UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

)
UNITED STATES OF AMERICA )
)
Vv. )
) Criminal No. 10-0051 (PLF)
RANDOLPH DANSON, )
)
Defendant. )
)
OPINION AND ORDER

 

Pending before this Court are defendant Randolph Danson’s Pro Se Motion to
Reduce Sentence Pursuant to the First Step Act of 2018 (“Pro Se Mot.”) [Dkt. No. 626] and
defendant’s Pro Se Motion for Compassionate Release (“Second Supp. Pro Se Mot.”) [Dkt.
No. 656]. Mr. Danson contends that he is at a high risk of contracting the novel coronavirus
(“COVID-19”) and requests compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).
Supplemental Emergency Motion for Compassionate Release and Reply to Government
Opposition (“Def.’s Reply”) [Dkt. No. 667] at 1. The government opposes this motion.
Government Opposition to the defendant’s Pro Se Motions to Reduce Sentence (“Gov’t Opp.”)
[Dkt. No. 660]. For the reasons that follow, the Court will grant Mr. Danson’s motion for

compassionate release. !

 

1 The Court has reviewed the following documents in connection with the pending
motion: Superseding Indictment (“Indictment”) [Dkt. No. 88]; Plea Agreement as to Randolph
Danson (“Plea Agrmt.”) [Dkt. No. 290]; Government’s Proffer of Proof in Support of
Defendant’s Plea of Guilty (“US Proffer”) [Dkt. No. 291]; Presentence Investigation Report
(“PSR”) [Dkt. No. 307]; Judgment [Dkt. No. 336]; Transcript of Sentencing Hearing of
December 21, 2011 [Dkt. No. 536]; Robert Smith Order (“Smith Order”) [Dkt. No. 606]; Order
Regarding Early Release Motion (“Early Release Order”) [Dkt. No. 612]; Pro Se Motion to
Reduce Sentence Pursuant to the First Step Act of 2018 (“Pro Se Mot. for Sentence Reduction”)

 
I. BACKGROUND

On October 7, 2011, defendant Randolph Danson pled guilty to Count Two of the
Superseding Indictment, Conspiracy to Participate in a Racketeer Influenced Corrupt
Organization (“RICO”), in violation of 18 U.S.C. § 1962(d). Judgment at 1; see also Plea
Agrmt. ¥ 1; Indictment at 26-31. Between 2006 and 2010, Mr. Danson was a member of an
enterprise whose objective was to “obtain as much money and things of value as possible
through the trafficking of controlled substances, including PCP, heroin, cocaine, cocaine base,
and marijuana” in the District of Columbia and elsewhere. US Proffer {¥ 1-3. As a member of
the enterprise, Mr. Danson “sold wholesale and retail amounts of PCP and other narcotics” and
“also began running a ‘stash house.’” Id.  8(a). He was “accountable for at least 3 but less
than 10 kilograms of... PCP,” which was the total amount he distributed or intended to
distribute. Id. § 10. Mr. Danson “distributed the enterprise’s narcotics to other co-conspirators,
to wholesale customers, and to drug users.” Id.  8(a).

At sentencing on December 21, 2011, Judge Rosemary Collyer accepted Mr.
Danson’s plea under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure and sentenced
him to 192 months of incarceration and a period of five years of supervised release. Judgment

at 2-3; Transcript of Sentencing Hearing at 2-3. According to the Probation Office, Mr.

