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finding "extraordinary and compelling reason" based on defendant's "health conditions and dire circumstances at FCI Elkton"
Summary of this case from United States v. HuntOpinion
1:10-CR-166 (LEK)
2020-05-27
UNITED STATES of America, Plaintiff, v. Christopher BASS, Defendant.
Jeffrey C. Coffman, Office of United States Attorney, Albany, NY, for Plaintiff.
Jeffrey C. Coffman, Office of United States Attorney, Albany, NY, for Plaintiff.
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn, Senior U.S. District Judge
I. INTRODUCTION
Christopher Bass, an inmate currently incarcerated at the Elkton Federal Correctional Institution ("FCI Elkton"), moved on May 21, 2020 for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Dkt. No. 84 ("Motion"). As a basis for release, Bass cites his age, his health conditions, and the risk of infection presented by circumstances at FCI Elkton. Id. at 2. He also points to BOP's April 30 determination that he satisfies the preliminary injunction subclass criteria set out in an April 22 Order by a court in the Northern District of Ohio mandating the immediate release or transfer of medically vulnerable inmates from FCI Elkton. Id.; see also Wilson v. Williams, No. 20-CV-794, 455 F.Supp.3d 467 (N.D. Ohio Apr. 22, 2020) (" April 22 Order"); id., Dkt. No. 35-1 at 4 ("Subclass List"). The Government opposes the Motion, as indicated in the Government's May 26, 2020 Response. Dkt. No 89 ("Response").
For the following reasons, the Court grants Defendant's Motion.
II. BACKGROUND
On October 27, 2011, this Court sentenced Bass to 151 months imprisonment after he pled guilty to one count of mail fraud and one count of attempting to evade or defeat income tax. Dkt. No. 42 at 1. Bass was delivered to FCI Elkton on January 17, 2012, Dkt. No. 47, where he has resided since. His actual release date, based on good time credit, is October 29, 2020. Find an Inmate , FEDERAL BUREAU OF PRISONS , https://www.bop.gov/inmateloc/; Dkt. No. 87 ("Letter Requesting Extension") (letter from the United States Attorney for the Northern District of New York indicating that "the government has verified that Bass's expected release date is, in fact, October 29, 2020.").
FCI Elkton has endured an outbreak of COVID-19 that has been exacerbated by features of the prison's internal architecture that inhibit social distancing. As of the date of this order, FCI Elkton reports 203 cases of COVID-19 among inmates and 7 among staff. COVID-19 Cases , FEDERAL BUREAU OF PRISONS , https://www.bop.gov/coronavirus/ (last visited May 27, 2020). Seventy-six inmates and 46 staff members have previously been infected and since recovered. Id. Nine inmates have so far died. Id. Moreover, "the prison's dorm-style design guarantees that inmates remain in close proximity to one another." 455 F.Supp.3d at 471 (internal quotation marks omitted).
On April 3, 2020, the Attorney General released a memorandum recognizing a "significant level[ ] of infection" at FCI Elkton and recommending "immediately" transferring "vulnerable inmates" to home confinement. Memorandum from Attorney General William Barr to Director of Bureau of Prisons, The Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020) ("April 3 Memo").
On April 13, 2020, a class of inmates at FCI Elkton filed an action pursuant to 28 U.S.C. § 2241 seeking relief from detention under conditions that allegedly violate their Eighth Amendment rights. Wilson, No. 20-CV-794, Dkt. No. 1 at 3. On April 22, the court in Wilson granted a preliminary injunction to a subclass of medically vulnerable inmates, mandating that inmates in that subclass be immediately transferred out of FCI Elkton. See Wilson, 455 F.Supp.3d 467, 475-76, 480-81. The court defined the subclass as follows:
[A]ll Elkton inmates 65 years or older and those with documented, pre-existing medical conditions, including heart, lung, kidney, and liver conditions, diabetes, conditions causing a person to be immunocompromised (including, but not limited to cancer treatment, transplants, HIV or AIDS, or the use of immune weakening medications), and severe obesity (body mass index of 40 or higher).
Id. at 476, at *6. This definition tracks the Centers for Disease Control guidelines indicating what age and health conditions place an individual at risk of severe illness from COVID-19. Id. at 476n.50, at *6 n.50. The court provided BOP with a non-exclusive list of options for transferring inmates on the Subclass List out of FCI Elkton: (1) compassionate release; (2) parole or community supervision; (3) transfer furlough; and (4) non-transfer furlough. Id. at 480-81, at *10. The court ordered the Bureau of Prisons ("BOP") to submit a list of inmates who met the subclass definition within one day of the April 22 Order, and to transfer all inmates on that list out of FCI Elkton no later than 14 days after that order was issued. Id.
