Counts Three, Five, and Six; and a concurrent 120-month sentence on Count Seven, for a total sentence of life in prison. ECF Nos. 1736, 1741.
Defendant appealed to the Seventh Circuit Court of Appeals, which affirmed his conviction and sentence. United States v. Warneke, 310 F.3d 542 (7th Cir. 2002). The Supreme Court subsequently denied Defendant’s petition for a writ of certiorari. O’Neill v. United States, 538 U.S. 1035 (2003). In May 2004, Defendant filed a pro se motion to vacate, set aside, or correct his sentence under
Almost five years later, Defendant filed a motion for relief from judgment in this case. ECF No. 2196; see also United States v. O‘Neill, No. 18-CV-989-JPS, 2018 WL 10094281, at *1 (E.D. Wis. June 28, 2018). The Court was obliged to recharacterize the motion as one under
3. LEGAL STANDARD
The Court can modify a term of imprisonment “upon motion of the defendant after the defendant has fully exhausted all administrative rights
Section 3582(c)(1)(A) instructs that a reduction must also be “consistent with applicable policy statements issued by the [United States] Sentencing Commission” (the “Commission”). See also United States v. Black, No. 05 CR 70-4, 2024 WL 449940, at *4 (N.D. Ill. Feb. 6, 2024) (“Congress directed the . . . Commission, in policy statements, to ‘describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.’”) (quoting
In 2020, the Seventh Circuit held that the relevant policy statement,
However, November 1, 2023 amendments to
Nonetheless, the distinction is ultimately academic. Courts retain discretion under the “catchall” provision of
Prior to modifying a term of imprisonment, the Court must also consider the sentencing factors set forth in
4. DEFENDANT’S PROFFERED “EXTRAORDINARY AND COMPELLING” BASES FOR RELEASE
Defendant has been in custody since 1997, and, accordingly, he has now served approximately 27 years of his total life sentence. ECF No. 2285 at 2; ECF No. 2356 at 8; see also ECF Nos. 25, 113, 751. He contends that “[w]ith good time credits of 48.6 months factored in, he will have served the equivalent of a 31-year federal sentence, or nearly 80% of a de facto life sentence.” ECF No. 2356 at 8 & n.5 (citing U.S. SENT’G COMM’N, 2022 Sourcebook of Federal Sentencing Statistics, app. A at 202) (URL omitted)).
The instant motion and supplemental motion for compassionate release or, alternatively, for a reduction in sentence are based upon the following proffered “extraordinary and compelling” bases for release:
(1) Defendant’s age and “age-related and institutional-related deterioration in health,” including multiple unprovoked attacks by other inmates (see, e.g., ECF No. 2285 at 22, 25; ECF No. 2356 at 7, 9, 16; see also ECF No. 2332 (Defendant’s declaration providing supplemental medical information)); (2) the Government’s “pretextual lies” and “deceitful propagation of disinformation,” which, combined with “the prejudicial summary of the Gauger murders in [Defendant’s] PSR,” has “caused some BOP staff over the years to believe he is ‘culpable in this heinous act’” and created a “punitive, excess of punishment” (see, e.g., ECF No. 2356 at 21–22 & n.11 (quoting ECF No. 2285 at 29–30 n.18 and citing ECF No. 2356-1 at 21–26)); (3) Defendant’s life sentence and length of time served is “unjustly disproportionate to [a] similarly situated” co-defendant (see, e.g., ECF No.
4.1 Age and Age-Related and Institutional-Related Deterioration in Health
Defendant was 65 years old when he initiated his compassionate release proceedings. ECF No. 2285 at 2. As of the filing of his supplemental compassionate release motion, he was 67 years old. ECF No. 2356 at 9.
Defendant avers that he is “old enough and has been in prison long enough,” and, moreover, that a prisoner study on “physiological age” puts
In combination with his age, Defendant raises a plethora of concerns regarding his medical conditions and the conditions at the institutions in which he has been housed over the years. During his pre-trial detention, Defendant submits that he was relocated multiple times and “[t]he transitory nature of his confinement precluded ‘dental or physical exams.’” ECF No. 2285 at 25 (citation omitted). The institutions at which he was housed during this time were also contaminated with black mold and bacteria and had poor ventilation. Id.
After the jury returned its verdict in June 2000, Defendant was transported to the Columbia County Jail, where “he severely tore or ruptured his left Achilles tendon.” Id. at 25–26. He suffered “substantial swelling, deformity, pain, difficulty bearing weight, and no range of motion.” Id. at 26. Surgical repair of the injury should have occurred within seven to ten days, but jail medical staff dubbed the injury “a sprain.” Id. After multiple complaints, Defendant was examined by a surgeon outside the institution, provided with a wheelchair and crutches, and administered an MRI, “which confirmed a severely torn Achilles tendon.” Id. Defendant eventually received surgery in October 2000. Id. Defendant continues to suffer from “worsening pain in both knees exacerbated by the Achilles tendon injury,” requiring him to wear compression sleeves. Id. at 26–27.
In May 2007, “following two months of hard and painful coughing spells, [Defendant] suffered a left inguinal hernia.” Id. at 43 n.26. At that
Over the last nine years, Defendant has further sustained three concussions: two in 2012 and one in 2015. Id. at 27. In March 2012, Defendant asserts that he was lured outside to the recreation yard at USP Hazelton. Id. Three individuals—one of whom was a “dirty BOP staff” member—used “flat-out lies” and “manipulat[ion]” to direct five young inmates to attack Defendant. Id. at 28. Defendant was struck with a rock, causing him to lose consciousness. Id. Once he was on the ground, all five assailants “struck and stomped him on the head, face, and . . . body,” including “twisting and pulling on [Defendant’s] arms attempting to inflict permanent injury.” Id. Prison staff deployed “Ultra Flash stun munition” to stop the assault. Id. Defendant had no memory of the assault once he regained consciousness, and he sustained severe head and body trauma and could not move his arms or legs. Id. A CT scan revealed extradural hemorrhage. Id. Defendant could not turn his head and “continues to date to experience varying degrees of pain and diminishing motor skills indicative of spinal damage.” Id. at 28–29. A few months later, Defendant
In August 2012, Defendant was transferred from FCI Cumberland to USP Lee. ECF No. 2285 at 29. His first morning at USP Lee, he was walking through a corridor when “he was struck from behind knocking him unconscious to a concrete floor where he tumbled.” Id. Defendant regained consciousness while rolling on the floor and was able to get to his feet, but realized he was “near complete blindness, seeing stars, and utterly defenseless.” Id. He was discovered by BOP staff dazed and bloodied, and he was taken to an outside medical center for treatment. Id. He sustained a concussion, massive swelling, a broken tooth, a neck injury, and other cuts and bruises. Id. According to Defendant, it was the “same pretextual lies, disseminated by the two inmates and BOP staff member from USP Hazelton,” which followed him to USP Lee and facilitated the assault. Id. at 29–30. The USP Lee assailant later confirmed by letter to Defendant that he had been “duped” by these lies. Id. at 30; ECF No. 2285-1 at 66.
In the summer of 2015, Defendant was housed at USP Atwater. ECF No. 2285 at 30. He was “the lone white prisoner in his particular housing unit” when a series of surprise attacks by “groups of Mexican and Latino prisoners numbering in the hundreds armed with weapons simultaneously attacked all the white prisoners.” Id. at 30–31. Defendant was struck with blows to the head, as well as directly struck by flash stun munition deployed by BOP staff. Id. at 31. Defendant suffered cuts, bruising, and symptoms of a concussion, and as a result of the attacks, spent a combined
Defendant has also persistently experienced acute back spasms, chronic neck and lower back pain, right shoulder joint pain, episodes of vertigo and dizziness, constant headaches, fatigue, anxiety, repeated respiratory issues including COVID-19 and long-haul COVID-19 symptoms, PTSD, high cholesterol, ear disorders, and myopia. Id. at 27 (citing ECF No. 2285-1 at 52–56). The impact of these symptoms has caused him significant psychological turmoil. Id. Indeed, Defendant had contracted COVID-19 at least twice at the time that he filed his original motion (and potentially an additional time in November 2019 after a visit from a friend who had just returned from Wuhan, id. at 13 n.10) despite receiving vaccinations and vaccine boosters. Id. at 27 (citing ECF No. 2285-1 at 35–48). And despite testing positive for COVID-19, BOP medical staff did not assist Defendant and instead “relocated [him] to three completely different housing units (in a 30-day period) alongside new inmates.” Id.
Defendant further generally raises the impact of COVID-19 on the institutional setting, including the “low vaccination rate among BOP personnel” and the higher risk of acquiring COVID-19 in prison. Id. at 32 (citation omitted). He contends that restrictions at FCI Oxford during the pandemic made his “incarceration much more punitive than originally contemplated at the time of sentencing,” which restrictions included “lockdowns, quarantining, and relocation to five different housing units (some moves in the extreme cold while seriously sick with COVID-19).” ECF No. 2356 at 23–24 n.13.
In January 2022, Defendant and other inmates in his unit became “very ill with severe flu-like symptoms” including a “chronic cough,
In November 2022, the same spot developed a “slightly elevated growth” with discoloring, crust, itching, and bleeding. Id. (citing ECF No. 2332-1 at 2). In February 2023, Defendant reported to sick call and medical staff stated they would schedule an appointment for a specialist to examine him. Id. (citing ECF No. 2332-1 at 2). Defendant thereafter submitted a request to staff, reiterating his concerns that the spot may be cancer, and requested treatment as soon as possible. Id. (citing ECF No. 2332-1 at 2). Medical staff informed him to report to sick call to be evaluated. Id. (citing ECF No. 2332-1 at 2). Defendant again reported to sick call and staff “appeared to be puzzled” as to why he was directed to report there. Id. In March 2023, Defendant was listed on the callout to see a physician assistant, who “determine[d] [that] [Defendant] ha[d] Basal Cell Carcinoma (‘BCC’) skin cancer.” Id. at 3. The physician assistant stated that he would immediately schedule an appointment for outside medical care with a dermatologist. Id. Defendant asserts that, according to the BOP, “[o]nce approved it can take anywhere from 2 weeks to 6 months to be scheduled
Defendant thereafter discussed with the same physician assistant his worsening equilibrium and balance, headaches, chronic neck, back, knee, and shoulder pain. Id. Defendant requested that the physician assistant locate his medical records from March 2012, when he was assaulted at USP Hazelton. Id. The physician assistant told Defendant “for the first time” that he had sustained “crushed vertebrae in [his] neck.” Id. at 3–4. Defendant contends that the BOP’s delay to diagnose and treat his cancer, as well its 11-year failure to inform him of crushed vertebrae in his neck, demonstrates “negligence and grossly inadequate medical care.” Id. at 4.
In general, Defendant challenges BOP staffing shortages and their “cascading effects on . . . institution[] operations.” ECF No. 2356 at 17. He argues that the BOP’s inability or unwillingness “to provide necessary specialized care in a timely or adequate manner” is “a reasonable expansion of the medical circumstances constituting extraordinary and compelling reasons” under
Indeed, in August 2023, prior to submitting his supplemental compassionate release motion, Defendant was transferred from FCI Oxford to FCI Pekin (after FCI Oxford’s security level lowered) and placed in
4.2 The Government’s Alleged “Pretextual Lies” and “Disinformation” and Alleged Errors in the PSR
In his supplemental motion, Defendant makes clear that he proffers the Government’s “knowing[] and intentional[] dispatch[] to the general public that [Defendant] had been convicted and sentenced to life in prison for authorizing the senseless and brutal murders of Ruth and Morrie Gauger,” together with the summary of the Gauger murders in Defendant’s PSR, as an “individualized circumstance[]” that has made his imprisonment “substantially more harsh and laborious than most inmates.”4 ECF No. 2356 at 21–22 & n.11; see also ECF No. 2285 at 29–30 n.18. Defendant alleges that the Government colluded with the media to publish
Defendant also challenges the inclusion of the Gauger murders—racketeering Act 4—in his PSR, when he was not charged with or proven guilty of being involved in that act. ECF No. 2356 at 22 n.11; see also ECF No. 2356-1 at 23; ECF No. 793 at 19–20 (Superseding Indictment). He asserts that “[o]ver the years a number of . . . BOP . . . staff has made derogatory comments or remarks about erroneous and prejudicial information in [his] PSR that DOES NOT pertain to [him].” ECF No. 2356-1 at 23. He contends that other “drug transactions, scams to acquire hydrocodone, stolen vehicles and motorcycles, and altering VIN numbers” are described in the PSR despite “[n]othing in the investigation or trial record show[ing] that he had ANY involvement in these particular crimes.” Id. This information has had a number of “collateral consequences” on his time in prison. ECF No. 2356 at 22 n.11 (citing Sibron v. New York, 392 U.S. 40, 56 (1968)).
