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United States v. Malone

United States District Court, W.D. Virginia, Abingdon Division

July 25, 2019

UNITED STATES OF AMERICA
v.
LONNIE EDWARD MALONE, Defendant.

          Lonnie Edward Malone, Pro Se Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge.

         Defendant Lonnie Edward Malone., a federal inmate proceeding pro se, has filed a motion to reduce sentence pursuant to § 603(b) of the First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5220 (2018) (“2018 FSA” or “Act”), which amended 18 U.S.C. § 3582(c), expanding the circumstances under which federal prison inmates may seek compassionate release.

         I.

         The defendant was sentenced on May 19, 2008, after his guilty plea to drug and firearms offenses to a total of 330 months imprisonment to be followed by a five-year period of supervised release.[1] According to the website of the Bureau of Prisons (“BOP”), the defendant's current projected release date is December 13, 2028.

         Prior to the 2018 FSA, only the Director of the BOP could file a motion with the court seeking compassionate release for an inmate. However, the 2018 FSA amended § 3582(c) to provide that a sentencing court may, after considering the sentencing factors set out in 18 U.S.C. § 3553(a), modify a sentence to grant compassionate release either upon motion of the Director “or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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.” 18 U.S.C. § 3582(c)(1)(A).

         The defendant seeks compassionate release on the ground that he is 68 years old and suffers from “a series of ailments that have mostly stemmed from his colon-rectal cancer in the late 1990s and many issues stemming from the subsequent treatment.” Mot. 2, ECF No. 294. The defendant alleges that more than 30 days has elapsed since he made a request for release to his case manager at his institution and no response has been received.

         II.

         Section 3582(c)(1) permits a sentencing court to reduce a term of imprisonment if it finds that “extraordinary and compelling reasons warrant such a reduction” and the reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1). The U.S. Sentencing Guidelines Manual (“USSG”) defines extraordinary and compelling reasons in relation to the medical condition of the defendant, as follows:

(A) Medical Condition of the Defendant, -
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(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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