See 28 C.F.R. § 570.32(a) ("A furlough for the purpose of transferring an inmate from one Bureau facility to another, a non-federal facility, or community confinement (including home confinement)[.]").
See 28 C.F.R. § 570.32(b) ("A furlough for any purpose other than a transfer furlough, and which may be defined based on its nature, as either emergency or routine[.]").
On April 30, 2020, BOP submitted the Subclass List, which included 837 inmates at FCI Elkton. Wilson, No. 20-CV-794, Dkt. Nos. 35-1; 49 at 1. Bass is on this list. Wilson, Dkt. No. 35-1 at 4.
Bass maintains that, at some time in late April, he "along with several other inmates were corralled and placed in quarantine ... [and] told they were being released to home confinement after 14 days." Mot. at 6. Nevertheless, "after spending 14 days in quarantine, prison officials, without explanation, told them all they would not be released," and then returned Bass and the others to the general population. Id.
Bass states that on May 4, he filed an administrative application for compassionate release. Mot. at 17. The Warden denied this application on May 8. Id. at Ex. 2 ("Denial Letter").
The Court notes that the parties have not provided documentation establishing the date on which Bass submitted his administrative compassionate release application.
On May 19, 2020, the Wilson court granted a motion by the plaintiffs to enforce the April 22 preliminary injunction and ordered BOP to take steps to comply with the preliminary injunction. Dkt. No. 85 ("May 19 Order"). In the May 19 Order, the court found that BOP was still largely out of compliance with the April 22 Order:
As of May 8, 2020, five subclass members were pending home confinement community placement. Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction. Such results do not comply with this Court's previous Order.
Id. at 4 (internal quotation marks and alterations omitted). In responses to the May 19 Order, the Government did not indicate that it has released or transferred any inmates since May 8. Wilson, Dkt. Nos. 89, 91.
On May 21, Bass filed the Motion that is the subject of this order. In the Motion, he states that he is 63 years old. Mot. at 2. He asserts that he has hypertension and previously endured a mild heart attack and a stroke. Id. He has not submitted medical records. As indicated in an affidavit by an investigator employed by the Office of the Federal Public Defender, Bass's attorney has attempted to obtain Defendant's medical records from FCI Elkton but has been unable to reach them by e-mail or phone after several attempts. Mot. Ex. 1. The Government has indicated that it also has been unsuccessful in obtaining Defendant's medical records. Response at 5. Defendant's Pre-Sentence Investigation Report ("PSIR") from 2011 confirms that he reported suffering a mild heart attack in 1991 and a mild stroke in 2009 but does not mention hypertension. PSIR ¶ 45.
Bass is still detained at FCI Elkton.
III. LEGAL STANDARD
As amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), 18 U.S.C. § 3582(c)(1)(A) authorizes courts to modify terms of imprisonment:
[U]pon motion of the Director of the Bureau of Prisons [BOP], or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier,
after considering the factors set forth in [ 18 U.S.C. § 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 ....
Section 1B1.13 of the United States Sentencing Guidelines contains the only policy statement issued by the Sentencing Commission pertaining to compassionate release. This policy statement, which has not been amended since the passage of the First Step Act, states, in relevant part:
Upon motion of the Director of the [BOP] under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that—
(1) (A) extraordinary and compelling reasons warrant the reduction;
...
(2) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g) ;
and (3) the reduction is consistent with this policy statement.
§ 1B1.13.
Section 1B1.13 provides that extraordinary and compelling reasons exist in the following situations:
(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process,
that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
(B) Age of the defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.—
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons.—As determined by the Director of the [BOP], there exists in the defendant's case an extraordinary and compelling reason other than, or in
combination with, the reasons described in subdivisions (A) through (C).
§ 1B1.13 cmt. n.1.
IV. DISCUSSION
A. Exhaustion
As indicated above, the Court must first determine whether Bass has exhausted his administrative remedies as required to pursue his Motion, or, if not, whether the Court may waive the exhaustion requirements in this case.
Bass states that on May 4, he submitted a request to BOP for a sentence reduction under § 3582(c)(1)(A) based on concerns about his underlying health conditions in light of their interaction with COVID-19. See Mot. at 17; Ex. 2. The Warden denied this request on May 8. Id. Because it does not appear that Bass has completed available administrative appeals, and because 30 days have not passed since May 4, Bass has not exhausted his administrative remedies. For the reasons stated below, the Court waives the exhaustion requirement.
The parties have not documented the date of submission. For purposes of this order, since Defendant does not maintain otherwise, the Court assumes that 30 days have not passed since the date of submission.