Finally, Defendant attaches a letter that he sent to this District’s United States Probation Office (“Probation”) containing an additional challenge to the description in his PSR of racketeering Act 2—the murder of Donald Wagner—an act that the jury found to be proven at trial, and
4.3 Sentence Disparity with Co-Defendant
Defendant next raises the “favorable plea terms” offered to a similarly situated co-defendant, even after that co-defendant’s “17-year flight from justice.” ECF No. 2356 at 27. That co-defendant allegedly was informed prior to the return of the Indictment in 1997 that he “should go on vacation” by a Bureau of Alcohol, Tobacco and Firearms (“ATF”) Special Agent. Id. at 28–29 (quoting ECF No. 2288 at 21–22). The co-defendant fled to Mexico, where he lived as a fugitive until October 2014 when he was apprehended by authorities after being placed on the United States Marshals Service’s Top 15 Most Wanted List. Id. at 28.
After the co-defendant was apprehended and as his counsel was preparing for trial, the co-defendant’s counsel allegedly unearthed “a staggering discovery violation by the government.” Id. at 30.5 While
Defendant argues, and asserts that the Government has conceded, that he is similarly situated to this co-defendant; moreover, Defendant’s criminal history score is II, while his co-defendant’s is VI. Id. at 31–32 & n.16
4.4 Substantial Length of Imprisonment
Finally, Defendant raises his substantial life imprisonment sentence. He avers that “shortly after the initial indictment and his arrest,” an AUSA approached one of Defendant’s attorneys at a cigar shop in Milwaukee. ECF No. 2285 at 19. During this meeting, the AUSA presented Defendant’s attorney with “a verbal plea offer which required [Defendant’s] ‘cooperation’ along with ‘giving up his law enforcement connections’ in exchange for an ‘8-year prison sentence.’” Id. at 19–20 (quoting ECF No. 2198 at 18 n.12). Defendant rejected the offer and opted instead to go to trial. Id. at 20. Defendant argues that the plea offer suggests that “the government regarded as sufficient a sentence far shorter than the one that was imposed.” Id. (quoting United States v. Stockton, No. ELH-99-352, 2021 WL 1060347, at *12 (D. Md. Mar. 17, 2021)). Instead, Defendant “has been imprisoned for a quarter of a century,” with a total life term of imprisonment, “for a case the government deemed worthy of no more than 8 years.” Id. at 22.
5. ANALYSIS8
5.1 Extraordinary and Compelling Circumstances
As amended, see supra Section 3, the policy statement in
(B) [t]he defendant is—
(i) suffering from a serious physical or medical condition, (ii) suffering from a serious functional or cognitive impairment, or
(iii) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
With respect to age, extraordinary and compelling circumstances exist when “[t]he defendant (A) is at least 65 years old; (B) is experiencing a serious deterioration in physical or mental health because of the aging process; and (C) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.”
For defendants who are victims of physical abuse, extraordinary and compelling circumstances exist when the defendant “while in custody serving the term of imprisonment sought to be reduced, was a victim of[] . . . physical abuse resulting in ‘serious bodily injury,’ as defined in the Commentary to
Extraordinary and compelling reasons also exist when
a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment[.] [In those circumstances,] a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant‘s individualized circumstances.
Finally, extraordinary and compelling circumstances may also be “any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described [in the policy statement] are similar in gravity to those described in [the policy statement].”
Any of these individual circumstances, “or a combination thereof,” constitute extraordinary and compelling circumstances.
5.1.1 Substantial Length of Imprisonment
The Government argues that the new subsection 1B1.13(b)(6), which was added with the November 1, 2023 amendments and allows the Court to consider reducing sentences that may be considered “unusually long”
5.1.1.1 Nonretroactive or Intervening Changes in the Law Pre-November 1, 2023 Amendments
Prior to the November 1, 2023 amendments to
The Seventh Circuit confronted a similar question in United States v. Brock, 39 F.4th 462, 465 (7th Cir. 2022), where it analyzed the effect of a judicial decision “even if viewed as announcing new law or a new interpretation of an existing statutory provision” on its holding in Thacker. There, the court rejected the proposition that “‘the government‘s admission that the [defendant‘s] offenses no longer support a life sentence’ because of
As earlier noted, and most pertinent to this case, the Seventh Circuit again analyzed a similar question in Williams. There, the defendant “argued that his pre-Booker mandatory life sentences, combined with his exemplary prison record, constituted ‘extraordinary and compelling reasons’ for early release.” 65 F.4th at 345 (citing Booker, 543 U.S. 220). The Seventh Circuit, in line with its decisions in Thacker, Brock, and King, rejected the argument. Id. at 345-46 (“[W]e see no reason to change our analysis at this time.“). The court recognized, however, that at that time, “[t]he . . . Commission [wa]s in the process of studying the issue, and recently it ha[d] proposed defining ‘extraordinary and compelling reasons’ to include circumstances in which ‘[t]he defendant is serving a sentence that is inequitable in light of changes in the law.‘” Id. at 345 (citing Sentencing Guidelines for United States Courts, 88 Fed. Reg. 7180, 7184 (proposed Feb. 2, 2023)). But “[u]ntil the Commission definitively says otherwise,” the Seventh Circuit “[did] not deviate from [its] current understanding.” Id.
