Case 2:10-cr-20403-NGE-MKM ECF No. 674, PageID.

18551 Filed 03/30/21 Page 1 of 28

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
Case No. 10-20403
Hon. Nancy G. Edmunds
v.

D-2 BOBBY FERGUSON,

Defendant.
__________________________________________________________________

DEFENDANT’S MOTION TO REDUCE SENTENCE

PURSUANT TO 18 U.S.C. § 3582 (c)(1)(A)(i)

Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), Defendant, BOBBY FERGUSON,

through his counsel, respectfully moves this Honorable Court for an Order reducing

his sentence based on “extraordinary and compelling reasons.” The legal and factual

arguments in support of the relief requested are more fully set forth in the attached

Brief in Support.

The Government does not concur in this Motion.

Respectfully submitted,

/s/Gerald K. Evelyn
GERALD K. EVELYN (P29182)
ROBERT E. HIGBEE (P82739)
Counsel for Defendant
535 Griswold, Suite 1000
Detroit, MI 48226
(313) 962-3500
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/s/ Michael A. Rataj

MICHAEL A. RATAJ (P43004)
Co-Counsel for Defendant
500 Griswold, Suite 2450
Detroit, MI 48226
(313) 963-4529
Dated: March 30, 2021

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
Case No. 10-20403
Hon. Nancy G. Edmunds
v.

D-2 BOBBY FERGUSON,

Defendant.
__________________________________________________________________

BRIEF IN SUPPORT OF
DEFENDANT’S MOTION TO REDUCE SENTENCE
PURSUANT TO 18 U.S.C. § 3582 (c)(1)(A)(i)
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TABLE OF CONTENTS

Page

ISSUE PRESENTED …………………………………………………… iii

CONTROLLING AUTHORITIES …………………………………… iv

I. INTRODUCTION …………………………………………… 1

II. RELEVANT FACTS …………………………………………… 2

A. Mr. Ferguson’s Medical Conditions ……………………… 2

B. Procedural History ………………………… …………… 2

C. Kwame Kilpatrick’s Grant of Clemency ………………… 3

III. THE COURT HAS THE UNFETTERED DISCRETION TO

DETERMINE WHAT CONSTITUTES “EXTRAORDINARY
AND COMPELLING REASONS” FOR COMPASSIONATE
RELEASE MOTIONS…………………………………………… 4

IV. ARGUMENT …………………………………………………… 7

A. Mr. Ferguson Has Exhausted His Administrative

Remedies ………………………………………………… 7

B. Mr. Ferguson’s Documented Medical Conditions

Constitute Extraordinary and Compelling Reasons
To Grant the Relief Requested ………………………… 7

C. The Commutation of Co-Defendant Kwame Kilpatrick’s

Sentence Constitutes Extraordinary and Compelling
Reasons to Grant Mr. Ferguson the Relief Requested …… 13

V. THE RELEVANT FACTORS PURSUANT TO 18 U.S.C.

§ 3553(a) WEIGH IN MR. FERGUSON’S FAVOR…………… 15

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A. Seriousness of the Offense, Respect for the Law

And Just Punishment …………………………………… 15

B. The Need to Avoid Sentencing Disparities Pursuant

to U.S.C. § 3553(a)(6) ………………………………… 18

VI. CONCLUSION AND RELIEF REQUESTED………………… 20

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ISSUE PRESENTED

WHETHER MR. FERGUSON IS ENTITLED TO COMPASSIONATE RELEASE

PURSUANT TO 18 U.S.C. § 3582(c)(1)(A)(i).

Defendant answers: Yes

Government answers: No

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CONTROLLING AUTHORITIES

18 U.S.C. § 3582(c)(1)(A)(i); 18 U.S.C. § 3553(a); United States v. Jones, 980

F.3d 1098 (6th Cir. 2020); United States v. Elias, 984 F.3d 516 (6th Cir. 2021); and
United States v. McDonel, No. 07-cr-20189, 2021 WL 120935 (E.D. Mich. January
13, 2021, Lawson, J.)

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I. INTRODUCTION

Bobby Ferguson respectfully submits this Motion for Compassionate Release

Pursuant to 18 U.S.C. §3582 (c)(1)A)(i), as amended by Section 603(b)(1) of the

First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which permits a court

to reduce a sentence for “extraordinary and compelling reasons.” In light of recent

Sixth Circuit authority, this Honorable Court is now empowered, on its own

initiative, to independently determine what constitutes “extraordinary and

compelling reasons,” warranting compassionate release.

Mr. Ferguson’s sentence was too long as compared with his co-defendant,

Kwame Kilpatrick, and with other defendants convicted of similar crimes. Indeed,

the commutation of Mr. Kilpatrick’s sentence by the Executive Branch, from 28

years to 8 years, amplifies the “extraordinary and compelling reasons” to grant Mr.

Ferguson’s Motion for Compassionate Release. Additionally, consideration of the

relevant factors set for in 18 U.S.C. §3553(a) weigh heavily in Mr. Ferguson’s favor.

Mr. Ferguson suffers from significant medical conditions that increase his risk

while being incarcerated during the COVID-19 pandemic. In addition, Mr. Ferguson

has been a model prisoner and his release would not pose a danger to the community.

Again, the fact that Mr. Kilpatrick is now a free man and Mr. Ferguson still has to

serve 10 more years is a sentencing disparity (created entirely by the Executive) that

cannot be countenanced by this Honorable Court. Constitutional precepts of

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fundamental fairness and justice for all mandates Mr. Ferguson’s compassionate

release.

II. RELEVANT FACTS

A. Mr. Ferguson’s Medical Conditions

Mr. Ferguson has several significant health conditions that heighten his risk if

exposed to COVID-19. As of March 25, 2021, FCI Elkton has 31 active cases of

COVID-19, which is consistent with the national uptick in COVID-19 cases in the

last month. Mr. Ferguson is currently prescribed Lisinopril and Hyrdochlorothiazide

for Hypertension, and Atorvastatin for High Cholesterol. (Exhibit 1). In addition,

Mr. Ferguson suffers from Chronic Lung Disease since a partial pneumonectomy

performed in 1998 after he was shot in the chest, which resulted in a decrease in Mr.

Ferguson’s lung capacity to 65 percent. Id. These conditions, together and apart,

significantly increase Mr. Ferguson’s risk for lethal effects should he be exposed to

COVID-19. Given that COVID-19 is again on the rise in the United States, and at

FCI Elkton, Mr. Ferguson’s health conditions warrant the relief requested herein.

B. Procedural History

This Honorable Court is well aware of the facts of the case. The Court is also

cognizant of the fact that the trial in this matter was unquestionably the most highly

publicized trial that this region of the State ever experienced. Moreover, the case

received national interest and attention.

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Mr. Ferguson was found guilty of Counts 1, 2, 3, 4, 5, 7, 8, 9 and 17 of the

Fourth Superseding Indictment. Mr. Ferguson received a sentence of 240 months for

Counts 1, 2, 3, 4, 5, 7, 8 and 9, each count to run concurrently. As to Count 17, Mr.

Ferguson received a sentence of 12 months to run consecutively with all of the other

counts. Accordingly, Mr. Ferguson received a sentence of 252 months or 21 years.

(Exhibit 2). Mr. Ferguson’s release date is January 29, 2031, or just under 10 years.

Mr. Ferguson is currently housed at FCI Elkton in Ohio.

The jury found Mr. Kilpatrick guilty as to Counts 1, 2, 3, 4, 5, 9, 17, 18 through

26, 28, 30, 31 through 36 of the Fourth Superseding Indictment. As to Counts 1, 2,

3, 4, 5 and 9, Mr. Kilpatrick was sentenced to 240 months on each count, to run

concurrently. On Count 17, Mr. Kilpatrick was sentenced to 120 months to run

concurrently with Counts 1, 2, 3, 4, 5 and 9. As to Counts 18 through 26, 28 and 30,

the Court sentenced Mr. Kilpatrick to 84 months on each count to run concurrently

with each other, and consecutive to Counts 1, 2, 3, 4, 5, 9 and 17. Lastly, as to Counts

31 through 36, Mr. Kilpatrick was sentenced to 12 months on each count, to run

concurrent with each other and consecutive to all the other counts. In total, Mr.

Kilpatrick was sentenced to 336 months or 28 years. (Exhibit 3).

C. Kwame Kilpatrick’s Grant of Clemency

On January 13, 2021, former President Donald J. Trump signed the Executive

Grant of Clemency for Mr. Kilpatrick. The Executive Order states that “it has been

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made to appear that the ends of justice do not require the said KWAME MALIK

KILPATRICK TO REMAIN CONFINED until his currently projected release

date of January 18, 2037, AND THE SAFETY OF THE COMMUNITY WILL

NOT BE COMPROMISED IF HE IS RELEASED. (Exhibit 4). Accordingly,

when Mr. Kilpatrick’s sentence was commuted, he still had 16 years to serve on his

sentence.

