Case: Doc 75 Filed: 10/17/19 1 of 6. PageID 856

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

 

 

EASTERN DIVISION
UNITED STATES OF AMERICA, Case No. 1:11 CR 270

Plaintiff, 

vs. ORDER GRANTING
COMPASSIONATE RELEASE

NICHOLAS WALKER, 

Defendant. 

This matter is before the Court on Mr. Walker?s Motion to Reduce Sentence Pursuant to
18 U.S.C. ?3582(c)(1)(A) For Immediate Compassionate Release. (ECF Mr. Walker
seeks an order reducing his sentence to time served for ?extraordinary and compelling
circumstances? within the meaning of and purpose of 18 U.S.C. ?3582(c)(1)(A) and U.S.S.G.
The government has indicated that it objects to the request on procedural grounds.

Under the terms of the First Step Act, 18 U.S.C. inmates may ?le a
request with the court to modify an imposed term of imprisonment for ?extraordinary and
compelling reasons.? Prior to taking such action, however, an inmate is required to request that
the Director of the Bureau of Prisons ?le a motion on his behalf, and to ?fully exhaust[]
all administrative rights to appeal a failure of the BOP to bring a motion.? Administrative rights
are exhausted when the warden refuses to recommend that the BOP ?le a compassionate release
motion with the court, and the prisoner appeals the denial using the Administrative
Remedy program. Program Statement 1330.18; 28 C.F.R. or if there has been a ?lapse of

30 days from the receipt of such a request by the warden of the defendant?s facility.?

 

 

 

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Mr. Walker claims that he ?led a Request for Compassionate Release/Reduction in
Sentence on August 5, 2019. At the time his motion with this Court was ?led, more than thirty
days had passed since that request was presented to the BOP and no of?cial decision had been
provided. The BOP claims that it never received the August 5, 2019 request for relief from Mr.
Walker, and that, therefore, he has not satis?ed the procedural requirements that would allow
him to make a direct petition to the Court for relief. The evidence presented in Mr. Walker?s
Motion for a hearing on this issue, however, shows that a request for immediate compassionate
release was ?led with the BOP on August 5, 2019, by way of a letter provided to the Warden of
FCI Ashland, where Mr. Walker is currently being housed. (ECF #73, Ex. A, B, C, D, and E).
The Court also took testimony from Mr. Walker at a hearing on October17, 2019, in which he
stated that one of his counselors at the BOP, Ms. Beth Koster, discussed his request with him on
multiple occasions, including once, as early as August 6, 2019. The Court ?nds that Mr.
Walker?s testimony was credible, and taken in combination with the evidence attached to his
Motion for Hearing establishes that the BOP did receive his request no later than August 6, 2019.
No action had been taken by the BOP to address Mr. Walker?s request within thirty days of his
submission of the request and no answer was provided until October 11, 2019,1 well after Mr.
Walker sought intervention from this Court. Therefore, pursuant to 18 U.S.C.
this Court has the ability to consider Mr. Walker?s request directly.

In order to qualify for a reduction under 18 U.S.C. the Commission
requires that the Defendant prove the existence of ?extraordinary and compelling reasons,? which

justify the request. Mr. Walker?s circumstances do not involve any of the speci?c reasons

 

1On October 11, 2019, the BOP Warden in charge of Mr. Walker?s facility issued a denial
of his request, acknowledging receipt of the request only as of September 25, 2019, the date the
Assistant United States Attorney assigned to this case forwarded a copy of Mr. Walker?s request to
the institution as part of her investigation into the matter.

 

 

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described by the Sentencing Guidelines in Application Note However,
under subsection (D) of the note, the Court may also consider other ?extraordinary and
compelling reasons? not speci?cally articulated. If such reasons exist and the defendant is not a
danger to the safety of any other person or the community, a court may order the reduction of
sentence. Although rehabilitation, in itself, is not grounds for a reduction under these provisions,
the Court should consider post-offense developments under ?3553(a), in order to take into
account the ?most up-to-date picture? of the defendant?s history and characteristics. See,
U.S.S.G. Application Note 3.

Mr. Walker is veteran, who served as a combat medic for the United States Army on over
200 mounted and dismounted combat missions during Operation Iraqi Freedom. He received
numerous medals and commendations for his service. (ECF Upon his return he suffered
from severe post-traumatic stress disorder and other mental health issues that were originally
misdiagnosed. The uncontested details of his service experiences and resulting mental health
issues are more fully outlined in his original sentencing memorandum, and in his Memorandum
in Support of this motion, and are incorporated as if re-written here. (ECF #53, 71). It appears
as if his untreated and/or mistreated spiraling mental health issues led to drug abuse and
eventually to the criminal activities he pled guilty to in this case.

