Opinion
13-CR-51 (MKB)
06-26-2020
UNITED STATES of America, v. Michael KISSI, Defendant.
Erik David Paulsen, U.S. Attorney's Office, Brooklyn, NY, for United States of America.
Erik David Paulsen, U.S. Attorney's Office, Brooklyn, NY, for United States of America.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
On July 31, 2013, a jury convicted Defendant Michael Kissi of conspiracy to possess and attempted possession with intent to distribute heroin, and on May 13, 2014, the Court sentenced Kissi to 120 months in custody, the mandatory minimum sentence. (Jury Verdict, Docket Entry No. 58; J. of Conviction, Docket Entry No. 76.) On April 4, 2020, having served sixty-eight months in custody, Kissi filed an emergency motion for compassionate release, seeking a modification of his sentence and immediate release to home confinement and supervised release, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (Def. Mot. for Compassionate Release ("Def. Mot."), Docket Entry No. 86.) Kissi argues that his hypertension and resulting heightened vulnerability to COVID-19, the changes to the safety valve provisions enacted by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) (the "First Step Act"), and the "undue length" of his sentence despite his minimal role constitute extraordinary and compelling circumstances warranting the modification of his sentence and his release to home confinement. (Def. Mot.; Def. Suppl. Mem. in Supp. of Def. Mot. ("Def. Suppl. Mem."), Docket Entry No. 86.) The government opposes the motion on both procedural and substantive grounds. (Gov't Opp'n to Def. Mot. ("Gov't Opp'n"), Docket Entry No. 87; Gov't Suppl. Opp'n to Def. Mot. ("Gov't Suppl. Opp'n"), Docket Entry No. 92.) The government argues that the Court should deny the motion because Kissi has failed to exhaust his administrative remedies, and further argues that neither Kissi's medical circumstances, the changes to the safety valve provisions, nor the length of his sentence warrant the modification of his sentence. (Id. ) The Court heard oral argument on April 7 and May 13, 2020, (Min. Entry dated Apr. 7, 2020; Min. Entry dated May 13, 2020), and the parties submitted supplemental briefs, (Def. Suppl. Mem; Gov't Suppl. Opp'n).
For the reasons discussed below, the Court excuses Kissi's failure to exhaust his administrative remedies and grants the motion.
I. Background
On December 26, 2012, after arresting an individual at John F. Kennedy International Airport days earlier, agents of the Department of Homeland Security, Homeland Security Investigations, conducted a controlled delivery at a hotel where Kissi arrived to collect 100 pellets of heroin from a co-conspirator. (Presentence Investigation Report ("PSR") ¶¶ 5, 7, Docket Entry No. 59.)
On July 31, 2013, after a three-day trial, a jury convicted Kissi of conspiracy to possess with intent to distribute heroin and attempted possession with intent to distribute heroin. (Min. Entry dated July 29, 2013, Docket Entry No. 53; Min. Entry dated July 30, 2013; Min. Entry dated July 31, 2013, Docket Entry No. 56; Jury Verdict, Docket Entry No. 48.) Following his conviction at trial, Kissi, accompanied by counsel, met with the government for a safety valve proffer, but terminated the meeting without providing the relevant information outlined by the safety valve statute. (See Gov't Opp'n 1–2; Apr. 7, 2020 Hr'g Tr. ("Apr. 2020 Hr'g Tr.") 7:11–14, Docket Entry No. 93.) At a sentencing hearing held on May 13, 2014, the Court found that Kissi's guideline range was seventy-eight to ninety-seven months of imprisonment, (May 13, 2014 Sentencing Hr'g Tr ("Sentencing Tr.") 5:25–6:5, annexed to Def. Mot. as Ex. A, Docket Entry No. 86-1), and sentenced him to 120 months in custody and three years of supervised release, (J. of Conviction). As the Court noted at sentencing, the Court did not believe 120 months was an appropriate sentence but had no discretion in the matter. (See Sentencing Tr. 10:13–21.) As of the date of the filing of this motion, Kissi had served sixty-eight months in custody. (Def. Mot. 2.)
At the time Kissi was sentenced, the Sentencing Commission had recently "unanimously approved a two[-]point reduction to the guideline range applicable to [Kissi's] case," (Def. Sentencing Mem. 2, Docket Entry No. 72; see also Gov't Sentencing Mem. 4, Docket Entry No. 74), which, if in effect, would have resulted in a reduction of Kissi's offense level from twenty-eight to twenty-six, (see Sentencing Tr. 5:25–6:2, 6:17–21). At sentencing, the government did not object "to a downward departure based on that expected reduction," on the condition that Kissi "agree in the sentencing record not to make a subsequent motion to lower his guideline range based on those guidelines being [made] retroactive later on, [so] that he [wouldn't] get a second bite at the apple." (Id. at 6:23–7:3.) Defense counsel informed the Court that "given the circumstances of this case" — namely, that the mandatory minimum sentence was above any applicable guideline range — Kissi was "not willing to waive any future rights to ask for any sort of sentencing departure." (Id. at 7:7–9.) Agreeing that "in view of the mandatory minimum," the guideline range "really [did] not make a difference," the Court proceeded with an offense level of twenty-eight, and the resulting guideline range of seventy-eight to ninety-seven months. (Id. at 8:9–12.) However, the Court notes that, had it applied the reduction, as it would have had Kissi not objected, the resulting guideline range, based on a criminal history category of one and an offense level of twenty-six, would have been sixty-three to seventy-eight months.
In support of his motion, Kissi argues that the "unprecedented threat of COVID-19 ... poses extraordinary risks" to his health because his medical condition of hypertension "makes him especially vulnerable to the deadly risks of COVID-19." (Id. ) Kissi also argues that, given that he has "served [sixty-eight] months of his 120-month mandatory minimum sentence," and in view of the fact that he "was a first-time offender, who had a minor role in the offense, and had always worked to support his wife and three children," as well as the "undue length of his sentence" noted by the Court at sentencing, "[r]elief is particularly appropriate here." (Id. )
Kissi also notes that "he ... suffers from psoriasis, an autoimmune disorder which may make him more vulnerable to infection and complications," (Def. Mot. 2), but makes no further arguments based on this fact.
On March 27, 2020, Kissi, through counsel, requested that the Bureau of Prisons ("BOP") move for compassionate release on his behalf. (Id. at 6.) As of April 2, 2020, when Kissi filed his motion, BOP had not responded to his request. (Id. ) After hearing oral argument on April 7, 2020, the Court held the motion in abeyance while Kissi attempted to exhaust his administrative remedies. (Min. Entry dated Apr. 7, 2020.) On April 19, 2020, BOP denied Kissi's request. (Letter from Warden dated Apr. 19, 2020, annexed to Gov't Suppl. Opp'n as Ex. C, Docket Entry No. 92-3.)
In his supplemental memorandum in support of his motion, filed on April 30, 2020, Kissi asserts that "his motion is now ripe for review." (Def. Suppl. Mem. 2.) Kissi argues that the Court should find that he has exhausted his administrative remedies because, although the Warden denied his application for compassionate release less than thirty days after he filed it, because it has now been more than thirty days since he filed the application, he has complied with the statutory requirement and has exhausted his administrative remedies. (Id. at 2–5.) Kissi also argues that even if the Court were to determine that he has not exhausted his administrative remedies, the Court should nevertheless waive his failure to do so because of the extraordinary circumstances present here. (Def. Mot. 8–12.)
In further support of his motion, Kissi reiterates his arguments as to why his hypertension and the medical risks presented by the conditions at the Metropolitan Detention Center (the "MDC"), where Kissi is being held, represent extraordinary and compelling circumstances warranting relief. (Def. Suppl. Mem. 5–7.) Kissi also argues that the changes to the safety valve provisions enacted by the First Step Act create an unwarranted disparity between Kissi's sentence and the likely sentence of a comparable defendant today, providing a compelling basis for relief. (Id. at 7–12.) In particular, Kissi argues that because his failure to engage in a safety valve proffer was the sole barrier to a lesser sentence, if the current provisions preventing the use of information disclosed at a safety valve proffer to enhance the sentence of a defendant (provided the information does not relate to a violent offense) had been in place, Kissi likely would have been candid at a safety valve proffer and avoided the mandatory minimum sentence. (Id. at 9–12.)
Although a sentenced prisoner, Kissi was moved to the MDC, primarily a pre-trial facility, in January of 2019 as part of a program to allow "low-risk inmates to work outside the facility in maintenance." (Def. Mot. 3.)
In response, the government argues that because Kissi failed to appeal the Warden's denial of his application, the Court must deny his motion for failure to fully exhaust his administrative remedies as required by section 3582(c)(1)(A). (Gov't Suppl. Opp'n 2–13.) The government also opposes Kissi's substantive arguments. (Id. at 14–15; Gov't Opp'n 6–7.)
II. Discussion
As further described below, the Court finds that although Kissi has not exhausted his administrative remedies, under the circumstances of this case, he is not required to do so. The Court further finds that Kissi has demonstrated that there are extraordinary and compelling circumstances warranting modification of his sentence.
a. Compassionate release statutory scheme
"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). Section 3582(c)(1)(A)(i) "empowers a court to reduce a defendant's term of imprisonment if it finds that ‘extraordinary and compelling reasons warrant such a reduction.’ " United States v. Ebbers , 432 F. Supp. 3d 421, 422 (S.D.N.Y. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i) ). "Prior to the enactment of the FIRST STEP Act, only the Director of the BOP could file a motion for compassionate release," but "[t]he FIRST STEP Act amended this provision to permit an inmate to file a motion in federal court seeking compassionate release." United States v. Haney , 454 F. Supp. 3d. 316, 318, No. 19-CR-541 (S.D.N.Y. Apr. 13, 2020) ; see also Ebbers , 432 F.Supp.3d at 423 ("The First Step Act created an independent avenue for defendants to seek relief from the federal courts.").
Under section 3582(c), and as relevant here, courts may modify a previously imposed sentence where:
(A) 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 ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds 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 Bureau of Prisons 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[.]
18 U.S.C. § 3582(c)(1)(A)(i)-(ii).
i. The exhaustion requirement is non-jurisdictional
Although not discussed by the parties, before the Court can determine whether the exhaustion requirement can be waived, as Kissi argues, the Court must consider whether the exhaustion requirement is jurisdictional.
In order to "ward off profligate use of the term ‘jurisdiction,’ " the Supreme Court has "adopted a ‘readily administrable bright line’ for determining whether to classify a statutory limitation as jurisdictional." Sebelius v. Auburn Reg'l Med. Ctr. , 568 U.S. 145, 154, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013) (quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ). Under this bright line test, courts "inquire whether Congress has ‘clearly state[d]’ that the rule is jurisdictional; absent such a clear statement, ... ‘courts should treat the restriction as nonjurisdictional in character.’ " Id. (quoting Arbaugh , 546 U.S. at 515–16, 126 S.Ct. 1235 ).
The Second Circuit has not addressed whether the exhaustion requirement in section 3582(c)(1)(A) is jurisdictional. See Haney , 454 F.Supp.3d at 318–20 ; United States v. Monzon , ––– F. Supp. 3d. ––––, ––––, No. 99-CR-157, 2020 WL 550220, at *2 (S.D.N.Y. Feb. 3, 2020). However, in addressing a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), the Second Circuit disagreed with statements by other circuits that federal courts lacked "jurisdiction" to adjudicate motions under the statute. See United States v. Johnson , 732 F.3d 109, 116 n.11 (2d Cir. 2013). Invoking the Supreme Court's "caution against the overuse of the term," the Second Circuit found that the defendant's motion "arose under federal law," and that "subject matter jurisdiction was conferred by 28 U.S.C. § 1331." Id.
In light of the absence of any clear statement by Congress that the exhaustion requirement is jurisdictional, as well as the Second Circuit's holding in Johnson , a number of district courts in this Circuit have held that the requirement is non-jurisdictional, and is instead a claim-processing rule. See, e.g. , United States v. Musumeci , No. 07-CR-402 (S.D.N.Y. Apr. 28, 2020); United States v. Scparta , ––– F. Supp. 3d ––––, ––––, No. 18-CR-578, 2020 WL 1910481, at *4 (S.D.N.Y. Apr. 20, 2020) ; United States v. Russo , 454 F. Supp. 3d. 270, 274–75, No. 16-CR-441 (S.D.N.Y. Apr. 14, 2020) ; Haney , 454 F.Supp.3d at 318–21. Courts have also noted that the government has taken the position that the requirement is non-jurisdictional and that the government may waive the requirement if it chooses to, see, e.g. , Russo , 454 F.Supp.3d at 274–75, and have also granted release where the government has agreed to waive exhaustion, see, e.g. , United States v. Knox , No. 15-CR-445 (S.D.N.Y. Apr. 10, 2020); United States v. Gentille , No. 19-CR-590, 2020 WL 1814158, at *3, 5 (S.D.N.Y. Apr. 9, 2020). Some courts have deemed the exhaustion requirement satisfied where the government consents to release, see, e.g. , United States v. Maria Marin , No. 15-CR-252, 2020 WL 2612646 (E.D.N.Y. Mar. 30, 2020), or does not assert exhaustion, see, e.g. , United States v. Henao , No. 10-CR-213, 2020 WL 1812447, at *1 (E.D.N.Y. Apr. 9, 2020). Other courts have declined to decide the issue, finding it unnecessary to do so where, in their view, the requirement is mandatory regardless. See, e.g. , United States v. Hart , No. 17-CR-248, 2020 WL 1989299, at *4 (S.D.N.Y. Apr. 27, 2020) ; Monzon , ––– F.Supp.3d at ––––, 2020 WL 550220, at *2 ; United States v. Ogarro , No. 18-CR-373, 2020 WL 1876300, at *3 (S.D.N.Y. Apr. 14, 2020).