The court reached this conclusion even after acknowledging that its view was shared by some circuits—the Sixth, Eighth, and D.C. circuits—
In the face of the circuit split, the Seventh Circuit observed that “[t]he Supreme Court has not weighed in on this disagreement.” Id. The court explained that, while the Supreme Court has “repeatedly rejected
5.1.1.2 November 1, 2023 Amendments
In 2018, as part of the First Step Act, Congress “created a judicial power to grant compassionate release on a prisoner‘s own request, provided that the prisoner first allowed the [BOP] to review the request and make a recommendation (or it let 30 days pass in silence).” Gunn, 980 F.3d at 1179 (citing
As described supra Section 3, in
However, “almost immediately after the [First Step Act] took effect, the . . . Commission lost its quorum, leaving it ‘unable to update its preexisting policy statement concerning compassionate release to reflect the First Step Act‘s changes.‘” United States v. Carter, No. CR 07-374-1, 2024 WL 136777, at *3 (E.D. Pa. Jan. 12, 2024) (quoting United States v. Long, 997 F.3d 342, 348 (D.C. Cir. 2021)). The Commission‘s policy statement describing extraordinary and compelling circumstances in effect at that time still “address[ed] [only] motions and determinations of the Director, not motions by prisoners,” which was added by the First Step Act. Gunn, 980 F.3d at 1180 (citing
Yet shortly after the circuit split formed, “the Sentencing Commission re-attained a quorum” and released “new sentencing guidelines that included an updated policy statement for compassionate release motions.” Id. The revisions took effect on November 1, 2023, id., and included the new
The Commission‘s commentary makes clear that the Commission drafted
The Commission was persuaded to agree with those circuits that authorize consideration of nonretroactive or intervening changes in the law as extraordinary and compelling circumstances on several bases. First, the legislative history of the SRA had “expressly identified [‘unusually long
Several district courts have confronted the question now before the Court: whether the Sentencing Commission exceeded its authority by adding
While many of these cases are now on appeal, no circuit court has expressly decided the issue.11 In February 2024, the Seventh Circuit “put to the side the question whether, under the amended Sentencing Guidelines . . . a compassionate-release motion is the proper place for th[e] sentencing
Here, “[t]here is no doubt that [Defendant] falls within the scope of the amended version of
5.1.1.3 The Seventh Circuit‘s Interpretation Prevails
The Government urges the Court to rest its analysis, in large part, on the Supreme Court‘s holding in Neal v. United States, 516 U.S. 285 (1996). ECF No. 2362 at 17. There, the Court held that “the Commission does not have the authority to amend [a] statute” or “to override [a] statute” as courts have previously interpreted it. Id. at 766, 768; see also United States v. Koons, 850 F.3d 973, 979 (8th Cir. 2017), aff‘d, 584 U.S. 700 (2018) (“Nor can ‘the . . . Commission . . . overrule circuit precedent interpreting a statutory provision.‘“) (quoting United States v. Williams, 808 F.3d 253, 266 (4th Cir. 2015) (Traxler, C.J., dissenting)). In other words, the Government appears to urge the Court to disregard the agency deference analysis set
However, as the court noted in Brown, “the [Supreme] Court in Neal was weighing differing interpretations of a mandatory minimum statute for which Congress had not explicitly delegated interpretative authority to the Commission.” 2024 WL 409062, at *5 (citing Neal, 516 U.S. 284) (emphasis added). The same is true with respect to the amendment analyzed in Koons. Indeed, there, the district court reviewed multiple statutes to locate “the necessary statutory authority for the . . . Commission‘s” implementation of its amendment, but it found none and concluded that the Commission‘s action was taken “ultra vires.” United States v. Feauto, 146 F. Supp. 3d 1022, 1032-37 (N.D. Iowa 2015), aff‘d on other grounds sub nom. Koons, 850 F.3d 973.
Instead, here, “Congress did delegate authority to the Commission to interpret the meaning of the phrase ‘extraordinary and compelling.‘” Brown, 2024 WL 409062, at *5. “And when ‘Congress entrusts to the [Commission], rather than to the courts, the primary responsibility for interpreting the statutory terms[,] . . . [a] reviewing court is not free to set aside [that interpretation] simply because it would have interpreted the statute in a different manner.‘” Id. (quoting Batterton v. Francis, 432 U.S. 416, 425 (1977)).
Moreover, the Supreme Court later clarified that ”Neal established only that a precedent holding a statute to be unambiguous forecloses a contrary agency construction.” Nat‘l Cable & Telecoms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 984 (2005); id. at 982 (“A court‘s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus
In Thacker, the Seventh Circuit interpreted
However, the Seventh Circuit did not explicitly hold in Thacker or its progeny that
The Court therefore turns to whether the Commission‘s addition, pursuant to
Contrary to both Defendant‘s, ECF No. 2368 at 31, and the Government‘s, ECF No. 2362 at 17, positions, the Court finds that the statutory scheme of
Moreover, and in any event, as the Seventh Circuit recognized, “Congress has provided little statutory guidance on how district courts should interpret the term [‘extraordinary and compelling‘].” Williams, 65 F.4th at 346. All Congress has directed is that rehabilitation alone is not extraordinary and compelling. Id. (citing Peoples, 41 F.4th at 841 and
Under step two of Chevron, where, as here, there is an “express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” “[s]uch legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” 467 U.S. at 843-44 & n.12 (collecting cases); see also Square D Co., 438 F.3d at 745 (same); Santoyo, 146 F.3d at 524-25 (same). Under this standard, “[w]hen reviewing the agency‘s explanation, a court must consider ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.‘” Am. Bankers Ass‘n, 306 F. Supp. 3d at 55 (quoting Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 462 U.S. 29, 43 (1983)).
For many reasons, the Court finds that
It is canonical that “federal court[s] generally ‘may not modify a term of imprisonment once it has been imposed.‘” Dillon v. United States, 560 U.S. 817, 819 (2010) (quoting
In the case of
The structures of
In
Nonetheless, pursuant to its Congressionally-delegated authority under
Any argument that Congress affirmatively endorsed the Commission making
With respect to the structure of
The exhaustion requirement to which motions under
In the Seventh Circuit, compassionate release follows an “issue exhaustion” requirement, which means that “an inmate cannot satisfactorily exhaust . . . by filing a grievance [with his warden] on one ground and then [filing] in court on an unrelated ground.” United States v. Williams, 987 F.3d 700, 704 (7th Cir. 2021) (citing Woodford v. Ngo, 548 U.S. 81, 93 (2006),
A scheme in which the BOP is required to assess (1) under which change in the law a defendant purports to move, (2) whether the defendant‘s sentence is unusually long, and (3) compare the defendant‘s sentence to similarly situated defendants for signals of a gross disparity is unworkable. Although the Fourth Circuit does not require issue exhaustion, it recognized that “[t]he compassionate release process at the BOP level is non-adversarial, and the BOP is not adjudicating the merits of the inmate‘s request for compassionate release but rather determining whether to use government resources to ask for compassionate release on the inmate‘s behalf.” United States v. Ferguson, 55 F.4th 262, 269 (4th Cir. 2022), cert. denied, No. 22-1216, 2024 WL 759802 (U.S. Feb. 26, 2024). The addition of
Additionally, throughout the structure of the First Step Act as a whole, Congress took care to “delineate[] between retroactive and nonretroactive changes,” and it would bely that congressional design to interpret
Respectfully, the Court disagrees that this limitation alters the careful congressional scheme of explicitly authorizing retroactivity elsewhere in the statute. And, more importantly, it does not resolve the Seventh Circuit‘s principal concern, which was to avoid tension with the “path and conditions Congress established for federal prisoners to challenge their sentences” under
It would wholly frustrate this scheme, including the bar on second or successive motions under
because collateral review significantly undermines the government‘s important interest in finality, Congress and the Supreme Court have established many procedural rules limiting the availability of such relief, including for errors made clear by intervening judicial decisions. They have also established many exceptions to these limitations, reflecting a careful balance between the government‘s interest in finality and the defendant‘s interest in obtaining relief from an unlawful sentence.