 

[Dkt. No. 626]; Charles Wade Supplemental Motion for Reduction of Sentence Under 18 U.S.C.
§ 3582(c)(2) & Amendment 782 (“Wade Mot.”) [Dkt. No. 654]; Pro Se Motion to Reduce
Sentence Pursuant to the First Step Act of 2018 (“Pro Se Mot.”) [Dkt. No. 626]; Pro Se Motion
for Compassionate Release (“Second Supp. Pro Se Mot.”) [Dkt. No. 656]; United States’
Opposition to the defendant’s Motion For § 3582(c)(2) Relief and Supplemental Motion for
Reduction of Sentence under 18 U.S.C. § 3582(c)(2) & Amendment 782 (“Gov’t Opp. to Wade
Mot.”) [Dkt. No. 657]; Government Opposition to the defendant’s Pro Se Motions to Reduce
Sentence (“Gov’t Opp.”) [Dkt. No. 660]; Supplemental Emergency Motion for Compassionate
Release and Reply to Government Opposition (“Def.’s Reply”) [Dkt. No. 667]; and Defendant’s
Sealed Exhibit (“Def.’s Sealed Ex.”) [Dkt. No. 668].

2
Danson’s base offense level under the United States Sentencing Guidelines (“U.S.S.G.”) would
have been thirty-four. Gov’t Opp. at 2-3 (citing PSR Ff 15, 20). After applying a three-level
downward adjustment for acceptance of responsibility, Mr. Danson’s offense level would have
been thirty-one, with a Criminal History Category of IV and a Sentencing Guidelines range
of 151 to 188 months. Def.’s Reply at 40-41; see PSR §f 17, 81-82. It was determined,
however, that Mr. Danson was a career offender; with this enhancement, his base offense level
was thirty-seven and his Criminal History Category was VI. PSR 9 62-71, 82. This
enhancement was based on Mr. Danson’s two prior inchoate drug convictions: (1) a 2004
conviction for attempted distribution of cocaine, and (2) a 2006 conviction for attempted
possession with intent to distribute PCP (“the inchoate offenses”). Id. J 74, 76. Accounting for
the three-level downward adjustment for acceptance of responsibility, the total offense level
under the Sentencing Guidelines with a career offender enhancement was thirty-four, with a
Criminal History Category of VI, resulting in a Sentencing Guidelines range of 262 to 327
months. Id. § 125. Because Mr. Danson pled guilty under Rule 11(c)(1)(C) of the Federal Rules
of Criminal Procedure, however, Judge Collyer sentenced him to 192 months imprisonment. See
PSR ¥ 130; Def.’s Reply at 5. Currently, Mr. Danson has served approximately 122 months of
his 192 month sentence. Def.’s Reply at 5. With sixteen months of accrued good time credit, he
is projected to be released on December 8, 2022. Id.

Mr. Danson, now thirty-five years old, is serving the remainder of his sentence at
Federal Medical Center (“FMC”) Lexington. Def.’s Reply at 5. According to defendant’s
Reply, as of May 27, 2020, FMC Lexington reported 257 positive cases of the coronavirus at its
facilities, four of which resulted in death. Id. at 14. Mr. Danson contends that his personal

history, individual characteristics, and current undiagnosed medical condition make him
particularly vulnerable to COVID-19. Id. at 33. Mr. Danson has a history of smoking and
chronic alcohol addiction. Id. at 1; see Def.’s Sealed Ex. G at 1. He also suffers from a health
condition which causes fainting, dizziness, and vomiting. See Def.’s Sealed Exs. B, C. Mr.
Danson’s blood tests are also indicative of several diseases, for which he has yet to be given a
proper diagnosis. Def.’s Reply at 1; see Def.’s Sealed Exs. D, G. Because of these
circumstances, Mr. Danson submitted a compassionate release request to FMC Lexington on
May 19, 2020, and has received no response. He now moves for a reduction of his sentence to

time served pursuant to 18 U.S.C § 3582(c)(1)(A)(i). Def.’s Reply at 1, 5.

Il. LEGAL STANDARD

“Federal courts are forbidden, as a general matter, to modify a term of
imprisonment once it has been imposed . . . but the rule of finality is subject to a few narrow
exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011) (internal quotation marks and
citation omitted). One such exception is codified as 18 U.S.C. § 3582(c)(1)(A). As modified by
the First Step Act in 2018, Section 3582(c)(1)(A) allows courts to modify a sentence upon
motion by a defendant once he has “fully exhausted all administrative rights to appeal a failure of
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.” 18 U.S.C. § 3582(c)(1)(A). Mr. Danson has exhausted his
administrative remedies as of June 18, 2020.

