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govinfo:USCOURTS-njd-1_13-cr-00507-0
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
UNITED STATES OF AMERICA :
: Crim. No. 13-507 (NLH)
:
v. :
:
WINSTON WOMBLE, : OPINION
:
Defendant :
______________________________:
APPEARANCES:
WINSTON WOMBLE
# 64815-050
FCI HAZELTON
FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 5000
BRUCETON MILLS, WV 26525
Pro se
DIANA V. CARRIG
OFFICE OF THE U.S. ATTORNEY
401 MARKET STREET
P.O. BOX 1427
CAMDEN, NJ 08101
Counsel for the United States
Hillman, District Judge
Before the Court is Winston Womble’s (“Defendant”) Motion
for Reduction of Sentence under the First Step Act, 18 U.S.C. §
3582(c). (ECF 35). For the reasons expressed below,
Defendant’s motion will be denied.
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Background
On August 2, 2013, Defendant entered a plea of guilty to
conspiring to distribute more than 500 grams of cocaine in
violation of 21 U.S.C. § 846. (ECF 18). Thereafter, on July
28, 2014, the Court sentenced Defendant to 180 months of
imprisonment and a 5-year term of supervised release. (ECF 23).
Defendant filed the instant pro se motion on December 6,
2021 (ECF 35). Defendant’s motion seeks a Reduction of Sentence
under the First Step Act, 18 U.S.C. § 3582(c)(1)(A), but also
makes reference to § 404 of the First Step Act, Pub. L. No. 115-
391, 132 Stat. 5194 (2018). The Government filed a letter in
opposition to the motion on April 26, 2022. (ECF 40). The
Court considers Defendant’s motion against this factual
backdrop.
Discussion
A. Legal Standard for Compassionate Release
Under the First Step Act, a court may afford a defendant
“compassionate release for ‘extraordinary and compelling
reasons.’” United States v. Sellers, 2020 WL 1972862, at *1
(D.N.J. Apr. 24, 2020) (quoting 18 U.S.C. § 3582(C)(1)(A)(i)).
Before bringing a motion for reduced sentence on their own
behalf, defendants first “must ask the Bureau of Prisons (the
“BOP”) to do so on their behalf, give the BOP thirty days to
respond, and exhaust any available administrative appeals.”
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United States v. Raia, Civ. No. 20-1033, 2020 WL 1647922, at *1
(3d Cir. Apr. 2, 2020) (citing § 3582(c)(1)(A)). “Thus, under
the First Step Act, a defendant seeking a reduction in his term
of imprisonment bears the burden of satisfying both that he has
(1) exhausted remedies before seeking judicial review, and (2)
that compelling and extraordinary reasons exist to justify
compassionate release.” Sellers, 2020 WL 1972862 at *1 (citing
18 U.S.C. § 3582(C)(1)(A)).
At the second step, a court may reduce an inmate’s sentence
pursuant to 18 U.S.C. § 3852(c)(1)(A) “if the court finds that
(1) extraordinary and compelling reasons warrant a reduction,
(2) the reduction would be consistent with applicable policy
statements issued by the Sentencing Commission, and (3) the
applicable sentencing factors under § 3553(a) warrant a
reduction.” United States v. Pabon, Crim. No. 17-165-1, 2020 WL
2112265, at *2 (E.D. Pa. May 4, 2020).
B. Analysis of Motions for Compassionate Release
a. Defendant has satisfied the exhaustion requirements
Defendant applied to the BOP for compassionate on October
20, 2021 and his request was denied by the BOP on November 1,
2021. (ECF 35 at 5, 18). The Government does not dispute that
Defendant has exhausted his administrative remedies. (See ECF
40). Thus, the Court deems the administrative exhaustion
requirement for his motions to be satisfied.
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b. Defendant fails to establish “extraordinary and
compelling” reasons for his release
Defendant argues that his medical conditions of type II
diabetes, hypertension, high cholesterol, and obesity constitute
“extraordinary and compelling reasons” justifying his release.
(ECF 35 at 10). Defendant argues that his pre-existing medical
conditions place him at a high risk for complications from
COVID-19. (Id.) Specifically, Defendant argues that he is at
an increased risk for an adverse outcome if he contracts COVID-
19 because he has multiple underlying health conditions. (Id.
at 11). Defendant also argues that the BOP’s handling of the
pandemic increases his odds of contracting COVID-19. (Id. at
12).
The Government contests Defendant’s position. They argue
that Defendant’s medical records show that he has failed to
follow the advice of the medical professionals treating him
while incarcerated, failed to take his medications, and refused
to take the COVID-19 vaccine. (ECF 40 at 4). They argue that
when Defendant previously contracted COVID-19 he recovered
without any repercussions. (Id. at 5). Essentially, they argue
that Defendant has not proffered any evidence that his
conditions are not being adequately addressed by the BOP and
that he faces a particularly increased risk for adverse outcomes
if he contracts COVID-19. (Id.) Finally, they point to metrics
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that they contend show that the BOP is adequately responding to
the pandemic.1 (Id. at 5-7).
The Court does not take lightly the difficulties that
Defendant’s medical conditions place on him particularly while
in prison. But Defendant has not sufficiently shown how his
conditions are exacerbated by COVID-19 or how they present
different circumstances than those the Court considered when it
sentenced him. United States v. Raia, 954 F.3d 594, 597 (3d
Cir. 2020) (“[T]he mere existence of COVID-19 in society and the
possibility that it may spread to a particular prison alone
cannot independently justify compassionate release, especially
considering BOP's statutory role, and its extensive and
professional efforts to curtail the virus's spread.”); United
States v. Hunter, 12 F.4th 555, 570 (6th Cir. 2021) (holding
that facts that existed at the time of sentencing could not be
considered “extraordinary and compelling”); Chu v.
1 They also argue that to the extent that Defendant is asking the
Court to order the BOP to put him on home confinement rather
than asking the Court to modify his sentence, the Court does not
have the power to do so. The Government is correct. United
States v. Goldblatt, 2021 WL 287881, at *2 (D.N.J. Jan. 28,
2021) (“Although the First Step Act [], 18 U.S.C. §
3582(c)(1)(A)(i), permits district courts to grant compassionate
release where there exist ‘extraordinary and compelling reasons’
to reduce a sentence, the CARES Act did not grant the
district court the power to order an inmate to home
confinement.”); Washington v. Warden Canaan USP, 858 F. App'x
35, 36 (3d Cir. 2021) (“[W]e agree with the District Court that
whether to transfer an inmate to home confinement is a decision
within the exclusive discretion of the BOP.”).
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Hollingsworth, 2014 WL 3730651, at *5 (D.N.J. July 28, 2014)
(same).
The applicable guidance from the Sentencing Commission
falls under Comment 1 under § 1B1.13 of the guidelines.
U.S.S.G. § 1B1.13, cmt. n.1(A). The Court cannot say that
Defendant suffers from conditions that fall into the same
categories as “metastatic solid-tumor cancer, amyotrophic
lateral sclerosis (ALS), end-stage organ disease, and advanced
dementia[,]” examples offered by the Sentencing Commission of
the types of illnesses that might constitute “extraordinary and
compelling circumstances.” Id. It also cannot say that
Defendant’s conditions substantially “diminish[] the ability of
[Defendant] to provide self-care within the environment of a
correctional facility and from which he...is not expected to
recover.” Id. Though the Court accepts that Defendant’s
conditions make his incarceration challenging, the Court does
not find sufficient evidence in the record to show that he
cannot care for himself. While the Centers for Disease Control
and Prevention (the “CDC”) have identified obesity,
hypertension, and diabetes as risk factors associated with
COVID-19,
2 courts have held that the mere fact that a defendant
2 CENTERS FOR DISEASE CONTROL AND PREVENTION, COVID-19, PEOPLE WITH CERTAIN
MEDICAL CONDITIONS, https://www.cdc.gov/coronavirus/2019-ncov/need-
extra-precautions/people-with-medical-conditions.html (last
visited May 9, 2022).
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has a condition listed as a risk factor by the CDC is not enough
to warrant compassionate release. United States v. Brashear,
2021 WL 5239119, at *3 (D.N.J. Nov. 10, 2021) (“Despite the risk
of COVID-19, multiple decisions in the Third Circuit, and
multiple decisions in this District, have denied compassionate
release to inmates suffering from obesity, hypertension, and/or
other health issues.”); United States v. Hoffman, No. 21-2452,
2022 WL 843484, at *1 (3d Cir. Mar. 22, 2022) (affirming the
district court’s holding that obesity and type II diabetes did
not constitute “extraordinary and compelling” reasons justifying
release where the conditions were managed in prison). In the
absence of specific evidence showing a more heightened risk, the
Court declines to find that Defendant has made a showing of
medical conditions, even with the possibility of contracting
COVID-19, which warrant his release.