Jenkins, 50 F.4th at 1201 (collecting cases). “[I]f Congress intended the compassionate-release statute to act as an exception to this post-conviction framework, ‘it would have made that intent specific.‘” McCall, 56 F.4th at 1058 (quoting McKinnie, 24 F.4th at 588) (internal quotation marks omitted).
In addition to the statutory text and structure, Congressional intent behind the SRA also shows that the addition of
The SRA thus, in many ways, sought to limit judicial discretion to modify allegedly illegal sentences. For example, the SRA enacted
Similarly, the Senate Report makes clear that
It is the Court‘s view that, in this context, the Commission‘s belief that the Senate Report supports
Second, the narrow language describing
The First Step Act did not change the “substance” of the SRA, as it focused only on process. King, 40 F.4th at 596 (“The First Step Act did not create or modify the ‘extraordinary and compelling reasons’ threshold for eligibility; it just added prisoners to the list of persons who may file motions.“). “And because Congress left the substance of the ‘extraordinary and compelling reasons’ requirement intact, [courts should] assume the phrase retained ‘the meaning it had under the previous version of the statute.‘” McCall, 56 F.4th at 1060 (quoting Andrews, 12 F.4th at 260 and citing ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 322 (2012) (“The clearest application of the
Thus, for all these reasons, the Court finds that
5.1.2 Remaining Bases for Release: Sentence Disparity with Co-Defendant; Age and Age-Related and Institutional-Related Deterioration in Health; and the Government‘s “Pretextual Lies” and “Disinformation” and Errors in PSR
Defendant presents his sentence disparity with his co-defendant under
However, even setting aside Arojojoye and considering the argument on its merits, Defendant‘s circumstances are not extraordinary and compelling. Defendant points, ECF No. 2368 at 20-23, to several cases where the defendants’ prosecutions and convictions involved the former ATF practice of “engaging in sting operations where undercover agents provided individuals with the opportunity to rob drug stash houses that did not exist.” United States v. Conley, No. 11 CR 0779-6, 2021 WL 825669, at *1 (N.D. Ill. Mar. 4, 2021); United States v. Logan, No. 07 CR 270-2, 2023 WL 2771165 (Apr. 4, 2023); United States v. Spagnola, No. 07 CR 441-2, 2023 WL 5004396 (N.D. Ill. June 22, 2023). The fake stash house stings later ceased after wide condemnation, prosecutors dismissed many cases related to fake
The Conley and Logan courts’ decisions that the defendants’ sentences were disproportionate from those of defendants who pleaded guilty was driven by the “inherent unfairness and injustice” of fake stash house stings, which “tied . . . the Court‘s hands” as to sentencing guidelines based on the amount of drugs “the government arbitrarily decided was in the fake stash house.” Conley, 2021 WL 825669, at *4; Logan, 2023 WL 2771165, at *4 (finding disparity related to the defendant‘s “continued incarceration for crimes that the government later deliberately ceased to prosecute“); Spagnola, 2023 WL 5004396, at *3 (“The context of [the defendant‘s] conviction prior to the government‘s discontinuation of stash house operations is what warrants compassionate release.“).
Although Defendant continues to protest the circumstances of the charges in his case, see supra note 2, the fake stash house stings described in these three cases in which compassionate release was granted—which again involved active recruitment of defendants by undercover agents—are a far cry from Defendant‘s voluntary and unaided participation in his crimes. Defendant was actively involved in his crimes; indeed, Defendant received a two-level increase under
For this reason, the non-“fake stash house sting” cases that Defendant points to are also distinguishable. ECF No. 2368 at 22 (citing United States v. Ward, No. 09 CR 687-3, 2023 WL 5004408, at *2 (N.D. Ill. June 22, 2023) (“Several federal courts, including this one, have considered
While the co-defendant‘s plea agreement also indicates that he had a leadership role in the Outlaws, see, e.g., ECF No. 2170 at 2, there is no indication from the charges attributed to both Defendant and the co-defendant, or the evidence adduced against Defendant at trial, that he was less culpable than the co-defendant. Defendant asserts in the instant compassionate release proceedings that he was also extended a plea offer, but he chose not to take it and to go to trial. ECF No. 2285 at 20-22. There is nothing extraordinary or compelling about the subsequent difference in sentences imposed upon Defendant and his co-defendant under these circumstances. Defendant further takes issue with his co-defendant‘s absence at his trial, as well as his co-defendant‘s easier conditions of
Next, Defendant raises his age and medical conditions under
With respect to the attacks, under
The lack of authority in this area makes sense because arguments regarding prison conditions generally must be litigated under
Defendant has certainly connected most of his institutional concerns to his specific circumstances, and thus the Court will consider his arguments. However, the Court finds no authority for the proposition that it may compel the BOP to produce records in connection with compassionate release proceedings, and it will therefore deny Defendant‘s motion to compel. ECF No. 2317. Without proof of a finding of misconduct by one of the bodies set forth in
The Court, nonetheless, will consider the attacks under
Defendant cites dozens of cases across over 150 pages of briefing where courts have found medical and institutional conditions similar to his extraordinary and compelling. See generally ECF Nos. 2285, 2356, 2368; ECF No. 2356-1 at 45-60, 62-67. But for as many cases as there are supporting Defendant‘s position, there are just as many holding that similar—and worse—medical and institutional conditions are not extraordinary and compelling. See, e.g., United States v. Bright, No. CR 2000-0004, 2020 WL 4495271, at *3 (D.V.I. Aug. 4, 2020) (cerebral artery stroke and hemorrhagic stroke not extraordinary and compelling because not terminal or deteriorating); United States v. Brinson, No. CR 15-87, 2020 WL 4736258, at *3 (W.D. Pa. Aug. 14, 2020) (paralysis and missing portion of lung not extraordinary and compelling because appropriate treatment has been administered and the defendant had no current resulting health issues); United States v. Savage, No. 1:01-CR-64, 2024 WL 1913166, at *1 (N.D. W. Va. Apr. 30, 2024) (brain injury requiring craniotomy from being “stabbed, beaten, and thrown from the second-floor tier of the federal housing unit,” followed by subsequent attack nine years later, not extraordinary and compelling where the conditions “are not terminal” and the institution “is providing adequate care“).
