Summary
granting sentence reduction for inmate with several medical conditions, including asthma, obesity, and diabetes, who "tested positive for [COVID]-19 and was hospitalized for nine days"
Summary of this case from United States v. WeeklyOpinion
CR 13-000860-06 LEK
07-22-2020
UNITED STATES of America, Plaintiffs, v. Feso MALUFAU, Defendant.
Thomas J. Brady, Office of the United States Attorney, Honolulu, HI, for Plaintiffs.
Thomas J. Brady, Office of the United States Attorney, Honolulu, HI, for Plaintiffs.
ORDER GRANTING DEFENDANT FESO MALUFAU'S RENEWED MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. § 3582(C)(1)(a)(i)(COMPASSIONATE RELEASE)
Leslie E. Kobayashi, United States District Judge
Defendant Feso Malufau ("Malufau") seeks sentence reduction and compassionate release pursuant 18 U.S.C. § 3582(c)(1)(a)(i). [Def.'s Renewed Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Compassionate Release) ("Motion"), filed 6/24/20 (dkt. no. 1337).] He is currently housed in Federal Bureau of Prisons ("BOP") custody at Federal Correctional Institution Forest City Low ("FCI Forest City")). [Motion at 2.]
For the reasons stated below, Malufau's Motion is hereby granted. BACKGROUND
The factual background of Malufau's underlying conviction is set forth in this Court's Order Denying Without Prejudice Defendant's Motion for Immediate Release under the First Step Act, which was filed on June 12, 2020 ("6/12 Order"), [dkt. no. 1329,] and does not bear repeating here.
Malufau filed his Motion for Immediate Release under the First Step Act on May 14, 2020 ("Original Motion"), [dkt. no. 1303,] and this Court denied it on June 12, 2020 without prejudice to refiling once Malufau demonstrates that he has either exhausted his administrative remedies or establishes that more than thirty days have lapsed since he served his request for compassionate release upon the warden of his facility. [6/12 Order at 8.] On June 24, 2020, he filed the instant Motion.
Malufau now contends he "submitted, via his case manager, a request for Compassionate Release on April 23, 2020. The BOP has not responded to Mr. Malufau's request for compassionate release. Therefore, the instant motion is ripe for the Court's consideration." [Mem. in Supp. of Motion at 2 (citations omitted).] He provides the following medical conditions and history in support of his release:
Mr. Malufau is 61 years old. He suffers from asthma, type 2 diabetes, hypertension, hyperlipidemia, and gout. He is currently prescribed amlodipine, an albuterol inhaler, allopurinol, aspirin, atorvastatin, glucose, Lisinopril, metformin, and insulin. On October 24, 2019, Mr. Malufau's [body mass index ("BMI") ] was measured at 39.1 which means that he is obese. On April 8, 2020, Mr. Malufau tested positive for [COVID]-19 and was hospitalized for nine days. On April 16, 2020, he was discharged from the hospital and returned to FCI Forest City.
[Id. at 3 (footnote omitted).] He argues that release is appropriate because he is at a higher risk for severe illness should he contract COVID-19 because of his age and medical conditions. Moreover, even if he should recover fully from his COVID-19 infection, he could be re-infected and is vulnerable to significant complications because of his risk factors and the horrific COVID-19 outbreak at FCI Forest City.
Plaintiff United States of America ("the Government") opposes the Motion. [Government's Response to Defendant Feso Malufau's Renewed Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Compassionate Release) ("Response"), filed 7/9/20 (dkt. no. 1345).] The Government notes that "Malufau still remains housed at FCI Forrest City Low ..., with a projected release date of June 12, 2021." [Response at 3.] While the Government recognizes that Malufau has served almost the entirety of his sentence, it submits that the sentencing factors under 18 U.S.C. § 3553(a) do not favor sentence reduction: "[t]he nature and circumstances of [his] offense was serious, and any reduction in his sentence would not afford adequate deterrence to his criminal conduct." [Id. (citation omitted).]
