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Law360 (April 29, 2021, 6:58 PM EDT ) A former contractor and co-defendant to ex-Detroit Mayor Kwame Kilpatrick on Thursday was granted compassionate release from prison after serving eight years of a 21-year sentence over a municipal bribery and kickback scheme, with the judge citing health problems and the fact Kilpatrick had his sentence commuted.
U.S. District Judge Nancy Edmunds reduced the sentence for Bobby Ferguson, 52, to time served, noting his underlying medical conditions that place him at grave risk were he to contract COVID-19, and the fact that Kilpatrick — the much more culpable defendant in the case — in January was granted a reprieve by former President Donald Trump.
Judge Edmunds said at the time of the original sentencing there were "serious differences" between Ferguson's conduct and that of Kilpatrick — the mastermind of the pay-to-play scheme to exchange city business for bribes and kickbacks. That Ferguson is left facing a prison term more than twice as long as Kilpatrick served constitutes an "extraordinary and compelling" reason to grant Ferguson compassionate release, she said.
"He was not the driver of the bus; that was Mr. Kilpatrick, where the power resided," Judge Edmunds said.
Michigan federal prosecutors had strongly opposed granting Ferguson compassionate release, calling Kilpatrick's commutation "wrongful" and highlighting Ferguson's earlier convictions for assault and other alleged misdeeds. The government also disputed that Ferguson's hypertension, diminished lung capacity due to an injury and high cholesterol merited an early release.
The government further argued that Ferguson had not exhausted his administrative remedies with the Bureau of Prisons, since he had only petitioned the prison warden for compassionate release based on his health issues and not the disparity in sentence that resulted from Kilpatrick's release.
However, Judge Edmunds said she was persuaded by other court decisions in finding that so-called "issue exhaustion" is not required for compassionate release. She also noted his prior violent crimes occurred decades ago, and that Ferguson hasn't displayed any such "hotheadedness" while incarcerated.
"Thus, the court finds that the time defendant has served to date is sufficient to promote respect for the law, provide just punishment for the offense and promote deterrence to others considering similar conduct," Judge Ferguson said. "For those same reasons, defendant's continued incarceration is not necessary for protection of the public."
Ferguson was previously scheduled to be released in January 2031, according to the BOP.
Prosecutors had asked that in the event that Judge Edmunds granted Ferguson compassionate release, she stay such a ruling pending any appeal by the government to the Sixth Circuit. Judge Edmunds declined to do so.
A spokeswoman for the U.S. Attorney's Office for the Eastern District of Michigan declined to comment.
An attorney for Ferguson did not immediately respond to a request for comment on Thursday.
Ferguson has been incarcerated at FCI Elkton in eastern Ohio, a low security facility, which, as Judge Edmonds noted in her order, was particularly hard-hit by the coronavirus pandemic.
Prosecutors had called Ferguson the "catalyst" in the "unprecedented" bribery and kickback scheme. As mayor, Kilpatrick forced local businesses to partner with Ferguson on city contracts, extorting tens of millions of dollars in the process, according to court documents. Ferguson received at least $73 million in illegal proceeds, prosecutors say.
Ferguson and Kilpatrick were both convicted at trial in 2013, along with Kilpatrick's father Bernard. The younger Kilpatrick was sentenced to 28 years in prison while his father was ordered to serve 15 months. The convictions of Ferguson and Kwame Kilpatrick were later upheld on appeal, and the U.S. Supreme Court declined review.
Kilpatrick, who once said that God anointed him to lead his hometown, resigned as Detroit mayor in September 2008 when he pled guilty to obstruction of justice charges related to his cover-up of an extramarital affair with his chief of staff. He served more than a year in jail in that case.
The government is represented by Sarah Cohen of the U.S. Attorney's Office for the Eastern District of Michigan.
Ferguson is represented by Gerald Evelyn, Robert Higbee and Michael Rataj.
The case is U.S. v. Ferguson, case number 2:10-cr-20403, in the U.S. District Court for the Eastern District of Michigan.
--Editing by Philip Shea.
For a reprint of this article, please contact reprints@law360.com.
