Opinion
No. 18-CR-2068-CJW-MAR
2020-06-18
UNITED STATES of America, Plaintiff, v. Treysean Adair BURNSIDE, Defendant.
Patrick J. Reinert, US Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Patrick J. Reinert, US Attorney's Office, Cedar Rapids, IA, for Plaintiff.
MEMORANDUM OPINION AND ORDER
C.J. Williams, United States District Judge
I. INTRODUCTION
This matter is before the Court on defendant's Motion for Compassionate Release filed on May 15, 2020. (Docs. 44 & 45). After receiving an extension of time, the government timely filed its resistance on May 25, 2020. (Doc. 48). On June 1, 2020, defendant timely filed a reply. (Doc. 52). Oral argument was not requested and is not necessary. See LR 7(c). For the following reasons, the Court grants defendant's motion.
II. RELEVANT BACKGROUND
On July 5, 2018, defendant applied for a permit to carry weapons, indicating on the form that he was not an unlawful user of any controlled substance. (Doc. 23, at 4). On July 22, 2018, police responded to a report of shots fired near defendant's residence. (Id. ). Officers questioned defendant after observing seven spent shell casings on his porch. (Id. ). Defendant, after telling a few different versions of the story, eventually told officers what transpired. (Id. , at 4–5). Defendant recently used cocaine and had six drinks at a local bar before getting into an argument with another person over a counterfeit $100 bill. (Id. , at 5). Defendant went home and received a suspicious call asking for his location. (Id. ). Defendant retrieved his gun and waited on his porch, assuming someone was coming to harm him. (Id. ). Shortly thereafter, a vehicle drove by defendant's residence and fired one shot and defendant returned fire, shooting at the vehicle six or seven times. (Id. ). Officers later learned that one bullet went into a nearby residence and pierced a coat hanging in a closet. (Id. ). Defendant allowed officers to search his home and officers retrieved the firearm and some Xanax bars. (Id. , at 4). Defendant's urine was also seized and tested positive for benzodiazepines and cocaine. (Id. ). Defendant also admitted he frequently used marijuana. (Id. ).
On August 2, 2018, following his contact with officers, defendant posted photos of himself online firing two guns at a shooting range. (Id. , at 5). On August 4, 2018, defendant posted a large bag of apparent marijuana on social media with the caption "Shop, Shop." (Id. ). On August 23, 2018, defendant posted a photo of himself holding a firearm with the caption "New Pickup." (Id. ). On September 17, 2018, defendant's downstairs neighbor told officers that, in July of that year, defendant had accidentally fired a bullet through his floor and into the neighbor's apartment. (Id. ). On October 26, 2018, defendant posted a video of himself holding a firearm at an indoor gun range. (Id. ). On November 16, 2018, officers executed a search warrant at defendant's second residence in Des Moines, Iowa and recovered a pistol. (Id. , at 6).
On November 27, 2018, a grand jury issued an Indictment charging defendant with possession of a firearm by a drug user in violation of Title 18, United States Code, Section 922(g)(3). (Doc. 2). On November 28, 2018, defendant appeared before the Honorable Mark A. Roberts, United States Magistrate Judge, pleaded not guilty, and was released pending trial. (Doc. 6). On January 14, 2019, defendant changed his plea to guilty pursuant to a plea agreement with the government. (Docs. 15 & 16). On January 31, 2019, the Court accepted defendant's plea. (Doc. 19).
On April 22, 2019, the United States Probation Officer ("USPO") filed defendant's final presentence investigation report ("PSR"). (Doc. 23). The PSR revealed defendant is a mixed race, both black and white, male who was, at that time, 23 years old. (Id. , at 1). Defendant had some college education, was currently enrolled in barber school, had one dependent child of whom he shared custody, and was both born and currently residing in Iowa. (Id. , at 1, 9, 11). Defendant was primarily raised by his mother and had strong familial ties in Iowa. (Id. , at 9). Defendant's criminal history was minimal, containing only three convictions: (1) criminal mischief in the fifth degree at age 20 for kicking and causing minor damage to a taxi; (2) disorderly conduct at age 21 for engaging in a physical altercation; and (3) public intoxication at age 22. (Id. , at 8). Defendant's work history was somewhat consistent but episodic. (Id. , at 12).
Defendant's health and medical conditions were notable in the PSR. Defendant had been diagnosed with, among other things, asthma, obesity, spinal stenosis, sleep apnea, prediabetes, hypertension, and vitamin D deficiency. (Id. , at 10). At that time, defendant was 5’11" and 310 lbs. (Id. , at 1). Defendant suffered from "significant back problems" which required four back surgeries. (Id. , at 10). Regarding mental health, defendant had been diagnosed with attention deficit disorder, depression, and anxiety. (Id. , at 10–11). Regarding substance abuse, defendant reported normal use of alcohol, long and significant use of marijuana, and a one-time use of cocaine near the time of his offense. (Id. , at 11). Defendant successfully completed outpatient treatment. (Id. ).
