Opinion
CASE NO. 19-CR-60145-RAR
2020-04-24
UNITED STATES of America, v. Thomas Patrick GALLAGHER, Defendant.
Robert Juman, US Attorney's Office, Ft. Lauderdale, FL, for United States of America. Jan Christopher Smith, II, Federal Public Defender's Office, Florida, FL, for Defendant.
Robert Juman, US Attorney's Office, Ft. Lauderdale, FL, for United States of America.
Jan Christopher Smith, II, Federal Public Defender's Office, Florida, FL, for Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE
RODOLFO A. RUIZ II, UNITED STATES DISTRICT JUDGE THIS CAUSE comes before the Court on Defendant Thomas Patrick Gallagher's Emergency Motion for Compassionate Release ("Motion") [ECF No. 41], filed on April 15, 2020. Given the current public health emergency caused by the COVID-19 virus, Defendant requests the Court modify his sentence under 18 U.S.C. section 3582(c)(1)(A)(i) and release him to home confinement immediately, and/or direct the Bureau of Prisons ("BOP") to use its authority under 34 U.S.C. section 60541(g) and 18 U.S.C. section 3642(c)(2) to release him immediately. The Government filed a Response in Opposition ("Response") [ECF No. 43] on April 16, 2020. Having reviewed the parties’ submissions, the record, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that Defendant Thomas Patrick Gallagher's Emergency Motion for Compassionate Release is DENIED as set forth herein.
BACKGROUND
i. The COVID-19 Virus
The President of the United States has declared a national state of emergency due to a high severity pandemic that has impacted the entire world. The Centers for Disease Control and Prevention ("CDC") report that there are over 745,000 documented cases of COVID-19 in the United States, amounting to over 39,000 deaths in 55 different jurisdictions. It is likely that the total amount of cases is even higher than reported, given the well-documented shortage of testing for COVID-19. Simply put, the impact and scourge of this virus cannot be understated.
Presidential Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
Cases of Coronavirus Disease (COVID-19) in the U.S. , Centers for Disease Control and Prevention (Apr. 21, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
See David Lim, Coronavirus Testing Hits Dramatic Slowdown , Politico (Apr. 14, 2020), https://www.politico.com/news/2020/04/14/coronavirus-testing-delays-186883; Caitlin Owens, Diagnostic Testing Supply Shortages Threaten Coronavirus Response , Axios (Apr. 13, 2020), https://axios.com/diagnostic-testing-shortages-coronavirus-6a-6aea12b3-98e8-407d-aa7d-717eecdce156.html; see also Mark McClellan, Scott Gottlieb, Farzad Mostashari, Caitlin Rivers, & Lauren Silvis, A National COVID-19 Surveillance System: Achieving Containment , Duke Univ. Margolis Ctr. for Health Policy (Apr. 7, 2020), https://healthpolicy.duke.edu/sites/default/files/atoms/files/covid-19_surveillance_roadmap_final.pdf.
Predictably, our nation's federal prison population has not been spared. As of April 20, 2020, the BOP reports that there are 497 federal inmates and 319 BOP staff who have confirmed positive test results from COVID-19 nationwide. There is no question that conditions of confinement faced by federal inmates create unique challenges to preventing the spread of COVID-19. For example, incarcerated individuals are unable to engage in health precautions, such as social distancing. These risks have been recognized and addressed by the Attorney General, who has directed the BOP to prioritize the transfer of inmates to home confinement "where appropriate" to decrease the risks posed by COVID-19.
See Anna Giaritelli, Tens of thousands of inmates unlawfully denied home confinement as pandemic rages: Prisoner advocates , Washington Examiner (Apr. 17, 2020), https://www.washingtonexaminer.com/news/tens-of-thousands-of-inmates-unlawfully-denied-home-confinement-as-pandemic-rages-prisoner-advocates; Janet Reitman, ‘Something Is Going to Explode’: When Coronavirus Strikes a Prison , N.Y. Times Magazine (Apr. 18, 2020), https://nytimes.com/2020/04/18/magazine/oakdale-federal-prison-coronavirus.html.
