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United States v. Overcash

United States District Court, W.D. North Carolina, Charlotte Division

April 3, 2019

UNITED STATES, Plaintiff,
v.
JERRY WAYNE OVERCASH, Defendant.

          ORDER

          FRANK D. WHITNEY JUDGE.

         THIS MATTER comes before the Court on Defendant's Motion for Modification of Imposed Term of Imprisonment filed by counsel pursuant to the First Step Act of 2018, the Second Chance Act of 2008, and the Second Chance Reauthorization Act of 2018.

         Defendant pled guilty to conspiracy to defraud the United States in violation of 18 U.S.C. § 371. The Presentence Investigation Report (“PSR”) indicates that he has zero criminal history points. (Doc. No. 18 at 6). In a Judgment docketed on April 28, 2016, the Court sentenced him at the bottom of the advisory guideline range to 46 months' imprisonment followed by two years of supervised release and assessed $1, 341, 259.56 in restitution. (Doc. No. 24). Defendant did not appeal.

         On March 20, 2019, Defendant filed the instant Motion through counsel. He asserts that he reported to a prison camp to begin his sentence on November 10, 2015, is currently 70 years old, is in relatively good health for his age although he suffers from rheumatoid arthritis, hypertension, hypothyroidism, has zero BOP infractions, and his projected release date is April 14, 2020.

         Counsel submitted letters requesting compassionate release to the warden of his prison camp on February 19 and 25 of 2019. See (Doc. Nos. 35-1, 35-2). The warden allegedly summoned Defendant to his office on February 28, 2019, berated him for seeking compassionate release, denied his request, and suggested that future requests would likewise be denied. Defendant argues that the Court should grant relief because Defendant has exhausted his administrative remedies and due to the undisputed extraordinary and compelling reasons present in Defendant's case.

         The Government has filed a Response opposing Defendant's Motion. (Doc. No. 38). The Government argues that no relief is available under the First Step Act because (1) no extraordinary and compelling reason to warrant such a reduction exist, (2) Defendant does not have a medical condition warranting a reduction, and (3) he has not shown that he is eligible for reduction based on his age and other factors. The Government further argues that the Court lacks authority to review the Bureau of Prisons' or the Attorney General's decision on a request for compassionate release under the Second Chance Act.

         In his Reply, Defendant reiterates his arguments for relief, notes that release is supported by the factors set forth in 18 U.S.C. § 3553(a), and argues that permitting Defendant to serve the remainder of his sentence on home confinement would provide a cost savings to the Government. (Doc. No. 39).

         The Court has considered the parties' arguments and has determined that Defendant is not entitled to compassionate release under either the First Step Act or the Second Chance Act.

         United States Code Title 18, Section 3582(c)(1)(A), as amended by the First Step Act, provides that the court may not modify a term of imprisonment once it has been imposed except that:

(A) the court, upon motion of the Director or the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure to 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 they are applicable, if it finds that -
(i) extraordinary and compelling reasons warrant such a reduction; or
(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 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)…[1]

18 U.S.C. § 3582(c)(1) (emphasis added).

         In addition to satisfying subsections (i) or (ii), the reduction must also be “consistent with applicable policy statements issued by the Sentencing Commission….” 18 U.S.C. § 3582(c)(1). The Sentencing Commission's policy statement with regards to compassionate release is set forth in U.S. Sentencing ...


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