The United States Probation Office for the District of Hawai'i ("USPO") filed its response to Malufau's Original Motion on May 26, 2020 ("Probation Response"), [dkt. no. 1319,] and reports that Malufau "is considered a Care 2 inmate, who is stable, but needs chronic care." [Probation Response at 2.] Malufau's wife indicates that she is agreeable to have Malufau reside with her and their two sons in their residence. [Id. ] Probation notes that both Malufau and his wife have been convicted of criminal offenses, and his wife was released from custody on March 21, 2015 and completed supervised release on April 23, 2018, having complied with all conditions of release, maintained stable employment, and paid full restitution. [Id. at 3.] Probation recommended against granting the Original Motion. [Id. at 4.]
DISCUSSION
Generally, courts have limited power to modify terms of imprisonment after a defendant has been sentenced. See generally 18 U.S.C. § 3582. As amended by the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i) authorizes an exception to that general rule and permits modification of a sentence:
(c) Modification of an imposed term of imprisonment.--The court may not modify a term of imprisonment once it has been imposed except that--
(1) in any case--
(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 (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that--
(i) extraordinary and compelling reasons warrant such a reduction ...
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
Thus, Malufau is required to demonstrate both exhaustion of administrative remedies and that "extraordinary and compelling reasons" exist to warrant sentence reduction.
I. Exhaustion
Section 3582(c)(1)(A) imposes "a statutory exhaustion requirement" that "must be ‘strictly enforced.’ " United States v. Monzon, 99cr157 (DLC), ––– F.Supp.3d ––––, ––––, 2020 WL 550220, at *2 (S.D.N.Y. Feb. 4, 2020) (alteration omitted) (quoting Theodoropoulos v. I.N.S., 358 F.3d 162, 172 (2d Cir. 2004) ). Here, Malufau presents unrefuted evidence that he submitted his request for compassionate release to the warden of his facility by submitting it to his case manager on April 23, 2020 and that, as of the date of the filing of the Motion, he had not received a response. [Motion, Decl. of Counsel, App'x A at 3 (Inmate Request to Staff, dated 4/23/20).] As more than thirty days have lapsed since the receipt of his request by the facility, Malufau has satisfied the statutory requirement.
II. Extraordinary and Compelling Reasons
A sentence reduction is only permitted where there are "extraordinary and compelling reasons," and if "such a reduction is consistent with applicable policy statement issued by the Sentencing Commission." Section 3582(c)(1)(A)(i).
Congress never defined the term "extraordinary and compelling reasons," except to state that "[r]ehabilitation ... alone" does not suffice. 18 U.S.C. § 944(t) [sic]. Rather, Congress directed the Sentencing Commission to define the term. The Commission did so prior to the passage of the First Step Act, which amended section 3852(c)(1)(A) to allow prisoners to directly petition courts for compassionate release and removed the BOP's exclusive ‘gatekeeper’ role. See
United States v. Rodriguez, No. 2:03-cr-00271, [451 F.Supp.3d 392, 396] (E.D. Pa. Apr. 1, 2020).
United States v. McCarthy, CRIM. CASE NO. 3:17-CR-0230 (JCH), 453 F.Supp.3d 520, 526 (D. Conn. Apr. 8, 2020) (some alterations in McCarthy ).
The Sentencing Commission does indeed provide, in pertinent part, the requisite guidance:
[T]he court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent ... applicable, the court determines that–
(1)(A) extraordinary and compelling reasons warrant the reduction; ..;
(2) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g) ; and
(3) the reduction is consistent with this policy statement.
United States Sentencing Commission Guidelines Manual ("U.S.S.G.") § 1B1.13. The Commission defined "extraordinary and compelling" with three specific qualifying reasons in the Application Notes to section 1B1.13. The one applicable here is:
(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 ... is not required....
(ii) The defendant is-
(I) suffering from a serious physical or medical condition ...
that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
U.S.S.G. § 1B1.13, cmt. n.1.