III. THE COURT HAS THE UNFETTERED DISCRETION TO

DETERMINE WHAT CONSTITUTES “EXTRAORDINARY AND
COMPELLING REASONS” FOR COMPASSIONATE RELEASE
MOTIONS

The general proposition regarding sentencing is that “a federal court ‘may not

modify a term of imprisonment once it has been imposed.’” United States v. Alam,

960 F.3d 831, 832 (6th Cir. 2020); 18 U.S.C. § 3582(c). However, the First Step Act,

18 U.S.C. § 3582(c), provides an exception to this general proposition. The statute

permits reductions in sentences pursuant to the “compassionate release” provision.

18 U.S.C. § 3582(c)(1)(A)(i) provides:

“(c) Modification of an imposed term of imprisonment. - - The court

may not modify a term of imprisonment once it has been imposed
except that - -

(1) in any case - -

(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
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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;
***
and that such a reduction is consistent with applicable
policy statements issued by the Sentencing
Commission; . . . ”

Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), a district court has the ability to

order a reduction of a sentence, even to time served. In United States v. Ruffin, 978

F.3d 1000, 1004-06 (6th Cir. 2020), the Sixth Circuit set forth a three-pronged

analysis in determining whether to reduce a sentence:

1. Consider whether “extraordinary and compelling reasons

warrant such a reduction.”
2. Determine whether the “reduction is consistent with
applicable policy statements issued by the sentencing
commission.”

3. Consider the “factors set forth in [18 U.S.C. § 3582(a)] to the

extent they are applicable.”

Id. See also, United States v. McDonel, ___ F.Supp. 3d ___, No. 07-cr-20189, 2021

WL 120935 (E.D. Mich. January 13, 2021, Lawson, J.).

Under the second prong, the Sentencing Commission’s Policy Statement is

found at U.S.S.G. § 1B.1.13, which is a recitation of 18 U.S.C. § 3582(c). It is well

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accepted that the Sentencing Commission’s policy statement does not have the force

of law. United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019), reconsideration

denied, 929 F.3d 317 (6th Cir. 2019) (en banc) (holding that the “commentary has no

independent legal force – it serves only to interpret the Guideline’s text, not to

replace or modify it”); See also, United States v. McDonel, supra.

In United States v. Jones, 980 F.3d 1098, 1109 (6th Cir. 2020), the Sixth Circuit

joined the majority of district courts and the Second Circuit in holding that the

passage of the First Step Act rendered U.S.S.G § 1B1.13 inapplicable to those cases

where a prisoner files a motion for compassionate release. United States v. Brooker,

976 F.3d 228, 234 (2nd Cir. 2020).

In January, 2021, the Sixth Circuit went even further. In United States v. Elias,

___ F.3d ___, No. 20-cr-3654 2021 WL 50169 (6th Cir. January 6, 2021) the Sixth

Circuit reaffirmed the holding in Jones, supra, “that § 1.B1.13 is not an applicable

policy statement for compassionate-release motions brought directly by inmates and

so district courts need not consider it when ruling on those motions.” Id. Elias,

supra. The Sixth Circuit concluded that “in the absence of an applicable policy

statement for inmate-filed compassionate-release motions, district courts have

discretion to define ‘extraordinary and compelling’ on their own initiative.” Id.;

McDonel, supra.

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In light of Jones and Elias, this Court now has the unfettered discretion to

make its own determination as to what constitutes “extraordinary and compelling

reasons” for purposes of deciding a motion for compassionate release. The

Sentencing Commission’s policy statement per U.S.S.G. § 1B1.13 is no longer to be

considered.

IV. ARGUMENT

A. Mr. Ferguson Has Exhausted His Administrative Remedies

Mr. Ferguson exhausted his administrative remedy within the BOP by

submitting a written request to the Warden at FCI-Elkton for a reduction in his

sentence pursuant to 18. U.S.C. § 3582(c)(1)(A). On April 30, 2020, the Warden at

FCI-Elkton, Mark E. Williams, denied Mr. Ferguson’s request. (Exhibit 5). Mr.

Ferguson has waited the requisite 30 days before filing the instant motion before this

Honorable Court. See, United States v. Alam, supra.

B. Mr. Ferguson’s documented medical conditions constitute

extraordinary and compelling reasons to grant the relief requested.

