Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 09-01-2021
Case Style:
United States of America v. DAVID TIGNER
Case Number: 1:07-CR-00504-SLB-GMB-1
Judge: SHARON LOVELACE BLACKBURN
Court: UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
Plaintiff's Attorney: Not Listed
Defendant's Attorney:
Description:
Birmingham, AL - Criminal defense lawyer represented defendant with two counts of being a felon in possession of a firearm, five counts of unlawful distribution of controlled substances, and two counts of using a firearm during and in relation to a drug-trafficking crime charges.
Mr. Tigner is serving a 210-month sentence after pleading guilty to two
counts of being a felon in possession of a firearm, five counts of unlawful
distribution of controlled substances, and two counts of using a firearm during and
in relation to a drug-trafficking crime. (Doc. 17). Mr. Tigner is currently
incarcerated at Yazoo City Low FCI with a scheduled release date of December
21, 2022. See https://www.bop.gov/inmateloc/ (last visited April 13, 2021).
Currently, according to information from the Bureau of Prisons, Yazoo City Low
has four active inmate case of COVID-19 and five active staff cases. See
https://www.bop.gov/coronavirus/ (last visited April 13, 2021).
II. STANDARD OF REVIEW
The court construes Mr. Tigner’s motion for compassionate release as being
filed pursuant to 18 U.S.C. § 3582(c)(1)(A). Section 3582, as amended by the First
Step Act of 2018, states that courts generally cannot alter or modify a term of
imprisonment after its imposition, but the court can reduce an inmate’s term of
imprisonment upon a motion for sentence modification from the Bureau of Prisons
or from a prisoner, where the prisoner has properly exhausted his or her
administrative remedies. 18 U.S.C. § 3582(c)(1)(A). To exhaust administrative
remedies, a prisoner can (1) pursue all avenues of appeal after the Bureau of
Prisons fails to bring a motion for modification of sentence at the prisoner’s
Case 1:07-cr-00504-SLB-GMB Document 44 Filed 04/13/21 Page 2 of 8
3
request, or (2) file a request for relief with the warden to which the warden does
not respond within 30 days. Id.
Where a prisoner has properly exhausted administrative remedies, Section
3582(c)(1)(A), as amended by the First Step Act, allows a court to modify a
defendant’s sentence “after considering the factors set forth in section 3553(a) to
the extent that they are applicable” if the court finds that “extraordinary and
compelling reasons warrant such a reduction” and finds that “such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(1)(A).
The relevant Sentencing Commission policy statement for Section
3582(c)(1)(A) sets forth several “extraordinary and compelling reasons”
warranting a reduction in sentence. U.S.S.G. § 1B1.13(1)(A) & cmt. 1. In light of
a lack of binding precedent, this court has previously determined—following
guidance from the Second, Fourth, Sixth, and Seventh Circuits—that the policy
statement is not “applicable” to Section 3582(c)(1)(A) motions filed by prisoners
rather than the Bureau of Prisons. United States v. Hewlett, No. 5:93-CR-00137-
SLB-SGC-2, 2020 WL 7343951, at *3–*4 (N.D. Ala. Dec. 14, 2020); 18 U.S.C.
§ 3582(c)(1)(A). Thus, this court has found that courts have discretion to
determine whether a prisoner has shown extraordinary and compelling
circumstances warranting compassionate release. Hewlett, No. 5:93-CR-00137-
Case 1:07-cr-00504-SLB-GMB Document 44 Filed 04/13/21 Page 3 of 8
4
SLB-SGC-2, 2020 WL 7343951, at *3–*4; 18 U.S.C. § 3582(c)(1)(A).
III. DISCUSSION
In his motion for compassionate release, Mr. Tigner states that he previously
contracted COVID-19 and experienced severe pain and a recurrence of high blood
pressure due to the virus. (Doc. 40). He adds that he also suffers from anxiety and
depression. Mr. Tigner states that he is afraid to catch the virus again and asserts
that his correctional facility, Yazoo City Low, has had many cases of COVID-19.
He says that he requested relief from the warden of his correctional institution on
July 28, 2020, but did not receive a response. In addition to requesting
compassionate release, Mr. Tigner also requests that this court appoint him an
attorney to help him pursue relief. (Id).
The government filed a response in opposition, arguing that Mr. Tigner has
not shown entitlement to compassionate release. (Doc. 43). The government
argues that, as an initial matter, Mr. Tigner has not actually shown that he properly
exhausted his administrative remedies because he only provides his own unverified
assertion that he sought compassionate release from the warden of his correctional
institution. (Id. at 3–5). The government states that it contacted litigation counsel
for the Bureau of Prisons, and the Bureau of Prisons has no record of such a
request from Mr. Tigner. (Id. at 3). Further, the government argues that Mr.
Tigner has not shown that he qualifies for a reduction in his sentence because his
Case 1:07-cr-00504-SLB-GMB Document 44 Filed 04/13/21 Page 4 of 8
5
health conditions do not rise to the level of extraordinary and compelling reasons
warranting a reduction in sentence. (Id. at 7–8). The government also argues that,
even if Mr. Tigner could show extraordinary and compelling reasons warranting a
reduction in sentence, he poses a danger to the community and the sentencing
factors set forth in Section 3553(a) do not support compassionate release. (Id. at
8–9).