On May 31, 2019, the Court sentenced defendant. (Doc. 33). The Court determined defendant was in criminal history category I, had a total offense level of 17, and thus calculated an advisory guideline range of imprisonment of 24 to 30 months followed by one to three years on supervised release. (Doc. 23 & 23-1, at 1). Defendant moved for a downward variance based on his "numerous serious medical conditions," his minimal criminal history, positive performance on pretrial release, responsibilities as a father, enrollment in barber school, and cooperation with law enforcement officers. (Doc. 28–1, at 2–4). The Court denied defendant's motion for downward variance and sentenced defendant to 24 months, at the bottom of the advisory guideline range, followed by three years on supervised release. (Doc. 33). Because defendant was on pretrial release pending sentencing and had no known violations, the Court granted defendant the privilege of self-surrender and set a surrender date of June 14, 2019. (Docs. 23–1, at 3 & 33). The Bureau of Prisons ("BOP") now lists defendant as residing at the correctional facility in Milan, Michigan with a projected release date of February 24, 2021.
III. COMPASSIONATE RELEASE STANDARDS
A court's ability to modify a sentence after it has been imposed is limited. Title 18, United States Code, Section 3582(c)(1)(A) allows a court to modify a sentence through "compassionate release." In the past, Section 3582(c)(1)(A) permitted a court to reduce a defendant's term of imprisonment only on a motion from the BOP. Under the First Step Act of 2018's ("FSA") recent modifications, however, a defendant may now directly petition the court for compassionate release "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." 18 U.S.C. § 3582(c)(1)(A) ; see also Pub. L. No. 115-391, § 603; United States v. Perez-Asencio , No. CR18-3611, 2019 WL 626175, at *2–3 (S.D. Cal. Feb. 14, 2019) (discussing modifications made to Section 3582(c)(1)(A) by the FSA); Mohrbacher v. Ponce , No. CV18-00513, 2019 WL 161727, at *1 (C.D. Cal. Jan. 10, 2019) (same).
The Court may only reduce the defendant's sentence, however, after considering the factors set forth in Title 18, United States Code, Section 3553(a) to the extent they are applicable, and finding that:
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed
under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the [BOP] that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
The starting point in determining what constitutes "extraordinary and compelling reasons" under Section 3582(c)(1)(A)(i) is the United States Sentencing Guidelines ("USSG") discussing compassionate release issued by the United States Sentencing Commission. See USSG § 1B1.13 ; see also United States v. Hall , No. CR98-7, 2019 WL 6829951, at *3 (E.D. Ky. Dec. 13, 2019) ; United States v. Rivernider , No. CR10-222, 2019 WL 3816671, at *2 (D. Conn. Aug. 14, 2019). The USSG Section 1B1.13 provides that extraordinary and compelling reasons exist in the following circumstances:
(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).
USSG § 1B1.13 cmt. n.1.
USSG Section 1B1.13 predates the FSA and has "not been amended to reflect that, under the [FSA], a defendant may now move for compassionate release after exhausting administrative remedies." Rivernider , 2019 WL 3816671, at *2. Courts are split on whether the policy statement is binding because it predates the FSA's changes to Section 3582(c)(1)(A). A number of district courts have concluded that USSG Section 1B1.13 does not restrain a court's assessment of whether extraordinary and compelling reasons exist to release a defendant. See, e.g., United States v. Rodriguez , 424 F.Supp.3d 674, 681–82 (N.D. Cal. 2019) ; United States v. Urkevich , No. CR03-37, 2019 WL 6037391, at *3 (D. Neb. Nov. 14, 2019) ; United States v. Brown , 411 F.Supp.3d 446, 451–52 (S.D. Iowa 2019) ; United States v. Fox , CR14-03, 2019 WL 3046086, at *3 (D. Me. July 11, 2019) ; United States v. Beck , 425 F.Supp.3d 573, 579–80 (M.D.N.C. 2019) ; United States v. Cantu , 423 F.Supp.3d 345, 351 (S.D. Tex. 2019). Other courts have concluded that extraordinary and compelling reasons exist only if they are included in the Guideline. See, e.g., United States v. Lynn , No. CR89-0072, 2019 WL 3805349, at *4 (S.D. Ala. Aug. 13, 2019).
The Court has held that, although USSG Section 1B1.13 provides helpful guidance on what constitutes extraordinary and compelling reasons, it is not conclusive given the recent statutory changes. See United States v. Schmitt , No. CR12-4076-LTS, 2020 WL 96904, at *3 (N.D. Iowa Jan. 8, 2020) ; see also Rodriguez , 424 F.Supp.3d at 682 (noting the FSA's purpose was to increase the use of compassionate release petitions by enabling defendants to petition courts directly following denial from the BOP and allowing courts to consider "the vast variety of circumstances that may constitute extraordinary and compelling.") (citations and internal quotation marks omitted).
IV. DISCUSSION
A. Exhaustion of Administrative Remedies
On April 16, 2020, defendant, through his attorney, sent a request for release to the warden at the Milan BOP facility. On May 1, 2020, the warden denied defendant's request. Defendant did not appeal the warden's decision or take any further administrative steps within the BOP. On May 15, 2020, defendant filed his Motion for Compassionate Release now before the Court. (Doc. 44).
In his brief, defendant does not specify when he requested compassionate relief from the warden but states he was denied on May 1, 2020. (Doc. 45, at 3). The government, in its brief, states defendant submitted his request on April 16, 2020, and the warden denied the request on May 1, 2020. (Doc. 48, at 8) (citing (Docs. 45–4, 45–5, & 45–6)). The Court was unable to find this information in the record and thus relies on the parties' representations.
Section 3582(c)(1)(A) states that the court may reduce a defendant's term of imprisonment "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[.]" Thus, exhaustion is undoubtedly fulfilled when a defendant's application is not acted upon within 30 days or the defendant has exhausted all possible administrative appeals within the BOP. This Court has not yet considered whether a defendant fulfills the exhaustion requirement after 30 days even if the warden denied the defendant's request within 30 days and defendant did not administratively appeal the denial.
The government argues the Court need not consider exhaustion because defendant's motion should be denied on the merits. (Doc. 48, at 8 n.1). Given the significance of this issue, the Court will consider whether exhaustion occurred regardless. The government also does not argue that it appears only 29 days, not 30 days, elapsed between the warden's receipt of defendant's request and the filing of defendant's motion here. The Court considers this argument waived.
District courts within the Eighth Circuit are divided on whether a defendant fulfills exhaustion under these circumstances. Compare, United States v. Arthaloney , No. 8:18CR127, 2020 WL 2571171, at *1 n.1, *2 (D. Neb. May 21, 2020) (compiling cases where courts found defendants must appeal the warden's denial and that the lapse of 30 days only fulfills exhaustion if the warden fails to act); United States v. Peuser , No. 8:17CR60, 2020 WL 2732088, at *1 n.1, *2 (D. Neb. May 26, 2020) (same), with United States v. Ingram , No. 14-303(2) (DWF/BRT), 2020 WL 3104643, at *2 (D. Minn. June 11, 2020) (noting that, although the defendant filed the motion on the same day the warden denied his request, the motion was proper because "more than 30 days have now lapsed since the Denial."). This divide also exists in most other federal circuits.
Most courts have held that if a defendant's request is denied by the warden within 30 days, the defendant must exhaust administrative appeals within the BOP. In doing so, courts have cited internal BOP policies, other statutes, and regulations to infer Congress's intent. In United States v. Gioeli , the Eastern District of New York explained:
Defendant's reading of § 3582(c)(1)(A) converts a statutory command that inmates fully exhaust all administrative rights to appeal into a waiting period that does not require inmates to pursue any administrative appeal from a warden's denial. Indeed, under this reading, an inmate would never have a reason to exhaust his administrative remedies, since he could simply make a motion in the district court after waiting for 30 days following his submission of his request to the warden. While the defendant suggests that such a reading makes sense, because of Congress's intent to speed the process of obtaining a judicial forum, even that argument is hard to reconcile with the language of the statute .... On the contrary, it seems odd that Congress would allow a defendant to short-circuit the [BOP's] administrative procedures simply by waiting 30 days after filing his request, despite the warden timely acting on that request.
The language of the statute seems clear that Congress wanted to ensure that one thing and one thing only happened in a timely fashion—the warden of the facility, the person with the best access to information about a defendant's condition and conduct in prison, must complete his review within 30 days. If the warden denies his request within thirty days, the defendant is relegated to the superior administrators charged with reviewing the warden's determination.
Not only is this consistent with the plain language of § 3582(c), but ... it is consistent with the notice and posting requirements of the statute set forth in § 3582(d)(2)(C)(iii). That subsection requires that the BOP post notice in all available prison handbooks and libraries of the right to appeal a denial of a request for compassionate release by the warden after all administrative rights to appeal within the [BOP] have been exhausted.
No. 08-cr-240 (BMC), 2020 WL 2572191, at *3 (E.D.N.Y. May 21, 2020) (internal quotation marks, citations, and original alterations omitted). In United States v. Lap Seng , the Southern District of New York relied on similar sources for context:
A BOP Program Statement outlines in detail the administrative appeal process for compassionate release applications. The Program Statement explains that a prisoner seeking compassionate release must first file a request with the prison warden asking the BOP to move for compassionate release on the prisoner's behalf. If the prison warden denies that request, the prisoner must appeal the denial through the BOP's Administrative Remedy Procedure outlined in 28 C.F.R part 542, subpart B. Thus, the same exhaustion procedure for routine administrative grievances (i.e., the use of forms BP-9 through BP-11) applies to requests for compassionate release....
Therefore, BOP policy provides a clear timeline for the consideration of a compassionate release application, and provides that the BOP's failure to timely consider an appeal at any given stage will be deemed a denial, mitigating the concern that the BOP will prejudice a defendant's application by delaying an appeal. To further mitigate this concern in the instant context, in addition to the above, 28 C.F.R. § 571.62(c) states that in the event the basis of the request is the medical condition of the inmate, staff shall expedite the request at all levels. And, as discussed above, terminally ill prisoners are afforded a further expedited review.
No. S5 15-CR-706 (VSB), 459 F.Supp.3d 527, 537–38, (S.D.N.Y. May 8, 2020) (internal quotation marks, citations, and original alterations omitted). Thus, an interpretation of Section 3582(c)(1)(A) requiring defendants to administratively appeal a warden's denial requires courts to broadly infer such a requirement from other sources.
In contrast, other courts that have found the lapse of 30 days sufficient regardless of a warden's denial have cited the plain language of Section 3582(c)(1)(A). In United States v. Russo , the Southern District of New York held:
The Southern District of New York is internally split on this issue. See Lap Seng , 459 F.Supp.3d at 533–35, (recognizing disagreement within the district).
[T]he plain language of Section 3582(c) evinces congressional intent that a defendant has a right to a prompt and meaningful judicial determination of whether she should be compassionately released, regardless of whether administrative remedies have been exhausted. There is no other way to read the language giving a defendant the right to make a judicial motion for compassionate release thirty days after making an application to the BOP, without needing to wait for the administrative process to be completed.
No. 16-cr-441 (LJL), 454 F.Supp.3d 270, 276–77, (S.D.N.Y. Apr. 14, 2020) ; see also United States v. Haney , No. 19-cr-541 (JSR), –454–– F.Supp.3d 316, 321, 2020 WL 1821988, at *3 (S.D.N.Y. Apr. 13, 2020) ("[ Section 3582(c)(1)(A) ] does not necessarily require the moving defendant to fully litigate his claim before the agency[.] ... Rather, it requires the defendant either to exhaust administrative remedies or simply to wait 30 days after serving his petition on the warden of his facility[.]"); United States v. Logan , 1:96-CR-20-TBR, 2020 WL 730879, at *2 (W.D. Ky. Feb. 13, 2020) (same); United States v. York , No. 3:11-CR-76, 2019 WL 3241166, at *5 (E.D. Tenn. July 18, 2019) (same) (citing United States v. Heromin , 8:11-cr-550-T-33SPF, 2019 WL 2411311, at *1 (M.D. Fla. June 7, 2017) ). The District of Massachusetts came to a similar conclusion in United States v. Guzman Soto , stating:
The government's contention that if the warden denies Defendant's request, [defendant] is then required to fully exhaust all administrative remedies before this Court has authority to consider his request ignores the plain language of the statute.
Instead, the statute mandates that a defendant must act in one of two ways—either to fully exhaust all administrative appeals or to request that the warden seek compassionate release. Consistent with this mandate, this court and others have found that the failure by a defendant to make a request to the warden in the first instance may be sufficient to deny a motion for failure to comply with the requirements of § 3582(c)(1)(A).
Here, Defendant has made a request, and accordingly, is not barred from pursuing his motion by a failure to fully exhaust all administrative remedies.
No. 1:18-cr-10086-IT, ––– F.Supp.3d ––––, ––––, 2020 WL 1905323, at *4 (D. Mass. Apr. 17, 2020) (internal citations, quotation marks, and original alterations omitted).
"Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Neosho R-V Sch. Distr. v. Clark , 315 F.3d 1022, 1032 (8th Cir. 2003). The Supreme Court holds the "strong presumption that the plain language of the statute expresses congressional intent is rebutted only in rare and exceptional circumstances, when a contrary legislative intent is clearly expressed." Ardestani v. INS , 502 U.S. 129, 135, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (internal quotation marks and citations omitted). "Thus, where a statute is clear, courts should look to the legislative history only if Congress expressed a legislative intention contrary to the plain language of the statute." United States v. Hansl , 364 F. Supp. 2d 966, 975 (S.D. Iowa 2005).