Once the exhaustion requirement has been met, a defendant must show that
“extraordinary and compelling reasons warrant such a reduction,” and that a sentence 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 stated that “extraordinary and

compelling reasons” exist where the defendant is “suffering from a serious physical or mental
condition” or “experiencing deteriorating physical or mental health because of the aging process,
that substantially diminishes the ability of the defendant to provide self-care within the
environment of a correctional facility.” U.S.S.G. § 1B1.13 cmt. n.1(A)G@i)(), (I). Health
conditions that limit one’s ability to practice self-care in a detention facility include those that
“compromise a defendant’s ability . . . to provide for his own activities of daily living, such as

eating and drinking, toileting, washing and dressing, and mobilization.” United States v. Morris

 

Criminal No. 12-154, 2020 U.S. Dist. LEXIS 91040, at *19 (D.D.C. May 24, 2020). The
Sentencing Commission has acknowledged, however, that there may be “[o]ther [rJeasons”
presenting “an extraordinary and compelling reason other than, or in combination with, the
reasons described” elsewhere in the commentary. Id. at *20 (quoting U.S.S.G. § 1B1.13 cmt.
n.1(D)). To that end, the COVID-19 pandemic falls under such an “other reason” that may
present an “extraordinary and compelling reason” for a sentence reduction. United States v.
Morris, 2020 U.S. Dist. LEXIS 91040, at *20.

The statute and the policy statement further instruct the Court to consider the
sentencing factors set out in 18 U.S.C. § 3553(a) “to the extent that they are applicable.”
U.S.S.G. § 1B1.13; see also 18 U.S.C. § 3582(c)(1)(A). The Court must consider these factors
“with an eye toward whether it is necessary to maintain the prior term of imprisonment despite
the extraordinary and compelling reasons to modify the defendant’s sentence.” United States v.

Johnson, Criminal No. 15-125, 2020 U.S. Dist. LEXIS 86309, at *13 (D.D.C. May 16, 2020).

UI. DISCUSSION
Mr. Danson’s undiagnosed health condition, personal history, and individual
characteristics, which increase his potential for contracting COVID-19, and the severe outbreak

of the virus at FMC Lexington, are “extraordinary and compelling” circumstances warranting a
sentence reduction. In addition, Mr. Danson’s individual circumstances are consistent with the
sentencing factors set out in 18 U.S.C. § 3553(a) for the following reasons: (1) if he were
sentenced today, he would not be considered a career offender; (2) his own individual conduct as
a member of the conspiracy did not include the commission of “crimes of violence”; and (3) he
has taken positive steps towards rehabilitation while incarcerated.

Mr. Danson suffers from an undiagnosed, underlying health condition, which has
manifested itself in fainting, dizziness, severe chest and stomach pain, bloody stool, and
abnormal blood test results. Def.’s Reply at 36-37. While the exact cause of his condition is
unknown, Mr. Danson’s medical records indicate that he could be suffering from a range of
heart, liver, or kidney ailments. Id. at 36-38; see Def.’s Sealed Ex. G. According to the CDC,
each of these ailments could place him at a higher risk of developing COVID-19. See Groups at
Higher Risk for Severe Illness, CENTER FOR DISEASE CONTROL AND PREVENTION,
https://www.cdc.gov/coronavirus/20 1 9-ncov/need-extra-precautions/people-at-higher-risk.html.
Mr. Danson’s history of chronic alcohol addiction and smoking also place him at a higher risk of
developing COVID-19. See Drinking Alcohol and COVID-19, CENTER FOR DISEASE CONTROL
AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/stress-
coping/alcohol-use.html; Alcohol and COVID-19, WORLD HEALTH ORGANIZATION,
https://www.euro.who.int/__data/assets/pdf_file/0010/437608/Alcohol-and-COVID-19-what-

you-need-to-know.pdf; Smoking and COVID-19, WORLD HEALTH ORGANIZATION,

 

https://www.who.int/news-room/commentaries/detail/smoking-and-covid-19. The danger to Mr.
Danson is compounded by the substantial number of active COVID-19 cases that have been
reported at FMC Lexington. See Def.’s Reply at 14-15. According to the defendant, as of