The Court finds, as a number of district courts in this Circuit have, that in light of the controlling law discussed above and the absence of a clear statement from Congress to the contrary, the exhaustion requirement in section 3582(c)(1)(A) is non-jurisdictional. Accordingly, although, as discussed below, the Court finds that Kissi has not satisfied the statute's exhaustion requirement, the Court nevertheless has jurisdiction over his motion.
ii. The exhaustion requirement is waivable under certain circumstances
District courts are sharply divided as to whether courts have the authority, under certain circumstances, to excuse compliance with the exhaustion requirement. See United States v. Bess , 455 F. Supp. 3d. 53, 58, No. 16-CR-15 (W.D.N.Y. Apr. 22, 2020) ("Although most courts agree that the requirement is a non-jurisdictional claim-processing rule, there is widespread disagreement about whether any exceptions may apply. Some courts have found that they independently may excuse a defendant's failure to exhaust, while others have found that only the government may forfeit or waive the requirement." (footnote omitted)).
A number of courts that have considered the issue have found that the requirement is mandatory and cannot be excused in the absence of the government's waiver. See, e.g. , United States v. Seng , 459 F. Supp. 3d 527, 533–35, No. 15-CR-706 (S.D.N.Y. May 8, 2020); Hart , 2020 WL 1989299, at *4 ; United States v. Demaria , No. 17-CR-569, 2020 WL 1888910, at *4 (S.D.N.Y. Apr. 16, 2020) ; see also Ogarro , 2020 WL 1876300, at *2–5 ; United States v. Rabadi , No. 13-CR-353, 2020 WL 1862640, at *3 (S.D.N.Y. Apr. 14, 2020) ; United States v. Roberts , ––– F. Supp. 3d ––––, ––––, No. 18-CR-528, 2020 WL 1700032, at *2 (S.D.N.Y. Apr. 8, 2020). These courts have reasoned that the "language of the statute is clear on its face that a court can only act if the BOP files a motion for compassionate release," or the defendant files a motion in compliance with the exhaustion requirement in section 3582(c)(1)(A), and that "[t]his language does not leave room for court-made exceptions." See, e.g. , Hart , 2020 WL 1989299, at *4. In reaching this conclusion, courts have relied in particular on the Supreme Court's statement that while "judge-made exhaustion doctrines, even if flatly stated at first, remain amenable to judge-made exceptions ... a statutory exhaustion provision stands on a different footing." Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016). "There, Congress sets the rules — and courts have a role in creating exceptions only if Congress wants them to." Id. ; see also Theodoropoulos v. I.N.S. , 358 F.3d 162, 172 (2d Cir. 2004) ("[A]s a general rule, courts are required to strictly enforce statutory exhaustion requirements."). Thus, a number of courts in this Circuit have concluded that "[g]iven Congress's decision to mandate exhaustion and to specify a single alternative, [courts are] not free to infer a general ‘unwritten "special circumstances" exception.’ " See, e.g. , Roberts , ––– F.Supp.3d at ––––, 2020 WL 1700032, at *2 (quoting Ross , 136 S. Ct. at 1862 ).
As noted below, other courts have taken heed of the Supreme Court's cautionary language in Ross , but have interpreted it to mandate heightened attention to congressional intent, rather than categorically bar courts from inferring permissible exceptions. In United States v. Scparta , the district court noted that in Ross , "[t]he Supreme Court ... considered the [Prison Litigation Reform Act's (the ‘PLRA’) ] legislative history at length to determine whether ‘its exhaustion regime’ was of a ‘mandatory nature.’ " United States v. Scparta , ––– F. Supp. 3d ––––, ––––, No. 18-CR-578, 2020 WL 1910481, at *7 (S.D.N.Y. Apr. 20, 2020) (quoting Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016) ). The court further explained that in finding that the "PLRA's requirement was not subject to equitable exception," the Supreme Court "relied on" the fact that the statute's "exhaustion regime was specifically designed to cure the ‘weak[er]’ and discretionary exhaustion requirement of an earlier prison-litigation statute." Id. (quoting Ross , 136 S. Ct. at 1857 ).
Other courts have agreed that statutory exhaustion requirements such as this one must be strictly enforced, but found that they can be waived where a recognized exception to exhaustion applies. See, e.g. , United States v. Razzouk , No. 11-CR-430 (E.D.N.Y. Apr. 19, 2020) (order reducing sentence); United States v. Sawicz , 453 F. Supp. 3d. 601, 603–05, No. 08-CR-287 (E.D.N.Y. Apr. 10, 2020) ; United States v. Zukerman , 451 F. Supp. 3d. 329, 331–32, No. 16-CR-194 (S.D.N.Y. Apr. 3, 2020) ; United States v. Perez , 451 F. Supp. 3d 288, 291–92, No. 17-CR-513 (S.D.N.Y. Apr. 1, 2020). These decisions have pointed to the Second Circuit's statement that "[e]ven where exhaustion is seemingly mandated by statute or decisional law, the requirement is not absolute," and is subject to certain recognized exceptions. See Washington v. Barr , 925 F.3d 109, 118 (2d Cir. 2019). In accordance with these recognized exceptions, "exhaustion may be unnecessary where it would be futile, ... the administrative process would be incapable of granting adequate relief," or "pursuing agency review would subject plaintiffs to undue prejudice." Perez , 451 F.Supp.3d at 292 (quoting Washington , 925 F.3d at 118 ). In the current public health crisis, courts have reasoned that "[u]ndue delay, if it in fact results in catastrophic health consequences, could make exhaustion futile"; "the relief the agency might provide could, because of undue delay, become inadequate"; and "obviously, [the defendant] could be unduly prejudiced by such delay." See, e.g. , id. at 292 (quoting Washington , 925 F.3d at 120–21 ). Thus, courts have found these recognized exceptions to apply in cases where requiring a defendant to exhaust, given his particular circumstances "and the exigency of a rapidly advancing pandemic, would result in undue prejudice and render exhaustion of the full BOP administrative process both futile and inadequate." See, e.g. , id.
