USA v. Ward

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CRIMINAL CASE NO. 1:02-cr-00063-MR-WCM
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) O R D E R
)
DAVID CLARENCE WARD, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Defendant’s “Motion
Pursuant to 18 U.S.C. § 3582(c)(1)(A) Consideration of First Step Act (All)”
[Doc. 56].
I. BACKGROUND
On November 5, 2002, a jury found the Defendant guilty of one count
of bank robbery; one count of armed bank robbery; one count of possession
of a firearm during and in relation to a crime of violence; and one count of
possession of a firearm by a convicted felon. [Doc. 25]. On January 28,
2003, the Court imposed a sentence of 430 months’ imprisonment. [Doc.
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30: Judgment]. The Defendant is currently incarcerated at USP Atlanta, and
his projected release date is April 16, 2054.1
On January 26, 2021, the Defendant filed the present motion seeking
compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). [Doc. 56].
For grounds, the Defendant cites his “outstanding conduct” while in BOP
custody and the ongoing coronavirus pandemic as grounds for release. [Id.].
He further argues that if he were sentenced today, he likely would have
received a lesser sentence. [Id.]. Finally, the Defendant requests the
appointment of counsel to represent in seeking a compassionate release.
[Id. at 2].
II. DISCUSSION
Section 3582(c)(1)(A), as amended by The First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018), permits a defendant
to seek a modification of his sentence for “extraordinary and compelling
reasons,” if the 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. §
1 See https://www.bop.gov/inmateloc/ (last visited Feb. 8, 2021).
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3582(c)(1)(A). The Court of Appeals for the Fourth Circuit has held that a
district court lacks the authority to modify a sentence except in the narrow
circumstances and procedures set forth in § 3582. See United States v.
Goodwyn, 596 F.3d 233, 235 (4th Cir. 2010).2 The Defendant has the burden
of demonstrating that he has complied with the requirements of § 3582 or
that exhaustion of such remedies would be futile. See United States v.
Freshour, No. 5:06-cr-00013-KDB-DCK, No. 2020 WL 3578315, at *1
(W.D.N.C. July 1, 2020) (Bell, J.).
Here, the Defendant does not make any showing that he has submitted
a compassionate release request to the warden of his facility prior to filing
his request with the Court. The language of Section 3582(c)(1)(A) is clear:
Before a defendant may seek a modification of his sentence in the courts,
the defendant must first exhaust all administrative remedies or wait thirty
days after submitting a request for release from the warden without receiving
2 The Fourth Circuit has not yet ruled on whether the exhaustion requirements in §
3582(c)(1)(A) are jurisdictional or merely a claims-processing rule. This Court, however,
need not decide that issue in order to resolve the present motion. Either way, the
Defendant must exhaust his administrative remedies as defined in § 3582(c)(1)(A) before
filing a motion for compassionate release in this Court. See Ross v. Blake, 136 S. Ct.
1850, 1857 (2016) (finding that “mandatory exhaustion statutes . . . establish mandatory
exhaustion regimes, foreclosing judicial discretion”); United States v. Williams, No. CR
JKB-15-0646, 2020 WL 1506222, at *1 (D. Md. Mar. 30, 2020) (denying motion for
reduction of sentence because defendant failed to exhaust his administrative remedies,
but declining to decide whether exhaustion requirement is jurisdictional).
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any response before filing a motion for a sentence reduction. Thus, the
Defendant has not complied with the requirements of the statute, and the
Court cannot grant the requested relief. Accordingly, the Defendant’s motion
for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) is denied without
prejudice.
The Defendant moves for the appointment of counsel to represent him
in connection with filing a motion for compassionate release. The Defendant
has no constitutional right to the appointment of counsel to file post-
conviction motions. Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (citing
Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)); Rouse v. Lee, 339
F.3d 238, 250 (4th Cir. 2003), cert. denied, 541 U.S. 905 (2004) (citing
Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (no constitutional right
to counsel beyond first appeal of right)).
The Court may, in some circumstances, appoint counsel to represent
a prisoner when the interests of justice so require and the prisoner is
financially unable to obtain representation. See 18 U.S.C. § 3006A(a)(2)(B).
In the instant case, however, the Defendant has failed to demonstrate that
the interests of justice warrant the appointment of counsel. See United
States v. Riley, 21 F. App’x 139, 141-42 (4th Cir. 2001).
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IT IS, THEREFORE, ORDERED that the Defendant’s “Motion
Pursuant to 18 U.S.C. § 3582(c)(1)(A) Consideration of First Step Act (All)”
[Doc. 56] is DENIED. The denial of the Defendant’s request for
compassionate release is WITHOUT PREJUDICE to refiling after the
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.
IT IS FURTHER ORDERED that the Defendant’s request for the
appointment of counsel [Doc. 56] is DENIED.
IT IS SO ORDERED.
Signed: February 10, 2021
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