“Extraordinary” is defined as “going beyond what is usual, regular, or

customary; or exception to a very marked extent,” Merriam-Webster Dictionary

(2019), available at https://www.merriam-webster.com/dictionary/extraordinary; and

“compelling” is defined as “forceful; demanding attention; convincing,” available at

https://www.merriamwebster.com/dictionary/compelling. A sense of how those definitions

apply in context can be found in the Senate Report that accompanied the Sentencing
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Reform Act, where Congress indicated that sentence modifications would be

appropriate in “cases of severe illness, cases in which other extraordinary and

compelling circumstances justify a reduction of an unusually long sentence, and

some cases in which the sentencing guidelines for the offense of which the defender

was convicted have been later amended to provide a shorter term of imprisonment.”

S. Rep. No. 98-225, at 55-56 (1984) (emphasis added).

As discussed above, Mr. Ferguson has significant health issues, including

reduced lung function after having been shot in the chest, hypertension, and high

cholesterol, all of which place him at significant risk while being incarcerated

during the COVID-19 pandemic. (Exhibit 1). Oftentimes relying on these very

health conditions, judges in districts throughout the United States have recognized

that, at least for certain defendants, COVID-19 presents “extraordinary and

compelling reasons” warranting a reduction in sentence under the compassionate

release statute. A non-exhaustive list includes:

• United States v. Hansen, No. 17-cr-50062, 2020 WL 2219068 (N.D. Ill. May
7, 2020) (“[T]he Court cannot discount the risk to Hansen if he contracts
coronavirus, as reliable information places him in a higher-risk category.
Specifically, the presentence report documents that he suffers from diabetes,
hypertension, high cholesterol, kidney disease, and chronic obstructive
pulmonary disease, all of which are confirmed risk factors for serious illness
if one contracts coronavirus.”)

• United States v. Amarrah, No. 17-20464, 2020 WL 2220008 (E.D. Mich. May
7, 2020) (shortening 60-month sentence after only 21 months because
Amarrah’s “Type II diabetes, hypertensive heart disease, cardiac arrhythmia,

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obstructive sleep apnea, and asthma” put him a substantial risk should he
contract COVID-19 even though facility had no reported cases);

• United States v. Howard, No. 4:15-cr-00018-BR, 2020 WL 2200855

(E.D.N.C. May 6, 2020) (finding 52-year-old with “chronic obstructive
pulmonary disease (‘COPD’), Type II diabetes, obesity, Stage 3 kidney
disease, edema, open wounds on his legs, and a diaphragmatic hernia”
demonstrated extraordinary and compelling circumstances due to COVID-19
even though his conditions neither constituted terminal illness nor prevented
him from engaging in most of his daily activities without assistance);

• Casey v. United States, No. 4:18-cr-4, 2020 WL 2297184, at *3 (E.D. Va.

May 6, 2020)(“The Court finds that Petitioner has set forth extraordinary and
compelling reasons to modify his sentence because of the great risk that
COVID-19 poses to a person of his age with underlying health conditions.”);

• United States v. Quintero, No. 08-cr-6007L, 2020 WL 2175171 (W.D.N.Y.

May 6, 2020) (granting compassionate release to man who “suffers from
diabetes, a compromised immune system, obesity, and hypertension,” “which
make him more susceptible than another to contract the virus.”);

• United States v. Reid, No. 17-cr-00175-CRB-2, 2020 WL 2128855 (N.D. Cal.

May 5, 2020) (granting compassionate release based on risks COVID-19
presents to individual with hypertension, high cholesterol, and Valley Fever,
which causes lung infection and can result in acute pneumonia);

• United States v. Pabon, No. 17-165-1, 2020 WL 2112265, at *1 (D Mass.

May 4, 2020) (holding that for the 54-year-old defendant who suffers from
“diabetes, hypertension, hemophilia, atopic dermatitis, gastroesophageal
reflux disease, peptic ulcer, and diverticulitis” “nothing could be more
extraordinary and compelling than this pandemic”);

• United States v. Echevarria, No. 3:17-cr-44, 2020 WL 2113604 (D. Conn.

May 4, 2020) (finding 49-year-old with pre-existing respiratory condition—
a history of bronchial asthma—combined with the increased risk of COVID-
19 in prisons had demonstrated extraordinary and compelling reasons for
relief);

• United States v. Early, No. 09-cr-282, 2020 WL 2112371, at *2 (N.D. Ill. May
4, 2020) (“the Court cannot discount the risk to Mr. Early if he contracts
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coronavirus, as reliable information places him in a higher-risk category [62,

diabetes and hypertension]. This, in the Court’s view, qualifies as an
extraordinary reason warranting consideration of a reduction of Mr. Early’s
sentence.”);

• United States v. Ardila, No. 3:03-cr-264, 2020 WL 2097736, at *2 (D Conn.