The Court finds the language of Section 3582(c)(1)(A) to be unambiguous; defendants can bring motions for compassionate release to the courts on their own behalf after either exhausting "all administrative rights to appeal" within the BOP or waiting for "the lapse of 30 days" from the day the warden receives the defendants' requests for release, "whichever is earlier." See also United States v. Woodson , 18-cr-845 (PKC), 452 F.Supp.3d 31, 33, (S.D.N.Y. Apr. 6, 2020) ("The plain language of [ Section 3582(c)(1)(A) ] is free from ambiguity."). The statute does not on its face require a defendant to exhaust administrative appeals "following a denial" or qualify the 30 days provision as only applying after "inaction." The Court must operate under the strong presumption that the language of the statute reflects Congress's intent. Although sources outside Section 3582(c) may imply a different intent by Congress, such an intent is not clearly expressed such that this is a rare and exceptional circumstance when the Court can set aside the statute's plain language. Even so, Congress's intent, in part, was to expedite the compassionate release process and to enable defendants to bring such motions to courts on their own behalf. A plain reading of Section 3582(c)(1)(A) is not inconsistent with this broader intent. It may well have been Congress's intent to require administrative exhaustion following a denial, as most courts have found. Indeed, "reasonable minds may disagree" on resolution of this issue. United States v. Bolze , No. 3:09-CR-93-TAV-CCS-1, 460 F.Supp.3d 697, 702n.3 (E.D. Tenn. May 13, 2020). The Court, however, declines to read into the statute unexpressed, additional requirements which limit a defendant's rights and are at best inferred.
Thus, the Court finds defendant's failure to appeal the warden's denial of his request does not bar his motion for compassionate release because 30 days have elapsed since the warden's receipt of defendant's request. See 18 U.S.C. § 3582(c)(1)(A).
Defendant also asserts the Court should consider that his mother also submitted a request for release to the BOP through their website and never received a response. (Doc. 45, at 4). The Court declines to consider defendant's mother's request here when defendant himself submitted a request and received a denial.
B. Extraordinary and Compelling Reason
Defendant argues an extraordinary and compelling reason for release is present because his various medical conditions put him at a high risk of severe complications and death if exposed to COVID-19. (Doc. 45, at 5–11). He argues that he is at risk of contracting COVID-19 while incarcerated at the Milan facility. (Id. , at 9). The government argues these grounds are insufficient. (Doc. 48, at 9–12).
Numerous courts have held a defendant's relevant health conditions and the presence of COVID-19 within the BOP generally, or within the defendant's specific facility, together can constitute an extraordinary and compelling reason for compassionate release. See, e.g., United States v. Ennis , No. EP-02-CR-1430-PRM-1, 2020 WL 2513109, at *3, 6 (W.D. Tex. May 14, 2020) (defendant was 71 years old and suffering from degenerative spine disease, diabetes, mellitus, hypertension, arthritis, asthma, hypothyroidism, and hyperlipidemia, and although there were no inmates or staff testing positive for COVID-19 at defendant's facility, there were within BOP); United States v. Lopez , No. 18-CR-2846 MV, 2020 WL 2489746, at *3 (D.N.M. May 14, 2020) (defendant was 62 years old and suffering from high blood pressure and type II diabetes, and although there were no inmates or staff who tested positive for COVID-19 at defendant's holding facility, there were outbreaks within the state); United States v. Handy , No. 3:10-cr-128-8 (RNC), 2020 WL 2487371, at *1 (D. Conn. May 14, 2020) (defendant was 53 years old and suffering from congestive heart failure, hypertension, obesity, and chronic knee issues; no mention of anyone testing positive for COVID-19 at defendant's facility); United States v. Ginsberg , No. 14 CR 462, 2020 WL 2494643, at *2 (N.D. Ill. May 14, 2020) (defendant was 56 and had a history of cardiac and respiratory disease; no inmates tested positive for COVID-19 at facility); United States v. Gutman , No. RDB-19-0069, 2020 WL 2467435, at *2 (D. Md. May 13, 2020) (defendant was 56 and suffering from multiple sclerosis and hypertension ; inmates tested positive for COVID-19 in defendant's facility); United States v. Rivernider , No. 3:10-cr-222 (RNC), 2020 WL 2393959, at *1 (D. Conn. May 12, 2020) (defendant was 54 and suffering from diabetes, heart disease and hypertension ; no mention made of anyone testing positive for COVID-19 at defendant's facility); United States v. Ullings , No. 1:10-cr-00406, 2020 WL 2394096, at *1, *5 (N.D. Ga. May 12, 2020) (defendant was 66 and suffering from hypertension and obesity ; an inmate and two guards tested positive for COVID-19 at defendant's facility); United States v. Reddy , No. 13-cr-20358, 2020 WL 2320093, at *1 (E.D. Mich. May 11, 2020) (defendant was 73 years old and suffering from type II diabetes, hypertension, and orthopedic problems; no mention of anyone testing positive for COVID-19 at defendant's facility); United States v. Foreman , No. 3:19-cr-62 (VAB), 2020 WL 2315908, at *3 (D. Conn. May 11, 2020) (defendant was 58 years old and suffering from hypertension and obesity ; inmates and staff tested positive for COVID-19 at the FCI, but not the camp where defendant was housed); United States v. Simpson , No. 11-cr-00832-SI-3, 2020 WL 2323055, at *1 (N.D. Cal. May 11, 2020) (defendant was 62 years old and suffering from asthma and diabetes ; no mention of anyone testing positive for COVID-19 at defendant's facility); United States v. Valencia , No. 15 Cr. 163 (AT), ––– F.Supp.3d ––––, ––––, 2020 WL 2319323, at *1 (S.D.N.Y. May 11, 2020) (defendant was suffering from heart disease, high blood pressure, and epileptic seizures ; facility housing defendant described as a "hotbed of COVID-19"); United States v. Joseph , No. 18-cr-00350-BLF-1, 459 F.Supp.3d 1274, 1275–76, (N.D. Cal. May 8, 2020) (defendant was 60 years old and suffering from lung scarring resulting from coccidioidomycosis ; concern about spread of COVID-19 throughout BOP facilities generally); United States v. Pena , No. 15-cr-551 (AJN), 459 F.Supp.3d 544, 550–52, (S.D.N.Y. May 8, 2020) (defendant was 60 years old and suffering from hypertension and hyperlipidemia ; concern about spread of COVID-19 throughout BOP facilities generally); United States v. Amarrah , No. 17-20464, 458 F.Supp.3d 611, 615–16, (E.D. Mich. May 7, 2020) (defendant was 45 years old and suffering from type II diabetes, hypertensive heart disease, cardiac arrhythmia, obstructive sleep apnea, and asthma ; concern about spread of COVID-19 throughout BOP facilities generally); United States v. Diep Thi Vo , No. 15-cr-00310-BLF-2, 2020 WL 2300101, at *3 (N.D. Cali. May 7, 2020) (defendant was 74 years old and suffering from hyperlipidemia, hypertension, vision issues, and osteoarthritis ; concern about spread of COVID-19 throughout BOP facilities generally).
The Centers for Disease Control ("CDC") lists nine categories of people who are at higher risk of severe illness and death from COVID-19: (1) people 65 years or older, (2) people living in a long-term care facility, (3) people with chronic lung disease or moderate to severe asthma, (4) people with a serious heart condition, (5) people with a compromised immune system, (6) severely obese people with a body mass index ("BMI") of 40 or above, (7) diabetic people, (8) people with chronic kidney disease undergoing dialysis, and (9) people with liver disease. People Who Are at Higher Risk for Severe Illness , CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. The latter seven categories apply to "[p]eople of all ages with underlying conditions, particularly if not well controlled[.]" Id.
Defendant appears to fit at least three of the categories. Defendant has a history of at least moderate asthma. (Doc. 23, at 10). Defendant is obese with a BMI around 43.2 at the time of the PSR and now reportedly around 41. (Id. , at 2, 10) (noting defendant's obesity diagnosis as well as his height and weight); (Doc. 45–2, at 1). Although not yet diabetic, defendant is prediabetic. (Doc. 23, at 10). These elevated-risk categories are further complicated by defendant's chronic lower back pain, multiple mental health diagnoses, and other medical issues. (Docs. 23, at 10; 45–2).
Defendant provides the opinion of Dr. David Rosenthal, an assistant professor of medicine at Yale Medical School and Medical Director of the ShelterOne COVID-19 Respite Unit in New Haven, Connecticut. (Docs. 45–2 & 45–3, at 1). Dr. Rosenthal cites various studies indicating, as the CDC now agrees, that obese persons are at high risk of severe illness and death if exposed to COVID-19 even if they are young. (Doc. 45–2, at 2). Dr. Rosenthal also notes, given defendant's race, that COVID-19 has had a disproportionate impact on the black community in the United States. (Id. ). Thus, Dr. Rosenthal opines: "[I]t is my medical opinion that given [defendant's] race, his severe morbid obesity (BMI>40), and his chronic diseases of hypertension, prediabetes, and asthma, he would be deemed high-risk for a poor clinical outcomes and severe illness if he developed COVID-19 illness." (Id. ).
