Opinion
CRIMINAL ACTION NO. 2:18-cr-00200-6
2020-09-22
UNITED STATES of America, v. Brian KELLEY
Timothy D. Boggess, U.S. Attorney's Office, Charleston, WV, for United States of America.
Timothy D. Boggess, U.S. Attorney's Office, Charleston, WV, for United States of America.
MEMORANDUM OPINION AND ORDER
JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE
Pending before the court is Defendant Brian Kelley's Motion for Compassionate Release and request for appointment of counsel. [ECF No. 299]. The court in deciding such motions will consider the following: whether the defendant has exhausted his or her administrative remedies, has demonstrated "extraordinary and compelling reasons," is not a danger to the safety of others, and the § 3553(a) factors. In deciding what constitutes "extraordinary and compelling reasons" for release by reason of COVID-19, a defendant must demonstrate that he or she has a medical condition listed by the Centers for Disease Control and Prevention as causing an increased risk of severe illness from COVID-19 and that he or she is at a facility which cannot effectively prevent the spread of the virus.
I. Background
On November 7, 2019, I sentenced Mr. Kelley to 60 months of imprisonment followed by 4 years of supervised release after Mr. Kelley pleaded guilty to a conspiracy to distribute controlled substances and possession with intent to distribute cocaine. [ECF No. 197].
Mr. Kelley is currently imprisoned at Federal Correctional Institution Danbury in Danbury, Connecticut. He alleges he currently suffers from two health conditions: high cholesterol and high triglycerides. [ECF No. 299, at 6]. What Mr. Kelley calls high triglycerides is also referred to as hyperlipidemia in other documents. [ECF No. 299, at 19]. FCI Danbury is a low-security federal prison camp that currently houses 661 total inmates. FCI Danbury , Fed. Bureau of Prisons, https://www.bop.gov/locations/institutions/dan/ (last visited Sept. 20, 2020). As of September 18, 2020, there are two active cases among prisoners or staff at FCI Danbury. See COVID-19 Cases , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus (last visited Sept. 20, 2020).
II. Discussion
The First Step Act "embodies Congress's intent to reduce the Bureau of Prison's authority over compassionate release petitions and authorizes the district courts to exercise their independent discretion to determine whether there are ‘extraordinary and compelling reasons’ to reduce a sentence." United States v. Galloway , No. CR RDB-10-0775, 2020 WL 2571172, at *3 (D. Md. May 21, 2020) (internal citations removed); see also United States v. Stephenson , 461 F.Supp.3d 864, 871 (S.D. Iowa 2020) ("Unqualified deference to the BOP no longer makes sense now that the First Step Act has reduced the BOP's role.").
For me to reduce Mr. Kelley's sentence under compassionate release, I must find that Mr. Kelley has exhausted his administrative remedies, has demonstrated "extraordinary and compelling reasons," is not a danger to the safety of others, and find that her release is consistent with § 3553(a) factors. See e.g., United States v. Howard , No. 4:15-CR-00018-BR, 2020 WL 2200855, at *2 (E.D.N.C. May 6, 2020) ; U.S.S.G. § 1B1.13 (2018). As I will explain, to find "extraordinary and compelling reasons" exist by reason of COVID-19, Mr. Kelley must demonstrate that he has a medical condition listed by the Centers for Disease Control and Prevention ("CDC") as causing an increased risk of severe illness from COVID-19 and that he is at a facility which cannot effectively prevent the spread of the virus.
a) Exhaustion of Administrative Remedies and Section 3582(c)(1)(A)
The First Step Act empowers criminal defendants to request compassionate release for "extraordinary and compelling reasons." 18 U.S.C. § 3582(c)(1)(A)(i). But before they make such requests, defendants must ask BOP to do so on their behalf and then wait 30 days. See § 3582(c)(1)(A). Upon such a motion from BOP or from a defendant (after BOP denies the request or thirty days have elapsed since the request was filed), a court "may reduce the term of imprisonment ...." 18 U.S.C. § 3582(c)(1)(A)(i). Mr. Kelley writes that he requested compassionate release from the warden at FCI Danbury on May 13, 2020. [ECF No. 299, at 5]. Mr. Kelley's request was denied by the warden on May 20, 2020. [ECF No. 299, at 19]. In addition to his initial request, Mr. Kelley alleges that he has attempted to pursue other administrative review of the warden's decision but has not received a response. [ECF No. 299, at 5]. Because more than thirty days have passed since Mr. Kelley sent his initial request to the warden, I find that Mr. Kelley has exhausted his administrative remedies. As such, I now turn to whether Mr. Kelley has alleged extraordinary and compelling reasons that would justify compassionate release.
b) Extraordinary and Compelling Reasons
Once an inmate has satisfied administrative exhaustion, courts may reduce their sentences upon a finding of "extraordinary and compelling reasons." See 18 U.S.C. § 3582(c)(1)(A).
There are "disagreements [among district courts] about the precise definition of ‘extraordinary and compelling reasons’ justifying compassionate release." United States v. Cotinola , No. 13-CR-03890-MV, 2020 WL 2526717, at *3 (D.N.M. May 18, 2020). But many courts have found "extraordinary and compelling" reasons "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., Bass , 462 F.Supp.3d at 187 (citing e.g., United States v. Rodriguez , 451 F.Supp.3d 392, 403-04 (E.D.Pa. 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); United States v. Sawicz , 453 F.Supp.3d 601, 604-05 (E.D.N.Y. 2020) (finding an "extraordinary and compelling reason" on the basis of the inmate's hypertension and conditions at FCI Danbury). I previously granted compassionate release to a defendant who was immunocompromised—suffering from a liver disease, Hepatitis C. See United States v. White , No. 2:17-CR-00198-4, 466 F.Supp.3d 666, 673, (S.D. W. Va. June 12, 2020) ; see also Coronavirus Disease 2019 (COVID-19): People with Certain Medical Conditions , CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Sept. 20, 2020) (listing "immunocompromised state" as an underlying medical condition causing an "increased risk for severe illness from COVID-19").
The specific extraordinary and compelling reasons listed in the Sentencing Guidelines for BOP to consider include i) the defendant is suffering from a terminal or serious medical condition; ii) age of defendant; iii) family circumstances of defendant; and iv) "other reasons." U.S.S.G. § 1B1.13 ; United States v. Bass , 462 F.Supp.3d 176, 180–83 (N.D.N.Y. 2020). "Following the passage of the First Step Act, courts may independently determine whether such ‘other reasons’ are present in a given case, without deference to the determination made by the BOP." United States of America v. Thaher , No. 17 CR. 302-3 (KPF), 2020 WL 3051334, at *4 (S.D.N.Y. June 8, 2020).
"Section 1B1.13 of the United States Sentencing Guidelines contains the only policy statement issued by the Sentencing Commission pertaining to compassionate release," which has not been updated since the passage of the First Step Act. See Bass , 462 F.Supp.3d at 181 ; U.S.S.G. § 1B1.13.2 Thus, courts have taken this to mean that "there does not currently exist, for purposes of satisfying the First Step Act's ‘consistency’ requirement, an ‘applicable policy statement.’ " See e.g., United States v. Redd , 444 F.Supp.3d 717, 724 (E.D. Va. 2020) ; United States v. Brant , 464 F.Supp.3d 898, 902 (E.D. Mich. 2020) ; United States v. Brooks , No. 07-CR-20047-JES-DGB, 2020 WL 2509107, at *3 (C.D. Ill. May 15, 2020).
In addition, many courts rely upon CDC guidance for whether a medical condition constitutes an "extraordinary and compelling" reason for release. See e.g., United States v. Salvagno , 456 F.Supp.3d 420, 426 (N.D.N.Y. 2020), reconsideration denied (June 22, 2020) ("The Centers for Disease Control and Prevention has advised that people with hypertension face an increased risk of severe illness from COVID-19."); United States v. Nygren , No. 1:16-CR-00106-JAW, 2020 WL 4208926, at *12 (D. Me. July 22, 2020) ("Based on the medical records in this case and the CDC guidance ...."); United States v. Bell , No. 18-CR-60115-BB-4, 2020 WL 4217724, at *4 (S.D. Fla. July 23, 2020) ("CDC guidance indicates that individuals with the following health conditions are at a higher risk of contracting severe illness due to COVID-19 ...."). And many courts reject compassionate release petitions when the defendant does not suffer from any conditions recognized by CDC as causing an increased risk of severe illness from COVID-19. See e.g., United States v. Adeyemi , No. CR 06-124, 470 F.Supp.3d 489, 516–17, (E.D. Pa. July 6, 2020) ("Mr. Adeyemi's asthma does not currently fit the Centers for Disease Control and Prevention's high-risk category."); United States v. Mollica , No. 2:14-CR-329-KOB, 2020 WL 2811504, at *3 (N.D. Ala. May 29, 2020) ("Ms. Mollica is under 65 and the CDC has not listed the underlying conditions from which she suffers as creating particular risk for COVID-19."); United States v. Arroyo , No. 2:19-CR-54-1-TLS-JPK, 2020 WL 3118787, at *4 (N.D. Ind. June 12, 2020) ("High cholesterol is not listed on the CDC website as a risk factor related to COVID-19 ...."); United States v. Cosby , No. 18CR4474-JAH, 2020 WL 3840567, at *4 (S.D. Cal. July 7, 2020) ("CDC has not listed epileptic seizures as a condition that places individuals at a higher risk of severe illness."); United States v. Frazer , No. CR 19-110, 2020 WL 2404893, at *2 (E.D. Pa. May 12, 2020) ("Sleep apnea is not listed by the CDC as a serious underlying medical condition that could increase a person's risk for severe illness from COVID-19.").
