United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
Willie David Applewhite moves the Court to reconsider its
Minute Order, ECF No. 87. Upon reconsideration, the Court
determines that Mr. Applewhite's medical conditions and
post-sentencing rehabilitation do not outweigh the
Court's original concerns. For these reasons, Mr.
Applewhite's Motion to Reconsider, ECF No. 88, is DENIED.
through the First Step Act, amended 18 U.S.C. §
3582(c)(1)(A) to allow a defendant to file a motion directly
with the district court for compassionate relief after
exhausting all administrative remedies. The Court may reduce
a defendant's sentence if:
(i) extraordinary and compelling reasons warrant such a
(ii) the defendant is at least 70 years of age, has served 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 BOP 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
18 U.S.C. § 3582(c)(1)(A).
pertinent policy statement for sentence reductions related to
medical ailments is found at U.S.S.G. § 1B1.13.
“Circumstances that may present extraordinary and
compelling reasons to reduce a defendant's sentence
include a ‘terminal illness (i.e., a serious
and advanced illness with an end of life trajectory)' or
‘a serious physical or medical condition . . . that
substantially diminishes the ability of the defendant to
provide self-care within the environment of a correctional
facility and from which he . . . is not expected to
recover.'” United States v. Bunnell, No.
CR1400119001PHXDGC, 2019 WL 6114599, at *1 (D. Ariz. Nov. 18,
2019) (quoting U.S.S.G. § 1B1.13, Application Note 1).
The Court must also consider whether the defendant is still a
danger to the community by consulting the factors listed at
18 U.S.C. § 3142(g). U.S.S.G. § 1B1.13(2).
Court may thus reduce Mr. Applewhite's sentence under the
First Step Act if it determines the existence of
extraordinary and compelling reasons and that Mr. Applewhite
is no longer a danger to the community. United States v.
Bunnell, 2019 WL 6114599, at *1.
age of 69, Mr. Applewhite was sentenced to 151 months and a
consecutive 24-month term for violating his supervised
release by committing unarmed bank robbery. At the time of
his sentencing, Mr. Applewhite suffered from high blood
pressure and an aortic aneurysm. The aortic aneurysm has
continually grown and is inoperable because it may rupture
during surgery. While incarcerated, Mr. Applewhite was also
diagnosed with chronic obstructive pulmonary disease,
Hepatitis C, and pre-glaucoma. Mr. Applewhite originally
sought compassionate release through the Bureau of Prisons
(“BOP”) and was denied after BOP determined that
he did not meet the criteria for a Terminal or Debilitated
Medical Condition. Because he had exhausted his
administrative remedies, Mr. Applewhite moved this Court
directly for a sentence reduction.
Applewhite also requested an evidentiary hearing that he
could attend, which the Court held on December 19, 2019.
Before the evidentiary hearing, Mr. Applewhite was
transferred to prelease custody at a residential reentry
center. Mot. for Or. to Vacate Writ of Habeas Corpus Ad
Testificandum 1-2, ECF No. 97. This change in circumstance
did not alter any arguments presented by the parties, because
Mr. Applewhite insisted that a sentence reduction would allow
him to seek alternative health care options currently
unavailable to him while in BOP control. The Government
continued to oppose the motion on the grounds discussed
present, Mr. Applewhite is 80 years old, has experienced a
serious deterioration in physical health because of the aging
process, and has served at least 10 years of his prison term.
Because the Government conceded that the critical issue was
not whether Mr. Applewhite met the “extraordinary and
compelling reasons” criteria listed in the Policy
Statement, the Court will assume he does. See United
State's Resp. to Def. Mot. for Recons. 3, ECF No. 4;
U.S.S.G. § 1B1.13, cmt. n.1(B). Thus, the only question
is whether Mr. Applewhite remains a danger to the community.
assessing whether a defendant remains a danger to the
community, the Policy Statement from U.S.S.G. § 1B1.13
directs the Court to consult the factors listed in 18 U.S.C.
§ 3142(g), which includes: (1) the nature and
circumstances of the offense charged, including whether the
offense is a crime of violence; (2) the weight of the
evidence against the person; (3) the history and
characteristics of the person, including their physical and
mental condition, past conduct, history relating to drug or
alcohol abuse, criminal history; (4) and whether, at the time
of the current offense, the person was on probation, on
parole, or on other release pending completion of a sentence.
See United States v. Spears, No. 98-cr-0208-SI-22,
2019 WL 5190877, at *5 (D. Or. Oct. 15, 2019). The Government
notes that Mr. Applewhite was sentenced for robbery in 1962,
1971, 1976, 1980, 1984, 1992, and 2008. For five of these
robberies, Mr. Applewhite committed them within six months of
being released ...