May 1, 2020) (finding 71-year-old’s medical conditions (diabetes,
cardiovascular disease, hypertension, asthma, and obesity) and “current
conditions of confinement constitute extraordinary and compelling reasons
to reduce his sentence”);

• United States v. Soto, No. 1:18-cr-10086, 2020 WL 2104787 (D. Mass. May
1, 2020) (finding inmate with hypertension at facility with COVID-19 cases
located in New York had shown extraordinary and compelling reasons for
relief);

• United States v. Kelly, No. 3:13-cr-59, 2020 WL 2104241, at *7 (S.D. Miss.

May 1, 2020) (granting compassionate release to young man without health
issues at Oakdale I because “it has become increasingly apparent that the BOP
has failed to control the outbreak at Oakdale I. … Given the steadily growing
death toll and the apparent continued spread of the disease at Oakdale I,
COVID-19 creates an ‘extraordinary and compelling reason’ potentially
warranting a reduced sentence.”);

• United States v. Norris, No. 7:19-cr-36, 2020 WL 2110640 (E.D.N.C. Apr.

30, 2020) (finding defendant had demonstrated extraordinary and compelling
circumstances for relief because he “suffers from various severe ailments,”
including a life-threatening disease, kidney failure requiring dialysis three
times a week, and recurrent bouts of pneumonia, “that cumulatively make his
continued confinement especially dangerous in light of COVID-19.”)

• United States v. Robinson, No. 18-cr-00597, __ F. Supp.3d __, 2020 WL

1982872 (N.D. Calif. Apr. 27, 2020) (granting compassionate release to
prisoner at FCI Lompoc who suffers from severe psoriasis for which he takes
immunosuppressant medication);

• United States v. Coles, No. 00-cr-20051, 2020 WL 1976296 (C.D. Ill. Apr.
24, 2020) (granting compassionate release to inmate who had served 19 years
of 24-year sentence based on his vulnerability to COVID-19 because of

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hypertension, prostate issues, bladder issues, and a dental infection and

because he is prediabetic);

• United States v. Gorai, No. 2:18-cr-220, 2020 WL 1975372 (D. Nev. Apr. 24,
2020) (granting compassionate release in light of COVID-19 to inmate who
suffers from asthma);

• United States v. Joling, No. 11-cr-60131, 2020 WL 1903280 (D. Ore. Apr.
17, 2020) (granting compassionate release to inmate at Butner in light of
COVID-19 and his underlying conditions, including “hypertension,
atherosclerosis, a history of transient ischemic attacks, dyslipidemia, obesity,
history of left lower extremity fracture” and diagnosis of “prostatic
adenocarcinoma”);

• United States v. Samy, Case No. 16-20610, 2020 WL 1888842 (E.D. Mich.
Apr. 16, 2020) (granting compassionate release because “Samy squarely fits
the definition of an individual who has a higher risk of dying or falling
severely ill from COVID-19” because of her age and underlying medical
conditions, including a serious heart condition, diabetes and asthma);

• United States v. Smith, No. 12-cr-133, 2020 WL 1849748 (S.D.N.Y. Apr. 13,
2020) (granting immediate release for individual with asthma, high
cholesterol, blood clots, a thyroid condition, and suspected multiple myeloma
in light of presence of COVID-19 at place of imprisonment);

• United States v. Tran, No. 08-0197, ECF No. 402 (C.D. Calif. Apr. 10, 2020)
(finding defendant’s asthma given the outbreak at FCI Oakdale “presents an
extraordinary and compelling reason for compassionate release”);

• United States v. Burrill, No. 17-cr-0491, ECF No. 308 (N.D. Calif. Apr. 10,
2020) (granting compassionate release because defendant, 75, “suffers from
asthma, high blood pressure, high cholesterol, diabetes, diverticulosis, blood
clots, hearing loss, glaucoma, cataracts, and lower back nerve pain,” placing
him at a “heightened risk of becoming severely ill from COVID-19”);

• United States v. Rodriguez, No. 2:03-cr-00271, 2020 WL 1627331, at *7

(E.D. Pa. Apr. 10, 2020) (“Mr. Rodriguez’s circumstances—particularly the
outbreak of COVID-19 and his underlying medical conditions that place him
at a high risk should he contract the disease—present
‘extraordinary and compelling reasons’ to reduce his sentence.”);
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• United States v. Miller, No. 16-cr-20222, 2020 WL 1814084, at *4 (E.D.