The Court finds that defendant's health problems are significant. The medical evidence in the record support Dr. Rosenthal's findings, even in the absence of direct examination. On May 27, 2020, defendant reported he had an asthma attack in his cell the night prior. (Doc. 52–1, at 3). At the time defendant reported the asthma attack, his pulse rate per minute was over 110, well above the normal range, and his blood pressure was 150/91, putting him in hypertension stage two. (Id. ); see also What's a Normal Resting Heart Rate? , Mayo Clinic, https://www.mayoclinic.org/healthy-lifestyle/fitness/expert-answers/heart-rate/faq-20057979; High Blood Pressure , American Heart Association, https://www.heart.org/en/health-topics/high-blood-pressure. Defendant also notes his alarming drop in airflow from readings of 650, 550, and 550 on April 10, 2020, to readings of 350, 325, and 300 on May 27, 2020. (Id. , at 1, 9). Thus, the Court credits the opinion of Dr. Rosenthal and finds that defendant's obesity, asthma, hypertension, prediabetes, and other complicating health factors put defendant at a high risk of serious illness or death if exposed to COVID-19. The Court declines, however, to factor in defendant's race. Although data shows the black community has been disproportionately affected in the United States, this is likely attributable to broader societal circumstances and inequalities and consequential health issues. The Court is not aware of any authority that an inmate is more at risk of serious illness merely because they are African American. Further, defendant is mixed race, a factor Dr. Rosenthal did not discuss in his findings.
Other district courts have found extraordinary and compelling reasons in similar situations. See United States v. Delgado , No. 3:18-cr-17-(VAB)-1, 457 F.Supp.3d 85, 92–93, (D. Conn. Apr. 30, 2020) (granting release based on obesity and sleep apnea ); United States v. Dawson , No. 18-40085-HLT, 2020 WL 1812270, at *7 (D. Kan. Apr. 9, 2020) (granting release based on severe obesity alone); United States v. Gross , No. 15-cr-769 (AJN), 452 F.Supp.3d 26, 26–28, (S.D.N.Y. Apr. 6, 2020) (granting release based on the combination of severe obesity, high blood pressure, and sleep apnea ). The Court finds defendant's medical conditions put him at a high risk despite his young age given the research done by the CDC and based on Dr. Rosenthal's opinion.
Defendant's health issues alone, however, are not sufficient. The Court must also evaluate whether defendant is at risk of exposure to COVID-19 at his particular BOP facility or within the BOP generally. Here, despite the BOP's efforts, there is a risk of exposure to COVID-19 at the Milan facility. At this time, there are a total of twelve active COVID-19 cases at the facility, ten being inmates and two being staff, three inmate deaths, and dozens of recovered cases. COVID-19 Coronavirus , BOP, https://www.bop.gov/coronavirus/; see also United States v. Hunt , No. 18-20037, 459 F.Supp.3d 932, 939, (E.D. Mich. May 12, 2020) ("There have been numerous cases of COVID-19 at FCI Milan, both among prisoners and staff."). Although the Court appreciates the BOP has taken significant measures to prevent transmission among its inmates, the virus has spread nonetheless. On May 1, 2020, the BOP reported it had tested 2,700 out of 146,000 inmates for COVID-19, with 70 percent testing positive. BOP, Twitter, (May 1, 2020, 8:03 AM), https://twitter.com/OfficialFBOP/status-/1256207531820662785. On May 29, 2020, the BOP stated a total of 1,577 persons in federal custody and 181 staff had active COVID-19 cases and 3,180 inmates and 413 staff had recovered. BOP, Twitter, (May 29, 2020, 7:27 AM), https://twitter.com-/OfficialFBOP/status/1266345514913738752. These numbers reflect that COVID-19 is near impossible to stymie, particularly in a prison setting where social distancing measures cannot be fully implemented. Thus, its spread is simply reality and not a condemnation of the BOP's efforts.
Those measures included limiting inmate movement within each facility and between facilities, suspending visits, suspending staff training and travel, screening staff and inmates for COVID-19 symptoms and modifying operations to maximum social distancing to the extent possible. BOP Implementing Modified Operations , Federal Bureau of Prisons, https://www.bop.gov/-coronavirus/covid19_status.jsp.
Thus, the Court finds that the combination of defendant's medical conditions and the status of COVID-19 at the Milan facility present an extraordinary and compelling reason warranting release.
C. Section 3553(a) Factors and Danger to Community
Guideline Section 1B1.13(2) provides that compassionate release is appropriate only where "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) [.]" Section 3582(c)(1)(A) requires a court to consider the factors set forth in Title 18, United States Code, Section 3553(a) before granting a motion for compassionate release. Section 3553(a) requires the Court to consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines [by the Sentencing Commission ...;]
(5) any pertinent policy statement [by the Sentencing Commission ...;]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
Defendant acknowledges his underlying offense was serious. (Doc. 45, at 12). He argues, however, that he was young at the time and has minimal criminal history. (Id. ). If released, defendant intends to reside with his mother in Tripoli, Iowa. (Id. , at 12–13). Defendant also notes he has served approximately half his sentence and requests that he be permitted to serve the remainder of his term of imprisonment under home confinement. (Id. , at 11–12). The government counters that defendant's offense shows he presents a danger to the community and that defendant would not necessarily be any less at risk of exposure to COVID-19 under home confinement. (Doc. 48, at 13).