Mr. Walker pled guilty to charges of armed bank robbery, brandishing a ?rearm during
the commission of a felony, and bank robbery, and was sentenced to a total of 132 months in the
BOP. He did not appeal his conviction or sentence, and has been granted no prior reductions by
this Court. The BOP did reduce his sentence to 114 months through the application of ?good
time credits.? Mr. Walker has been incarcerated now for over 100 months and is scheduled to be

transferred to a halfway house in Mississippi on December 10, 2019. He has had no behavioral

 

 

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infractions during his incarceration, and has reportedly paid his restitution amount, in full. The
Warden?s belated denial of his request for compassionate release acknowledges the following:

You have had no supervised release violations. Your institutional adjustment has

been good. You have completed 21 programs while incarcerated at FCI Ashland,

and are currently enrolled in a VET support group. You have received no incident

reports while incarcerated in the Bureau of Prisons. You grew up in a good home

and were raised by your parents. You had a stellar recommendation from your

unit sergeant While serving in the United States Army. You have served 8 years, 5

months, and 19 days on a 132-month sentence. You are eligible for Home

Con?nement on March 4, 2020, and approved for Residential Reentry Center

(RRC) placement starting December 10, 2019, in Tulepo, Mississippi. You are

currently 34 years old, and were 26 when you were incarcerated. You plan to live

with your friend/employer upon your release to Oxford, Mississippi.

Despite recognizing the above cited positive factors, the Warden denied Mr. Walker?s
request based on a failure to provide medical documentation of his mother?s incapacitation; a
failure to meet any of the speci?c guidelines for compassionate release and a generalized
reference to the severity of his original crime.

In addition to his history and his record of incarceration,2 Mr. Walker cites his desire to
aid his terminally ill mother, both emotionally and ?nancially, as his main reason for seeking
immediate release. He has provided undisputed evidence to the Court to show that his mother is
suffering from Acute Myeloid Leukemia Her prognosis is not good, and she requires
expensive, non-traditional treatment due to a genetic issue that diminishes her response to more
traditional treatments. The treatments available to her are generally less effective, higher risk,
and higher cost than those available to other patients.

Mr. Walker has also received an unusual and lucrative job opportunity that would allow

him to assist with his mother?s medical costs, and support himself and contribute in a meaningful

way upon his discharge from the BOP. While incarcerated, Mr. Walker wrote a book that has

 

2 The Court may consider all relevant circumstances when considering a request for
reduction of sentence, including factors that were known at the time of the original sentencing.

 

 

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received many excellent reviews from major outlets, has been translated into a multitude of
languages, and is now going to be made into a motion picture. Internationally renowned
directors, the Russo Brothers purchased the movie rights, and intend to begin ?lming in
Cleveland this month. They have offered Mr. Walker the opportunity to be the ?executive
producer? and to be paid for assisting in the production of the ?lm. Mr. Walker is also under
contract to write a second book. The payments from these opportunities would allow Mr. Walker
to contribute to his mother?s medical costs and cost of living, as well as to set himself up as a
self-sustaining and productive member of the community.

Taking into consideration Mr. Walker?s history; the circumstances leading up to his
crime; his acceptance of responsibility not just with regard to the conviction but as demonstrated
through the meaningful use of his time in prison; the failing health of his mother; his
extraordinary job opportunity and the good that would allow him to do for his family and his
community; and, the minimum time left remaining on his sentence; the Court ?nds that Mr.
Walker has provided suf?ciently extraordinary and compelling reasons to justify an alteration of
his current sentence under 18 U.S.C. and ?1Bl.13, Application Note of
the Sentencing Guidelines. Although the motion before the Court originally sought immediate
release, information was obtained during the hearing of October 17, 2019, indicating that Mr.
Walker and the government agree that all sides will be better served if, rather than being released
without re-entry assistance, he were to be moved into his Residential Reentry Center (RRC)
placement in Tulepo, Mississippi early. An immediate move to the Reentry Center coupled with
permission, under the appropriate conditions of supervision, to travel occasionally to see his
mother and assist with her care, will address the extraordinary and compelling issues raised in his
request, while ensuring that his integration back into the general community will be successful

and the community will remain safe.

 

 

 

 

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For these reasons, Mr. Walker?s motion for Compassionate Release (ECF #71) is
GRANTED in part. Mr. Walker?s sentence is amended to re?ect that he is to be allowed to
immediately begin his re?entry placement in the Residential Reentry Center located in Tulepo,
Mississippi, and he is to be permitted to travel for reasonable periods of time to visit his mother
and assist with her care, under whatever conditions of supervision may reasonably be imposed by

the Reentry Center and the BOP. IT IS SO ORDERED.

   


i

DONALD C. NUGENT
Senior United States Dist ct Judge

am 20:9