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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

vs. 4:90cr4008-WS

HUBERT DAVIS,

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTION FOR REDUCTION OF SENTENCE

Defendant Davis filed a motion for reduction of sentence or compassionate

release pursuant to 18 U.S.C. § 3582(c)(1)(A). Doc. 165. Attached to the motion (but

not separately docketed) is a motion for appointment of counsel, which is denied by

separate order. Also attached are exhibits supporting the motion for reduction,

hereafter referenced as attached exhibits. 

It is noted that this Defendant has previously sought relief under 28 U.S.C. §

2255, and filed motions for modification and reduction of sentence. See doc. 161-163

(report and recommendation at pp. 1-2, discussing procedural history; as adopted by

the court and judgment entered on October 15, 2004). 

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 This clearly does not apply to Defendant, who alleges that he is 81 years old

and has served some 15 years since the imposition of his 23 year sentence. Doc. 165,

p. 2. 

4:90cr4008-WS

Defendant now seeks compassionate release based on his age and medical

condition, and claims that it is futile for him to continue seeking relief from the Bureau of

Prisons (BOP). Specifically, he alleges that he has been diagnosed with prostate

cancer and has other chronic medical conditions. Doc. 165, pp. 2-3. He asserts that

relief is authorized by 18 U.S.C. § 3582(c)(1)(A)(i) and (ii), or that the court has power to

grant equitable relief. Id., pp. 2-6. 

A district court may not modify a term of imprisonment except as set forth in §

3582(c)(1) and (2). Under § 3582 (c)(1)(A), the court may reduce the term of

imprisonment upon motion of the Director of BOP, if the court finds that (i) extraordinary

and compelling reasons warrant the reduction, or (ii) the defendant is at least 70 years

old and has served at least 30 years in prison, and the Director determines that the

defendant does not pose a danger to others or the community.1

 

The Director of the BOP has not filed a motion in this case. Defendant has

attempted to obtain such relief with the BOP to no avail. He has supplied his various

requests for administrative remedy or appeal and the responses thereto. 

In response to Defendant's inmate request to staff member dated March 20,

2005, requesting compassionate release, Defendant was advised that "[a] review of

your medical status has found that you have responded well to treatment and your

condition is considered to be stable," so he did not meet the criteria for compassionate

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4:90cr4008-WS

release. Attached exhibits, p. 13 (response dated April 4, 2005) (tracking number

050329-297). 

An informal resolution answer dated May 31, 2005, advised that on that same

date Defendant was evaluated by the doctor, who "indicated that you have some

medical conditions, but they are under control. You are very stable at this time, and

continue to respond well to treatment." Attached exhibits, p. 14. There were not

extraordinary or compelling circumstances to meet the criteria for a recommendation for

compassionate release. Id. 

In response to Defendant's request for administrative remedy received June 15,

2005, number 379400-F1, it was noted that Defendant sought compassionate release

based on medical conditions. Attached exhibits, p. 9 (response dated June 16, 2005). 

Defendant was advised:

On May 31, 2005, you were evaluated by the institution[']s physician and

he found that your medical conditions are under control and that you

continue to respond well to prescribed treatment. Your overall medical

condition is believed to be very stable. In view of this evaluation, we find

no extraordinary and/or compelling circumstances that would support a

recommendation for compassionate release.

Id. The request for administrative remedy was denied. Id.

In the response to his administrative remedy appeal received July 20, 2005,

number 379400-R1, Defendant was advised:

Under 18 U.S.C. 3582(c)(1)(A), a sentencing court, on the motion of the

Bureau of Prisons, may reduce the term of imprisonment for an inmate

sentenced under the Comprehensive Crime Control Act of 1984. The

Bureau may use this provision for inmates under extraordinary and

compelling circumstances which could not reasonably have been foreseen

by the sentencing court at the time of sentencing. In practice, the Bureau

has limited the use of this authority to situations when inmates personally

suffer from terminal illness with a precise prediction of life expectancy. 

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 A district court may not modify a term of imprisonment except upon motion of

the Director of the BOP as set forth above, to the extent otherwise expressly permitted

by statute or Fed.R.Crim.P. 35, or where the sentencing guideline range applied to a

defendant has since been lowered by the United States Sentencing Commission. 18

U.S.C. § 3582(c)(1) and (2). 

4:90cr4008-WS

Other factors considered are the nature and circumstances of the criminal

conduct, the inmate's criminal history, and the sentence length. 

Our review of your request in accordance with the aforementioned, along

with Program Statement (PS) 5050.46, Compassionate Release

Procedures and PS 600.05, Health Services Manual, reveals you are not

a suitable candidate for a compassionate release at this time, due to the

amount of time remaining on your sentence and the seriousness of your

criminal history. 

Attached exhibits, p. 7 (response dated August 10, 2005) (emphasis added). 

Defendant fails to state a claim for relief under the plain language of §

3582(c)(1)(A)(i) or (ii), as no motion has been filed by the Director of the BOP. He has

not alleged or stated any claim for relief otherwise available under § 3582(c).2

Defendant also asserts error in the denial by the BOP of his request for

compassionate release, a claim arguably cognizable under 28 U.S.C. § 2241. See

United States v. Maldonado, 138 F. Supp. 2d 328, 332 (E.D. N.Y. 2001) (request for

early or compassionate release which did not fit the circumstances specified in §

3582(c) could proceed under § 2241, following exhaustion of remedies) (citations

omitted). This court has jurisdiction over Defendant and his custodian in Pensacola. 

Compare 138 F.Supp.2d at 332-333 (sentencing court in New York lacked jurisdiction

as petitioner and his custodian were in New Jersey). 

To the extent that this court could review the claim even lacking authority under §

3582(c), however, relief should be denied. A review of the documents submitted by

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 Defendant is now 81 years of age. He has served about 15 years of his

sentence, and has about 5 more years to serve.

4:90cr4008-WS

Defendant reveals that his request has been considered. Based on his medical

evaluation and considering the seriousness of his offense, the circumstances were not

deemed extraordinary and compelling. While Defendant's age3 and medical problems

are cause for sympathy, relief, if any, must follow the law. Defendant's condition is

considered "very stable" and he has been evaluated by a doctor who found he

responded well to prescribed treatment. 

In Maldonado, the court found that even if it had § 2241 jurisdiction, relief should

be denied. 138 F. Supp. 2d at 333. It noted that the BOP generally interprets the

"extraordinary and compelling" language of § 3582(c)(1)(A)(i) to require a serious

medical condition which is terminal, with a determinable life expectancy. Id. 

The court finds that this interpretation of "extraordinary and compelling" is

reasonable, because it limits the number of people eligible for

compassionate release to those cases that are truly extraordinary and that

may be decided on an objective basis. Moreover, the BOP's interpretation

is still broad enough for it to apply to the rare defendant whose

circumstances do not match the BOP's traditional definition of

"extraordinary and compelling," but whom the BOP nonetheless

determines is deserving of a compassionate release. In this case, the

BOP reasonably found that Maldonado did not fall into the latter category

given the seriousness of the crimes of which he was convicted.

Id. (emphasis added). 

Here too, the BOP reasonably found that Defendant did not fit into the category

of "extraordinary and compelling" because he is not terminally ill with a precise

prediction of life expectancy, and is not otherwise deserving of compassionate release

given the seriousness of his crime. He is not entitled to any relief from this court. 

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It is therefore respectfully RECOMMENDED that Defendant's motion for

reduction of sentence or compassionate release, doc. 165, be SUMMARILY DENIED.

IN CHAMBERS at Tallahassee, Florida, on November 17, 2005.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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