The Court recognizes that several of its sister courts have ruled that § 3582 ’s exhaustion requirement cannot be excused due to the exigencies of the COVID-19 pandemic. See, e.g., United States v. Roberts, No. 18-CR-528, ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 1700032, at *2–5 (S.D.N.Y. Apr. 8, 2020) ; United States v. Pereyra-Polanco, No. 19-CR-10, 2020 WL 1862639, at *1 (S.D.N.Y. Apr. 14, 2020) ; United States v. Hernandez, No. 18-CR-834, 2020 WL 1445851, at *1 (S.D.N.Y. Mar. 25, 2020). However, numerous other courts have determined that the exhaustion requirement is excusable under certain circumstances. See United States v. Colvin, No.19-CR-179, 451 F.Supp.3d 237, 239-40 (D. Conn. Apr. 2, 2020) ; United States v. Perez, 17-CR-513, 451 F.Supp.3d 288, 290-91 (S.D.N.Y. Apr. 1, 2020) ; United States v. Zukerman, No. 16-CR-194, 451 F.Supp.3d 329, 332-33 (S.D.N.Y. Apr. 3, 2020).
As it did in its previous compassionate release decisions, the Court "joins others in this Circuit" that have found that the exhaustion requirement is excusable. See United States v. Rountree, No. 12-CR-308, 460 F.Supp.3d 224, 232-33 (N.D.N.Y. May 18, 2020) (Kahn, J.); United States v. Logan, No. 12-CR-307, Dkt. No. 140, at 6 (N.D.N.Y. April 22, 2020) (Kahn, J.); United States v. Salvagno, No. 02-CR-51, Dkt. No. 1166, at 7 (N.D.N.Y. April 23, 2020) (Kahn, J.).
As an initial matter, the Court agrees with its peers who have determined that § 3582 ’s exhaustion requirement is a claims-processing rule, rather than a jurisdictional requirement. A rule qualifies as jurisdictional only if "Congress has clearly stated that the rule is jurisdictional." Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013). But § 3582 "does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [federal] courts." United States v. Haney, No. 19-CR-541, 454 F.Supp.3d 316, 320 (S.D.N.Y. Apr. 13, 2020) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ). Moreover, the provision is "not part of a jurisdictional portion of the criminal code but part of the chapter dealing generally with sentences of imprisonment." Id. (quoting United States v. Taylor, 778 F.3d 667, 671 (7th Cir. 2015) ). Rather, the exhaustion requirement "seek[s] to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." United States v. Scparta, No. 18-CR-578, ––– F.Supp.3d ––––, ––––, 2020 WL 1910481, at *4 (S.D.N.Y. Apr. 20, 2020) (quoting Henderson v. Shinseki, 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ). It governs the process by which a compassionate release claim may be brought, by specifying who may bring such claim, and when. See id. For these reasons, the rule is not jurisdictional in nature. See United States v. McIndoo, No. 15-CR-142, ––– F.Supp.3d ––––, ––––, 2020 WL 2201970, at *6 (W.D.N.Y. May 6, 2020) ("[ Section] 3582(c)(1)(A) ’s exhaustion requirement is a claim-processing rule, not a jurisdictional prerequisite."); United States v. Gentille, No. 19-CR-590, 2020 WL 1814158, at *3 (S.D.N.Y. Apr. 9, 2020) (same).
Although § 3582 ’s exhaustion requirement is not jurisdictional, whether the Court can excuse a defendant's failure to comply with this statutory requirement is a separate question, one the Court answers in the affirmative. "Even where," as here, "exhaustion is seemingly mandated by statute ... the requirement is not absolute." Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019). "Congressional intent is ‘paramount’ to any determination of whether exhaustion is mandatory." See United States v. Haney, No. 19-CR-541, 454 F.Supp.3d 316, 320 (S.D.N.Y. Apr. 13, 2020) (quoting McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) ). In amending § 3582(c)(1)(A) via the First Step Act, Congress sought to "expand compassionate release" and "expedite[ ] compassionate release applications." 164 Cong. Rec. S7314-02, 2018 WL 6350790 (Dec. 5, 2018); see also Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm'n (2016) (statement of Michael E. Horowitz, Inspector General, Department of Justice) ("The First Step Act—and the critical 30-day lapse route it provided [in § 3582(c)(1)(A) ’s exhaustion requirement]—directly responded to a compassionate-release system so plagued by delay that prisoners sometimes died while waiting for the BOP to make a decision."). These concerns are reflected in the statute, which instructs courts to consider whether any of a variety of exigent circumstances constitute "extraordinary and compelling reasons" that merit release. See United States v. Soto, No. 18-CR-10086, ––– F.Supp.3d ––––, ––––, 2020 WL 1905323, at *5 (D. Mass. Apr. 17, 2020) (citing 18 U.S.C. § 3582(c)(1)(A)(i) ; U.S.S.G. § 1B1.13 cmt. n.1). It is thus evident from the context of enactment and the text itself that "Congress necessarily recognized that time is of the essence for determining whether compassionate release is appropriate." Id.; see also United States v. Russo, No. 16-CR-441, 454 F.Supp.3d 270, 271 (S.D.N.Y. Apr. 14, 2020) (noting that the 30-day rule was intended "as an accelerant to judicial review").
Prisons are "powder kegs for infection" and have allowed "the COVID-19 virus [to] spread[ ] with uncommon and frightening speed." United States v. Skelos, No. 15-CR-317, 2020 WL 1847558, at *1 (S.D.N.Y. Apr. 12, 2020) ; see also An Ohio prison is now the largest source of virus infections in the country , THE N.Y. TIMES (Apr. 20, 2020), https://www.nytimes.com/2020/04/20/us/coronavirus-live-news.html#link-52cdb996 (noting that "four of the 10 largest-known sources of infection in the United States were correctional facilities"). In light of the dangers posed by the prison environment, the need to expedite consideration of requests for compassionate release premised on potential exposure to COVID-19 takes on even new urgency. See Haney, 454 F.Supp.3d at 321 (noting that "under present circumstances, each day a[n] [inmate] must wait before presenting what could otherwise be a meritorious petition threatens him with a greater risk of infection and worse"). Hence, the Court concludes that Congressional objectives underlying the First Step Act not only permit, but compel, courts to waive § 3582(c)(1)(A) ’s exhaustion requirement in the face of the pandemic. See id. (concluding that "Congressional intent not only permits judicial waiver of the 30-day exhaustion period, but also, in the current extreme circumstances, actually favors such waiver, allowing courts to deal with the emergency before it is potentially too late."); Russo, 454 F.Supp.3d at 277 ("It would ... certainly [be] inconsistent with congressional intent[ ] for the thirty days to serve as a substantial obstacle to effective judicial relief.").
BOP's response to the COVID-19 threat underscores this conclusion. Alarmingly, and despite the demonstrated danger COVID-19 poses in the prison environment, "[i]t does not appear that the BOP has updated [its] regulations [governing compassionate release requests] since the First Step Act was passed, let alone made any attempt to suspend them or otherwise accelerate the process during the pandemic." Martinez-Brooks v. Easter, No. 20-CV-569, 2020 WL 2405350, at *25 (D. Conn. May 12, 2020). As a result, if BOP responds at all to an inmate's initial compassionate release request—itself no guarantee, cf. id. (describing how, in at least one federal prison, the prison administration had "not made even an initial response to some 44% of compassionate release requests")—it is virtually impossible for the inmate to appeal a denial through the multiple stages of review required by BOP regulations within 30 days. Under the circumstances, where "Congress understood that some requests for relief may be too urgent to wait for the BOP's process," Soto, 454 F.Supp.3d 310, 314-15, "judicial waiver [of the exhaustion requirement] is permissible in light of the extraordinary threat certain inmates face from COVID-19," see United States v. Smith, No. 12-CR-133, ––– F.Supp.3d ––––, ––––, 2020 WL 1849748, at *4 (S.D.N.Y. Apr. 13, 2020). The Government relies on Ross v. Blake, ––– U.S. ––––, 136 S. Ct. 1850, 195 L.Ed.2d 117 (2016) in arguing that Congressional intent does not permit the Court to waive the exhaustion requirement in § 3582(c)(1)(A). But Ross concerns the substantially different statutory exhaustion requirement in a different statute, the Prison Litigation Reform Act (PLRA), and is thus not applicable here. Under the PLRA, a prisoner cannot proceed to court until she has exhausted administrative remedies. Soto, ––– F.Supp.3d at ––––, 2020 WL 1905323, at *5. "The intent of this ‘strengthened’ PLRA exhaustion requirement is to 1) give an agency an opportunity to ‘correct its own mistakes with respect to the programs it administers before it is haled into federal court’ and 2) promote efficiency so that some cases can be resolved quickly and efficiently administratively before proceeding to court." Id. (quoting Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) ).
The Martinez-Brooks court summarized those regulations:
"[A]n initial response from the Warden-when it arrives-is only the first step in a multi-tiered administrative remedy process the inmate must follow to ‘fully exhaust[ ]’ administrative remedies. That process requires each inmate to appeal the denial by the Warden to a BOP Regional Director, followed by an appeal to the BOP General Counsel. For each level of appeal, the inmate must use a different form and mail it to a different reviewing official. Even if the inmate's request to the Warden is approved ... that approval must go through at least three more layers of review involving the BOP General Counsel, the Medical Director or an Assistant Director, and, finally, the Director."
Martinez-Brooks, 2020 WL 2405350, at *25 (internal citations and quotation marks omitted).
