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Cannon v. United States

United States District Court, S.D. Alabama, Southern Division

October 28, 2019

JERRY CANNON Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          CALLIE V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Jerry Cannon's (“Cannon”), Motion for Compassionate Release and Reduction of Sentence pursuant to Title 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g) and the First Step Act. (Doc. 87). After consideration of the petition and for the reasons set forth hereinbelow, the motion is DENIED.

         I. BACKGROUND

         On April 19, 2011, Cannon pled guilty to Counts I and II of an Indictment charging the offense of receipt and distribution of images of child pornography in violation of Title 18, U.S.C. § 2252(a)(2). (Doc. 18). On August 2, 2011, he was sentenced to 210 months' imprisonment. (Doc. 37).

         On March 28, 2019, Cannon filed the instant motion seeking his release or a reduction of his sentence. (Doc. 87). Therein, Cannon asserts his sentence should be reduced based on the First Step Act and 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g). (Id.) Prior to his filing the instant motion, Cannon pursued his request for compassionate release with the Bureau of Prisons (“BOP”) and was denied. (Id. at 2). According to Cannon, he meets all of the requirements to be compassionately released. (Id.) Namely, he is 71 years old, has completed 50% of his sentence, and suffers from multiple medical conditions which qualify him for release. (Id. at 2-3).

         II. ANALYSIS

         Cannon asserts that he should be compassionately released because he is 71 years old, has (1) severe and chronic back pain in his lower back which needs surgery, (2) severe and chronic pain in his upper chest and stomach area which cause him to bend forward when walking and results in a loss of stomach muscles and loss of other function in his upper and lower stomach area, (3) severe high blood pressure, (4) diabetes, (5) skin irritation, (6) loss of hearing which resulted in a hearing device being implanted, and (7) various heart, lung, and liver complications. (Doc. 87 at 2-3). Cannon also asserts that he qualifies for relief because he has served more than 50% or eight years of his current sentence. (Id. at 3).

         In support of his position, Cannon has submitted copies of his medical records. Those records show that he has a history of diabetes, esophageal reflux, hearing loss, hypertension, low back pain, unspecified hyperlipidemia, polyneuropathy in diabetes, psoriasis, unspecified abdominal pain, and a vitamin D deficiency. (Doc. 87 at 5-9). The records also indicate that Cannon's conditions are treated with a number of prescription drugs including, aspirin, Atorvastatin, Hydrochlorothiazide, Lisinopril, Metformin, Omeprazole, and Vitamin D. (Id.) The consultation records provided indicate that on the objective physical exam Cannon is cooperative, alert and oriented, atraumatic, and not in distress. (Id. at 5, 7). Cannon also asserts that his age and medical conditions qualify him for relief under Program Statement 5050.49(4)(b) (“PS”) which sets forth the following criteria for early release: (1) age 65 and older; (2) suffer from chronic or serious medical conditions related to the aging process; (3) experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility; (4) conventional treatment promises no substantial improvement to the mental or physical condition; and (5) have served at least 50% of their sentence. (Doc. 87 at 2).[1]

         Under 18 U.S.C. § 3582(c)(1)(A),

the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that-
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission....

18 U.S.C. § 3582(c)(1) (emphasis added). In general, the defendant has the burden to show circumstances meeting the test for compassionate release. United States v. Heromin, 2019 ...


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