In this case, it is not entirely clear whether Mr. Tigner properly exhausted
his administrative remedies. See 18 U.S.C. § 3582(c)(1)(A). Mr. Tigner states that
he filed a request for compassionate release with the warden of his correctional
institution and did not receive a response in thirty days, as required to exhaust his
administrative remedies. See (Doc. 40 at 2); 18 U.S.C. § 3582(c)(1)(A). But the
government contests that assertion and states that the Bureau of Prisons has no
record of such a request. See (Doc. 43 at 3). However, the court need not examine
whether Mr. Tigner has actually exhausted his administrative remedies. First, the
Eleventh Circuit has held that “Section 3582(c)(1)(A)’s exhaustion requirement is
not jurisdictional.” United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021).
Further, regardless of whether Mr. Tigner properly exhausted his administrative
remedies, he has not shown entitlement to compassionate release under Section
3582(c)(1)(A).
Case 1:07-cr-00504-SLB-GMB Document 44 Filed 04/13/21 Page 5 of 8
6
Mr. Tigner requests compassionate release because he fears contracting
COVID-19 again; he states that when he previously had the virus it caused him
severe pain and caused a recurrence of hypertension, which had previously
resolved. (Doc. 40). He also states that he has anxiety and depression. (Id.). The
CDC does not recognize anxiety or depression among the list of conditions thought
to increase the risk of contracting a severe case of COVID-19. See
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-withmedical-conditions.html (last visited April 13, 2021). The CDC does recognize
that hypertension can “possibly” increase the risk of severe illness from COVID19. Id. However, Mr. Tigner seems to indicate that his hypertension had resolved
prior to getting COVID-19 and does not clarify whether his hypertension remains
after his recovery. Therefore, the court finds that Mr. Tigner has not clearly shown
that he has significant risk factors for a particularly severe case of COVID-19.
Additionally, information from the Bureau of Prisons shows that Yazoo City Low
currently has only nine active cases of COVID-19, which mitigates Mr. Tigner’s
risk of contracting the virus. See https://www.bop.gov/coronavirus/ (last visited
April 13, 2021). Accordingly, the court finds that Mr. Tigner has not shown
extraordinary and compelling circumstances warranting compassionate release.
See 18 U.S.C. § 3582(c)(1)(A).
Even if Mr. Tigner were able to show extraordinary and compelling reasons
Case 1:07-cr-00504-SLB-GMB Document 44 Filed 04/13/21 Page 6 of 8
7
warranting relief, the court finds that he still would not be entitled to
compassionate release. See 18 U.S.C. § 3582(c)(1)(A). To qualify for
compassionate release, the applicable factors set forth in Section 3553(a) must
support a reduction in sentence. See 18 U.S.C. § 3582(c)(1)(A). Section 3553(a)
requires courts to impose sentences that are “sufficient, but not greater than
necessary” for a person’s crimes, taking into consideration a multitude of factors.
18 U.S.C. § 3553(a). Those factors include, among other things, the history and
characteristics of the defendant, the need for the sentence imposed to reflect the
seriousness of the offense and provide just punishment, and the need to protect the
public from future crimes by the defendant. Id.
Here, the Section 3553(a) factors do not support Mr. Tigner’s release. Mr.
Tigner received a serious sentence for serious crimes; he pled guilty to five counts
of drug distribution and four counts of associated firearm offenses. (Doc. 17). The
Eleventh Circuit has “repeatedly noted the dangerous, and often violent,
combination of drugs and firearms.” Whittier v. Kobayashi, 581 F.3d 1304, 1309
(11th Cir. 2009). So, his combination of crimes put the public at notable risk.
In addition to being dangerous to the public, Mr. Tigner’s crimes also show
a bent toward recidivism. Mr. Tigner’s two convictions for being a felon in
possession of a firearm arose in part from Mr. Tigner’s previous history of criminal
conduct and convictions. In his own sentencing memorandum, Mr. Tigner
Case 1:07-cr-00504-SLB-GMB Document 44 Filed 04/13/21 Page 7 of 8
8
admitted that he had “caused trouble” since he was 17 years old. (Doc. 12 at 6).
Mr. Tigner has shown that he is a repeat offender with a problem with recidivism
who tends to engage in crimes that are dangerous to the public. Therefore, the
court finds that Mr. Tigner still represents a danger to the community and his
original sentence, rather than a reduced sentence, best applies the factors set forth
in Section 3553(a). For this additional reason, the court finds that Mr. Tigner is
not entitled to compassionate release under Section 3582(c)(1)(A).
As a final note, the court will decline to grant Mr. Tigner appointed counsel.
No constitutional or statutory right to counsel exists for Section 3582 motions; the
decision whether to appoint an attorney in a Section 3582 action is left to the
court’s discretion. United States v. Webb, 565 F.3d 789, 795 (11th Cir. 2009).
Here, the court finds that Mr. Tigner has effectively put forth the basic contours of
his arguments for compassionate release without assistance and his claims are not
so complex as to require counsel.
Outcome: Accordingly, Mr. Tigner’s request for compassionate release and for
appointment of counsel, (Doc. 40), is DENIED.
Plaintiff's Experts:
Defendant's Experts:
Comments: