NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0527n.06
Case No. 21-1477
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 18, 2021
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
ROGER JUNIOR SWEET, )
Defendant-Appellee. ) OPINION
)
BEFORE: COLE, KETHLEDGE, and WHITE, Circuit Judges.
COLE, Circuit Judge. The government appeals the district court’s grant of Roger Sweet’s
motion for compassionate release after he had been fully vaccinated against COVID-19. At the
time of his release, the 73-year-old Sweet had served 168 months of his 262-month federal
sentence for four counts of sexual exploitation of children and one count of attempted receipt of
child pornography, having received credit for the approximately 12 years he served in state custody
for a related charge of criminal sexual conduct and his first wife’s murder. Because Sweet’s
vaccination status underlies the “extraordinary and compelling reasons” meriting his release and
the district court abused its discretion when it failed to properly weigh Section 3553(a)’s factors,
we reverse.
Case No. 21-1477, United States v. Sweet
I.
Sweet’s crimes came to light in January 2007, after a fire consumed his home in Michigan.
After the Brownstown Fire Department extinguished the blaze, responders found a camera,
computers, and computer hardware with cut cables stacked up in a burned-out hallway. When
investigators sought to interview Sweet and his then-wife, Lizzie Mae Collier-Sweet, about the
fire, they learned Lizzie Mae had disappeared. When asked about his wife’s disappearance, Sweet
told law enforcement that Lizzie Mae probably set the fire and “then went out in the woods and
killed herself.” (PSR, R. 25, PageID 98.) He claimed she did not like the amount of time he spent
on the computer and said he was sure she cut the devices’ cables, even though he admitted that he
alone had access to them.
Lizzie Mae’s diary suggested something quite different had happened. Before her
disappearance, Lizzie Mae wrote that she was afraid of her husband—so much so that she slept on
the couch next to a hammer and a shotgun. Lizzie Mae’s best friend told investigators the same,
explaining that Lizzie Mae was afraid of her husband and the two were divorcing. She also noted
that Sweet had long been sexually assaulting a developmentally disabled teenage girl in his
neighborhood. Though 19-years-old at the time, the neighborhood girl told law enforcement that
Sweet had sexually abused her for several years.
The arson, coupled with the sexual abuse allegations and Lizzie Mae’s disappearance,
prompted law enforcement to obtain a search warrant to search what remained of the Sweet home
and the contents of the computers.1 A forensic search of the computers revealed more than half a
million images of child pornography, including over 2,500 images of children in bondage.
1
About seven years into Sweet’s sentence, authorities found Lizzie Mae’s body in a shallow grave about a mile
from Sweet’s home. The autopsy was indeterminate as to cause of death.
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Case No. 21-1477, United States v. Sweet
The computers also contained over 1,000 images Sweet had made of his repeated rapes of the
neighborhood girl while she was 16- and 17-years old.
In light of Lizzie Mae’s disappearance, authorities in nearby Oakland County, Michigan,
decided to reexamine the untimely death of Sweet’s first wife, Marlene. Marlene died in 1990
from head injuries, which Sweet claimed were the result of an accidental fall. After reviewing
Marlene’s autopsy, the medical examiner concluded the bruising on her body could not have been
caused by an accident and ruled her death a homicide. Marlene and Roger Sweet’s son testified
that his father abused his mother frequently, and Marlene’s brother confirmed the same.
In 2007, local and federal officials charged Sweet with several crimes. Oakland County
officials charged him with second-degree murder for Marlene’s death. Wayne County charged
him with criminal sexual conduct for his many assaults on the neighborhood girl. And federal
officials indicted him on four counts of sexual exploitation of children for producing pornographic
images of her, as well as one count each of receiving and possessing child pornography.
Pursuant to a plea agreement, Sweet pleaded guilty to the murder of his first wife, criminal
sexual conduct, four counts of sexual exploitation of children, and one count of attempted receipt
of child pornography. The Oakland County court sentenced him to 15–30 years for the murder of
his first wife, and the Wayne County court sentenced him to 10–17 years for criminal sexual
conduct. United States v. Sweet, No. 07-20369, 2021 WL 1430836, at *1 (E.D. Mich. Apr. 15,
2021). For his federal crimes, the district court imposed concurrent sentences of 262 months for
the sexual exploitation charges and 240 months for attempted receipt of child pornography. All
the sentences were to be served concurrently.