May 27, 2020, Mr. Danson is incarcerated at one of the top five Federal Bureau of Prisons
institutions for active cases of COVID-19, with 228 active inmate cases being reported out of a
population of 1,196. Id. at 14. As of that date, active inmate cases accounted for nineteen
percent of FMC Lexington’s total inmate population. See id. Mr. Danson’s undiagnosed health
condition, personal history, and individual characteristics, which increase his potential for
contracting COVID-19, and the severe outbreak of the virus at FMC Lexington are
“extraordinary and compelling” circumstances warranting a sentence reduction.

Reducing Mr. Danson’s sentence would also be consistent with today’s
understanding of the Sentencing Commission’s Sentencing Guidelines. At the time of the plea
negotiations, Mr. Danson’s applicable sentencing range was calculated with a career offender
enhancement because of his two prior convictions for attempt — attempted distribution of cocaine
and attempted possession with intent to distribute PCP. Def.’s Reply at 40 (citing PSR
4] 68, 74-76, 82). Current interpretation of the Sentencing Guidelines, however, demonstrates
that such prior inchoate offenses do not actually qualify Mr. Danson as a career offender.

U.S.S.G. § 4B1.2 defines the prior “controlled substance offenses” that may be
counted towards career offender status. See U.S.S.G. § 4B1.2(b). The definition itself does not
include inchoate controlled substance offenses such as attempt, aiding and abetting, and
conspiracy. See id. But the commentary to Section 4B1.2 names these as offenses that qualify
as predicate offenses for career offender status. Id. at Application Note 1. Almost seven years
after Mr. Danson was sentenced as a career offender, however, the D.C. Circuit in United States
v. Winstead concluded that the commentary to U.S.S.G. § 4B1.2 is inconsistent with the
Guideline itself and held that inchoate controlled substance offenses cannot count towards a

career offender calculation under the Sentencing Guidelines. United States v. Winstead, 890
F.3d 1082, 1090-92 (D.C. Cir. 2018). Thus, under current law, Mr. Danson’s two prior attempt
convictions would not qualify him as a career offender. See id.

Under Winstead, Mr. Danson would not be considered a career offender under the
Sentencing Guidelines if he were sentenced today. His total offense level would be thirty-one
(accounting for a three-level decrease for his acceptance of responsibility), his Criminal History
Category would be IV, and his Sentencing Guidelines range would therefore be 151 to 188
months. Def.’s Reply at 40-41; see PSR {J 17, 67, 69-70, 81-82. In addition, if Mr. Danson
were sentenced today, as a non-career offender, he would now be eligible for a sentence
reduction under the retroactive amendments to the drug Sentencing Guidelines, like some of Mr.
Danson’s co-defendants. Def.’s Reply at 41 (citing Wade Mot.; Smith Order); see also United
States v. Smith, Criminal No. 10-51-09, 2019 U.S. Dist. LEXIS 64052 (D.D.C. Apr. 15, 2019).
Were Mr. Danson to be sentenced today, taking account of the amendments to the drug
Sentencing Guidelines, his total offense level would be twenty-nine (accounting for acceptance
of responsibility) and his Criminal History IV. His Sentencing Guidelines range therefore would
only be 121 to 151 months. Def.’s Reply at 41-42 (citing U.S.S.G., Supp. to Appx. C,
Amend. 782 (Nov. 1, 2014); U.S.S.G. § 2D1.1(c)(4) (base offense level thirty-two for at least
three but less than ten kilograms of PCP)); see PSR {J 69-70.

Mr. Danson has been incarcerated since March 12, 2010. Def.’s Reply at 42.
Accounting for good time credit, he has served the equivalent of 148 months — more than
seventy-five percent of his original sentence — and only three months shy of the high end of the
Sentencing Guidelines range that would apply if he is no longer classified as a career offender

and the retroactive amendments to the drug Guidelines were applied. See id. Further
incarceration will neither provide additional deterrence to criminal conduct nor provide just
punishment for Mr. Danson’s offense.

The government argues that Mr. Danson “still poses a danger to the community
and [] has not sufficiently shown himself to be rehabilitated.” Gov’t Opp. at 6. As evidence, the
government points to his membership in a conspiracy whose members “committed numerous
acts of violence” and Mr. Danson’s three disciplinary violations while incarcerated. Id. While
the other members of the conspiracy did commit serious acts of violence, Mr. Danson’s
individual crimes committed while a member of the conspiracy were not crimes of violence, and
his prior record contains “no violent history.” Transcript of Sentencing Hearing at 5, 7.
Furthermore, Judge Collyer previously recognized that Mr. Danson’s “proactive use of his period
of incarceration is commendable” and that he “has clearly undertaken to use his time in prison to
prepare for his eventual reintegration into the community.” Early Release Order at 2-3.

Mr. Danson earned his GED in 2014, has actively engaged in prison rehabilitation programs, and
has shown insight into his damaging substance abuse while interacting with others in pro-social
and meaningful ways. Gov’t Opp. at 6; see Def.’s Reply at 43-44; Def.’s Sealed Ex. H.
Although rehabilitation, by itself, is not grounds for a sentence reduction, U.S.S.G. § 1B1.13
appl. n. 3 (citing 28 U.S.C. § 994(t)), the Court recognizes the progress Mr. Danson has made in
preparing for his successful reintegration into society.

The detailed release plan Mr. Danson has outlined provides further support for
Mr. Danson’s reintegration preparations. He will reside with his fiancé, who is employed as a
dental assistant, and three other family members. He will also have the emotional support of his
mother, father, and sister. Def.’s Reply at 45. In addition, Mr. Danson has job prospects through

his cousins that likely will result in immediate employment after his release. Id. Family support
and gainful employment thus have the potential to provide Mr. Danson with a powerful support
system, which one hopes will aid him in readjusting to life outside of prison and help prevent
recidivism.

Mr. Danson’s undiagnosed health condition, personal history, and individual
characteristics, along with the severe outbreak at FMC Lexington together constitute
extraordinary and compelling circumstances warranting a sentence reduction. In addition,
considering the change in the law following Winstead, the substantial time Mr. Danson already
has served, the fact that the crimes he personally committed while a member of the conspiracy
were not “crimes of violence,” and the steps he has taken towards rehabilitation and reintegration
into society while incarcerated, the Court finds that a reduction in Mr. Danson’s sentence is
consistent with the factors set out in Section 3553(a). The Court will grant Mr. Danson’s motion
for compassionate release. For the foregoing reasons, it is hereby

ORDERED that pursuant to the authority vested in this Court to reduce a
previously imposed term of imprisonment under 18 U.S.C § 3582(c)(1)(A), defendant’s Pro Se
Motion for Compassionate Release [Dkt. No. 656] is GRANTED; it is

FURTHER ORDERED that the term of 192 months of imprisonment on Count
Two as set forth in the original Judgment dated January 8, 2012, is hereby reduced to a sentence
of TIME SERVED; it is

FURTHER ORDERED that the defendant be released as soon as is practicable; it is
FURTHER ORDERED that the defendant shall abide by all of the conditions of

supervised release set forth in the original Judgment; and it is

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FURTHER ORDERED that defendant’s Pro Se Motion to Reduce Sentence
Pursuant to the First Step Act of 2018 [Dkt. No. 626] is DENIED AS MOOT.
An Amended Judgment will be issued forthwith.

SO ORDERED.

 

PAUL L. FRIEDMAN

DATE: June 25, 2020 United States District Judge

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