The Court thus largely makes its determination based on a review of the objective record before it: Defendant‘s most recent medical records, which provide telling context for his concerns about the attacks, medical conditions, and other institutional issues. ECF Nos. 2362-1, 2362-2. August 2023 records indicate that Defendant‘s BCC was removed from his face in approximately June 2023. ECF No. 2362-1 at 5. The lesion that was removed
In September 2023, when Defendant raised complaints related to his left Achilles rupture in 2000, his request for soft shoes was granted. ECF No. 2362-1 at 4. Defendant has frequently raised knee pain to health services, but he had a normal x-ray in May 2023.
Older records within the subset produced to the Court indicate that, as Defendant pleads, he has suffered from knee pain, dizziness, and face, scalp, and neck contusions around the times that he was attacked, and that he suffered a left inguinal hernia in 2007 from coughing. ECF No. 2361-1 at 57-58; ECF No. 2362-2 at 55-59; ECF No. 2285-1 at 52-56, 77-86. The Court has further reviewed the record of Defendant‘s March 2023 visit with the physician assistant, where he contends that he was diagnosed with BCC and informed that he had crushed vertebrae in his neck. The record confirms that the physician assistant did indeed state at that time that Defendant had BCC, ECF No. 2362-1 at 23, however, there are no notes about crushed vertebrae,
The Court does not doubt the severity of the attacks or Defendant‘s pain from the attacks. However, Defendant‘s medical records demonstrate that Defendant does not often report ongoing symptoms from the attacks and, when he does, he is administered tests and/or treatments. Defendant received medication that he reported aided his headaches, but his own nonattendance at the pill line affected his receipt of that medication. While Defendant complains that the BOP delays his treatments, the BOP cannot delay administering treatment for a condition that has not been reported to it, nor can it be faulted for administering treatment that Defendant does not accept. From the record before the Court, the BOP is capable of—and does—manage any ongoing reported symptoms from the attacks. See United States v. Lee, No. 21-CR-00070-DMS-1, 2023 WL 7137350, at *2 (S.D. Cal. Oct. 30, 2023) (holding, in response to contention that “short staffing” has caused failure to properly treat medical conditions, that “[u]pon reviewing the Defendant‘s lengthy medical records submitted by the government, the Court finds that Defendant is being treated for his condition“). And Defendant‘s non-attack related medical conditions, as he reports them to the BOP, are neither serious, deteriorating, nor being left untreated.
Nor has the COVID-19 pandemic contributed to Defendant‘s medical and institutional concerns such that he is unable to provide self-care or protect himself from illness. It is true that the outbreak of COVID-19, together with underlying medical conditions that place a defendant at “high risk” should he contract the disease, may establish an extraordinary and compelling reason warranting release. See, e.g., United States v. Gonzales, No. 13-CR-101-JPS, 2020 WL 4437154, at *4 (E.D. Wis. Aug. 3, 2020). Still though, the Seventh Circuit has instructed district courts to take a deeper dive. See United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022) (explaining that vaccination is not per se a reason to deny compassionate release on the basis of COVID-19, particularly given recent Omicron variant that has increased “breakthrough infections among the fully vaccinated“).
An individualized look at Defendant‘s case instructs that compassionate release is not appropriate on this basis. Defendant has contracted COVID-19 at least three times—and possibly one additional time—including after being vaccinated. Thus, he appears to be susceptible to breakthrough infections. However, Defendant‘s medical records and self-reported lack of symptoms indicate that even having suffered a breakthrough infection did not place him “at serious risk” of complication from COVID-19. United States v. Moran, No. 3:14-CR-30 JD, 2023 WL 3033447, at *2 (N.D. Ind. Apr. 21, 2023). Further, the World Health Organization has declared that the COVID-19 pandemic is now over,14 and there are currently no active inmate cases of COVID-19 at FCI Pekin, where Defendant is housed.15
Defendant raises inadequate vaccination rates by BOP staff, poor quarantine protocols, and the higher risk of contracting COVID-19 in the prison setting. However, unlike many of his institutional concerns, he does not connect these issues to “his situation [in a manner to show that it is] extraordinary as compared to other inmates,” particularly given that he has not suffered serious complications from breakthrough infections. Cockrell, 2024 WL 1741751, at *3 (citing United States v. Khelifi, No. 21-3144, 2022 WL 3925623, at *1 (7th Cir. Aug. 31, 2022) (finding no extraordinary and compelling circumstances where prisoner did not provide individualized evidence for his argument that his prison mishandled the risks of the pandemic)).
Defendant contends that his sentence disparity with his co-defendant, substantial term of imprisonment, and medical and institutional conditions are made worse in combination with BOP staffing shortages, repeated institutional transfers, security concerns, and disinformation stemming from the media and his PSR. However, none of these additional factors push Defendant‘s arguments over the edge. In other words, even a review of the combination of all these factors does not render Defendant‘s circumstances extraordinary and compelling. First, many courts have
Second, a lack of adequate staffing, even if that heightens an individual defendant‘s fear of being attacked or affects his ability to quarantine if he contracts a disease, is not “similar in gravity” to the other extraordinary and compelling reasons enunciated in
Third, and finally, the Court turns to Defendant‘s assertions regarding the Government‘s alleged spread of disinformation to the media and alleged errors in his PSR. Initially, the Court sets aside any arguments regarding the murder of Donald Wagner as charged and proven in racketeering Act 2, and as summarized in Defendant‘s letter to Probation.
