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Date: 09-25-2021
Case Style:
United States of America v. Kenneth Kimball
Case Number: 20-5682
Judge: Before: SUTTON, COOK, and READLER, Circuit Judges
PER CURIAM
Court: UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Plaintiff's Attorney: Nani M. Gilkerson, UNITED STATES ATTORNEY’S
OFFICE
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense lawyer represented defendant with multiple drug-trafficking, weapons, and money-laundering offenses, as well as soliciting murder, witness tampering, and obstruction of
justice charges.
In 2004, Kimball was convicted by a jury of multiple drug-trafficking, weapons, and
money-laundering offenses, as well as soliciting murder, witness tampering, and obstruction of
justice. The district court sentenced Kimball to two consecutive terms of life imprisonment plus
fifteen years. We affirmed his convictions but remanded for resentencing in light of United
States v. Booker, 543 U.S. 220 (2005). United States v. Kimball, 194 F. App’x 373, 378-79 (6th
Cir. 2006). The district court imposed the same sentence on remand, and we affirmed. United
States v. Parker, 341 F. App’x 122, 123 (6th Cir. 2009). Kimball’s attempts at post-conviction
relief have been unsuccessful.
In April 2020, Kimball filed a pro se motion for compassionate release based on the
COVID-19 pandemic. The district court appointed counsel for Kimball, and counsel filed a
supplemental motion on his behalf. In his motion and supplemental brief, Kimball asserted that
there were extraordinary and compelling reasons warranting compassionate release because he is
at high risk of severe illness or death from COVID-19 based on his age (67 years old) and
underlying medical conditions (hypertension, heart problems, high cholesterol, and gout). He
further argued that the 18 U.S.C. § 3553(a) factors weighed in favor of release. The government
responded in opposition, arguing that Kimball had not demonstrated sufficiently extraordinary
and compelling reasons and that, even if he had, his motion should be denied because he is a
danger to the community and his release would be inconsistent with the § 3553(a) factors.
The district court denied Kimball’s motion, stating that it had considered the applicable
§ 3553(a) factors and policy statements and conducted a “complete review” of the merits.
The compassionate release statute allows the district court to reduce a defendant’s
sentence if it finds that “extraordinary and compelling reasons” warrant a reduction; that a
reduction is consistent with applicable policy statements issued by the Sentencing Commission;
and that the § 3553(a) factors, to the extent they apply, support a reduction. 18 U.S.C.
§ 3582(c)(1)(A); see United States v. Ruffin, 978 F.3d 1000, 1004-05 (6th Cir. 2020). But where
an inmate files the motion for compassionate release, “district courts need not consider” the
policy statement in § 1B1.13 of the Sentencing Guidelines. United States v. Elias, 984 F.3d 516,
519 (6th Cir. 2021). We review a district court’s denial of a compassionate-release motion for an
abuse of discretion. See Ruffin, 978 F.3d at 1005.
No. 20-5682 United States v. Kimball Page 3
On appeal, both parties assume that the district court denied Kimball’s motion based on
its weighing of the § 3553(a) factors. Kimball has also filed a supplemental citation to this
court’s recent decision in United States v. Hampton, 985 F.3d 530 (6th Cir. 2021), arguing that it
is possible that the district court impermissibly relied on the now-inapplicable policy statements
when denying his motion.
The § 3553(a) factors include, among others, “the nature and circumstances of the
offense”; the defendant’s “history and characteristics”; the need for the sentence “to promote
respect for the law,” to “provide just punishment for the offense,” to “afford adequate
deterrence,” and to “protect the public”; and the kinds of sentences available. 18 U.S.C.
§ 3553(a)(1)-(3). Kimball argues that the time he has already served—approximately seventeen
years—is sufficient to serve those goals because his offense did not involve any “actual
violence” and he is statistically unlikely to reoffend based on his age. But Kimball’s attempt to
minimize the gravity of his conduct is not persuasive. As we noted when we affirmed his
effective life sentence, he was the “undisputed kingpin and mastermind” of a “massive cocainetrafficking conspiracy.” Parker, 341 F. App’x at 124-25. At Kimball’s resentencing, the district
court acknowledged the mitigating factors he cited, including his age and the support he
provided to his family, but explained that they were outweighed by the seriousness of his
offenses, “which included leading an enormous drug-trafficking operation and attempting to kill
witnesses,” and by the “breathtaking” scope and duration of his criminal activity. Id. at 125.
Based on this record, the district court could reasonably have determined that releasing Kimball
now would not serve the statutory sentencing goals. See United States v. Kincaid, 802 F. App’x
187, 188 (6th Cir. 2020) (noting that the amount of time served is relevant to several § 3553(a)
factors, including the need to reflect the seriousness of the offense, provide just punishment, and
promote respect for the law).
Finally, Kimball’s argument that the district court may have relied on an impermissible
reason when denying his motion lacks merit. Unlike the order in Hampton, see 985 F.3d at 531,
the district court’s order here noted that its decision rested at least in part on the § 3553(a)
factors. “We have repeatedly recognized that district courts may deny relief under the § 3553(a)
factors even if ‘extraordinary and compelling’ reasons would otherwise justify relief.” Ruffin,
No. 20-5682 United States v. Kimball Page 4
978 F.3d at 1008. So even if Kimball is correct that the district court “mistakenly limited itself
to the commentary’s list of extraordinary and compelling reasons, that legal conclusion would
not entitle him to a reversal,” id., given, as the district court acknowledged, its separate
“consider[ation of] the applicable factors set forth in 18 U.S.C.§3553(a).”
Outcome: For these reasons, we AFFIRM the district court’s order denying Kimball’s motion for
compassionate release
Plaintiff's Experts:
Defendant's Experts:
Comments: