Opinion
(S2) 16 Cr. 281 (PGG)
04-07-2020
UNITED STATES OF AMERICA, v. PATRICK DALY, Defendant.
ORDER :
On October 10, 2017, Daly pleaded guilty to conspiracy to distribute and possess with intent to distribute 280 grams and more of cocaine base, a kilogram and more of heroin, and five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) ((S2) Information (Dkt. No. 721), Count One); and to using and brandishing firearms during the charged drug conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(i), (ii). (Id., Count Two).
Daly entered into a cooperation agreement with the Government and provided substantial assistance in the prosecution of his co-defendants, including important testimony at trial. (Sentencing Tr. (Dkt. No. 737) at 21) "[H]is cooperation exposed him to a significant risk of harm." (Id. at 22-23) Consequently, on August 12, 2019, this Court sentenced Daly to four years' imprisonment and five years' supervised release on each of the two counts in the (S2) Information, with those terms to run concurrently. (See Judgment (Dkt. No. 724) at 3)
Daly is serving his sentence "in the custody of the United States Marshals Service in a private prison" (Apr. 3, 2020 Govt. Ltr. (Dkt. No. 861)), and has a release date of July 5, 2020. (Apr. 1, 2020 Def. Ltr. (Dkt. No. 859) at 1)
On April 1, 2020, Daly moved this Court for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A), "given the ever-worsening COVID-19 pandemic, and the fact that [he] has three months left on his sentence." (Id.) Daly suffers from respiratory conditions and is experiencing difficulty in breathing. Given his age (58) and health challenges, Daly faces an enhanced risk of contracting the virus and a poorer prognosis if he is infected. See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last accessed Apr. 7, 2020).
In an April 3, 2020 submission, the Government states that it does not oppose Daly's application for compassionate release. "The Government [further] notes that the defendant cannot exhaust remedies within the Bureau of Prisons because the defendant is currently in the custody of the United States Marshals Service at a private prison." (Apr. 3, 2020 Govt. Ltr. (Dkt. No. 861))
The compassionate release statute - 18 U.S.C. § 3582(c)(1)(A)(i) - provides that a court may
upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf . . . , reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction . . . .18 U.S.C. § 3582(c)(1)(A)(i).
As noted above, Daly is not incarcerated in a Bureau of Prisons ("BOP") facility. As the Government acknowledges, see Apr. 3, 2020 Govt. Ltr. (Dkt. No. 861), and as other courts in this District have found, Daly cannot exhaust administrative remedies through the Bureau of Prisons because he is being held in a private facility and is not in BOP custody. See United States v. Hernandez, No. 18 Cr. 834 (PAE) (Dkt. No. 451) (S.D.N.Y. Apr. 2, 2020) ("[B]ecause Mr. Hernandez is in the custody of the United States Marshals at a private facility—not in the custody of the BOP—the BOP 'cannot evaluate him for compassionate release and will not be seeking a motion for compassionate release on his behalf at this time.' . . . The defense asserts, and the Government agrees, that, as a result of this denial, Mr. Hernandez has exhausted his administrative remedies through the BOP. . . . The Court agrees that Mr. Hernandez has exhausted his remedies within the BOP with respect to compassionate release.").
Congress tasked the Sentencing Commission with providing guidance to courts regarding the application of the compassionate release statute. See 18 U.S.C. § 994(t) ("The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. . . ."); United States v. Ebbers, No. (S4) 02 Cr. 1144-3 (VEC), 2020 WL 91399, at *4 (S.D.N.Y. Jan. 8, 2020); see also Hernandez, No. 18 Cr. 834 (PAE) (Dkt. No. 451). The Commission's policy statement and commentary concerning § 3582(c)(1)(A) state that a court may reduce a sentence for "extraordinary and compelling reasons," including where the defendant is "suffering from a serious physical or medical 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." U.S.S.G. § 1B1.13(1)(A) & cmt. n.1(A). A defendant applying for compassionate release must not present a danger to the community. Id. § 1B1.13(2)-(3).
The Court finds that "extraordinary and compelling reasons" exist here that justify application of the compassionate release statute. The COVID-19 pandemic is an extraordinary event that presents a clear and present danger to both inmates in prison and our society as a whole. The disease presents a heightened risk for incarcerated defendants such as Daly, who are older and who suffer from respiratory conditions. A number of courts have granted compassionate release to such inmates, where their release would not present a danger to the community. See United States v. Campagna, No. 16 Cr. 78-01, 2020 WL 1489829 (LGS), at *3 (S.D.N.Y. Mar. 27, 2020) (finding extraordinary and compelling reasons under § 3582(c)(1)(A)(i) in light of heightened risk to inmate presented by COVID-19); see also Hernandez, No. 18 Cr. 834 (PAE) (Dkt. No. 451) at 6; United States v. Perez, No. 17 Cr. 513 (AT) (Dkt. No. 98) at 2, 6-7 (finding extraordinary and compelling reasons under § 3582(c)(1)(A) and waiving requirement of exhaustion of administrative remedies).
Analysis of the Section 3553(a) factors here also supports application of the compassionate release statute. Daly has spent 39 months in federal custody and, in the normal course, would be due for release on July 5, 2020. (See Presentence Investigation Report (Dkt. No. 795) at 2; Apr. 1, 2020 Def. Ltr. (Dkt. No. 859)) Accordingly, he has nearly completed the incarceratory portion of his sentence. Moreover, although Daly's sentence arises from his involvement with a violent gang, Daly himself did not perpetrate acts of violence, and his criminal acts were motivated entirely by an all-consuming drug addiction. Given these circumstances, and in light of Daly's age and medical condition, the risk presented to Daly by the coronavirus pandemic outweighs any value to society by incarcerating him for three more months. Accordingly, Daly's application for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) will be granted.
Daly is hereby placed on supervised release. The terms and conditions of Daly's supervised release (see Judgment (Dkt. No. 724)) are amended as follows:
1. the first three months of Daly's supervised release term will be served on home confinement, enforced by electronic monitoring, and at an address approved by the U.S. Probation Office;Dated: New York, New York
2. Daly will remain at his approved residence except to seek necessary medical care or to meet with his attorney, in each instance with prior notice and approval by the U.S. Probation Office; and
3. in the event that the U.S. Probation Office is not able to implement electronic monitoring immediately upon Daly's release, in the interim Daly will be in daily contact with his U.S. Probation Officer, whether by videoconference or by telephone.
April 7, 2020
SO ORDERED.
/s/_________
Paul G. Gardephe
United States District Judge