As the Second Circuit put it, in response to a defendant’s argument on compassionate release that the court should consider the defendant’s new evidence and question “the legitimacy of [his] convictions and the accuracy of the . . . PSR,”
Section 3582(c)(1)(A) directs courts to “consider[ ] the factors set forth in section 3553(a).”Section 3553 in turn provides “[f]actors to be considered in imposing a sentence.”18 U.S.C. § 3553(a) (emphasis added). To impose a sentence, there must necessarily be a valid conviction. If a defendant contends his conviction by a federal court is invalid, Congress has provided a vehicle to raise such a challenge through a motion pursuant to28 U.S.C. § 2255 , which imposes particular procedural limitations. A defendant cannot evade this collateral review structure by attacking the validity of his conviction through§ 3582 . Accordingly, we conclude, arguments challenging the validity of an underlying conviction cannot be raised in a§ 3582 motion as part of the§ 3553(a) sentencing factors. Rather, such arguments are properly raised on direct appeal or collateral review pursuant to28 U.S.C. § 2255 . Other courts have reached the same conclusion. See e.g., United States v. Bard, No. 21-3265, 2022 WL 843485, at *2 (3d Cir. March 22, 2022) (unpublished percuriam); United States v. Miller, 855 F. App’x 949, 950 (5th Cir. 2021) (unpublished per curiam).
United States v. Amato, 48 F.4th 61, 64–65 (2d Cir. 2022) (footnote omitted). The Second Circuit also rejected the defendant’s argument that the new evidence may be considered under the “district court’s broad discretion ‘to consider the full slate of extraordinary and compelling reasons’ that may warrant an imprisoned person’s release.” Id. at 65–66 (quoting Brooker, 976 F.2d at 237). Thus, nothing in the amended policy statement alters this conclusion. And given the Seventh Circuit’s precedent on the matter of using compassionate release to circumvent the direct appeal or collateral review processes, see supra sources cited in Section 5.1.1.1, the Court has little doubt that the Seventh Circuit would concur.
With respect to the Gauger murders, although Defendant was not charged to be involved with that act, ECF No. 793 at 19–20, the information was properly included in the PSR and considered as relevant conduct under
The case that Defendant cites to support his argument that the inclusion of this information has made his time in prison more difficult involved a sex offender misclassification based on the PSR. ECF Nos. 2285 at 53 n.29 and 2356 at 22 n.11 (citing United States v. Fields, 554 F. Supp. 3d 324, 332 (D.N.H. 2021)). The Court found the misclassification error akin to a sentencing error. Fields, 554 F. Supp. 2d at 336 (“[M]any courts have found that sentencing errors constitute an extraordinary and compelling reason for early release.”) (collecting cases). Here, there was no such sentencing error. And to the extent Defendant suggests that the inclusion of this information in the PSR, and the Government’s alleged spread of this information to the media, is what has driven his attacks, again, fear of attacks is not extraordinary and compelling.
Thus, on balance and for all these reasons, Defendant’s proffered bases for release, either alone or in combination, are not extraordinary and compelling.
5.2 The § 3553(a) Factors
Having determined that Defendant has not presented an extraordinary and compelling reason warranting his release, the Court is not required to consider the
At the time of his sentence, the total life sentence that the Court imposed was clearly supported by all of the relevant
Defendant raises several arguments that go towards the
Defendant argues that “PATTERN is interrelated to an inmate’s rehabilitation efforts and prison disciplinary issues,” and his “Minimum” score indicates that he “no longer presents the significant risk of danger that his offense suggests.” ECF No. 2285 at 36 (quoting United States v. Greene, 516 F. Supp. 3d 1, 25 (D.D.C. 2021)). Defendant also contends that remaining in prison “may even adversely affect [his] marked rehabilitation.” Id. at 36–37 (quoting United States v. Ezell, 518 F. Supp. 3d 851, 862 (E.D. Pa. 2021) and citing United States v. Briggs, 524 F. Supp. 3d 419, 429 (E.D. Pa. 2021)). Further, Defendant’s age may suggest a lower likelihood to recidivate. Id. at 37 (citing United States v. Presley, 790 F.3d 699, 702 (7th Cir. 2015) and Daniel O’Conner et al., Violent Offending, Desistance, and Recidivism, 103 MARQ. L. REV. 983, 1004 (2020)).
Defendant has also completed many institutional programs, particularly after arriving at USP Atwater in 2013. Id. at 43. At that time, Defendant became involved with programming through Psychology Services and Education. Id. He completed the Breaking the Cycle, Release Preparation Program, and the Non-Residential Drug Abuser Program. Id. at 43–44. The program provider commented that Defendant brings a “mature and prosocial perspective,” “has personal goals he is working on,” “focus[es] on positive activities,” “demonstrates a positive attitude,” and “would be a productive member of society.” Id. at 44 (quoting ECF No. 2285-1 at 104–05). He also completed a Cultural Studies program, an eight-week program on Carrying on With a Life Sentence, a five-session anger management program, and an Optimizing Brain Fitness and Lifelong Health program. Id. at 44–45 (citing ECF No. 2285-1 at 109, 111, 113). After
At FCI Oxford, Defendant enrolled in a four-month program titled 17 Key Principles to Success, and he also completed the Positive Attitude Development program. Id. at 46 (citing ECF No. 2285-1 at 118, 121). Defendant also became a facilitator for the Maintaining a Positive Sense of Self program to “address aftercare for like-minded individuals to stay focused on their positive outlook and not drift back to their old ways of thinking.” Id. at 46 (citing ECF No. 2285-1 at 123). Between 2019 and 2023, Defendant completed dozens of additional mental health and responsibility programs. Id. at 47–48 (citing ECF No. 2285-1 at 126–44); ECF No. 2356 at 56 (citing ECF No. 2356-1 at 74–81).
Defendant next raises examples of having risked his well-being to help his fellow inmates and give back to his community. ECF No. 2285 at 50; see also supra note 3. For example, one of Defendant’s passions has been to aid inmates with “[m]aterially false or misleading information added to plea agreements and presentence reports” with legal support in order to protect them from violence. Id. at 52–53 & n.29. Inmates that Defendant has assisted view him as a “mentor, protector, and almost surrogate father.” Id. at 53–54 (citing and quoting ECF No. 2285-1 at 153, 160).
Defendant also points to his lack of disciplinary history while incarcerated. Id. at 54. At the time that he filed his original motion, he had been imprisoned for 25 years and had incurred only two incident reports. Id. As context for these reports, Defendant explains that due to his life sentence, he has spent most of his sentence at federal USPs, which have a higher frequency and level of violence. Id. at 54–55. During this time, he has not used alcohol, drugs, or tobacco, nor has he used or possessed a weapon.
Defendant next states that he has fully paid off his special assessment and restitution, and that he is working towards paying off his fine. Id. at 59. Finally, Defendant explains the support he receives from his family and friends and his proposed release plan. Id. at 60. He has strong familial support and, if released, would reside with either his mother or sister in North Carolina. Id. at 60 (citing ECF No. 2285-1 at 151–58).