I join other courts in holding that I cannot find that "extraordinary and compelling" reasons exist to grant release because of COVID-19 unless the inmate has a condition that makes him or her more at risk for developing a serious illness from COVID-19 and the facility where the inmate is housed has conditions such that its inmates are at a high risk of contracting COVID-19. See United States v. Raia , 954 F.3d 594, 594 (3d Cir. 2020) ("But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release ...."); United States v. Penaloza , No. 19-238, 2020 WL 1555064, at *2 (D. Md. Apr. 1, 2020) ("[T]he mere presence of the virus, even in the detention setting, does not translate to the release of a person accused.").
In deciding which conditions result in an inmate being a higher risk for COVID-19, I will defer to CDC's list of medical conditions causing an increased risk of severe illness from COVID-19. See Coronavirus Disease 2019 (COVID-19): People with Certain Medical Conditions , CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Sept. 20, 2020). Using CDC guidance will allow for more predictable standards in deciding which defendants have "extraordinary and compelling" reasons justifying release.
If an inmate can demonstrate that he or she has a condition identified by CDC, next, the defendant must show that his or her prison conditions are such that BOP cannot effectively prevent the spread of COVID-19. Factors include but are not limited to the steps BOP has taken to stop the spread of COVID-19 in that particular prison and steps to follow CDC guidance, the ability of inmates to socially distance, the amount of hygiene products and face masks provided to inmates, and the number of COVID-19 cases in that prison.
I will note that Attorney General William Barr has twice issued memoranda directing BOP to prioritize the use of home confinement for vulnerable inmates. See Memorandum for Director of BOP , https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf (last visited Sept. 13, 2020) and https://www.justice.gov/file/1262731/download (last visited Sept. 13, 2020). Yet, by all accounts, BOP has resisted calls to release vulnerable inmates to home confinement. Indeed, other district courts have noted their awareness "of the growing evidence of the BOP's chronic mismanagement of its vulnerable population during the COVID-19 pandemic." Woodard v. United States , No. 2:12-CR-105, 469 F.Supp.3d 499, 503–04, (E.D. Va. June 26, 2020) ; see also Wilson v. Williams , 4:20-cv-00794, 2020 WL 2542131, at *1–2 (N.D. Ohio May 19, 2020) (documenting the "unacceptable" percentage of positive tests at FCI Elkton and BOP's "ineffective[ness] ... at stopping the spread"). "Even in the best run prisons, officials might find it difficult if not impossible to follow the CDC's guidelines for preventing the spread of the virus among inmates and staff: practicing fastidious hygiene and keeping a distance of at least six feet from others." United States v. Esparza , No. 1:07-CR-00294-BLW, 2020 WL 1696084, at *2 (D. Idaho Apr. 7, 2020) (the likelihood of contracting the virus is greater in prison than if a defendant were able to fully self-isolated at home); see also See United States v. Stephens , 447 F.Supp.3d 63, 65, (S.D.N.Y. Mar. 19, 2020) (discussing the heightened risk presented by a COVID-19 outbreak in a jail or prison versus the community at large). Thus, when looking at whether an inmate is at a prison with a high risk of contracting COVID-19, it is also imperative to recognize the context and failures of BOP to stop the spread of COVID-19 in prisons.
Mr. Kelley has alleged two health conditions: high cholesterol and high triglycerides. In the warden's denial of Mr. Kelley's request, Warden Easter refers to Mr. Kelley's high triglycerides as hyperlipidemia. Mr. Kelley alleges difficulty in obtaining medical records to prove these diagnoses, but even accepting these alleged health conditions as true, neither of these conditions is listed on the CDC's designation of health conditions that place people at higher risk of serious illness from COVID-19. Because Mr. Kelley's conditions are not on this list, they do not constitute and extraordinary and compelling reason.
Even if Mr. Kelley's conditions did put him at a higher risk for serious illness from COVID-19, I cannot find that Mr. Kelley has alleged that the conditions at FCI Danbury are such that BOP cannot effectively prevent the spread of COVID-19. The only detail that Mr. Kelley provides about FCI Danbury is that the facility has been on quarantine lockdown since April. [ECF No. 299, at 4]. Instead of alleging an inability of FCI Danbury to control the spread of COVID-19, Mr. Kelley has provided a detail that indicates that FCI Danbury is working hard to control the spread of COVID-19 within its walls. Despite Mr. Kelley's argument that COVID-19 is hard to contain and manage in a prison setting, the First Step Act calls for an assessment of Mr. Kelley's conditions, not an assessment of prisons generally. While Mr. Kelley's fears that he may contract COVID-19 are understandable, fears alone do not rise to the level of extraordinary and compelling reasons.
III. Conclusion
For the foregoing reasons, Defendant's motion for compassionate release and request for appointment of counsel [ECF No. 299] is DENIED without prejudice.