After serving about 12 years in state custody, Sweet arrived in federal custody in May
2019. In April 2020, he was briefly hospitalized after contracting COVID-19. Sweet, proceeding
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Case No. 21-1477, United States v. Sweet
pro se, moved for his release under 18 U.S.C. § 3582(c)(1)(A) in December 2020. The district
court appointed a public defender to represent Sweet shortly thereafter. Although Sweet received
the first dose of the Moderna vaccine in January 2021, he continued to press for his release with
the assistance of counsel. In April 2021, the district court granted his motion for compassionate
release.
In its order, the district court concluded Sweet’s age and chronic kidney disease provided
extraordinary and compelling reasons for his release. Sweet, 2021 WL 1430836, at *2. Relying
on guidance from the Center for Disease Control and Prevention, the district court noted that
Sweet, at 73-years-old, was “at increased risk” for “severe illness or death from COVID-19[.]” Id.
Additionally, the district court observed that the CDC had added “chronic kidney disease” “of any
stage” to the list of conditions that create an increased risk of severe illness from COVID. Id.
(citation omitted). Though it “agree[d] with the government that recovering from COVID-19 and
being fully vaccinated decrease[d] [Sweet’s] likelihood of severe COVID symptoms,” the district
court stressed the potential for Sweet’s reinfection because of the prison’s congregate setting. Id.
at *3.
Concluding that Sweet’s health conditions and advanced age satisfied the statute’s
“extraordinary and compelling reasons” requirement, the district court then considered whether
the Section 3553(a) factors weighed against Sweet’s release. Id. at *3–4. The court first
acknowledged that Sweet’s crimes were “abhorrent” and quickly noted that “the nature and the
circumstances of [his] underlying offense[s] weigh[ed] heavily against [him].” Id. at *3. It
ultimately found, however, that Sweet’s spotless disciplinary record while incarcerated
“demonstrate[d] a respect for the law” and suggested Sweet’s age “could reduce the likelihood that
he will recidivate.” Id. (citation omitted). In the court’s view, releasing Sweet would not create
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Case No. 21-1477, United States v. Sweet
unwarranted sentencing disparities because he had already served 64 percent of his 262-month
sentence and other courts had released inmates under similar circumstances. Id. at *4 (citations
omitted). Consequently, the court reduced Sweet’s sentence to time served, granted Sweet’s
motion for compassionate release, and ordered five years of supervised release. Id. The
government appealed.
II.
A district court may grant a defendant’s motion for compassionate release when:
(1) “extraordinary and compelling reasons” warrant release and (2) the applicable § 3553(a)
sentencing factors support it. United States v. Lemons, 15 F.4th 747, 749 (6th Cir. 2021) (citations
omitted); see also United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021) (noting that no policy
statement applies when a defendant moves for release). This court reviews both determinations
for abuse of discretion. United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020); see also
United States v. Bass, 843 F. App’x 733, 734–35 (6th Cir. 2021) (citation omitted) (order). The
district court abuses its discretion when it “relies on clearly erroneous findings of fact, uses an
erroneous legal standard, or improperly applies the law.” United States v. Hampton, 985 F.3d 530,
532 (6th Cir. 2021) (citations omitted). Among other things, “misreading” Section 3582’s
“extraordinary-and-compelling reasons requirement” constitutes “a purely legal mistake.” Ruffin,
978 F.3d at 1005 (quotations and citation omitted).
The district court abused its discretion twice: first, when it determined Sweet had
demonstrated extraordinary and compelling reasons meriting his release, and second, when it
reasoned that the Section 3553(a)’s factors weighed in Sweet’s favor.
We have recently cast doubt on a defendant’s ability to meet Section 3852’s “extraordinary
and compelling reasons” requirement following their inoculation against COVID-19. Lemons,
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15 F.4th at 749–50; see also United States v. Traylor, 16 F.4th 485, 485 (6th Cir. 2021). At the
time of Sweet’s release, he had previously contracted (and recovered) from the virus and had been
fully vaccinated against COVID-19. As we have acknowledged, “following full vaccination, it is
now well understood, both the likelihood of contracting COVID-19 and the associated risks should
one contract the virus are significantly reduced.” Lemons, 15 F.4th at 751 (citation omitted).
It follows that a district court abuses its discretion by granting a sentence reduction under
Section 3582(a) when the inmate “largely faces the same risk from COVID-19 as those who are
not incarcerated” after being vaccinated. Id. (citations omitted). Here, the district court did just
that, determining that Sweet’s “advanced age and underlying health conditions” justified a
sentence reduction because of its concerns about “the potentially severe consequences if Sweet
contracted COVID-19 again.” Sweet, 2021 WL 1430836, at *3. Aside from pointing to prison’s
congregate setting, though, the district court offered no other reason why Sweet’s risk of
reinfection would be any greater in confinement than it would be in the outside world. Id.
Even assuming that Sweet’s age and chronic kidney condition satisfied Section 3582’s
requirements, the district court abused its discretion by “engag[ing] in a substantively unreasonable
balancing” of Section 3553(a)’s factors. Ruffin, 978 F.3d at 1005. Section 3553(a) “blankets a
vast terrain of sentencing factors[.]” United States v. Jones, 980 F.3d 1098, 1114 (6th Cir. 2020).
These include, among other things, the “nature and circumstances” of a defendant’s offense, the
defendant’s “history and characteristics,” and the need for their sentence “to reflect the seriousness
of the offense[s]” or “provide just punishment.” 18 U.S.C. § 3553(a)(1)–(2). Courts may also
consider what sentence is needed for the public’s protection, “the kinds of sentences available,”
and how to avoid sentencing disparities among defendants with similar records. 18 U.S.C.
§ 3553(a)(2)–(4), (6).
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Case No. 21-1477, United States v. Sweet
Here, the district court “placed too much weight on some of the § 3553(a) factors and too
little on others.” United States v. Trevino, 7 F.4th 414, 431 (6th Cir. 2021) (internal quotations
and citation omitted). The district court’s analysis gave Sweet’s flawless disciplinary record
outsized import, suggesting that it “demonstrate[d] a respect for the law” and at least lent itself to
the inference that Sweet was unlikely to reoffend. Sweet, 2021 WL 1430836, at *3. But aside
from quickly observing that “the nature and circumstances of the underlying offense weigh heavily
against Sweet,” id., the district court failed to “directly confront the nature of [Sweet’s] individual
conduct and hold him responsible for such conduct.” See Bass, 843 F. App’x at 736 (quoting
United States v. Robinson, 778 F.3d 515, 519 (6th Cir. 2015)). As the government pointedly
stressed, Sweet murdered his first wife, recorded the repeated rapes of his developmentally
disabled neighbor, and may have played a role in his second wife’s disappearance. Although
Sweet’s prison disciplinary record was clean, this says little about his potential to harm women
and children once released.
The district court also abused its discretion by failing to properly consider Sweet’s
character and history. Had the district court properly considered Sweet’s character and history, it
would have had to confront the horrific ways in which Sweet abused his wives and neighbor.
Although the district court repeatedly stressed Sweet’s age would make it less likely for him to
reoffend, see Sweet, 2021 WL 1430836, at *3, this ignores the fact that Sweet committed many of
his offenses later in life. Indeed, he was sentenced for his crimes at age 60. Again, Sweet’s long
history of violence against women and sexual abuse of children counsels against his release.
Finally, the district court’s assessment that releasing Sweet would not create unwarranted
sentencing disparities was also flawed. The district court reasoned that Sweet’s release was proper
because he had already served 64 percent of his 262-month sentence and other courts had released
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Case No. 21-1477, United States v. Sweet
inmates under similar circumstances. Sweet, 2021 WL 1430836, at *4. But in so doing, the district
court ignored the clear differences between the facts before it and those present in the other cases.
For example, both the district court and Sweet rely on United States v. Pippin, No. CR16-0266-
JCC, 2020 WL 2602140 (W.D. Wash. May 20, 2020) to support his release. As the district court
described, the 50-year-old Pippin was convicted of possessing over 7,000 images of child
pornography and was released from confinement in May 2020 with 28 months left on his 84-month
sentence. 2020 WL 2602140, at *1.
Here, however, Sweet (1) had approximately 94 months left on his sentence; (2) his child
pornography collection contained over half million images; and, most importantly, (3) Sweet
produced his own child pornography, which carries a far longer sentence than that associated with
mere possession. Sweet’s case is similarly distinguishable from the other cases the district court
relied upon. These differences bolster our conclusion that the district court improperly weighed
Section 3553(a)’s factors.
III.
Because the district court abused its discretion by granting Sweet’s compassionate release
motion, we reverse.
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Case No. 21-1477, United States v. Sweet
HELENE N. WHITE, Circuit Judge, concurring in part. I concur in the judgment because
I agree that this case is controlled by United States v. Lemons, 15 F.4th 747, 749 (6th Cir. 2021)
and United States v. Traylor, --- F.4th ---, 2021 WL 5045703 (6th Cir. Nov. 1, 2021).
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