USA v. Simpson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Criminal Case No. 14-cr-00265-PAB
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL EUGENE SIMPSON,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Defendant Simpson’s Motion Pursuant to “18
U.S.C. § 3582(c)(1)(A)” for Compassionate Release Under Extraordinary and
Compelling Circumstances [Docket No. 352], Status on Second Motion for
Compassionate Release [Docket No. 358], Motion Pursuant to 18 U.S.C.
§ 3582(c)(1)(A) Compassionate Release or Reduction in Sentence [Docket No. 359],
and Motion Pursuant to 18 U.S.C. § 3582(c)(1)(A) Compassionate Release or
Reduction in Sentence [Docket No. 360]. The government has filed a response
opposing Mr. Simpson’s Motion Pursuant to “18 U.S.C. § 3582(c)(1)(A)” for
Compassionate Release Under Extraordinary and Compelling Circumstances. Docket
No. 356.
I. BACKGROUND
After a jury trial and appeal, Mr. Simpson was found guilty of (1) knowingly and
intentionally possessing with an intent to distribute a mixture and substance containing
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cocaine in violation of 21 U.S.C. §§ 846(a)(1) and (b)(1)(c) (“Count 1”); (2) possession
of a firearm and ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1)
(“Count 2”); and (3) possession of an unregistered firearm in violation of 26 U.S.C.
§ 5861(d) (“Count 5”). See Docket No. 283 at 1–2. On April 28, 2017, the Court
sentenced defendant to 216 months imprisonment as to Count 1 and 120 months on
Counts 2 and 5, to run concurrently to Count 1. See Docket No. 282 at 2.
On September 4, 2018, Mr. Simpson filed a Motion to Vacate, Set Aside or
Correct Sentence Pursuant to Title 28 U.S.C. § 2255. Docket No. 291. The Court
denied Mr. Simpson’s motion on August 11, 2020, Docket No. 308, which was affirmed
by the Tenth Circuit on December 27, 2021. Docket No. 349.
On February 21, 2021, Mr. Simpson filed his first motion for compassionate
release pursuant to 18 U.S.C. § 3582(c)(1)(A), which he supplemented on April 20,
2021. See Docket Nos. 320, 337. After analyzing the § 3553(a) factors, the Court
determined that Mr. Simpson was not eligible for compassionate release because he
failed to present extraordinary and compelling reasons for granting release. Docket No.
340 at 4–5. The Court therefore denied Mr. Simpson’s motion. Id. at 6.
On April 4, 2022, Mr. Simpson filed a second motion for compassionate release
(the “April 4 motion”). Docket No. 352. He requested a status on his motion on May 8,
2023. Docket No. 358. Mr. Simpson filed two additional motions for compassionate
release on November 20, 2023 (the “November 20 motions”). Docket Nos. 359, 360.
In the April 4 motion, Mr. Simpson makes the same arguments regarding the
risks he faces from COVID-19 as he did in his first motion for compassionate release.
See Docket No. 352 at 2–8; Docket No. 320 at 6 (asserting that because of his weight,
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asthma, race, and prison conditions, Mr. Simpson faces a higher risk from COVID-19).
Mr. Simpson also argues that he was improperly sentenced in light of the Supreme
Court’s subsequent ruling in Borden v. United States, 593 U.S. 420 (2021). Docket No.
352 at 12. Specifically, Mr. Simpson claims that the Court improperly enhanced his
sentence for reckless endangerment during flight because the Supreme Court has
determined that enhancements cannot be based on reckless conduct. Id. at 9–11. In
the November 20 motions, Mr. Simpson further argues that, in light of the Supreme
Court’s recent holding in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1
(2022), his conviction under § 922(g)(1) for being a felon in possession of a gun is
unconstitutional because Mr. Simpson has a constitutional right to keep and bear arms.
Docket No. 359 at 4–8; Docket No. 360 at 7–13. Finally, Mr. Simpson also “urges the
court to consider other factors surrounding his case in determining whether
extraordinary and compelling reasons exist for a sentencing reduction: (1) pretrial
negotiation and trial penalty; (2) status points for being in state probation; and (3)
rehabilitation.” Docket No. 360 at 13.
II. ANALYSIS
Under § 3582(c)(1)(A)(i), known as the “compassionate release” provision, “a
district court may grant a sentence reduction if, after considering the 18 U.S.C.
§ 3553(a) sentencing factors, 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.’” United States v. Saldana, 807 F. App’x 816,
819 (10th Cir. 2020) (unpublished) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). A district
court may grant a sentence reduction upon motion of the defendant only “after the
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defendant 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 by the warden of the defendant’s facility, whichever is earlier.”
18 U.S.C. § 3582(c)(1)(A). As the Court noted in its June 2, 2021 order, Mr. Simpson
has satisfied this requirement in regard to his initial compassionate release motion.
Docket No. 340 at 2. However, courts generally agree that “[s]uccessive
compassionate release motions must independently satisfy the exhaustion
requirement.” United States v. Cain, 2021 WL 388436, at *4 (D. Me. Feb. 3, 2021)
(collecting cases). Here, the Court has no basis to conclude that Mr. Simpson
exhausted his administrative remedies before filing his April 4, 2022 or November 20,
2023 motions. In the alternative, as explained below, the Court would still deny Mr.
Simpson’s motions even if he had exhausted his administrative remedies.
There are three prerequisites to granting compassionate release. First, a district
court must determine whether there are extraordinary and compelling reasons to
warrant a sentence reduction. See United States v. McGee, 992 F.3d 1035, 1042 (10th
Cir. 2021) (citing United States v. Jones, 980 F.3d 1098, 1107 (6th Cir. 2020)). Second,
a district court must determine whether the reduction is consistent with “applicable”
policy statements issued by the Sentencing Commission. Id. Third, a district court
should consider whether any reduction authorized by steps one and two is warranted
under the § 3553(a) factors. Id. A court need not address all of the steps if one of them
demonstrates that a defendant is not entitled to compassionate release. Id.
The Tenth Circuit has recently clarified that a district court cannot rule on a
compassionate release motion when it is being used to circumvent the statutory limits
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on collateral attacks to a prisoner’s sentence under § 2255. United States v. Roberson,
2024 WL 631594, at *2 (10th Cir. Feb. 15, 2024) (“We hold that the district court erred in
ruling on Mr. Roberson’s motion pursuant to § 3582(c)(1)(A)(i) because the court was
required to treat the motion as filed under § 2255.”). As the court explained, when a
federal prisoner asserts a claim that, if true, would mean that the sentence was imposed
in violation of the Constitution or laws of the United States or is otherwise subject to
collateral attack, the prisoner is bringing a claim governed by § 2255. Id. (citation and
quotations omitted). In such a case, the district court must apply § 2255, including the
statutory restraints imposed by § 2255, such as timing, the content of the motion, and
the grounds on which one can bring additional motions. Id. (citation and quotations
omitted). “Thus, a prisoner challenging his conviction or sentence cannot avoid § 2255
and its limitations by seeking relief under § 3582(c)(1)(A)(i) instead.” Id. (citation
omitted).
Section 2255 states that “[a] second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court of appeals” and must
contain the “new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).
In the absence of such authorization, the district court lacks jurisdiction to consider the
merits of the claims asserted in a second or successive § 2255 motion. See In re Cline,
531 F.3d 1249, 1250–51 (10th Cir. 2008) (per curiam).
Mr. Simpson challenges his sentence based on the Supreme Court’s recent
holdings in Borden and Bruen. Docket No. 352 at 12; Docket No. 360 at 7–13. Thus, to
the extent Mr. Simpson seeks compassionate release on these grounds, his motions
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are made pursuant to § 2255. Mr. Simpson has previously filed a § 2255 motion, the
denial of which has been affirmed by the Tenth Circuit. Docket No. 349. Mr. Simpson
does not allege that he has obtained the necessary authorization from the Tenth Circuit
to file a second or successive § 2255 motion. Therefore, the Court must either dismiss
Mr. Simpson’s successive § 2255 motions for lack of jurisdiction or, if it is in the interest
of justice, transfer the matters to the Tenth Circuit pursuant to 28 U.S.C. § 1631. See In
re Cline, 531 F.3d at 1252. The factors to be
considered in deciding whether a transfer is in the interest of justice include
whether the claims would be time barred if filed anew in the proper forum,
whether the claims alleged are likely to have merit, and whether the claims were
filed in good faith or if, on the other hand, it was clear at the time of filing that the
court lacked the requisite jurisdiction.
Id. at 1251. When “there is no risk that a meritorious successive claim will be lost
absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is
not in the interest of justice to transfer the matter.” Id. at 1252. In order to present a
meritorious successive claim, a federal prisoner must demonstrate the claim is based
on either “newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense,” 28 U.S.C.
' 2255(h)(1), or “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).
In determining whether Mr. Simpson’s Bruen claims are likely to have merit, the
Court applies Tenth Circuit precedent. Vincent v. Garland, 80 F.4th 1197, 1199 (10th
Cir. 2023) (“The district court [i]s obligated to apply our precedent”). Recently, the
Tenth Circuit has “conclude[d] that Bruen did not indisputably and pellucidly abrogate
our precedential opinion in McCane,” which upheld the constitutionality of § 922(g). Id.
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1202. As such, the Court finds that Mr. Simpson’s claims likely lack merit, and therefore
the interests of justice do not require the Court to transfer these matters. The Court will
dismiss Mr. Simpson’s November 20 motions. Although Mr. Simpson also challenges
his sentence based on the Supreme Court’s holding in Borden, Borden is not a new rule
of constitutional law. Rather, Borden addressed statutory matters under the Armed
Career Criminal Act. See Borden, 593 U.S. at 423–45. Therefore, the Court will
dismiss those portions of the April 4 motion that rely on Mr. Simpson’s Borden
arguments.
To the extent that Mr. Simpson’s April 4 motion seeks compassionate release
based on the risks he faces from COVID-19, Mr. Simpson has failed to establish that
there are extraordinary and compelling circumstances that would merit his release. Mr.
Simpson states that “Covid-19 is still a persistent risk,” and that “more information has
come to light about the growing number of persons who are becoming infected despite
getting vaccinated.” Docket No. 352 at 3. He argues that “[t]he current existence and
future likelihood of new viral strains is one of several reasons why vaccination does not
dimmish the extraordinary and compelling reasons presented by Mr. Simpon[’s] medical
conditions.” Id. However, in its June 2, 2021 order, the Court determined that Mr.
Simpson’s medical conditions did not present extraordinary and compelling reasons for
his release. Docket No. 340 at 2–6. Mr. Simpson has failed to demonstrate any new
circumstances that should alter the Court’s determination that Mr. Simpson is ineligible
for compassionate release. Therefore, the Court will deny those portions of the April 4
motion that seek compassionate release based on the risks Mr. Simpson faces from
COVID-19.
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Under Rule 11(a) of the Rules Governing Section 2255 Proceedings for the
United States District Courts, a “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Under 28 U.S.C.
§ 2253(c)(2), a court may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” Such a showing is
made only when “a prisoner demonstrates ‘that jurists of reason would find it debatable’
that a constitutional violation occurred, and that the district court erred in its resolution.”
U.S. v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). The Court denies a certificate of appealability because Mr. Simpson
has not made a substantial showing of the denial of a constitutional right.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant Michael Eugene Simpson’s Motion Pursuant to “18
U.S.C. § 3582(c)(1)(A)” for Compassionate Release Under Extraordinary and
Compelling Circumstances [Docket No. 352] is DENIED for failure to exhaust and, in
the alternative, the portion based on the risks of COVID-19 is DENIED and that the
portion based on Borden, construed as a motion brought pursuant to 28 U.S.C. § 2255,
is DISMISSED for lack of jurisdiction. It is further
ORDERED defendant Simpson’s Status on Second Motion for Compassionate
Release [Docket No. 358] is DENIED as moot. It is further
ORDERED defendant Simpson’s Motion Pursuant to 18 U.S.C. § 3582(c)(1)(A)
Compassionate Release or Reduction in Sentence [Docket No. 359] is DENIED for
failure to exhaust and, in the alternative, the portion construing the motion as a motion
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brought pursuant to 28 U.S.C. § 2255, is DISMISSED for lack of jurisdiction. It is
further
ORDERED defendant Simpson’s Motion Pursuant to 18 U.S.C. § 3582(c)(1)(A)
Compassionate Release or Reduction in Sentence [Docket No. 360] is DENIED for
failure to exhaust and, in the alternative, the portion construing the motion as a motion
brought pursuant to 28 U.S.C. § 2255, is DISMISSED for lack of jurisdiction.
DATED January 5, 2026.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
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