Considering the Section 3553(a) factors, the nature and circumstances of the instant offense weighs against granting compassionate release. As to the shooting incident itself, defendant had multiple drugs in his system and fired recklessly at the vehicle. It goes without saying defendant could have easily killed an innocent bystander walking down the street or sitting in a nearby home. This offense is compounded by defendant's continued fascination with firearms following his contact with law enforcement officers as well as another shooting incident wherein defendant accidentally fired a bullet into his neighbor's apartment. Although defendant used a variety of controlled substances, he reported the night of his offense was his first and only use of cocaine. It is also somewhat mitigating that defendant eventually cooperated with officers and defendant reportedly acted in self-defense, as irresponsible as his response was.
The remaining Section 3553(a) factors, however, outweigh the seriousness of his offense. Defendant's criminal history is minor. As discussed, his preexisting health conditions have been exacerbated by incarceration. Defendant's performance on pretrial release suggests he has been adequately deterred. It also suggests he is capable of honoring the Court's trust and abiding by the conditions of release. Defendant did not commit any violations or exhibit any dangerous behavior while on pretrial release, during his self-surrender period, or, to the Court's knowledge, while incarcerated. The Court also finds that releasing him to a stable, monitored home environment will also help deter any threat to the community he may pose in addition to ensuring his healthcare needs are met. See (Doc. 45–6) (containing a letter of support of defendant's character); (Doc. 45–7) (detailing the condition of defendant's mother's home and the assistance defendant's family can provide him if released). Further, defendant's residence at his mother's house would dramatically decrease his potential exposure to COVID-19. Although the Court acknowledges there are cases of COVID-19 in every county in Iowa, the conditions of incarceration inherently limit social distancing measures and create a greater risk of exposure. Defendant is unquestionably safer in a home with few people and no positive cases than in a facility with hundreds of people and several positive cases. Defendant's increased access to medical care at home is also considerable here.
Under these circumstances, other courts have similarly granted defendants' motions for compassionate release and allowed them to serve the remainder of their terms of imprisonment under home confinement. See, e.g., United States v. Sanchez , No. 3:18-cr-140, 2020 WL 1933815 (D. Conn. Apr. 22, 2020) (modifying the remaining term of incarceration to time served, increasing the term of supervised release, and requiring home detention for the first year of release); United States v. Atwi , No. 18-20607, 455 F.Supp.3d 426, (E.D. Mich. Apr. 20, 2020) (reducing sentence to time served and extending supervised release by the remaining period of incarceration to be served under home confinement without electronic monitoring); United States v. Burrill , No. 17-cr-491, 445 F.Supp.3d 22, (N.D. Cal. Apr. 10, 2020) (ordering defendant's remaining term of imprisonment be "served as supervised release with the special condition that [he] shall be subject to home confinement"); United States v. Zukerman , No. 16 Cr. 194 (AT), 451 F.Supp.3d 329, (S.D.N.Y. Apr. 3, 2020) (modifying defendant's term of imprisonment to time served with the remaining portion to be served as supervised release under home confinement with electronic monitoring); United States v. Williams , No. 3:04-cr-95, 2020 WL 1751545 (N.D. Fla. Apr. 1, 2020) (reducing sentence to time served and adding one year of home confinement on supervised release).
Defendant has been incarcerated for approximately a year. See (Doc. 33). His projected release date is approximately eight months away. His difficult incarceration, his health-related limitations, and the continued restrictions imposed on him through home confinement and supervised release, together, satisfy the goal of imposing sufficient punishment. Releasing defendant under these circumstances would not undermine the goal of deterrence. Nor would his release produce an unwarranted sentencing disparity, as the reduced sentence would account for his unique medical circumstances.
After considering all the applicable factors, the Court finds defendant is eligible for compassionate release and therefore grants his motion.
V. CONCLUSION
For these reasons:
1. Defendant's Motion for Compassionate Release (Doc. 44) is granted . Execution of this order is stayed for twenty-eight (28) days, however, to allow the BOP and USPO an opportunity to make the necessary arrangements for defendant's release.
2. Based on the stay of execution described in the preceding paragraph, defendant's term of imprisonment is hereby reduced to time served as of June 18, 2020 . Defendant will serve the remainder of his prison sentence as part of his supervised release. Defendant must remain under home confinement with electronic monitoring until his original discharge date of February 24, 2021. Defendant is responsible for all costs associated with such monitoring.
3. All other aspects of the judgment (Doc. 34) remain in effect, including those related to defendant's term of supervised release.
4. The Clerk of Court shall provide a copy of this order to the USPO and the BOP facility in Milan, Michigan, where defendant is incarcerated.
IT IS SO ORDERED this 18th day of June, 2020.