As the court in Martinez-Brooks also noted, BOP also has not updated the substantive criteria it uses to evaluate compassionate release requests since January 2019. See 2020 WL 2405350, at *12, 25. The health-related criteria BOP employs "make[ ] no mention of COVID-19 or the risk posed by infectious diseases inside prisons in general, and restrict[ ] use of ‘compassionate release’ authority to a few, extreme situations that have little to do with susceptibility to COVID-19." Id. at *25. The Government described these criteria in a filing in Wilson: "Pursuant to BOP policy, having an underlying medical condition that puts you at higher risk for serious complications from COVID-19 according to the CDC does not automatically qualify the inmate to have BOP recommend compassionate release. Rather, the requirements for compassionate release are set forth in BOP Program Statement 5050.50 and 28 C.F.R. §§ 571.60 -.64." See Wilson, Dkt. No. 89 at 3. Under these regulatory provisions, an inmate's medical condition must be "terminal" or "debilitating," or be a condition related to the aging process that causes irreversible deterioration to the inmate's mental and physical health. See id. at 3–4.
Despite the fact that in amending § 3582(c)(1)(A) via the First Step Act, Congress sought to "expand compassionate release." 164 Cong. Rec. S7314-02, 2018 WL 6350790 (Dec. 5, 2018), BOP's regulations appear to place administrative relief out of reach for the vast majority of inmates faced with an imminent risk of severe illness from COVID-19. See Wilson, Dkt. No. 26-4 at 4 (noting that of 243 medically vulnerable inmates who have submitted a request for compassionate release to the warden at FCI Elkton, "[o]nly one inmate ... met the criteria for compassionate release."); Martinez-Brooks, 2020 WL 2405350, at *25 (noting that "FCI Danbury staff has, to date, not granted a single request for compassionate release."). That these regulations contradict Congressional intent is arguable another basis for waiving the exhaustion requirement.
The obsolete nature of these regulatory criteria might explain the curious fact that the warden denied Bass's compassionate release application, solely on the basis that his health conditions do not qualify him for release, a mere week after including Bass in the Subclass List, which tracks the CDC's list of risk factors for severe illness from COVID-19. See Subclass List at 4; Wilson, 455 F.Supp.3d at 476 n.50 ; Denial Letter ("Health Services staff have reviewed your medical records and determined you do not meet the criteria for a compassionate release/reduction in sentence at this time.").
The exhaustion requirement in § 3582, by contrast, does not serve either of these policy goals to the same extent. The apparent primary purpose of exhaustion under § 3582 is simply to determine whether an inmate will have the assistance of BOP in bringing her request to court. Id. The 30-day waiting period does not obviate the need for judicial intervention, to which the inmate is entitled regardless of BOP's determination. Id. And the statute permits the inmate to proceed to court even if the BOP neglects to act, which indicates Congressional recognition that the value of urgent resolution can outweigh the value of judicial economy served by administrative resolution. Id.
Waiver of exhaustion is justified in this case by the extreme urgency of this request. By BOP's own determination, and, as discussed below, by the Court's independent review of the health conditions reported in the PSIR, Bass is vulnerable to a severe case of COVID-19. Courts have found that such a risk, when combined with high-risk prison circumstances, justifies waiver of the exhaustion requirement. See, e.g., United States v. Coles, No. 00-CR-20051, 2020 WL 1976296, at *5 (C.D. Ill. Apr. 24, 2020) (waiving the exhaustion requirement for an inmate at FCI Elkton due to dire conditions at the facility); United States v. Sawicz, No. 08-CR-287, 2020 WL 1815851, at *2 (E.D.N.Y. Apr. 10, 2020) (waiving exhaustion because, in light of the defendant's hypertension and circumstances at FCI Danbury, a facility named in the Attorney General's April 3 memo, "[t]he delay that the defendant would experience if he had to wait for thirty days to expire before pursuing a motion for compassionate release in this court would put him at significant risk of suffering catastrophic health consequences") (internal citations omitted); Zukerman, 451 F.Supp.3d at 332-33 (waiving exhaustion where defendant was elderly, obese, had diabetes and high blood pressure, and was incarcerated in FCI Otisville, where the internal architecture inhibits social distancing); Scparta, ––– F.Supp.3d at ––––, 2020 WL 1910481, at *9 (waiving exhaustion for a 55-year-old inmate due to his hypertension and an outbreak at FCI Butner that made the prison "a national leader in documented cases of COVID-19" at that time).
Apart from these considerations, the Court notes the problematic result of requiring Bass to wait as long as a week for the 30-day exhaustion period to run when BOP is already violating the April 22 Order by failing to release Bass within 14 days of that order—roughly three weeks ago. To the extent that BOP were to elect to use the compassionate release process in Bass's case as the vehicle for complying with the April 22 Order, it would violate that order for BOP to require any further delay in the administrative compassionate release process.
As discussed, the Wilson court provided BOP with alternatives to compassionate release as a means for removing medically vulnerable inmates from FCI Elkton, including transfer to a different federal facility or release to home confinement. 455 F.Supp.3d at 480-81. But compassionate release is the only type of relief among those options that the Court has the authority to grant. The Court does not have the authority, for instance, to compel BOP to transfer Bass to another facility or to home confinement for the remainder of his sentence. See, e.g., United States v. Kanagbou, 726 F. App'x 21, 25 (2d Cir. 2018) ("[I]t is well established that the district court does not control how the Executive Branch carries out a defendant's sentence."); United States v. McCarthy, No. 17-CR-230, 453 F.Supp.3d 520, 522 n.1, 2020 WL 1698732, at *1 n.1 (D. Conn. Apr. 8, 2020) (denying defendant's request, offered as an alternative to compassionate release based on COVID-19-related concerns, that the court designate a halfway house where the defendant could serve the remainder of his sentence, because "[t]he court has no authority to direct the BOP as to how McCarthy's sentence is carried out"); see also Response at 17–18.
B. Extraordinary and Compelling Reasons
Bass has established an "extraordinary and compelling reason" justifying release under § 3582(c)(1)(A) and U.S.S.G. § 1B1.13, based on his health conditions and dire circumstances at FCI Elkton. Even disregarding BOP's determination on April 30 that Bass is a medically vulnerable inmate who qualifies for the Subclass List, the Court would find based on its own review of Defendant's age and health conditions reported in the PSIR that he is at risk of severe illness should he contract the virus. For instance, strokes have been linked to severe illness from COVID-19. See, e.g., United States v. Jenkins, No. 99-CR-439, 460 F.Supp.3d 1121, 1129 (D. Colo. May 8, 2020) (noting that "according to preliminary CDC data, individuals with neurologic disorders such as stroke and migraine are more likely to require hospitalization after contracting COVID-19.") (citing CDC COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 - United States, February 12-March 28, 2020 , 69 Morbidity & Mortality Weekly Rep. 382, 384 (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm); Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease , CENTERS FOR DISEASE CONTROL AND PREVENTION , https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last accessed May 27, 2020) ("Heart disease, hypertension, prior stroke , diabetes, chronic lung disease, and chronic kidney disease have all been associated with increased illness severity and adverse outcomes.") (emphasis added); Thomas J. Oxley, et al., Large-Vessel Stroke as a Presenting Feature of Covid-19 in the Young, NEJM.org (April 28, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2009787?amp/=(noting that "data from the Covid-19 outbreak in Wuhan, China, showed that the incidence of stroke among hospitalized patients with Covid-19 was approximately 5%" and suggesting that even young victims of COVID-19 may be vulnerable to strokes ). Additionally, at age 63, Bass likely faces a heightened risk of a severe illness from COVID-19. See COVIDView, CDC, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html (last visited May 27, 2020) (finding the cumulative hospitalization rate since March 1 for adults aged 50 to 64 years to be 105.9 per 100,000 while the overall cumulative rate is 67.9 per 100,000).
Moreover, the COVID-19 outbreak at FCI Elkton, in combination with the special difficulty of social distancing in FCI Elkton's dorm-style environment, weighs heavily in the Court's analysis. As noted, several courts have found an "extraordinary and compelling reason" supporting release on the basis of a combination of dire prison conditions and underlying health conditions that increase the likelihood of severe illness from COVID-19. See, e.g., United States v. Rodriguez, No. 03-CR-271, 451 F.Supp.3d 392, 393-94, 400-01 (E.D. Pa. Apr. 1, 2020) (finding an "extraordinary and compelling reason" on the basis of the inmate's diabetes, high blood pressure, and liver abnormalities, the outbreak at FCI Elkton, and the short period remaining on his sentence); Sawicz, 2020 WL 1815851, at *2 (finding an "extraordinary and compelling reason" on the basis of the inmate's hypertension and conditions at FCI Danbury); United States v. Foreman, No. 19-CR-62, 2020 WL 2315908, at *2–4 (D. Conn. May 11, 2020) (finding an "extraordinary and compelling reason" on the basis of the inmate's hypertension and age of 58, in combination with conditions at FCI Danbury); Scparta, ––– F.Supp.3d at ––––, ––––, 2020 WL 1910481, at *2, 9 (finding an "extraordinary and compelling reason" on the basis of the inmate's hypertension, age of 55, and conditions at FCI Butner, which had 60 infected inmates); United States v. Soto, No. 18-CR-10086, 2020 WL 2104787, at *2 (D. Mass. May 1, 2020) (finding an "extraordinary and compelling reason" on the basis of the inmate's hypertension and the presence of 27 reported inmate cases in his facility); United States v. Pena, No. 15-CR-551, 2020 WL 2301199, at *3, 4 (S.D.N.Y. May 8, 2020) (finding an "extraordinary and compelling reason" on the basis of the inmate's hypertension and hyperlipidemia and the presence of 43 confirmed cases at "the most heavily populated BOP facility"); United States v. Campagna, No. 16-CR-78, ––– F.Supp.3d ––––, ––––, 2020 WL 1489829, at *1 (S.D.N.Y. Mar. 27, 2020) (finding an "extraordinary and compelling reason" on the basis of the inmate's immunocompromization and the nature of the facility, in which "the residents—some of whom, including Defendant, work off-site on week days and stay with their families on weekends—cycle in and out of the facilities from all over the district, and staff at the facilities leave and return daily, without screening"); see also Jenkins, 460 F.Supp.3d 1121, 1128-29 (finding an "extraordinary and compelling reason" on the basis of the inmate's obesity and history of strokes in a facility with one reported case); United States v. Kelly, No. 13-CR-59, 2020 WL 2104241, at *7-8, 10 (S.D. Miss. May 1, 2020) (finding an "extraordinary and compelling reason" solely on the basis of conditions at the low-security facility BOP facility in Oakdale, also named in the April 3 Memo, despite the inmate's young age and lack of any other risk factors for severe illness).
The Government has not addressed conditions at FCI Elkton. See generally Response.
Bass's circumstances alternatively could qualify as an "extraordinary and compelling reason" either under U.S.S.G. § 1B1.13, cmt. n.1(A)(ii)(I) ("suffering from a serious physical ... condition ... that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover."), see, e.g., Soto, 2020 WL 2104787, at *2 ("Hypertension is a condition that substantially diminishes Guzman Soto's ability to provide self-care in the prison environment as the condition lowers his immune response to effectively fight the coronavirus"); Pena, 2020 WL 2301199, at *4, or under the "catchall" provision at § 1B1.13, cmt. n.1(D) ("As determined by the Director of the [BOP], there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)."), see, e.g., United States v. Resnick, No. 14-CR-810, 451 F.Supp.3d 262, 269-70 (S.D.N.Y. Apr. 2, 2020) ("Resnick's high susceptibility to COVID-19 falls within the purview of this catchall."); Logan, Dkt. No. 140, at 8 ("§ 1B1.13 ’s catchall provision ... covers the high risk of contracting a life-threatening case of COVID-19."); see also United States v. Brown, 411 F. Supp. 3d 446, 451 (S.D. Iowa 2019) (finding that "the most natural reading of the amended § 3582(c) ... is that the district court assumes the same discretion as the BOP Director when it considers a compassionate release motion properly before it.").
C. Section 3142(g) Factors
Section 1B1.13 of the United States Sentencing Guidelines provides that a sentence should be reduced only if releasing the inmate will not pose a danger to the safety of others or the community. § 1B1.13(2) (citing 18 U.S.C. § 3142(g) ).
Section 3142(g) sets out various factors that help courts assess whether releasing an inmate will pose a danger to others and the community, including (1) "the nature and circumstances of the offense charged;" (2) "the history and characteristics of the person," including "the person's character, physical and mental condition, family ties, ... community ties, past conduct, history relating to drug or alcohol abuse, [and] criminal history;" and (3) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." § 3142(g).
As to the first factor, while Defendant's crimes were serious, as reflected by his 12.5-year sentence, they did not involve any violence. See, e.g., Sawicz, 2020 WL 1815851, at *3 (finding that "the defendant d[id] not pose ... a danger to the public" in part because "neither the violation on which the defendant is currently serving his prison sentence nor the conduct involved in the underlying crime involved violence"); Rodriguez, 451 F.Supp.3d at 405-06 (noting that "[w]hile [the denfendant's] history is serious," he does not pose a danger to the community, because "[n]othing in his record suggests that he has been violent."). Bass also appears to have a mostly clean disciplinary record from his time in prison. As of November 14, 2019, aside from one instance of "being absent from assignment" in 2017, he has not committed any infractions. See Mot. Ex. 3. The Government does not indicate that he has committed any infractions since November 14, 2019. See generally Response. That he has largely followed the rules while incarcerated suggests that he will do so once released, which minimizes the danger he poses to the community. See United States v. Marks, No. 03-CR-6033, 455 F.Supp.3d 17, 36-37 (W.D.N.Y. Apr. 20, 2020) ("[G]iven Marks's clean disciplinary record for many years past, and his demonstrably successful efforts at rehabilitation, I conclude that upon release, he will not pose a danger to the community.").
Regarding the second factor, the 2011 PSIR reflects that there were pending charges against Bass from 2006 brought by German authorities for non-violent offenses sounding in fraud in connection with the sale of automobiles and automobile repair services. PSIR ¶ 41. Due to these pending charges, in 2007, Bass was detained by U.S. Immigration and Customs Enforcement Agents on authority of Interpol while he was crossing the border from Canada. Id. ¶ 42. He was released the same day, as German authorities showed no interest in extradition. Id. In light of the non-violent nature of these charges, the German authorities’ evident lack of interest in pursuing them, and the absence of any further criminal history, the Court does not view the 2006 charges as providing a strong basis on their own for concluding that Bass will pose a danger to the community if released.
Moreover, the Defendant's advanced age makes further criminal activity unlikely. See Mot. at 22 (citing United States Sentencing Commission, The Effects of Aging on Recidivism Among Federal Offenders (Dec. 2017), https://www.ussc.gov/research/research-reports/effects-aging-recidivism-among-federal-offenders.
Accordingly, the Court finds that Bass will not pose a risk to others or the community if released.
D. Section § 3553(a) Factors
Finally, "the Court must ‘consider[ ] the [sentencing] factors set forth in [S]ection 3553(a) to the extent that they are applicable.’ " Rodriguez, 451 F.Supp.3d at 405-06 (quoting § 3582(c)(1)(A) ). Under § 3553(a), the Court must consider what is "sufficient, but not greater than necessary, to comply with the purposes of [sentencing]." § 3553(a). Relevant factors include:
1. The nature and circumstances of the offense and history and characteristics of the defendant, see § 3553(a)(1) ;
2. The need for the sentence to reflect the seriousness of the offenses, promote respect for the law, and provide just punishment for the defendant's crimes;
3. The need for the sentence to afford adequate deterrence to comparable criminal conduct, see § 3553(a)(2)(B) ;
4. The need for the sentence to protect the public from further crimes by the defendant, see § 3553(a)(2)(C) ; and
5. The need to avoid unwarranted sentence disparities among similarly situated defendants, see § 3553(a)(6).
The non-violent nature of Defendant's the offenses, his minimal criminal history, and his nearly clean disciplinary record, all detailed above, weigh in favor of release under the first factor. See § 3553(a)(1). Moreover, concerning the fourth factor, as discussed, Defendant's advanced age makes recidivism unlikely.
As to the second, third, and fifth factors, the Court notes that Bass has served nearly 70% of his initial sentence, and nearly 95% of his actual sentence based on good time credit. Find an Inmate , FEDERAL BUREAU OF PRISONS , https://www.bop.gov/inmateloc/; Letter Requesting Extension. With only 5 months left, concerns that he must serve his full sentence to ensure respect for the law, effect general deterrence, and prevent sentence disparities are mitigated. The Court took these considerations into account at sentencing and does not find that this relatively insignificant difference in time from what was initially calculated has substantial implications under § 3553 analysis. See United States v. Levy, No. 16-CR-270, 2020 WL 2393837, at *7 (E.D.N.Y. May 12, 2020) (noting in releasing an inmate with eight months remaining on a 41-month sentence that "[i]n light of the grave risk that COVID-19 poses to Levy's health, a term of imprisonment that is just eight months shy of Levy's full, actual term is sufficient" to comply with the purposes of sentencing under § 3553 ); Rodriguez, 451 F.Supp.3d at 406-07 ("Because Mr. Rodriguez has served the vast majority of his mandatory minimum sentence and is a year and a half away from release, granting his motion sufficiently minimizes sentence disparities between him and similarly situated defendants."). Moreover, the Court must balance the implications of subtracting five months from Defendant's sentence with the imminent threat to Defendant's health posed by COVID-19 at FCI Elkton. In light of that threat, denying this compassionate release request would impose a sentence "greater than necessary to comply with the statutory purposes of punishment," see § 3553(a), as that sentence might include serious illness or death from COVID-19. See Levy, 2020 WL 2393837, at *7 ("To require him to remain in detention for eight more months, when there is a real chance that he could develop a severe illness because a pandemic has emerged and conditions of confinement place him at risk given his medical history, would be to require a sentence that is greater than necessary to achieve the purposes of sentencing."); See also Rodriguez, 451 F.Supp.3d at 407-08.
Accordingly, Bass's release is consistent with the relevant § 3553(a) factors.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED , that Defendant's Motion (Dkt. No. 84) is GRANTED ; and it is further
ORDERED , that Defendant's term of imprisonment is reduced to time served; and it is further
ORDERED , that Defendant be released immediately; and it is further
ORDERED , that Defendant comply with the terms of supervised release previously ordered by the Court; and it is further
ORDERED , that Defendant, upon release, remain in home quarantine for a period of at least fourteen days ; and it is further
ORDERED , that the Clerk shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.