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Date: 11-08-2021
Case Style:
United States of America v. Larry Chance Cox
Case Number: 8:16-cr-338-CEH-JSS
Judge: Charlene Honeywell
Court: UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Tampa, Florida - Criminal defense lawyer represented Defendant with being a felon in possession of a firearm charge.
On December 21, 2016, Defendant, Larry Chance Cox pleaded guilty to being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Doc. 40.
Defendant was sentenced on August 15, 2018, to a term of imprisonment of 87 months
followed by three years of supervised release, and other mandatory conditions. Doc.
71. Defendant, who is 42 years old, is currently incarcerated at Jesup FCI in Georgia,
and he is scheduled to be released from prison on May 14, 2027. See BOP Inmate
Locator at https://www.bop.gov/inmateloc/ (last accessed on Nov. 2, 2021).
2
In his motion, Defendant alleges he suffers from severe sleep apnea, high
cholesterol, and “high liver enzymes.” Doc. 88 at 4. Defendant further asserts that the
staff at FCI Oakdale I is not capable of handling the COVID-19 outbreak, the prison
environment is not conducive to social distancing, the facility has limited cleaning
supplies, and the facility infection rate is high.
1
Id. at 2–3. Lastly, Defendant
emphasizes he has taken advantage of rehabilitation opportunities and has a low
recidivism rating. Id. at 4–5. He requests the Court immediately release him to home
confinement.
The Government opposes the motion and indicates that the Bureau of Prisons
(BOP) continues to take significant measures to protect the health of the inmates in its
charge. Doc. 90 at 2. Specifically, the BOP activated its Pandemic Influenza Plan
which addresses “social distancing, hygienic and cleaning protocols, and the
quarantining and treatment of symptomatic inmates.” Id. at 3. The protocols include
the modification of operation which requires all inmates to be secured within their
assigned quarters for at least 14 days, the suspension of social and legal visits, and tests
of all newly admitted inmates for COVID-19 symptoms. Id. at 4.
As for Defendant’s request to be placed on home confinement, the Government
contends that the BOP is solely responsible for determining an inmate’s place of
incarceration and the district court is without authority to make such placement
1 The Court notes that Defendant is no longer at the Oakdale facility. His current facility,
Jesup, has a zero infection rate. See https://www.bop.gov/coronavirus/ (last accessed Nov.
2, 2021). Additionally, it has fully vaccinated 1047 inmates and 121 staff members. See id.
3
decisions. The Government further argues the motion should be denied because
Defendant fails to exhaust administrative remedies along with failing to provide an
extraordinary and compelling reason to permit his early release from prison. Id. at 13–
17.
II. LEGAL STANDARD
Pursuant to 18 U.S.C. § 3582(b), a judgment of conviction that includes a
sentence of imprisonment “constitutes a final judgment and may not be modified by a
district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817,
824 (2010) (internal quotations omitted). Those limited circumstances are provided
under 18 U.S.C. § 3582(c)(1)(A)(i). Effective December 21, 2018, the First Step Act
of 2018 amended section 3582(c)(1)(A) by adding a provision that allows prisoners to
directly petition a district court for compassionate release. That provision states:
The court may not modify a term of imprisonment once it has been imposed
except that—
(1) in any case—
(A) the court, upon motion of the Director of the Bureau of Prisons,
or upon motion of the defendant after the defendant has fully exhausted all
administrative rights to appeal a failure of the Bureau of Prisons to bring a
motion on the defendant’s behalf or the lapse of 30 days from the receipt of
such a request by the warden of the defendant's facility, whichever is earlier,
may reduce the term of imprisonment (and may impose a term of
probation or supervised release with or without conditions that
does not exceed the unserved portion of the original term of
imprisonment), after considering the factors set forth in section
3553(a) to the extent that they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a
reduction; or
4
(ii) the defendant is at least 70 years of age, has served at
least 30 years in prison, pursuant to a sentence imposed
under section 3559(c), for the offense or offenses for which
the defendant is currently imprisoned, and a determination
has been made by the Director of the Bureau of Prisons that
the defendant is not a danger to the safety of any other
person or the community, as provided under section
3142(g);
and that such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission; and
(B) the court may modify an imposed term of imprisonment to the
extent otherwise expressly permitted by statute or by Rule 35 of
the Federal Rules of Criminal Procedure. . . .
18 U.S.C. § 3582(c)(1) (italics reflecting amendment under First Step Act).
Accordingly, a court may reduce a sentence upon motion of a defendant provided that:
(1) the inmate has either exhausted his or her administrative appeal rights of the BOP’s
failure to bring such a motion on the inmate’s behalf or has waited until 30 days after
the applicable warden has received such a request; (2) the inmate has established
“extraordinary and compelling reasons” for the requested sentence reduction; and (3)
the reduction is consistent with the Sentencing Commission’s policy statement. See id.
Courts are to consider the § 3553(a) factors, as applicable, as part of the analysis.2
See
§3582(c)(1)(A).
2 These factors include: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for the offense;
to afford adequate deterrence to criminal conduct; to protect the public from further crimes
of the defendant; and to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner; (3) the kinds of
sentences available; (4) the kinds of sentence and the sentencing range established for the
5
The defendant generally bears the burden of establishing that compassionate
release is warranted. See United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013)
(providing that defendant bears the burden of establishing a reduction of sentence is
warranted under § 3582(c) due to a retroactive guideline amendment); United States v.
Heromin, Case No. 8:11-cr-550-T-33SPF, 2019 WL 2411311, at *2 (M.D. Fla. June 7,
2019) (citing Hamilton in the context of a § 3582(c) motion for compassionate release).
III. DISCUSSION
A. Administrative Exhaustion
Defendant has satisfied administrative exhaustion. Under 18 U.S.C. §
3582(c)(1), a defendant must exhaust administrative remedies with the BOP prior to
the filing of a motion for compassionate release. “Section 3582(c)(1)(A)
unambiguously provides that a defendant may either move for compassionate release
after the defendant has fully exhausted administrative remedies or ‘the lapse of 30 days
from the receipt of such a request by the warden of the defendant’s facility, whichever
is earlier.’” United States v. Smith, No. 3:97-cr-120-MMH-PDB, 2020 WL 5106694, at
*3 (M.D. Fla. Aug. 31, 2020); see also United States v. Mack, No. 3:13-cr-206-TJC-MCR,
2020 WL 6044560, at *5–7 (M.D. Fla. Oct. 13, 2020) (finding exhaustion of
applicable category of offense committed by the applicable category of defendant as set forth
in the guidelines; (5) any pertinent policy statement issued by the Sentencing Commission;
(6) the need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct; and (7) the need to provide restitution to any
victims of the offense. 18 U.S.C. § 3553(a).
6
administrative remedies when it was clear that the warden had received defendant’s
request for compassionate release and that more than 30 days had passed).
Here, Defendant filed a request for compassionate release to his BOP warden
on April 6, 2020 and received a denial on April 23, 2020. Doc. 90-1. Because more
than 30 days have lapsed since the warden’s receipt of Defendant’s request, which was
denied, Defendant’s administrative remedies are considered exhausted, and he may
pursue his claims in this Court.
B. Request for Home Confinement
Defendant requests this Court release him to home confinement. In general,
once a court imposes a sentence, the Bureau of Prisons (“BOP”) is solely responsible
for determining an inmate’s place of incarceration to serve that sentence. See Tapia v.
United States, 564 U.S. 319, 331 (2011) (“A sentencing court can recommend that the
BOP place an offender in a particular facility or program...[b]ut decision making
authority rests with the BOP.”); 18 U.S.C. §3621(b) (“The Bureau of Prisons shall
designate the place of the prisoner’s imprisonment[.]”); see also McKune v. Lile, 536 U.S.
24, 39 (2002) (plurality opinion) (“It is well settled that the decision where to house
inmates is at the core of prison administrators’ expertise.”). Defendant provides no
legal authority to support the Court’s ability to order home confinement. Thus, his
requested relief is due to be denied.
C. Extraordinary and Compelling Reason
Defendant argues extraordinary and compelling reasons exist to support a
reduction in sentence under the First Step Act. The sentencing guidelines provide that
7
“extraordinary and compelling reasons exist” for compassionate release when a
defendant meets any one of several circumstances. Section 1B1.13 identifies four
categories in which extraordinary and compelling circumstances may exist: (1) the
defendant’s medical condition; (2) the defendant’s advanced age (at least 65 years old);
(3) family circumstances; and (4) other reasons. See U.S.S.G. § 1B1.13, cmt. n. 1(A)-
(D). When a defendant meets any one of the categories, the Court may grant
compassionate release. See id. Defendant is under the age of 65 and does not raise any
issues regarding family circumstances, and thus the second and third factors are
inapplicable. Rather, Defendant cites to his medical condition and the COVID-19
pandemic as a basis for his motion. Doc. 88 at 1, 4.
Under the first factor, a defendant’s medical condition may provide an
extraordinary and compelling reason to support a reduction in sentence when the
defendant is: (1) suffering from a terminal illness, i.e., a serious and advanced illness
with an end-of-life trajectory; or (2) suffering from a serious physical or medical
condition that substantially diminishes his ability to care for himself within the prison
environment and from which he is not expected to recover. U.S.S.G. § 1B1.13, cmt.
n. 1(A). Stable, controlled medical conditions do not meet the requirements of
U.S.S.G. § 1B1.13 as an extraordinary and compelling reason for a prisoner’s
compassionate release. See, e.g., United States v. Wedgeworth, 837 F. App’x 738 at *739–
40 (11th Cir. 2020) (affirming lower court’s finding of no extraordinary and compelling
reason for a defendant suffering from obesity and chronic hypertension because those
8
conditions were not terminal and did not substantially limit the prisoner’s ability for
self-care).
Here, Defendant complains he suffers from health conditions including severe
sleep apnea, high cholesterol, and “high liver enzymes”. Doc. 88 at 4. CDC guidelines
do not indicate these health conditions pose an increased risk of illness if exposed to
COVID-19. Moreover, while Defendant provides limited medical records to support
his claim, see Doc. 91-4, review of those records reveals Defendant is not suffering from
any terminal illness or serious physical or medical condition that substantially
diminishes his ability to care for himself within the prison environment. To the
contrary, the records reflect his conditions are relatively stable, and he is being
monitored and treated for his conditions. Thus, nothing about Defendant’s medical
condition supports a finding of a compelling and extraordinary reason to warrant a
reduction in sentence.
The fourth factor, which has been described as a catch-all provision, provides
that, “[a]s determined by the Director of the [BOP], there exists in the defendant’s case
an extraordinary and compelling reason other than, or in combination with, the
reasons described in subdivisions (A) through (C).” U.S.S.G. § 1B1.13, cmt. n. 1(D).
As a preliminary matter, the Court notes that “the mere existence of COVID-19 and
the possibility it may spread to a particular prison” is not an extraordinary and
compelling reason for compassionate release. United States v. Raia, 954 F.3d 594, 597
(3d Cir. 2020). Moreover, in accordance with the Eleventh Circuit’s opinion in United
States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), this Court declines to find that the
9
pandemic, coupled with health conditions, constitute an extraordinary and compelling
reason under the catchall “other” reasons category. Id. at 1263–65 (holding that the
language “[a]s determined by the Director of Bureau of Prisons” contained within the
catch-all provision precludes district courts from finding extraordinary and compelling
reasons beyond those specified by the Sentencing Commission in Section 1B1.13).
D. Section 3553(a) Factors
Even if Defendant was able to establish an extraordinary and compelling
reason, the Court must make a finding that Defendant would not be a danger to the
safety of any person or the community and that consideration of the Section 3553(a)
factors counsel in favor of release. See USSG § 1B1.13(2). The Court has considered
the Section 3553(a) factors and determined that they do not weigh in favor of a
reduction in sentence or compassionate release, particularly where Defendant has
served only a fraction of his 87-month sentence, thereby failing to reflect the
seriousness of the offense, promote respect for the law, and provide just punishment
for the offense.
Outcome: Accordingly, it is hereby
ORDERED:
1. Defendant’s Emergency Motion for Compassionate Release (Doc. 88) is
DENIED.
2. The Clerk is directed to mail a copy of this Order to Defendant at FCI
Jesup, 2600 Highway 301 South, Jesup, Georgia 31599
Plaintiff's Experts:
Defendant's Experts:
Comments: