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United States v. Gross

United States District Court, E.D. Washington

June 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL GROSS, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR JURISDICTION AND DENYING DEFENDANT'S MOTION FOR REDUCTION OF SENTENCE AND COMPASSIONATE RELEASE

          Rosanna Malouf Peterson United States District Judge.

         BEFORE THE COURT are motions by Defendant Michael Gross, a federal inmate proceeding pro se, for jurisdiction, ECF No. 200, and for a reduction of sentence and compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), ECF No. 199. The United States did not respond within the time allowed by LCivR 7. Having considered Defendant's motions and the attached materials, as well as the relevant law, the Court is fully informed.

         BACKGROUND

         Following a jury trial before United States Senior District Judge Fred Van Sickle in fall 2004, Mr. Gross was convicted of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. Judge Van Sickle sentenced Mr. Gross, by judgment entered on January 11, 2005, to 240 months imprisonment and a ten-year term of supervised release. ECF No. 109. The sentence was enhanced pursuant to 21 U.S.C. § 851 for a prior conviction. Twenty years imprisonment was the statutory mandatory minimum sentence at the time that Mr. Gross was sentenced. See 21 U.S.C. § 841(b)(1)(A) (prior to the amendments by the First Step Act of 2018, Pub.L. 115-391 (“First Step Act”), § 401, which lowered certain mandatory minimum sentences for drug offenses).[1] To date, Mr. Gross has served over fifteen years of his twenty-year sentence. See ECF No. 199 at 9. Mr. Gross represents that he has a current release date of July 7, 2021. Id. at 1.

         Mr. Gross seeks immediate release based on his medical issues and his age. He developed a detached retina in August 2015 at the U.S. Bureau of Prisons (“BOP”) facility where he was formerly housed and waited nearly one year for surgery to reattach it. He received a settlement from the BOP on a Federal Tort Claims Act claim he pursued based on the alleged delay in treatment. Defendant continues to experience vision impairment, headaches, eye irritation, and problems with equilibrium, due to remaining scar tissue from Defendant's detached retina. Since at least May 1, 2018, the BOP has noted that Mr. Gross has a severe visual impairment to the extent that he is legally blind in his right eye. Id. at 10. Mr. Gross was restricted to sleeping on the lower bunk in his cell and may wear tinted glasses indoors. Id.[2]

         Mr. Gross turned 65 on March 13, 2019. ECF No. 199 at 1. He submitted documentation of furloughs that the BOP granted him in 2012 and 2018. Id. at 14-15. He represents that he has successfully completed a total of twenty furloughs, some unescorted and others escorted, during his incarceration. Id. at 7.

         Mr. Gross further submitted the form on which he requested reduction of his sentence and compassionate release from the BOP, dated January 28, 2019. Mr. Gross indicates in his motion for jurisdiction that the warden of the BOP facility in which he is housed did not respond within 30 days. ECF No. 200 at 1. Mr. Gross filed the instant motions with this Court on March 15, 2019.

         RELEVANT LAW

         Federal Rule of Criminal Procedure 35 generally delineates the parameters of a district court's ability to modify a prison sentence once judgment is entered. That provision offers no relief to Defendant. However, 18 U.S.C. § 3582(c)(1)(A) also reserves an opportunity for a reduced sentence if, after the Court considers the factors under 18 U.S.C. § 3553(a) to the extent that they are applicable, the Court finds that “extraordinary and compelling reasons warrant such a reduction” and the reduction is “consistent with applicable policy statements issued by the Sentencing Commission[.]”

         The U.S. Sentencing Commission has issued a policy statement recognizing certain circumstances as “extraordinary and compelling reasons” for purposes of compassionate release, so long as “the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)”:

(A) Medical Condition of the Defendant.-
(i) The defendant is suffering from a terminal illness (i.e., a serious physical and advanced illness with an end of life trajectory) . . . . (ii) The defendant is-
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive ...

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