See BOP COVID-19 Cases, https://bop.gov/coronavirus.
See Mar. 26, 2020 Memo from the Attorney General, Prioritization of Home Confinement As Appropriate in Response to COVID-19 , https://www.justice.gov/file/1262731/download; see also Apr. 6, 2020 Memo from the Attorney General, Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic , https://www.justice.gov/file/1266901/download; Apr. 3, 2020 Memo from the Attorney General, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 , https://www.justice.gov/file/1266661/download.
ii. Defendant's Motion
Defendant was arrested on May 9, 2019 for committing bank robbery, in violation of 18 U.S.C. section 2113(a), and has been in federal custody since then. On May 30, 2019, Defendant was indicted [ECF No. 14] and pleaded guilty on August 20, 2019. See Change of Plea Hearing [ECF No. 27]. On October 28, 2019, the Court sentenced him to 24 months of imprisonment followed by three years of supervised release. See Judgment as to Thomas Patrick Gallagher [ECF No. 38]. To date, Defendant has served less than half of his 24-month term.
On April 15, 2020, Defendant filed his Motion pursuant to the First Step Act, requesting the Court permit him to serve his remaining 12-month term of imprisonment in home confinement due to the ongoing pandemic and his purported medical condition. Mot. at 2. The Government opposes Defendant's request, maintaining the First Step Act does not authorize this extraordinary remedy. Resp. at 2-3.
LEGAL STANDARD
On December 21, 2018, Congress passed the First Step Act, Pub. L. No. 115-391, which focuses on promoting rehabilitation and combatting recidivism. Notably, the First Step Act amended 18 U.S.C. section 3582(c)(1) to permit a court to consider a defendant's motion for compassionate release following the exhaustion of his or her administrative remedies with the BOP or 30 days after submitting a request to the appropriate Warden, whichever is sooner:
Modification of an imposed term of imprisonment. – 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 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 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 ....
18 U.S.C. § 3582(c)(1)(A) (emphasis added).
The First Step Act did not amend the eligibility requirements for compassionate release, which are set forth in section 3582(c)(1)(A) and Section 1B1.13 of the United States Sentencing Guidelines. A court can only modify a sentence, in pertinent part, if, "after considering the factors set forth in section 3553(a) to the extent they are applicable," it finds that "extraordinary and compelling reasons warrant such a reduction[.]" 18 U.S.C. § 3582(c)(1)(A)(i). Moreover, the proposed reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A).
The Application Notes to Section 1B1.13 of the Guidelines describe the circumstances under which "extraordinary and compelling reasons exist." U.S.S.G. § 1B1.13 Application Note 1. These include an assessment of defendant's medical condition:
(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.
....
(D) Other Reasons. As determined by the Director of the Bureau of Prisons, 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).
Id. Defendant bears the burden of establishing that compassionate release is warranted. See United States v. Hamilton , 715 F.3d 328, 329 (11th Cir. 2013) (noting defendant has the burden to show circumstances meeting the test for a reduction of sentence); see also United States v. Heromin , No. 11-55033, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019) (requiring defendant's burden of proof after the implementation of the First Step Act).
If the defendant is "(i) 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," the defendant's circumstance is considered "extraordinary and compelling" under the Guidelines. See U.S.S.G. § 1B1.13 Application Note 1(B). Defendant is not over 65 years of age and has not served at least 10 years or 75% of his term of imprisonment. Given these facts, Application Note 1(B) is clearly inapplicable to Defendant.
Accordingly, to be entitled to relief under section 3582(c)(1)(A), Defendant must meet the exhaustion requirement and demonstrate that "extraordinary and compelling reasons" warrant a reduction of his sentence. The Court will address each of these requirements in turn.
ANALYSIS
I. Defendant has failed to exhaust administrative remedies and waiver is unwarranted.
It is undisputed that Defendant has not exhausted his administrative remedies. Defendant concedes that on April 9, 2019 he made a request to the warden of his facility, FCI Allenwood Medium, for compassionate release, but the BOP has yet to make a decision. See Mot. at 2-3 ("Mr. Gallagher ... was instructed that he needed to go through the warden first before he could ask the court ... [a]lthough BOP has yet to rule on any request (and thirty days have yet to pass), Mr. Gallagher files this motion now in light of the urgent nature of this matter.").
Given Defendant's acknowledgement that the BOP has yet to make a decision regarding his request for compassionate release—and 30 days have not elapsed since the BOP's receipt of Defendant's request—the Government insists the Court should deny Defendant's Motion for failure to exhaust administrative remedies. Resp. at 2. This Court agrees. Defendant must wait 30 days after the warden's receipt of his request for compassionate release before seeking a reduction in his term of imprisonment under section 3582(c)(1)(A). See, e.g., United States v. Hays , No. 18-00088, 2020 WL 1698778, at *1 (S.D. Ala. Apr. 7, 2020) ; United States v. Zywotko , No. 19-11360, ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 1492900, at *3-4 (M.D. Fla. Mar. 27, 2020) ; United States v. Eberhart , 448 F.Supp.3d 1086, 1088–89 (N.D. Cal. 2020). Given Defendant's failure to fully exhaust all administrative remedies, his Motion warrants denial. See United States v. Monzon , No. 99 Cr. 157, ––– F.Supp.3d ––––, ––––, 2020 WL 550220, at *2 (S.D.N.Y. Feb. 4, 2020) (citation omitted) (holding section 3582(c)(1)(A) imposes "a statutory exhaustion requirement" that "must be strictly enforced").
Despite Defendant's concession that he has not exhausted administrative remedies, he nevertheless maintains that the 30-day requirement imposed by section 3582(c)(1)(A) is "not couched in the First Step Act as a jurisdictional requirement ... it is an affirmative defense that can be raised by the BOP or the [G]overnment ... [and] merely a non-mandatory ‘claims processing rule’ that can be waived or mitigated" by the Court. Mot. at 4. Moreover, Defendant asserts that the unprecedented nature of the COVID-19 pandemic should compel this Court to waive the exhaustion of administrative remedies under section 3582(c)(1)(A). Id. at 4-8.
The Court recognizes that administrative exhaustion may be unnecessary where the administrative process would be incapable of granting adequate relief. See McCarthy v. Madigan , 503 U.S. 140, 147, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). For example, exhaustion may be unnecessary where pursuing administrative review would generate undue prejudice due to an unreasonable or indefinite timeframe for administrative action. Id. at 146-47, 112 S.Ct. 1081. Exhaustion may also be deemed unnecessary and subject to waiver where it would be futile. Id. at 148, 112 S.Ct. 1081. But such circumstances are not present in this case.
Here, Defendant has not shown that administrative exhaustion within the BOP would be futile; on the contrary, the BOP has taken steps to stymie the spread of COVID-19 by providing some inmates the very relief Defendant seeks—home confinement in lieu of imprisonment. As evinced by the Attorney General's directive regarding the transfer of inmates vulnerable to COVID-19, appropriate administrative steps are being taken to lessen the risks posed by the ongoing pandemic. The BOP is currently assessing the inmate population to determine which inmates would be appropriate for transfer and processing those inmates as quickly as possible. Indeed, since the release of the Attorney General's March 26, 2020 Memorandum instructing the BOP to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 1,501 inmates on home confinement.
See BOP Frequently Asked Questions regarding potential inmate home confinement in response to the COVID-19 pandemic, https://www.bop.gov/coronavirus/faq.jsp.
See BOP COVID-19 Home Confinement Information, https://bop.gov/coronavirus.
Thus, given that the administrative process here is not only capable of granting adequate relief, but actually designed to address Defendant's specific request for home confinement, there is no reason to waive 30-day requirement. See Eberhart , 448 F.Supp.3d at 1088–89 (holding that defendant "fail[ed] to demonstrate the futility of pursuing administrative remedies to excuse his failure to exhaust" given that no COVID-19 cases had been identified in defendant's facility and the BOP had issued a COVID-19 action plan). Accordingly, waiver of administrative exhaustion as mandated by section 3582(c)(1)(A) is unwarranted, and Defendant's Motion must be denied.
