USA v. McKathan

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA, 	)
)
vs. 	)
) 	Criminal Action No. 14-00290-KD-C
DENZIL EARL McKATHAN, 	)
)
Defendant. 	)
ORDER
This action is before the Court on the motion for compassionate release or reduction of
sentence filed by Defendant Denzil Earl McKathan which the Court construes as brought
pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (doc. 164). Upon consideration, and for the reasons set
forth herein, the motion is DENIED.
As grounds, McKathan states that extraordinary and compelling circumstances exist
because he “is immune from criminal liability, yet is imprisoned notwithstanding that immunity”
(Id., p. 1). In support, McKathan cites testimony from the evidentiary hearing, which was held
upon remand of his motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 164, p. 1-3, citing doc.
161, hearing transcript; doc. 163, order denying the motion). McKathan argues that the Court
has “refused to rule on the immunity issue, presumably because such a ruling would not benefit
the government” (doc. 164 p. 3). He argues that the “Court should grant compassionate release or
reduction in sentence as a partial remedy to cure the harm caused by the governments unlawful
use in a criminal case of lawfully (to an extent such as for use in a revocation hearing) acquired
statements and evidence. There is no case but for a Fifth Amendment violation. The Court
should take action to give legal effect to the Fifth Amendment, rather than continue to facilitate
that violation by jailing petitioner notwithstanding immunity” (doc. 164 p. 3). McKathan
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appears to argue that but for the United States’ violation of the Fifth Amendment, there would be
no basis for the revocation, and thus, no basis for the revocation sentence he is now serving.
To obtain a sentence reduction based on “extraordinary and compelling reasons,” the
reduction must be “consistent with applicable policy statements issued by the [United States]
Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The Court of Appeals for the Eleventh
Circuit has held that Policy Statement U.S.S.G. § 1B1.13 applies to motions pursuant to 18
U.S.C. § 3582(c)(1)(A). United States v. Bryant, 996 F. 3d 1243, 1262 (11th Cir. 2021) (holding
that “1B1.13 is an applicable policy statement that governs all motions under Section
3582(a)(1)(A)”). The Policy Statement lists four circumstances as examples of extraordinary and
compelling reasons under § 3582(c)(1)(A)(i). Specifically, a terminal illness or a serious
condition or impairment, or age-related deterioration of health which substantially limits an
inmates’ ability to provide self-care while incarcerated; advanced age (at least 64 years old) and
serious deterioration of physical or mental health; certain family circumstances involving the
spouse or minor children of the defendant; and an extraordinary and compelling reason other
than, or in combination with the above, as determined by the Director of the Bureau of Prisons.
U.S.S.G. § 1B1.13, cmt. n.1(A)-(D). See Bureau of Prisons Program Statement 5050.50,
Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§
3582 and 4205(g). Since a sentence reduction based upon the circumstance McKathan presents
would not be consistent with the criteria in Policy Statement § 1B1.13 or Program Statement
5050.50, his motion for compassionate release is denied.
DONE and ORDERED this 26th day of July 2022.
s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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