At least as of the close of briefing, Defendant has refused
to take a COVID-19 vaccine. (See ECF 40 at 1). However, FCI
Hazelton, where Defendant is housed, has mitigation efforts
aimed at controlling the spread of the coronavirus that appear
to be effective. Currently, FCI Hazelton has no active inmate
or staff positive tests.3 Over the course of the pandemic, 2
3 See FEDERAL BUREAU OF PRISONS, COVID-19 CORONAVIRUS COVID-19,
https://www.bop.gov/coronavirus/ (last visited May 9, 2022).
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inmates have died as a result of infection by COVID-19, and 165
inmates have recovered from positive infections.4
In addition, according to the BOP, 3,075 inmates at FCC
Hazelton have been fully vaccinated out of a population of
3,604.5 Given the well-established and accepted evidence that
the available vaccines are both safe and effective, the Court
finds that the vaccination rate inside FCC Hazelton weighs
against Defendant’s request for relief.
After a review of the record as a whole, the Court finds
that Defendant, who currently seems to be managing his
conditions effectively at FCI Hazelton, does not present
“extraordinary and compelling reasons” supporting his release.
c. 3553(a) Factors weigh against Defendant’s Favor
Even if Defendant could “establish extraordinary and
compelling reasons” for his release, the Court may reduce an
inmate’s sentence only if the applicable sentencing factors
under § 3553(a) warrant a reduction. Here, they do not.
Defendant argues that he is no longer a danger to the
community but does not explain why. Instead, he argues that he
received an unusually long sentence and that if he were
4 Id.
5 Id.; FEDERAL BUREAU OF PRISONS, OUR LOCATIONS, https://www.bop.gov/
locations/list.jsp (last visited May 9, 2022). FCC Hazelton
includes both FCI Hazelton and USP Hazelton.
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sentenced today, he would not be designated a career offender.
(ECF 35 at 15).
The Government argues that Defendant is a lifelong drug
trafficker, having committed his first offense at 14 and the
instant one at 29. (ECF 40 at 16). They highlight the amount
of drugs at issue for Defendant’s current offense and the amount
of weapons involved in the drug trafficking conspiracy. (Id.)
They further point out that this Court afforded Defendant a
sentence below the guidelines range when it sentenced him.
(Id.) Finally, they underscore the fact that Defendant has had
multiple disciplinary violations, including assault and
possession of a weapon as recently as 2020. (Id. at 16-17).
The Court sees no reason to disturb the sentence it
previously imposed. Specifically, Defendant attempted to
traffic a significant amount of cocaine, brought weapons when he
sought to purchase the drugs, and fled law enforcement when they
tried to detain him. 18 U.S.C. § 3553(a)(1). Indeed, in
imposing Defendant’s sentences, the Court considered Defendant’s
repeated drug offenses and the quantity of drugs that Defendant
attempted to traffic. 18 U.S.C. § 3553(a)(2)(A). Deterrence,
both specific and general, also militates against release given
the magnitude of drugs at issue and the fact that Defendant has
committed multiple drug trafficking offenses in the past and
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committed the instant offense while on probation. Id. at §
3553(a)(2)(B).
Defendant’s repeated flouting of the law suggests that
recidivism is still an active concern in this case and
underscores the need to protect the public from further crimes
that he may commit, especially given the number of weapons that
Defendant brought to a public shopping center when he sought to
buy cocaine. Id. at § 3553(a)(2)(C). The advent of COVID-19
does not change the balance in Defendant’s specific situation
where he has not shown that he is at a materially increased risk
of serious illness or death while incarcerated and there have
been no material differences in the § 3553(a) factors that
animated his current sentence.6 Thus, the Court declines to
grant Defendant’s motion for compassionate release.
C. Legal Standard for Reduction of Sentence Per § 404 of the
First Step Act.
On August 3, 2010, the Fair Sentencing Act (the “FSA”) was
enacted to reduce the disparity between statutory penalties for
6 To the extent that Defendant seeks to use his motion for
compassionate release as a vehicle to attack his designation as
a career offender, such attacks are not cognizable under §
3852(c). United States v. Handerhan, 789 F. App'x 924, 926
(“The terms of neither the statute nor its policy statement
provide for release on the basis of arguments like Handerhan's
that were or could have been raised on direct appeal or in a §
2255 motion, let alone for defendants like Handerhan who already
have completed a § 2255 proceeding and who are subject to the
restrictions on filing second or successive § 2255 motions.”).
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trafficking crack cocaine and powder cocaine. Pub. L. No. 111-
220, 124 Stat 2372 (2010). The FSA raised the drug quantities
required to trigger certain minimum penalties pursuant to 21
U.S.C. § 841, the statute under which Defendant was convicted.
The provisions of the FSA were later made retroactive in 2018
with the passage of § 404 of the First Step Act. United States
v. Easter, 975 F.3d 318, 320 (3d Cir. 2020).
A court that has sentenced a defendant for a “covered
offenses” prior to the enactment of the FSA may resentence a
Defendant in accordance with the FSA’s penalty changes per § 404
of the First Step Act. See Easter, 975 F.3d at 323 (discussing
motions made under § 404(b). A court in analyzing such a motion
must consider the § 3553(a) factors. Id. at 324. A court may
only consider changes in facts that go to the § 3553(a) factors
that were not in play at the time of original sentencing.
United States v. Murphy, 998 F.3d 549, 555 (3d Cir. 2021), as
amended (Aug. 4, 2021) (“This new assessment must include any
new, relevant facts that did not exist, or could not reasonably
have been known by the parties, at the time of the first
sentencing (e.g., a defendant's post-sentencing rehabilitation
or new health problems). But the resentencing court cannot
reach beyond those circumstances to reconsider the facts as they
stood at the initial sentencing.”) (internal citations omitted).
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Notably, the decision by a court to reduce a sentence under
§ 404(b) is discretionary and nothing requires a court to do so.
United States v. Bullock, No. 20-3003, 2021 WL 4145233, at *2
(3d Cir. Sept. 13, 2021) (“Action by a district court under the
First Step Act is discretionary and does not entitle movants
like Bullock to plenary resentencing or a resentencing
hearing.”); Pub. L. No. 115-391, 132 Stat. 5194, 5222 (2018)
(providing, in § 404(c), that “Nothing in this section shall be
construed to require a court to reduce any sentence pursuant to
this section.”).
D. Analysis of Motion to Reduce Sentence Per § 404 of the
First Step Act.
Defendant’s motion under § 404(b) to reduce his sentence by
applying the FSA retroactively is nonsensical for the simple
reason that Defendant was sentenced in 2013, after the passage
of the FSA. (ECF 28). The provisions of law that were modified
by the FSA were in place for the Court’s consideration at the
time of Defendant’s sentencing. Further, § 404(b) contemplates
that a defendant may file a motion if he or she was sentenced
under a provision modified by sections 2 or 3 of the FSA.
United States v. Corbin, No. 07-CR-509, 2020 WL 1956040, at *2
(D.N.J. Apr. 23, 2020). Those sections have nothing to do with
Defendant’s designation as a career offender. See United States
v. Moyhernandez, 5 F.4th 195, 206 (2d Cir. 2021) (“[E]ligibility
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under the First Step Act turns on whether the defendant was
sentenced ‘for a covered offense,’ and not on career-offender
status.”); cf. United States v. Barlow, 544 F. Supp. 3d 491, 497
(D.N.J. 2021), aff'd, No. 21-2267, 2022 WL 820462 (3d Cir. Mar.
18, 2022) (“The First Step Act conditions relief on whether a
defendant is convicted of a ‘covered offense,’ not on whether
the United States Sentencing Commission (‘USSC’) has updated the
Guidelines to reflect Congress’ latest policy determinations or
more modern theories of drug sentencing.”); United States v.
Crews, 385 F. Supp. 3d 439, 447 n.7 (W.D. Pa. 2019)
(“The First Step Act does not permit the court to consider other
statutory or sentencing guideline amendments enacted since the
date the defendant committed his or her offense.”).
Finally, the FSA and § 404(b) are not applicable to
Defendant’s situation since his conviction was based solely on a
conspiracy to traffic powder cocaine. United States v. Stitt,
No. CR 03-259, 2021 WL 826744, at *2 (W.D. Pa. Mar. 4, 2021)
(“Defendant is serving his sentence for an offense involving
powder cocaine, not crack cocaine. Therefore, he may not invoke
Section 404 of the First Step Act to his benefit in a motion for
a sentence modification brought pursuant to Section
3582(c)(1)(B).”). Thus, to the extent that Defendant is also
moving for a sentence reduction under § 404(b), that application
must also be denied.
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Conclusion
For the reasons set forth above, Defendant’s Motion for
Reduction of Sentence under the First Step Act, 18 U.S.C. §
3582(c) (ECF 35) will be denied.
An accompanying Order will issue.
Dated: May 11, 2022 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.
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