Summary
denying compassionate release to defendant with a Criminal History Category III who had previously contracted COVID-19
Summary of this case from United States v. JacksonOpinion
1:17-CR-00129 EAW
2021-03-10
UNITED STATES of America, v. Dominic DANIELS, Defendant.
Kevin D. Robinson, Richard D. Kaufman, Timothy C. Lynch, Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Kevin D. Robinson, Richard D. Kaufman, Timothy C. Lynch, Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Defendant Dominic Daniels (hereinafter "Defendant") has filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 323). For the reasons set forth below, the motion is denied.
I. BACKGROUND
On July 19, 2018, defendant Dominic Daniels ("Defendant") appeared before a magistrate judge and entered a plea of guilty to a violation of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute, and to distribute, 500 grams or more of cocaine). (Dkt. 91; Dkt. 92). On August 10, 2018, the undersigned issued a Decision and Order adopting the report and recommendation of the magistrate judge to accept Defendant's guilty plea. (Dkt. 106). The undersigned sentenced Defendant on October 24, 2018, to 60 months in prison to be followed by four years of supervised release. (Dkt. 147; Dkt. 148). The prison sentence reflected the mandatory minimum sentence required by statute.
Defendant is currently serving his prison sentence at Federal Correctional Institution Allenwood (Low) ("FCI Allenwood Low") with a scheduled release date later this year of December 3, 2021. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited March 10, 2021). According to the BOP's website tracking COVID-19 cases in its facilities, three inmates at FCI Allenwood Low are currently testing positive for COVID-19. See COVID-19: Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited March 10, 2021).
Defendant seeks compassionate release, arguing in his motion that he already contracted COVID-19, testing positive on December 28, 2020, and he continues to suffer from "shortness of breath, constant weight loss due to lack of Nutrition from the box meals being served." (Dkt. 323 at 2, 5). Defendant states that he has met the administrative exhaustion requirement because he filed a request with the warden at FCI Allenwood Low on October 27, 2020, and the request was denied. (Id. at 4). Defendant submits various letters of support in connection with his motion, reflecting strong family support that will be available upon his release. (Dkt. 327). The United States Probation Office ("USPO") submitted a memorandum dated February 22, 2021, in response to Defendant's motion. (Dkt. 330). The USPO reports that based on its communication with FCI Allenwood Supervisory Attorney Jonathan Kerr, Defendant "tested positive for COVID-19 on December 28, 2020, cleared isolation on January 7, 2021, and was asymptomatic throughout his illness experience. He hasn't reported any symptoms or long term effects and none have been observed." (Id. at 1). The USPO also reports that a vaccination effort of the inmates at FCI Allenwood Low is well underway, and various safety protocols are in place in an effort to prevent the spread of COVID-19. (Id. at 2-3). Based on information from Mr. Kerr, the USPO disputes Defendant's contention that he has exhausted his administrative remedies, stating as follows:
He's made 2 unsuccessful attempts to file a request for compassionate release through the Administrative Remedy Program but has not followed the rejection notice direction instructing him to first file a BP-8, Inmate Request to Staff in accordance with BOP Program Statement 1330.18 and 28 C.F.R. 542.13(a).
(Id. at 3). The USPO also reports that Defendant has prior criminal convictions placing him at a Criminal History Category III, including two prior felonies for Attempted Criminal Possession of a Weapon and Criminal Possession of a Controlled Substance. (Id. at 3; see Dkt. 119 at ¶¶ 46, 47, 50). Additionally, Defendant was on probation for two different convictions when he committed the instant offense. (Dkt. 330 at 3; see Dkt. 119 at ¶ 49).
Notwithstanding the issues of administrative exhaustion raised in the USPO memorandum, the government does not oppose Defendant's motion on administrative exhaustion grounds. (See Dkt. 328). Instead, the government contends that Defendant has failed to establish extraordinary and compelling circumstances justifying his release. (Id. at 16-21). Specifically, the government argues that Defendant has identified no medical condition that places him at increased risk of serious illness from COVID-19, and his recent experience with COVID-19 where he was asymptomatic demonstrates just that. (Id. at 18). The government submits under seal Defendant's medical records from the Bureau of Prisons. (Dkt. 329). The government contends that on this basis alone, Defendant's motion should be denied, but additionally, the factors set forth at 18 U.S.C. § 3553(a) do not support Defendant's motion. (Id. at 21-24).
II. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the [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, may 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 ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term. "The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney , No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd , 833 F. App'x 850 (2d Cir. 2020).
Although the statute references the Sentencing Commission's policy statements, the Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020).
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Although the USPO memorandum raises some issues with respect to exhaustion, the government does not pursue that argument in its opposition to the motion, and therefore to the extent there is any bar to the Court's consideration of the motion based on administrative exhaustion, it has been waived by the government. See United States v. McIndoo , ––– F. Supp. 3d ––––, –––– – ––––, 2020 WL 2201970, at *5-9 (W.D.N.Y. May 6, 2020) ( § 3582(c)(1)(A) ’s exhaustion requirement is a claim-processing rule, not a jurisdictional prerequisite).
The Court does agree, though, with the government that Defendant has failed to establish extraordinary and compelling circumstances justifying his release. The medical records submitted under seal reveal that while Defendant tested positive for COVID-19 on December 28, 2020, he offered "no complaints" and "[f]eels well." (Dkt. 329 at 68). On December 30, 2020, Defendant reported fatigue and headaches (id. at 103), and on January 2, 2021, there is a note of "sore throat" (id. at 100), but that appears to be the extent of any reported symptoms in the medical records, which further reflect that Defendant was cleared from isolation on January 7, 2021, with no cough, shortness of breath, fever, or other symptoms (id. at 95). While it is unfortunate that Defendant contracted COVID-19, and while the Court does not disagree with the notion that a prison setting presents increased challenges for combatting the spread of this terrible virus, Defendant has not established the type of extraordinary and compelling circumstances necessary to justify a sentence reduction, particularly in view of how well controlled COVID-19 appears to be within FCI Allenwood Low at the present time, combined with the apparently robust vaccination effort at the facility. The Court is hopeful that once released after serving his prison sentence, particularly with his strong family support, Defendant will be able to successfully re-enter society and refrain from engaging in further criminal activity. But a sentence reduction is not called for in this case.
III. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 323) is denied.
SO ORDERED.