United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY McDADE United States Senior District Judge.
matter is before the Court on Defendant William Shayne
Thorpe's Motion for Compassionate Release (Doc. 69). The
Government has responded (Doc. 70) and this matter is ripe
for review. For the reasons stated herein, Defendant's
Motion (Doc. 69) is DENIED.
August 28, 2008, Defendant Thorpe pled guilty to attempted
possession of more than five grams of cocaine base with
intent to distribute in violation of 21 U.S.C. § 841 and
possession of a firearm in furtherance of a drug trafficking
offense in violation of 18 U.S.C. § 924(c). He was
sentenced on December 15, 2008, to 60 months'
imprisonment on each charge, which ran consecutively for 120
months' imprisonment total, and concurrent terms of four
years' supervised release to follow.
record indicates Defendant was released on October 13, 2017.
On October 31, 2017, a drug test indicated he used cocaine
and marijuana. The next day, a United States Probation
Officer visited his home and found drug paraphernalia and
residue; Defendant tested positive for cocaine and marijuana
again on that day and for marijuana on the next day. On
December 8 and December 20, 2017, Defendant also tested
positive for cocaine and marijuana; he failed to report for a
random drug test on January 5, 2018. Defendant was arrested
and was detained from mid-January 2018 to mid-March of that
year. On March 14, 2018, the Court revoked Defendant's
supervised release and sentenced him to time served and 30
months' supervised release.
again used marijuana on April 26, 2018, and May 8, 2018, and
used marijuana and cocaine on June 12, 2018, and July 5,
2018. These violations resulted in mere modifications to his
supervised release. But he then possessed and used cocaine on
August 8, 2018, and cocaine and marijuana on August 31, 2018,
and failed to report for drug testing repeatedly. He also did
not abide by the rules of the work release center at which he
was housed and failed to submit monthly reports. Accordingly,
on November 14, 2018, his supervised release was revoked once
more and the Court sentenced him to a term of 24 months'
imprisonment followed by 24 months' supervised release.
During that time, he has committed at least one further
violation; the record reflects he was placed in a Special
Housing Unit and had his good time conduct reduced by 50%.
December 21, 2018, the President signed into law the First
Step Act of 2018. Among other things, the First Step Act
modified 18 U.S.C. § 3582(c)(1)(A) to allow incarcerated
defendants to seek compassionate release from a court on
their own motion, not just through the Bureau of Prisons. On
May 9, 2019, the Court received a letter from Defendant's
mother, which it construed as a request for compassionate
release. However, the Court could not consider this request
because the First Step Act requires such requests be sent to
the Bureau of Prisons before a request is made to a court.
Defendant now represents he made such request and did not
receive a response in the required timeframe, which the
Government does not dispute. He therefore filed the instant
Motion (Doc. 69). Defendant seeks release because of his
grandfather's ill health-the filings indicate his
grandfather is unlikely to recover- and the effect it has had
on his family.
may grant a motion for compassionate release by reducing a
prison sentence where “extraordinary and compelling
reasons warrant such a reduction” and “such a
reduction is consistent with the applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. §
3582(c)(1)(A). The Sentencing Commission has issued a
policy at Section 1B1.13 of the 2018 Sentencing Guidelines
Manual, which requires the defendant not be a danger to the
safety of any other person or to the community. §
1B1.13(2) “currently lists four categories of
[extraordinary and compelling] reasons: (1) the
defendant's medical condition; (2) the defendant's
age; (3) the defendant's family circumstances; and (4)
‘other reasons' as determined by the Director of
the Bureau of Prisons.” United States v.
Handerhan, No. 19-1904, 2019 WL 4898675, at *1 (3d Cir.
Oct. 4, 2019). Of these, the first two are clearly not at
issue. The family circumstances enumerated in the policy
statement also do not apply; the sole two reasons listed
under that heading are “[t]he death or incapacitation
of the caregiver of the defendant's minor child or minor
children” and “[t]he incapacitation of the
defendant's spouse or registered partner when the
defendant would be the only available caregiver for the
spouse or registered partner.” U.S.S.G. § 1B1.13
cmt. n. 1. Defendant does not allege that his child or his
spouse will be left without a caregiver (although he does
state his nephew might).
the “catch-all ‘other reasons' category,
” there is currently division among district courts
over whether it allows a district court to utilize its own
discretion. Handerhan, 2019 WL 4898675, at *1 n. 1;
see also United States v. Fox, No. 2:14-cr-03, 2019
WL 3046086, at *2 (D. Me. July 11, 2019) (collecting
conflicting authority).But the Court need not address that
thorny issue. Although the Court is sympathetic to
Defendant's family, especially his grandfather,
Defendant's separation from them at this difficult time
is an ordinary, if unfortunate, consequence of his
imprisonment. See United States v. Burbidge, No.
1:15-cr-172, 2019 WL 4863481, at *4 (D.N.D. Oct. 2, 2019)
(discussing the commonness of the situation as a touchstone
of the inquiry and noting difficulties “are not
extraordinary or compelling” where they are “a
normal consequence of incarceration.”). And the Bureau
of Prisons has not delineated this as such a scenario.
Therefore, the Court would not find the standard met
regardless of whether it was in the Court's discretion or
more importantly, the Court cannot conclude Defendant would
not be a danger to the community. When released in 2017 and
2018, Defendant repeatedly disregarded the conditions of his
supervised release and lied to his probation officer about
it. Since his reincarceration, he has violated facility
rules, resulting in his placement in the Special Housing Unit
and the loss of 50% of his good-time conduct for a high
severity violation. This flagrant disregard for the law makes
it impossible to reduce Defendant's sentence and release
him without creating a potential harm to the community.
Court has a deep sympathy for the pain Defendant's family
is suffering at this difficult time. But that does not change
the findings the Court would need to make to order
Defendant's release, and ...