Mich. Apr. 9, 2020) (“Miller squarely fits the definition of an individual who
has a higher risk of falling severely ill from COVID-19. . . . Therefore, the
Court finds that extraordinary and compelling reasons exist for his immediate
compassionate release.”);

• United States v. Zukerman, No. 16-cr-194 (AT), 2020 WL 1659880, at *5

(S.D.N.Y. Apr. 3, 2020) (“The Court also finds that Zukerman has set forth
‘extraordinary and compelling reasons’ to modify his sentence, 18 U.S.C.
§ 3582(c)(1)(A)(i), because of the great risk that COVID-19 poses to an
elderly person with underlying health problems.”);

• United States v. Colvin, No. 3:19-cr-179, 2020 WL 1613943, at *4 (D. Conn.

Apr. 2, 2020) (citing COVID-19 and defendant’s medical conditions and
“conclud[ing] that Defendant has demonstrated
extraordinary and compelling reasons justifying her immediate release”);

• United States v. Edwards, No. 6:17-cr-00003, 2020 WL 1650406, at *5 (W.D.

Va. Apr. 2, 2020) (concluding defendant “has demonstrated an extraordinary
and compelling reason for his compassionate release” in light of COVID-19
and preexisting health conditions);

• United States v. Perez, No. 17-cr-0513, ECF No. 98 (S.D.N.Y. Apr. 1, 2020)
(finding defendant’s pre-existing medical condition combined with the risk
of contracting COVID-19 at MDC Brooklyn constitutes “extraordinary and
compelling reasons” to reduce his sentence to time served);

• United States v. Gonzalez, No. 2:18-cr-0232, 2020 WL 1536155, at *3 (E.D.

Wash. Mar. 31, 2020) (granting compassionate release because COVID-19
and defendant’s medical conditions constitute “extraordinary and compelling
reasons”);

• United States v. Muniz, No. 4:09-cr-0199, 2020 WL 1540325, at *2 (S.D. Tex.

Mar. 30, 2020) (“Because Defendant is at high-risk for severe illness from
COVID-19 and because inmates in detention facilities are particularly
vulnerable to infection, the Court finds that Defendant has demonstrated an
extraordinary and compelling reason for compassionate release.”);

• United States v. Trent, No. 16-cr-00178, 2020 WL 1812242, at *2 (N.D. Cal.

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Apr. 9, 2020) (finding “extraordinary and compelling reasons” based on

combination of “COVID-19 pandemic” and defendant’s “medical
conditions”);

• United States v. Hansen, No. 07-CR-00520, 2020 WL 1703672, at *8-9

(E.D.N.Y. Apr. 8, 2020) (granting compassionate release in light of “the
unique risks posed by the COVID-19 pandemic to prisoners like Mr. Hansen,
who is elderly and infirm”).

Here, Mr. Ferguson’s medical conditions warrant granting compassionate

release, given the significant risk he faces should he contract COVID-19.

C. The Commutation of Co-Defendant Kwame Kilpatrick’s Sentence

Constitutes Extraordinary and Compelling Reasons to Grant Mr.
Ferguson the Relief Requested

Mr. Ferguson’s sentence was unusually long (almost 12 times the average

bribery or extortion sentence). What makes Mr. Ferguson’s current situation

extraordinary and compelling is that it was the Executive Branch (which includes

the Department of Justice) that partially created this gross sentencing disparity.

Fundamental to this country’s sentencing framework is that sentencing disparities

are to be guarded against and avoided. To allow Mr. Ferguson to remain in prison

for 10 more years while Mr. Kilpatrick is now tasting the fruits of freedom turns

sentencing equities and justice on its head. Indeed, not only is Mr. Ferguson’s

sentence disparate externally with respect to defendants who were convicted of

similar offenses, now it is disparate internally with his co-defendant, Mr. Kilpatrick.

It is this internal disparity that is especially compelling, given that it is the easiest to

remedy.
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The jury determined that Mr. Kilpatrick was the leader of the criminal

enterprise being operated out of his Mayor’s office. Mr. Kilpatrick was a public

official who took an oath of office to act in the best interests of the citizens of Detroit.

To be sure, the jury found that Mr. Kilpatrick violated that oath and used his office

to benefit himself and to benefit his family and friends. This Court was obviously

offended by Mr. Kilpatrick’s conduct and meted out a sentence that was longer than

any sentence that any public official ever received for similar crimes.

Mr. Ferguson was not a public official. He never took an oath of office. Mr.

Ferguson was a successful African American contractor that had employees,

equipment, and a track record of performing quality work. Mr. Ferguson was found

guilty of using his relationship with Mr. Kilpatrick to illegally obtain contracts for

work that he might never have received. For his crimes, Mr. Ferguson received the

longest sentence that any non-public official received in a public corruption case.