Other courts have also found that the exhaustion requirement is waivable on equitable grounds, consistent with Second Circuit and Supreme Court case law, and Congress’ intent in enacting the First Step Act. See, e.g. , Bess , 455 F.Supp.3d at 60–63 ; Scparta , ––– F.Supp.3d at –––– – ––––, 2020 WL 1910481, at *5–8 ; Russo , 454 F.Supp.3d at 276–77 ; Haney , 454 F.Supp.3d at 320–22 ; see also United States v. Valencia , No. 15-CR-163, 2020 WL 2319323, at *5–6 (S.D.N.Y. May 11, 2020). In Russo , the district court noted that "the Supreme Court [had] recently reminded lower courts that claim-processing rules are sometimes ‘mandatory,’ " but are not always. 454 F.Supp.3d at 275–76 (quoting Fort Bend Cty., Texas v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1849, 204 L.Ed.2d 116 (2019) ). In concluding that courts have the authority to excuse the exhaustion requirement in section 3582(c)(1)(A) under certain circumstances, the court looked to "other law regarding waiver, forfeiture, equitable tolling, and affirmative defenses as well as ... the language of [s]ection 3582(c)," Russo , 454 F.Supp.3d at 275, including the Second Circuit's statement that "a ‘claim-processing rule’ is ‘subject to equitable considerations such as waiver, estoppel or futility,’ " id. at 276, (quoting Paese v. Hartford Life & Acc. Ins. Co. , 449 F.3d 435, 443 (2d Cir. 2006) ); see also id. (collecting cases).
The Court finds persuasive the rationale that, in effect, section 3582(c)(1)(A) "is the rare statute where Congress does intend for courts to be able to deem exhaustion of the BOP's administrative review procedures waived ... in the extraordinary circumstance where requiring a defendant to [exhaust] would entirely defeat the ability of the [c]ourt to grant relief." Valencia , 2020 WL 2319323, at *4. As the court in Valencia reasoned, while Congress’ stated purpose in amending the statute to allow defendants to bring motions themselves — to "increas[e] the use and transparency of compassionate release" — is "generally further[ed]" by the exhaustion requirement, "[i]n a case where requiring exhaustion risks a defendant's infection with a deadly disease ... administrative exhaustion would defeat, not further, the policies underlying [s]ection 3582(c)." Id. (first alteration in original) (internal quotation marks omitted) (quoting First Step Act § 603, Pub. L. 115-391, 132 Stat. at 5239); see also United States v. Livingston , No. 18-CR-416, 2020 WL 1905202, at *1 (E.D.N.Y. Apr. 17, 2020) (noting that while "[i]n ordinary times and circumstances, this statutorily imposed exhaustion requirement is not waivable ... [i]n the context of such extraordinary life-threatening circumstances, the crafting of judge-made exceptions to a statutory exhaustion requirement is ... appropriate"); Haney , 454 F.Supp.3d at 320–22 (noting that while "courts must be more hesitant" to excuse statutorily imposed exhaustion requirements, "Congressional intent not only permits judicial waiver of the [exhaustion requirement], but also, in the current extreme circumstances, actually favors such waiver, allowing courts to deal with the emergency before it is potentially too late").
The Court first addresses why Kissi has failed to exhaust his administrative remedies and then explains why, under the circumstances of this case, he is not required to do so.
b. Kissi failed to appeal BOP's denial of his application and therefore has not exhausted his administrative remedies
Section 3582(c) permits a court to modify a previously imposed sentence:
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[.]
18 U.S.C. 3582(c)(1)(A). Kissi argues that a defendant who submits a request to the warden may then file a motion in the district court after thirty days have passed, regardless of whether BOP has responded to the request. (Def. Suppl. Mem. 2.) The government argues that if the warden denies a defendant's request within thirty days, then the statute requires that the defendant fully exhaust his administrative rights to appeal that denial. (Gov't Suppl. Opp'n 10–11.)
Some district courts in this Circuit have seemingly interpreted the statute to mean that a defendant may present his motion to the court thirty days after the warden has received his request, regardless of whether the defendant has fully exhausted his administrative remedies. See, e.g. , Haney , 454 F.Supp.3d at 321 ("[ Section 3582(c)(1)(A) ] requires the defendant either to exhaust administrative remedies or simply to wait [thirty] days after serving his petition on the warden of his facility before filing a motion in court."); see also United States v. Field , No. 18-CR-426 (S.D.N.Y. May 4, 2020) (deeming claim ripe for judicial review as of thirty days after the defendant submitted a request to warden, where warden denied the claim within the thirty-day period). In addition, some courts have deemed a defendant's claim exhausted based on the warden's denial of the defendant's request. See, e.g. , United States v. Cooper , No. 08-CR-356 (S.D.N.Y. Apr. 28, 2020) (order modifying sentence).
Other courts in this Circuit "have interpreted the ‘lapse’ language to require the passage of [thirty] days without BOP action on the request, in essence reading the language as a futility provision." Seng , 459 F.Supp.3d at 534–37 (collecting cases); see also id. at 536–38 (finding that the thirty-day provision "require[s] the BOP's failure to respond to a ... request within thirty days of its submission," and that where the request is denied within thirty days, defendant "must fully exhaust the BOP appeals process to satisfy [s]ection 3582(c)(1)(A)’s exhaustion requirement"); United States v. Cassidy , No. 17-CR-116, 2020 WL 1969303, at *4 (W.D.N.Y. Apr. 24, 2020) (finding that section 3582(c)(1)(A) requires "either [that] (1) [BOP] denies the request and the defendant exhausts all administrative rights with respect to that denial, or (2) the warden of the facility takes no action on the request within [thirty] days of receiving it"); United States v. Schultz , 454 F. Supp. 3d. 217, 222–23, No. 17-CR-193 (W.D.N.Y. Apr. 15, 2020) (reading the thirty-day lapse language as providing "a common exception to exhaustion — futility — ... affording inmates access to judicial review if [BOP] fails to act on motions to reduce sentence within [thirty] days of receiving them."); Gotti , 433 F.Supp.3d at 614 ("A court may now consider a motion for compassionate release made by a defendant who has exhausted his administrative remedies by petitioning the Director of the BOP to make such a motion, assuming the Director fails to act on the inmate's request within thirty days.").
In Seng , the district court noted that "[a]lthough definitions of ‘lapse’ include ‘a passage of time,’ other definitions include ‘a slight error typically due to forgetfulness or inattention,’ and ‘the termination of a right or privilege through neglect to exercise it within some limit of time.’ " 459 F.Supp.3d at 536 (quoting Lapse , Merriam-Webster.com, https://www.merriam-webster.com/dictionary/lapse (last visited June 26, 2020)). In concluding that the thirty-day provision requires a defendant to show that thirty days have passed without BOP taking any action on his request, the court reasoned that "[a]pplying the first definition would substantially undermine one of the goals of an exhaustion requirement — protecting agency authority, expertise, and the opportunity to correct mistakes." Id. The court further noted that interpreting the lapse provision to require only that thirty days pass, without regard to whether or not BOP acted on the request during that time, "would also — in many cases — render the statute's provision regarding full exhaustion of administrative remedies meaningless, as defendants ... would forego appealing a warden's denial of their ... request if the [thirty]-day period was nearing an end." Id.
The Court agrees that the thirty-day period is "in essence ... a futility provision." See Seng , 459 F.Supp.3d at 535. The Court finds persuasive the reasoning followed by other courts in this Circuit that, in context, interpreting the word "lapse" to mean merely the passage of time would render meaningless the statute's provision requiring a defendant to "fully exhaust[ ] all administrative rights to appeal a failure of [BOP] to bring a motion on the defendant's behalf." 18 U.S.C. § 3582(c)(A)(1) (emphasis added); see also United States v. Gioeli , No. 08-CR-240, 2020 WL 2572191, at *2–3 (E.D.N.Y. May 21, 2020) (finding that section 3582(c)(1)(A) demonstrates Congress’ intent 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 [thirty] days"); United States v. Davis , No. 96-CR-912, 2020 WL 2522079, at *2 (E.D.N.Y. May 18, 2020) (rejecting defendant's argument that he was not required to appeal the warden's timely denial and finding that "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 [thirty] days following his submission of his request to the warden"); see also United States v. Kozeny , 541 F.3d 166, 174 (2d Cir. 2008) ("When interpreting a statute, we are required to give effect, if possible, to every clause and word of a statute and to avoid statutory interpretations that render provisions superfluous." (citations and internal quotation marks omitted)). Accordingly, the Court finds that because BOP denied Kissi's request within thirty days of receipt, and Kissi has not fully exhausted his administrative rights to appeal that denial, he has not satisfied section 3582(c)(1)(A) ’s exhaustion requirement. However, as discussed above, the Court agrees that under certain circumstances a court can waive the exhaustion requirement, and, for the reasons set forth below, concludes that the circumstances of this case warrant such relief.
c. Kissi has shown extraordinary circumstances warranting judicial waiver of the exhaustion requirement
As discussed above, the Court agrees that, "[i]n ordinary circumstances, this statutorily imposed exhaustion requirement is not waivable." See Livingston , 2020 WL 1905202, at *1. The Court also agrees, however, that "these are hardly ordinary times and circumstances." See id. As has only become more evident since Kissi filed his motion, the COVID-19 pandemic has presented "[t]he country [with] unprecedented challenges." See United States v. Nkanga , 450 F. Supp. 3d 491, 492, No. 18-CR-713 (S.D.N.Y. Mar. 31, 2020). In particular, "the COVID-19 pandemic presents an extraordinary and unprecedented threat to incarcerated individuals." United States v. Williams-Bethea , No. 18-CR-78, 2020 WL 2848098, at *4 (S.D.N.Y. June 2, 2020). BOP has designated Kissi as being among those incarcerated at the MDC who are particularly at-risk for health complications should they contract COVID-19. (See Def. Mot. 4, 14–15.) In Livingston , the court explained that:
In the context of the COVID-19 pandemic, [the defendant's] assignment to this list comfortably places his application within the confines of the unforeseen and unforeseeable deadly circumstances that justify an exception to the exhaustion required by statute and makes the waiver of that requirement appropriate and within the sentencing court's competence to order ....
Livingston , 2020 WL 1905202, at *2. The court in Livingston found that the defendant's placement on this list in the context of the pandemic warranted exhaustion even though the defendant's "vulnerability to the adverse impacts of the virus" was "only slightly more concerning than that of the average detainee," and did not, in the court's view, warrant relief on the merits. Id. at *3. As other courts in this Circuit have noted, in excusing exhaustion prior to the lapse of the thirty-day period, in the context of the COVID-19 pandemic and the particular risks it poses to incarcerated individuals, "each day a defendant must wait before presenting what could otherwise be a meritorious petition threatens him with a greater risk of infection and worse." See, e.g. , Haney , 454 F.Supp.3d at 321. This reality presents even more cause for concern for a defendant in Kissi's circumstances, who, having received an initial denial from BOP within the thirty-day period, may now have to wait months before he is able to present his fully exhausted claim to the Court. See Seng , 459 F.Supp.3d at 536–38 (describing the administrative appeal process).
The Court finds that, in the context of an unprecedented public health crisis, Kissi's designation by BOP as particularly vulnerable should he contract COVID-19, the particular risks the virus poses to him because of his hypertension, and the fact that it may take months for him to fully exhaust his claim, present extraordinary circumstances warranting waiver of the exhaustion requirement. Accordingly, the Court now turns to the merits of Kissi's motion. d. Kissi has demonstrated extraordinary and compelling circumstances under section 3582(c)(1)(A)(i)
Section 3582(c)(1)(A)(i) permits a court to grant a defendant's compassionate release motion if it finds that "extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements used by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A)(i).
Kissi argues that the following circumstances, present in his case, are extraordinary and compelling and warrant relief: (1) "the unique threat posed by COVID-19 to incarcerated persons, particularly those with underlying conditions such as ... Kissi," (2) "the excessiveness of ... Kissi's [ten]-year sentence relative to his crime," and (3) changes to the safety valve provisions that create an unwarranted disparity between Kissi's sentence and that of a comparable defendant sentenced today. (Def. Suppl. Mem. 1.)
In response, the government argues that, even on the merits, Kissi's motion must fail because Kissi has not demonstrated that his medical condition "places [him] in unique danger from the pandemic." (Gov't Suppl. Opp'n 14.) The government further argues that "[t]he fact that the defendant believes that his sentence was too long is not an extraordinary and compelling circumstance," (Gov't Opp'n 7), and that the changes to the safety valve provisions would not have affected Kissi's decision not to disclose certain information to the government, (see May 13, 2020 Hr'g Tr. ("May 2020 Hr'g Tr.") 27:20–23).
As explained further below, the Court finds that Kissi's medical circumstances alone do not constitute extraordinary and compelling circumstances. However, the Court finds that, considering Kissi's elevated risk of complications if he contracts COVID-19 together with changes in the safety valve provisions, the undue length of his sentence, and the extraordinary nature of the conditions of confinement in which he now is required to serve an already excessive sentence, Kissi has demonstrated extraordinary and compelling circumstances warranting relief.
i. Proposed grounds for relief
1. Medical circumstances
Kissi argues that his hypertension places him at "a significant risk ... [of] complications" if he were to contract COVID-19. (Def. Suppl. Mem. 6.) As discussed above, COVID-19 poses a serious threat to incarcerated individuals. According to the Centers for Disease Control and Prevention (the "CDC"), hypertension has "been associated with increased illness severity and adverse outcomes" among patients with COVID-19, and, in the context of the pandemic, courts have granted compassionate release of individuals based on their hypertension, in combination with other factors. However, at oral argument, defense counsel acknowledged that this factor, alone, was likely insufficient to warrant the relief requested. (May 2020 Hr'g Tr. 5:21–25, 6:9–13 ("I would concede that ... [the hypertension ] alone might be insufficient .... I still think the Court needs to consider the presence of COVID-19 and what that potentially means to ... an inmate with hypertension. But to push it over the line, I guess I would concede that I need the other arguments as well.").) Counsel further acknowledged that Kissi's age — 41 years old — is not a risk factor, according to recommendations by the CDC, (id. at 4:12–19), and confirmed that Kissi's hypertension is controlled by medication, (id. at 5:1–9). Kissi offers no additional medical risk factors to support his application. While the Court takes seriously the threat posed by the pandemic to incarcerated individuals, and the heightened risk of complications faced by individuals with hypertension, such as Kissi, should they contract the virus, the Court finds that Kissi's medical circumstances, considered alone, do not constitute extraordinary and compelling circumstances.
CDC, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited June 25, 2020).
See United States v. Rountree , 460 F. Supp. 3d 224, 233–35, No. 12-CR-0308 (N.D.N.Y. May 18, 2020) (granting release based on the defendant's diabetes and hypertension ); Scparta , ––– F.Supp.3d at ––––, 2020 WL 1910481, at *9 (granting release where the defendant suffered from hypertension, sleep apnea, high blood pressure, and high cholesterol and was incarcerated at "the site of one of the worst outbreaks of COVID-19 in any federal prison"); United States v. Bass , 462 F.Supp.3d 176, 180–81, 185–88 (N.D.N.Y. 2020) (granting release based on the defendant's hypertension, age, prior stroke, and the "COVID-19 outbreak" and "dorm-style environment" at prison where the defendant was incarcerated); United States v. Pena , 459 F.Supp.3d 544, 548–52 (S.D.N.Y. 2020) (granting release where the sixty-year-old defendant suffered from hypertension and hyperlipdermia, and was incarcerated at "the most heavily populated BOP facility ... [with forty-three] confirmed cases of COVID-19"); Sawicz , 453 F.Supp.3d at 603–05 (granting release where the defendant suffered from hypertension and was incarcerated at a prison with a "COVID-19 outbreak").
2. Changes to the safety valve provisions
Kissi argues that the changes to the safety valve provisions in 18 U.S.C. § 3553(f) enacted by the First Step Act create an unwarranted disparity between the ten-year mandatory minimum sentence imposed on Kissi and the sentence a similarly situated defendant would likely receive today. (Def. Suppl. Mem. 7.) In particular, he argues that, a similarly situated defendant today would be more likely to speak candidly in a safety valve proffer given the added restrictions on how the disclosed information can be used. (Id. at 9–12.) Because Kissi would have received a lower sentence had he proffered in a manner that satisfied the safety valve statute, he argues that a similarly situated defendant today would receive a lower sentence than Kissi did, creating an unwarranted disparity. (Id. )
Pursuant to section 3553(f), in cases involving certain drug offenses, courts may, under certain circumstances, impose a sentence "without regard to any statutory mandatory minimum sentence." 18 U.S.C. § 3553(f). Section 3553(f) lays out various requirements that a defendant must satisfy in order to be safety valve-eligible. See id. In addition to provisions related to a defendant's criminal history, the nature of the offense conduct, and his role in the offense, section 3553(f) requires that a defendant "truthfully provide[ ] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan[.]" 18 U.S.C. § 3553(f)(5). In addition to expanding the group of defendants eligible for safety valve based on their criminal histories, the First Step Act introduced new limitations on the permissible use of information disclosed by a defendant during a safety valve proffer. First Step Act § 402, Pub. L. 115-391, 132 Stat. at 5221. As amended by the First Step Act, section 3553(f) now provides that "[i]nformation disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense." 18 U.S.C. § 3553(f).
Kissi is correct that, had the Court been legally permitted to impose a sentence below the ten-year mandatory minimum, it would have done so. (See Sentencing Tr. 10:18–20, 23–24 ("I believe a guideline sentence would have been an appropriate sentence here, but I have absolutely no discretion.... [I]f I were sentencing you without a mandatory minimum I would sentence you within the guidelines.").) Moreover, as the government notes, at the time Kissi was sentenced, "the government took the position that [he] was eligible to meet the safety valve requirements." (Gov't Opp'n 7 n.4.) However, Kissi "declined to proffer with the government in a manner that would meet the criteria," (id. ), and thus the Court had no choice but to sentence him to the mandatory minimum.
The government argues that the changes to the safety valve provision would not have made a difference in Kissi's case, because his decision not to disclose information to the government was not driven by concern about the use of relevant conduct at sentencing. (May 2020 Hr'g Tr. 27:20–23.) At oral argument, the government stated that "the safety valve proffer lasted all of four minutes," (id. at 24:21), and asserted that "[i]t was just clear that Mr. Kissi understood that in order to get out from under the mandatory minimum[ ] he had to talk about people he just wouldn't talk about," because they were "people who were at the core of his social network," (id. at 24:1–2, 22–24).
As the Court noted during oral argument, in responding to Kissi's argument, the government seems, to some extent, to misunderstand the argument. (See id. at 25:9–21, 25.) Although the amended statute specifically speaks to the use of information to enhance a defendant's sentence, Kissi contends that protections like the one at issue here are given "because [they] have the affect of making people more open and transparent," and "don't necessarily operate in a strictly mechanical way." (Id. at 15:11–15.) As Kissi explains:
Defendants meeting with the government have a range of possible concerns, including incriminating themselves with relevant conduct, incriminating family and friends, and often most significantly, whether the fact that they are meeting with law enforcement will ever become publicly known. Perhaps to a lawyer, these are distinct concerns, but to a defendant they often merge into a more basic question: "Will these statements leave this room?" At the time of the proffer, the answer was unequivocally "yes."
(Def. Suppl. Mem. 11.) While the government may understand Kissi's decision not to speak as an act of "loyalty," Kissi argues that he, like many defendants, was more likely motivated by "fear," and the "concern ... that [the information] would somehow wind up in a presentence report and be seen by other people in prison [or] on the outside." (May 2020 Hr'g Tr. 28:20–29:2.) That Kissi apparently knew his co-conspirators well, Kissi argues, "means they may have known his family and his children, and he may have felt threatened by it." (Id. at 29:2–5.)
While Kissi's argument is inherently speculative, the Court also finds that it is well-reasoned, pragmatic, and ultimately persuasive. As explained below, while the Court likely would not find the change in the safety provision to be sufficient, on its own, to justify the requested relief, the Court considers the change in combination with the other specific circumstances of this case. 3. Undue length of sentence
Finally, Kissi argues that "the length of [his] sentence [is] an appropriate ground" on which the Court should grant relief, "particularly coupled with the unique threat posed by COVID-19." (Def. Suppl. Mem. 12.) Kissi argues that a "statutory change to the sentence is not a prerequisite for relief," (id. at 13 (citing United States v. Millan , No. 91-CR-685, 2020 WL 1674058 (S.D.N.Y. Apr. 6, 2020) ), and that, because of the pandemic, Kissi now must serve the remainder of an already excessive prison term "under risk to his health" and under conditions of incarceration that serve "only ... the goal of incapacitation," (id. at 15).
ii. The Court's authority to determine what constitutes extraordinary and compelling circumstances
As noted above, in order to modify a sentence under section 3582(c)(1)(A), a court must find that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). Neither the applicable policy statement nor its application notes have been amended since the passage of the First Step Act, and they "not only pre-date the [First Step Act's] amendment of § 3582(c) but also continue to reference expressly BOP's pre- [First Step Act] role as exclusive gatekeeper, which of course the [First Step Act] eliminated." United States v. Haynes , 456 F. Supp. 3d. 496, 508–09, No. 93-CR-1043 (E.D.N.Y. Apr. 22, 2020). Sentencing Guideline § 1B1.13 provides, in relevant part, that:
Upon the motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment ... if, after considering the factors set forth in 18 U.S.C. § 3553(a) ... the court determines that—
(1)(A) extraordinary and compelling reasons warrant the reduction; [and]
(2) the defendant is not a danger to the safety of any person or to the community, as provided in 18 U.S.C. § 3142(g) ; and
(3) the reduction is consistent with this policy statement.
U.S.S.G. § 1B1.13 (emphasis added). Application Note 1 provides guidance as to when "extraordinary and compelling circumstances exist." U.S.S.G. § 1B1.13 App. Note 1. In addition to certain circumstances involving a defendant's medical condition, age, and family circumstances, Application Note 1 instructs that extraordinary and compelling circumstances may exist for "[o]ther [r]easons." Id. Specifically, such circumstances exist where, "[a]s 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)." U.S.S.G. § 1B1.13 App. Note 1(d) (emphasis added). Thus, as currently written, the application notes suggest that BOP is responsible for determining whether extraordinary and compelling circumstances exist for purposes of section 3582(c)(1)(A)(i).
Although the First Step Act was passed relatively recently, a number of courts have already considered this apparent tension. See Haynes , 456 F.Supp.3d at 509–10 (stating that this is "territory surprisingly well charted"). In United States v. Cantu , 423 F. Supp. 3d 345 (S.D. Tex. 2019), the court reasoned that:
Before the First Step Act's amendments to § 3582, it made sense that the BOP would have to determine any extraordinary and compelling reasons — only the BOP could bring a motion for a reduction
of sentence under § 3582(c)(1)(A). But defendants no longer need the blessing of the BOP to bring such motions. The BOP in fact may never weigh in or provide guidance when a § 3582(c) motion is brought by a defendant.... Given the changes to the statute, the policy-statement provision that was previously applicable to 18 U.S.C. § 3582(c)(1)(A) no longer fits with the statute and thus does not comply with the congressional mandate that the policy statement must provide guidance on the appropriate use of sentence-modification provisions under § 3582.
Cantu , 423 F. Supp. 3d at 351. The court concluded that "when a defendant brings a motion for a sentence reduction under the amended provision, the [c]ourt can determine whether any extraordinary and compelling reasons other than those delineated [involving a defendant's medical condition, age, and family circumstances] warrant granting relief." Id. at 352. In Haynes , following Cantu and at least twelve other district courts, the district court similarly concluded that it had "the authority to ... determine what ‘[o]ther [r]easons’ (as that term is used in Application Note 1(D)) qualify as ‘extraordinary and compelling’ regardless of BOP's view on the matter and without having to await a someday-updating by the Commission of its unquestionably outdated policy statement." Haynes , 456 F.Supp.3d at 512–15 ; id. at 511–13 (collecting cases). This Court agrees, and finds similarly that it has the authority to determine whether Kissi's circumstances are extraordinary and compelling within the meaning of section 3582(c)(1)(A)(i).
iii. Extraordinary and compelling circumstances warrant relief
Having determined that it has the authority to do so, the Court now considers whether the circumstances currently before it are extraordinary and compelling, and concludes that they are.
In support of his argument about the change to the safety valve provisions, Kissi points to a line of cases involving compassionate release motions based on a different provision of the First Step Act, eliminating the harsh mandatory "stacking" of mandatory minimum sentences imposed under 18 U.S.C. § 924(c). (See Def. Suppl. Mem. 7–8 (collecting cases).) Like the changes to the safety valve provisions, Congress did not make this change retroactive. See Haynes , 456 F.Supp.3d at 501–03 (noting that the change to section 924(c) was not retroactive); First Step Act § 402, Pub. L. 115-391, 132 Stat. at 5221 (amendments to section 3553(f) "shall apply only to a conviction entered on or after the date of enactment of this Act"). However, a number of district courts have concluded that defendants sentenced under the previous mandatory sentencing regime may seek relief from the sentencing court under section 3582(c)(1)(A)(i), and that courts have the authority, under certain circumstances, to grant compassionate release of these defendants based on extraordinary and compelling circumstances.
See, e.g. , United States v. Haynes , 456 F. Supp. 3d. 496, 512–17, No. 93-CR-1043 (E.D.N.Y. Apr. 22, 2020) ; United States v. Redd , 444 F. Supp. 3d 717, 721–25 (E.D. Va. Mar. 16, 2020) ; United States v. Maumau , No. 08-CR-00758, 2020 WL 806121, at *5–7 (D. Utah Feb. 18, 2020) ; United States v. Urkevich , No. 03-CR-37, 2019 WL 6037391, at *3–4 (D. Neb. Nov. 14, 2019).
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In Haynes , the defendant was originally sentenced to forty-six years and six months in prison, forty years of which were mandatory consecutive terms for additional charges under section 924(c) that the government indicted the defendant on when he turned down a plea offer and elected to go to trial. Haynes , 456 F.Supp.3d at 497–98. In granting relief under section 3582(c), the district court noted that it was not the first to find that "this sea change in § 924(c) law, coupled with the brutal impact of the original sentence, is an extraordinary and compelling circumstance warranting a reduction in sentence under the compassionate release statute." Id. at 514.
Kissi also cites a district court decision granting relief based on the First Step Act's changes to the "three strikes" mandatory sentencing laws and the definition of a serious drug offense. (Def. Suppl. Mem. 8–9 (citing United States v. Hope , No. 90-CR-6108, 2020 WL 2477523 (S.D. Fla. Apr. 10, 2020) ).) In Hope , the court found that the disparity between the defendant's mandatory life sentence and the sentence a similarly situated defendant would receive today based on changes in the law, in combination with his medical needs and demonstrated rehabilitation, constituted extraordinary and compelling circumstances warranting a reduction of his sentence. Hope , 2020 WL 2477523, at *4.
Kissi argues that "[t]he changes to [ section] 3553(f) create an entirely analogous situation" to those presented by these cases because "his sentence was excessive and might well be lower if he was sentenced today." (Def. Suppl. Mem. 9.)
The Court agrees with Kissi that these cases lend support to his argument and help demonstrate that where Congress has amended laws impacting mandatory minimum sentencing, for particular defendants, those changes may create an unwarranted disparity between the sentences they received and the sentences similarly situated defendants would receive today. Moreover, that unwarranted disparity may in turn constitute an extraordinary and compelling circumstance under section 3582(c). The Court further agrees that, for the reasons discussed above, had the First Step Act's amendments to the safety valve provisions been in place at the time Kissi was sentenced, he may indeed have fared better at sentencing.
Still, the analogy Kissi seeks to draw between his case and the section 924(c) cases is not a perfect one. The changes to section 3553(f), while significant, are not the "extraordinary development in American criminal jurisprudence" that changes to the "draconian practice of ‘stacking’ of § 924(c) convictions for sentencing purposes" represented. See Haynes , 456 F.Supp.3d at 501–03. Moreover, while Kissi is correct that "there was speculation involved in all of the stacked 924(c) cases where courts granted relief," (Def. Suppl. Mem. 10), there is necessarily more speculation involved here. While the Court can say with certainty that it would have imposed a different sentence had it been legally permitted to do so — the Court said so at sentencing — it cannot say with certainty that Kissi would have been inclined to provide the government with information about the other individuals involved in the scheme had the new protections been in place.
In part because of these differences, the changes to the safety valve provisions would likely not be sufficient, on their own, to constitute extraordinary and compelling circumstances under section 3582(c). In other words, that a defendant declined to safety valve prior to the First Step Act's amendments went into effect and then received a mandatory sentence does not, on its own, entitle that defendant to compassionate release. However, these are not the circumstances currently before the Court. As courts have noted in assessing compassionate release motions in the COVID-19 context, the analysis required is "fact-intensive," see United States v. Brady , No. 18-CR-316, 2020 WL 2512100, at *3 (S.D.N.Y. May 15, 2020) (quoting United States v. Shakur , No. 82-CR-312, 2020 WL 1911224, at *1 (S.D.N.Y. Apr. 20, 2020) ), and the Court bases its decision here on a similarly fact-intensive analysis. Cf. Haynes , 456 F.Supp.3d at 516 ("[I]t is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis." (quoting United States v. O'Bryan , No. 96-CR-10076, 2020 WL 869475, at *1 (D. Kansas Feb. 21, 2020) )).
First, just because a defendant may have received a sentence below the mandatory minimum had they satisfied all the safety valve requirements, it does not follow that the mandatory minimum sentence imposed was necessarily excessive. In Kissi's case, however, in this Court's view, it unquestionably was. Kissi was a first-time offender convicted of a nonviolent drug offense, in which he played a minor role. (See Sentencing Tr. 10:23–11:3.) As the Court noted at the time of sentencing, Kissi had a strong employment history and was raising three children with his wife. (Id. at 11:3–5.) Based on the "nature and circumstances of the offense and the history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1), as well as the types of sentences routinely imposed in cases involving similarly situated defendants in this District, the Court felt then, as it does now, that the ten-year mandatory minimum was excessive and far greater than necessary to satisfy the purposes of 18 U.S.C. § 3553(a)(2).
Second, as discussed above, Kissi's motion comes before this Court during a public health crisis that has transformed American life in nearly every respect. In addition to the unprecedented health risks the COVID-19 pandemic presents to incarcerated individuals, including individuals who, like Kissi, may be at elevated risk for complications should they contract the virus, the pandemic has also altered the conditions of confinement in significant ways. While Kissi was transferred to the MDC in order to participate in a program that would allow him relatively more freedom of movement, (see Def. Mot. 3), instead, he now finds himself, for public health reasons, on near-constant lockdown, without access to educational and rehabilitative programs, and unable to receive social visits, (see Def. Suppl. Mem. 15); BOP, BOP Implementing Modified Operations, https://www.bop.gov/coronavirus/covid19_status.jsp (last visited June 24, 2020). In other words, not only is Kissi serving an excessive sentence that he may not have received had the amended safety valve provisions been in place, he is doing so under truly extraordinary conditions. While the Court certainly recognizes the reality that some or all of these conditions may be necessary and prudent steps taken by BOP to contain the spread of COVID-19, the Court cannot ignore the reality that, for Kissi, these conditions undoubtedly exacerbate an already unjust sentence. While all individuals incarcerated at the MDC are subject to these conditions, they are not all serving excessive sentences.
Finally, Kissi has already served more than sixty-eight months in prison. At sentencing, the Court found that Kissi's guidelines were seventy-eight to ninety-seven months. (Sentencing Tr. 5:25–6:5.) However, as discussed above, at the time, the Sentencing Commission had recently approved a reduction in the guidelines that, were it in effect at the time, would have resulted in a guideline range of sixty-three to seventy-eight months. (See Def. Sentencing Mem. 2; Gov't Sentencing Mem. 4; Sentencing Tr. 5:25–6:2, 6:17–21.) While the government did not object "to a downward departure based on that expected reduction," Kissi was not willing to agree to the government's condition that he agree not to later make a motion to lower his guideline range if the change were later made retroactive. (Id. at 6:23–7:3.) Under the circumstances, Kissi was, quite reasonably, "not willing to waive any future rights to ask for any sort of sentencing departure." (Id. at 7:7–9.) The Court agreed that, because of the mandatory minimum, his guideline range would not affect his sentence, and, given Kissi's position, applied the pre-amendment guideline range of seventy-eight to ninety-seven months. (Id. at 8:9–12.) However, the Court now takes into account that, had the Court applied the reduction, as the government consented to, the resulting guideline range would have been sixty-three to seventy-eight months. As Kissi has served more than sixty-eight months, a reduction of his sentence to time served places Kissi's sentence within this guideline range. Moreover, regardless of which guideline range is applied, that Kissi has already served a substantial prison term is another factor that further supports the Court's finding that modification of Kissi's sentence is warranted.
The Court finds that, when considered together, these particular circumstances constitute extraordinary and compelling circumstances warranting relief under section 3582(c)(1)(A)(i).
iv. Reduction of Kissi's sentence is consistent with the section 3553(a) factors
The Court further finds that the requested relief is consistent with the section 3553(a) factors. As the Court noted at sentencing, in addition to having played a minor role in the offense, Kissi "ha[d] no prior criminal history," had "a wife and three children," and had maintained consistent employment for many years. (Sentencing Tr. 10:23–11:5.) In addition to these factors, the Court now also considers that Kissi has served more than sixty-eight months in prison, which, under the circumstances, plainly "reflect[s] the seriousness of the offense, ... promote[s] respect for the law, and ... provides just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A). The Court further finds that Kissi "is not a danger to the safety of any person or to the community," U.S.S.G. § 1B1.13, as no evidence to suggest otherwise has ever been presented to this Court.
III. Conclusion
Accordingly, for the reasons explained above, the Court grants the motion and reduces Kissi's term of imprisonment to time served. The Court orders that Kissi be released immediately to begin serving his three-year term of supervised release, the terms of which are set forth in the May 13, 2014 judgment and remain unchanged by this Memorandum and Order.
SO ORDERED.