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United States v. Howard

United States District Court, E.D. North Carolina, Eastern Division

December 20, 2019




         This matter is before the court on defendant's motion for compassionate release. (DE # 92.)

         In 2015, defendant, along with a co-defendant, was charged with (1) possession of equipment with intent to manufacture methamphetamine and aiding and abetting the same and (2) possession with intent to distribute methamphetamine and aiding and abetting the same. In 2016, pursuant to a plea agreement, defendant pled guilty to the distribution charge. The court sentenced defendant to 70 months imprisonment and three years supervised release. Also, the court ordered defendant to pay a special assessment and $6, 000 restitution. The other charge was dismissed. Defendant has been incarcerated approximately three years. He is currently incarcerated at FCI Edgefield and is scheduled for release in September 2021.

         On 8 October 2019, defendant filed the instant motion and seeks compassionate release based on “serious medical conditions.” (Id. at 1-2.) Specifically, defendant requests that his sentence of imprisonment be reduced to time served and that he be released to live at his sister's home to begin his term of supervised release.[1] (Id. at 6; Supp. Reply, DE # 104, at 1.) The government opposes defendant's motion. (Resp., DE # 94.) The court held an evidentiary hearing on the motion on 11 December 2019. At the hearing, defendant testified via videoconference technology from FCI Edgefield.

         Defendant is 51 years old, is nearly six feet tall, and weighs 350 pounds. While incarcerated, defendant's weight has fluctuated; at one point, he weighed 240 pounds. In the past year, he has been hospitalized locally four times, for a total of 11 weeks.

         In 2006, defendant was diagnosed with diabetes. His blood is drawn weekly to check the glucose level. Defendant is treated with approximately 100 units of insulin per day. He has neuropathy, swelling, and ulcers in his legs. Fluid drains from his legs constantly, which require bandages. Defendant is in constant pain.

         Defendant has also been diagnosed with chronic obstructive pulmonary disease. He experiences shortness of breath when walking more than 30 feet and is required to stop and rest. Defendant does not use a cane or walker.

         Defendant has undergone vein closure surgery in his right leg, and he needs additional surgeries. He has Stage 3 kidney disease, a history of pneumonia, high blood pressure, constant swelling of his stomach, and a diaphragmatic hernia. He needs surgery for the hernia, but that surgery cannot be done until he has additional surgeries on his legs. Doctors have told defendant there is a 50% mortality rate if his hernia is not surgically corrected.

         Defendant cannot sleep lying down and frequently wakes during the night due to coughing. He requires assistance putting on and tying his shoes as well as bandaging his legs. He can shower, use the toilet, eat, take medication, and walk unassisted. However, while incarcerated, he has fallen as he was getting off the toilet and from his bed in the middle of the night.

         Defendant is concerned that he will not survive until his anticipated release date. Through counsel, he submitted a request for compassionate release to the Bureau of Prisons (“BOP”).

         At the hearing, the government submitted two exhibits. Exhibit 1 consists of copies of four documents. The first document is a 28 August 2019 letter from defendant's counsel to the Warden of FCI Edgefield, the body of which reads:

I don't know if Lorne Howard, one of your guests now at the Edgefield County Hospital, has made a request for compassionate release or not. In case he has not done so, please accept this letter as a formal request for consideration of compassionate release under the First Step Act, made for Lorne Howard by me as his counsel.
Many thanks.

         The second document is defendant's Inmate Profile, [2] which appears to have been enclosed with counsel's letter. That document, created by the BOP, contains information about defendant, including his name, date of birth, projected release date, offense of conviction, security classification, medical hold, and release to a local hospital. The third document is the front of the post-marked envelope which appears to have contained that letter and enclosure. The fourth and final document is the Acting Warden's 1 October 2019 letter responding to counsel's letter and stating in relevant part, “Unfortunately, your letter did not provide a detailed description for the purpose of Compassionate Release for Howard. If ...

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