As a result, Mr. Ferguson’s current release date is January 29, 2031. The fact

that Mr. Kilpatrick is now a free man (with 16 years remaining on his sentence) and

Mr. Ferguson must still serve 10 more years, undoubtedly constitutes extraordinary

and compelling reasons to grant Mr. Ferguson compassionate release, in light of the

already-disparate nature of his sentence as compared with other defendants

convicted of similar crimes. To be sure, equal treatment under law, fundamental

fairness and the interests of justice cry out for a commutation of Mr. Ferguson’s

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sentence pursuant to the compassionate release statute.

V. THE RELEVANT FACTORS PURSUANT TO 18 U.S.C. § 3553(a)

WEIGH IN MR. FERGUSON’S FAVOR

Mr. Ferguson respectfully submits that he has made a substantial showing of

extraordinary and compelling circumstances. Thus, the Court must then consider the

relevant factors set forth in 18 U.S.C. § 3553(a). These factors weigh in favor of Mr.

Ferguson.

In considering a request for a sentence reduction, the court must account for

“the seriousness of the offense,” the need “to promote respect for the law” and

“afford adequate deterrence to criminal conduct. As Judge Lawson held in McDonel,

supra, “[t]hese factors are to be considered together with the prisoner’s

circumstances to arrive at a conclusion that they are sufficiently extraordinary and

compelling to justify a sentence reduction.” McDonel, supra.

A. Seriousness of the Offense, Respect for the Law and Just Punishment

Mr. Ferguson acknowledges and takes no issue with the fact that there are

consequences for bad choices. Mr. Ferguson is remorseful for his actions. He

understands that his crimes were serious and that he had to pay his debt to society.

However, a sentence that is excessive in light of the seriousness of the offense

promotes disrespect for the law and provides unjust punishment. In August, 2003,

Justice Anthony Kennedy gave a speech at the ABA Annual Meeting in San

Francisco where he stated:

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Our resources are misspent, our punishments too severe; our

sentences too long . . . the sentencing guidelines are responsible
in part for the increased terms. . . [and they] should be revised
downward.

On February 14, 2007, Justice Kennedy again addressed this issue when he

testified before the Senate Judiciary Committee:

Our sentences are too long, our sentences our too severe; our
sentences are too harsh . . . there is no compassion in the system.
There’s no mercy in the system.

In United States v. Bannister, 786 F. Supp. 2d 617 (E.D.N.Y. 2011), the Court

addressed the length of the prison sentences in the United States:

The increased prison population is due in large part to longer

sentences. For the same crimes, American prisoners receive
sentences twice as long as English prisoners, three times as long
as Canadian prisoners, four times as long as Swedish prisoners.
Yet these countries’ rates of violent crime are lower than ours,
and their rates of property are comparable.

A host of other penalties and burdens always attend criminal convictions,

including (1) losses of family life, socioeconomic status, employment and career

opportunities; (2) diminution of certain civil rights and entitlements; and (3)

countless humiliations and indignities commonly associated with a conviction. Mr.

Ferguson has experienced all of these collateral consequences as a result of his

conviction and incarceration.

During the 8 years of his incarceration, Mr. Ferguson has been a model

prisoner. Mr. Ferguson has not received any disciplinary tickets. Mr. Ferguson has

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been employed his entire term of incarceration and he has taken advantage of all

types of educational opportunities. Most importantly, Mr. Ferguson has taken

measures where he has mentored other inmates to prepare for a better future.

For the first four years of his prison term, Mr. Ferguson was housed at FCI

Williamsburg in South Carolina. Mr. Ferguson worked in general maintenance for

the entire institution. Mr. Ferguson has spent the last four years at FCI Elkton in

Ohio. Initially, Mr. Ferguson was employed as the No. 2 Maintenance Orderly for

the prison chapel. Currently, Mr. Ferguson is the No. 1 Maintenance Orderly and

supervises a team of 30 inmates.

Mr. Ferguson has logged hundreds of hours in educational courses. The

classes include, but are not limited to, African American History, Computer Skills

Improvement, Drug Education, HIV/AIDS Awareness, Parenting Skills, Creative

Writing, Music Classes, Stress Management and Anger Management. (Exhibit 6).

During his time at FCI Elkton, Mr. Ferguson has taught a mentoring class

called “Challenge 2 Change.” Prior to becoming a mentor, Mr. Ferguson completed

a 26-week Release Preparation Program. The mentoring program that Mr. Ferguson

leads, teaches inmates “Soft Skills: Positive Relationship Building, Parenting While

Incarcerated, Time Management, Cognitive Skills. Life Skills: Financial

Management & Budgeting, Credit Building and Repair, Small Business Planning

and Business Structure. Working Class Skills: Resume and Cover Letter Building,

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Job Search, Employment Preparedness & Interviewing Skills.” (Exhibit 7).