II. Defendant has failed to present extraordinary and compelling reasons for release.
Even if the Court were to assume the exhaustion of administrative remedies or waive the statutory perquisites under section 3582(c)(1)(A), Defendant's Motion still fails to present "extraordinary and compelling reasons" to warrant compassionate release "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). Specifically, Defendant does not set forth any of the circumstances identified in Application Note 1 of the U.S. Sentencing Guidelines Manual, which delineates the circumstances in which a Court may find "compelling and extraordinary reasons." U.S.S.G. § 1B1.13, app. n. 1.
While Defendant's Motion provides letters from family members claiming he has "asthma, COPD, and high blood pressure," Defendant does not provide any medical records substantiating these claims. Nor does Defendant provide any evidence of the severity of these conditions, or any explanation for why these conditions, if he has them to any significant degree, make him more susceptible to COVID-19 than any other inmate. In fact, the Presentence Investigation Report prepared at the time of Defendant's sentencing last year does not mention any of these conditions. See Presentence Investigation Report [ECF No. 36].
Similarly, Defendant's BOP medical records for the past year make no mention of these conditions, other than to note that defendant's siblings have hypertension and his father had COPD. See Exhibits to Response [ECF No. 43-1] at 24. Indeed, Defendant repeatedly denied having respiratory problems or hypertension (high blood pressure ) and a BOP physical examination found his respiratory system was within normal limits. Id. at 8, 12, 18, 25, 43. And lastly, the BOP has not determined that alternative compelling reasons exist with respect to Mr. Gallagher. Accordingly, relief under section 3582(c)(1)(A)(i) is not appropriate. See Leitman v. Dobbs , No. 19-21139, 2019 U.S. Dist. LEXIS 132864 at *6-7 (S.D. Fla. Aug. 5, 2019) (finding petitioner ineligible for relief under section 3582(c)(1)(A)(i) where petitioner did not allege he was suffering from the conditions outlined in Application Note 1); Ayala v. Dobbs , No. 19-20729, 2019 U.S. Dist. LEXIS 59188 at *8 (S.D. Fla. Apr. 4, 2019) (same).
The Court is acutely aware that federal judges around the country have granted sentence reductions utilizing section 3582(c)(1)(A) —with waivers of the BOP exhaustion requirement—based upon the "extraordinary and compelling" public health crisis created by COVID-19. See, e.g., United States v. Resnick , 451 F.Supp.3d 262, 270 (S.D.N.Y. 2020) (granting compassionate relief to defendant who suffered from diabetes and end-stage liver disease, rendering him particularly vulnerable to COVID-19); United States v. Williams , No. 3:04-cr-95, 2020 WL 1751545 (N.D. Fla. Apr. 1, 2020) (finding defendant met criteria for compassionate release given his cardiovascular and renal condition, as well as advanced age, which put him at significant risk for severe illness should he be exposed to COVID-19); United States v. Jepsen , 451 F.Supp.3d 242, 247 (D. Conn. 2020) (finding "extraordinary and compelling" reasons to grant compassionate release for immunocompromised defendant suffering from chronic conditions that predisposed him to potentially lethal complications should he contract COVID-19). But such cases are readily distinguishable when compared to the dearth of medical issues faced by Defendant.
Here, Defendant has not provided medical records regarding his alleged physical ailments. Moreover, even if Defendant had documented asthma, COPD, and high blood pressure, he has not demonstrated that the severity of his conditions renders him particularly vulnerable to COVID-19. In sum, there is simply no evidence to suggest that Defendant suffers from the kind of dire medical condition that would necessitate waiver of exhaustion requirements and entry of immediate relief.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Defendant Thomas Patrick Gallagher's Emergency Motion for Compassionate Release [ECF No. 41] is DENIED .
DONE AND ORDERED in Fort Lauderdale, Florida, this 24th day of April, 2020.