With respect to uniformity, Defendant points to the United States Sentencing Commission’s statistics as to the average sentence imposed in 2021 involving murder, see supra Section 4.4, and he provides two lengthy compilations of cases where courts have granted compassionate release or reduced sentences in cases involving murder or other violent offenses. ECF No. 2356 at 42 (citing ECF No. 2356-1 at 45–60); ECF No. 2356-1 at 62–67. Defendant also asserts that the “significant stretch of time” that he has served reflects the seriousness of his offense and provides just punishment, particularly when juxtaposed with his co-defendant’s 15-year sentence. ECF No. 2356 at 43; id. at 32 n.16 (citing United States v. Russo, 643 F. Supp. 3d 325, 335 (E.D.N.Y. 2022) (“[T]he same sentencing disparities between
The Court has considered all of Defendant’s legal arguments and positive developments and commends him for the same. His briefing is well researched, developed, and thought out, and it is clear that he has been using his time in prison productively. However, the severity of Defendant’s crimes overwhelms the analysis in this case.
Defendant served as the president of his chapter of the Outlaws. PSR at 5.16 He led the Outlaws in a years-long war with rival motorcycle gangs, which was fueled purely by jealous rivalry. Id. at 5–6. Much of his conduct involved organizing and directing fellow Outlaws to act. For example, he worked with a co-defendant to transport a homemade bomb in a fire extinguisher to target the rival Hell’s Henchmen gang. Id. at 6. When the bomb detonated, three police officers were sent to the hospital, and one suffered permanent hearing loss. Id. Defendant received insignia for this act to represent his commission of violence on behalf of the Outlaws. Id. at 5, 6. Defendant directed and orchestrated the murder of Donald Wagner over a load of marijuana. Id. at 6–7. Defendant supervised and directed the placement of a bomb on a truck belonging to a member of the rival Hell’s
Defendant provided other Outlaws members with a map identifying the motorcycle shop of a member of the Hell’s Henchmen and instructed them to kill him. Id. at 11–12. The murder took place as scheduled. Id. at 12. Defendant organized a crew of Outlaws to travel to Buffalo, New York while heavily armed to engage in a confrontation with members of the Hell’s Angels. Id. at 13. Defendant supervised the truck bombing of a Hell’s Henchmen member, which caused permanent injuries to that individual’s legs. Id. at 14. Defendant supervised a bombing of the Hell’s Henchmen/Hell’s Angels Chicago clubhouse. Id. Defendant provided a vehicle for a drive-by shooting of a Chicago Hell’s Henchmen member and then undertook disposal of the vehicle. Id. at 15. Defendant planned a murder of a Chicago Hell’s Henchmen member who was believed to have initiated a fire at an Outlaws clubhouse. Id. at 16. The list only goes on.
Throughout his time with the Outlaws, Defendant made it known to fellow Outlaws, rival gang members, and unassuming members of the public alike that they best not question his directives or his loyalty to the Outlaws. In the nearly 37 years that this judge has been on the bench, Defendant’s conduct remains among the most serious, violent, and pervasive that the Court has seen. While, as noted, Defendant has used his time in prison productively and worked towards rehabilitation, he continues to challenge the jury’s determination of his level of involvement in these offenses, as evidenced throughout these compassionate release
As to uniformity, the Court has denied the compassionate release motions of all of Defendant’s co-defendants with life sentences, and the same result is compelled here. ECF Nos. 2276, 2299, 2330. The community’s healing requires time and adequately served punishment. Perhaps this case will one day be ripe for compassionate release, but 27 years served is not yet sufficient time for the community’s hurt from Defendant’s actions to be healed by his punishment. Thus, the
6. CONCLUSION
For the reasons set forth above, the Court denies Defendant’s motion and supplemental motion for compassionate release. ECF Nos. 2285, 2356. It also denies Defendant’s motion to compel the BOP to release surveillance video, ECF No. 2317, but grants Defendant’s motion for judicial notice, ECF No. 2323. The Court grants Defendant’s motions to restrict, and it grants the Government’s motions to seal, as modified such that the subject documents are restricted from the public’s view rather than sealed.
Accordingly,
IT IS ORDERED that Defendant Kevin P. O’Neill’s motions to restrict access, ECF Nos. 2316, 2324, 2331, 2337, 2355, 2363, 2367, be and the same are hereby GRANTED; the documents docketed at ECF Nos. 2317,
IT IS FURTHER ORDERED that the Government’s motions to seal, ECF Nos. 2339, 2361, be and the same are hereby GRANTED as modified; the documents docketed at ECF Nos. 2340 and 2362 shall remain in restricted form until further order of the Court;
IT IS FURTHER ORDERED that Defendant Kevin P. O’Neill’s motion for judicial notice, ECF No. 2323, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendant Kevin P. O’Neill’s motion to compel the Bureau of Prisons to release surveillance video, ECF No. 2317, be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Defendant Kevin P. O’Neill’s motion for compassionate release, ECF No. 2285, and supplemental motion for compassionate release, ECF No. 2356, be and the same are hereby DENIED.
Dated at Milwaukee, Wisconsin, this 23rd day of May, 2024.
J. P. Stadtmueller
U.S. District Judge
Notes
To the extent that Defendant attempts to relitigate the issue of the alleged “warrantless installation and activation of ‘the bug-infested lamp,’” ECF No. 2285 at 6 n.5 (citing Defendant’s direct appeal, Warneke, 310 F.3d 542), such an argument is inappropriately raised on compassionate release. See infra Section 5.1.1.1 (describing the current state of the law in the Seventh Circuit as to the necessity of preventing compassionate release motions from infringing on the direct appeal or collateral review processes). The same is true as to alleged “evidence of the government’s unbecoming [prosecution] tactics and insidious fabrications” that surfaced in a book authored by a former Milwaukee Police Department detective regarding the history of the Outlaws or otherwise. ECF No. 2356 at n.11 (describing alleged constitutional violations that surfaced in a memoir published in 2015 by Milwaukee Police Department Detective Roger Hinterthuer); ECF No. 2285-1 at 2 (citing Michael Grogan, You Gotta Be Dirty: The Outlaws Motorcycle Club in & Around Wisconsin (2016)).
As explained supra Section 5.1.1.2,
The parties’ briefing focuses on