Mr. Ferguson has strong family support from his wife and 5 adult children.

Upon his release, Mr. Ferguson will reside with his wife. In short, Mr. Ferguson is

determined and dedicated to being a good husband and to be intimately involved in

the lives of his children. Mr. Ferguson is also determined to become a positive

influence and mentor to others in the underserved community.

Despite his transgressions and his public persona, Mr. Ferguson has always

been a deeply spiritual individual. Prior to his incarceration, Mr. Ferguson always

attended church and read his Bible daily. During his 8 years of incarceration, Mr.

Ferguson has continued his spiritual journey which has given him the strength and

intestinal fortitude to make the best of his current set of circumstances.

B. The Need to Avoid Sentencing Disparities Pursuant to 18 U.S.C. §

3553(a)(6)

As stated above, the Executive Branch has created a gross internal disparity

in the sentence of Mr. Ferguson through Mr. Kilpatrick’s commutation. To be sure,

the Executive Branch created sentencing disparity constitutes extraordinary and

compelling reasons for the requested sentence reduction.

Moreover, this disparity between Mr. Ferguson and Mr. Kilpatrick also applies

to this sentencing factor, which charges the Court to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct. 18 U.S.C. § 3553(a)(6); see also, United States v. Cantu-Rivera, No.
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CR H-89-204, 2019 WL 2578272, at *2 (S.D. Tex., June 24, 2019) (finding a reduced

sentence would “also avoid unwarranted disparities among defendants with similar

records convicted of similar conduct.”)

The Sentencing Commission’s 2019 Annual Report highlights how Mr.

Ferguson’s sentence is externally disparate as compared to other sentences for other

crimes. By way of example, the average sentence for bribery/corruption convictions

is 22 months. The average sentence for extortion/racketeering convictions is 32

months. Additionally, Mr. Ferguson’s sentence was significantly greater than the

average child pornography sentence of 103 months, the average kidnapping sentence

of 171 months, the average robbery sentence of 109 months, and the average

sentence for sexual abuse of 205 months. Only the average sentence for murder of

255 months exceeds Mr. Ferguson’s sentence of 252 months. (Exhibit 8).

Mr. Ferguson’s sentence was 11.45 times greater than the average

bribery/corruption sentence and 7.88 times greater than the average

extortion/racketeering sentence. There is no question that Mr. Ferguson’s sentence

is incredibly disparate from sentences for similar crimes. This disparity clearly runs

afoul of the need to avoid sentencing disparities.

Thus, the combination of the internal and external sentencing disparities

compels Mr. Ferguson’s compassionate release. It is patently unfair for Mr.

Ferguson to serve a sentence that is 3 times longer than Mr. Kilpatrick’s when the

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Court intended for him to serve a sentence that was only .75 of Mr. Kilpatrick’s

sentence. Even then, Mr. Ferguson’s sentence is grossly disparate as compared with

defendants convicted of similar crimes.

VI. CONCLUSION AND RELIEF REQUESTED

Mr. Ferguson suffers from significant health conditions (hypertension, high

cholesterol, and diminished lung capacity) that greatly increase his risk to exposure

from COVID-19. In addition, Mr. Ferguson’s sentence was too long as compared

with other defendants around the country, and it is now too long as compared with

his co-defendant, Mr. Kilpatrick. The Court has the power to change Mr. Ferguson’s

sentence. The Court should reduce Mr. Ferguson’s prison term to time served, and

impose reasonable conditions upon his release.

Respectfully submitted,

s/Gerald K. Evelyn
GERALD K. EVELYN (P29182)
ROBERT E. HIGBEE (P82739)
Counsel for Defendant
535 Griswold, Suite 1000
Detroit, MI 48226
(313) 962-3500

s/Michael A. Rataj
MICHAEL A. RATAJ (P43004)
Co-counsel for Defendant
500 Griswold, Suite 2450
Detroit, MI 48226
313-963-4529
Dated: March 29, 2021

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CERTIFICATE OF SERVICE

Michael A. Rataj hereby states that on March 29, 2021, I electronically filed

Defendant’s Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582 (c)(1)(A)(i)

and Certificate of Service with the Clerk of the Court using the ECF system which

will send notification of such to the United States Attorney’s office.

s/Michael A. Rataj
Michael A. Rataj

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