Courts have found that an extraordinary and compelling reason exists under certain situations:
The defendant's age and medical condition, taken in concert taken in concert [sic] with the COVID-19 public health crisis, constitute an extraordinary and compelling reason to reduce McCarthy's sentence. See United States v. Gonzalez, No. 18-CR-1536155, [451 F.Supp.3d 1194, 1197–98] [ (E.D. Wash. Mar. 31, 2020) ] (approving compassionate release where defendant "is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable"); United States v. Hernandez, No. 18-CR-834, [451 F.Supp.3d 301, 304–05] (S.D.N.Y. Apr. 2, 2020) (finding "extraordinary and compelling reasons" to reduce the defendant's sentence due to defendant's asthma and the "heightened medical risk presented to [the defendant] by the COVID-19 pandemic"); Rodriguez, [451 F.Supp.3d at 394–95] (granting compassionate release because for a diabetic inmate, "nothing could be more extraordinary and compelling than this pandemic"); United States v. Campagna, No. 16-CR-78-01, [––– F.Supp.3d ––––, ––––] 2020 WL 1489829, at *3 (S.D.N.Y. Mar. 27, 2020) ("Defendant's compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to [sic] Defendant's sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC."); [United States v.] Perez, [No. 17-CR-513-3, 451 F.Supp.3d 288, 291–92] [ (S.D.N.Y. Apr. 1, 2020) ]
("Perez meets th[e] requirement [of Application Note 1(D) ] as well, because he has weeks left on his sentence, is in weakened health, and faces the threat of a potentially fatal virus. The benefits of keeping him in prison for the remainder of his sentence are minimal, and the potential consequences of doing so are extraordinarily grave."); see also United States v. Perez, No. 19-CR-297 (PAE), 2020 WL 1329225, at *1 (S.D.N.Y. Mar. 19, 2020) (granting bail application, pursuant to section 3142(i), of 65-year-old defendant with COPD, in light of "unique confluence of serious health issues and other risk factors facing this defendant, ... which place him at a substantially heightened risk of dangerous complications should [he] contract COVID-19").
McCarthy, 453 F.Supp.3d at 527 (some alterations in McCarthy ).
Strong and consistent evidence shows that underlying medical conditions which put individuals at increased risk for severe illness (such as hospitalization, admission to the Intensive Care Unit, or death) from COVID-19 are: serious heart conditions, cancer, chronic kidney disease, COPD, obesity (BMI greater than thirty), sickle cell disease, solid organ transplantation, and type 2 diabetes. Centers for Disease Control and Prevention ("CDC"), Coronavirus Disease 2019 (COVID-19), Evidence Used to Update the List of Underlying Medical Conditions that Increase a Person's Risk of Severe Illness from COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html (last visited July 22, 2020).
Based on the CDC criteria, Malufau has demonstrated reasons justifying his release under § 3582(c)(1)(A) and § 1B1.13 of the Sentencing Guidelines. He has obesity (BMI of 39) and type 2 diabetes - factors which can substantially increase risk of intensive care unit admission and death if he should contract COVID-19 again.
In addition, COVID-19 has been particularly present at Malufau's facility. The BOP itself reports that FCI Forest City, where Malufau is currently housed, has 28 inmates and 3 staff currently infected with COVID-19, and 645 inmates and 3 staff recovered from being infected with COVID-19. Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus (last visited July 22, 2020).
III. Other Considerations
The Court next needs to address the two other determinations for granting reduction of imprisonment.
In addition to finding that an extraordinary and compelling reason exists, two other determinations must be made if the Court is to grant a reduction of Malufau's term of imprisonment and "impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment" – these are: "the defendant is not a danger to the safety of any other person or to the community," and consideration of "the factors set forth in 18 U.S.C. § 3553(a)." U.S.S.G. § 1B1.13. Malufau has served almost ninety percent of his incarceration sentence. See Judgment in a Criminal Case ("Judgment"), filed 2/17/15 (dkt. no. 856), at 2 (stating sentence of 97 months of imprisonment). Importantly, he has an acceptable and safe place (his family's home) to reside if released, as well as family support from his spouse and income from a rental property for financial support. [Probation Response at 2.] However, he was convicted of a crime which involves the betrayal of public trust when, as an adult corrections supervisor with the State of Hawai'i Department of Public Safety, he brought contraband such as methamphetamine into Halawa Correctional Facility for personal profit – a great harm to both the safety of inmates and fellow corrections officers. While conditions can be ordered to address the risk of harm to our community, his risk of reoffending cannot be eliminated entirely. Malufau's sentence already does include three years of supervised release during which time he can supervised, have his substance abuse and mental health issues addressed, and have his finances closely monitored. See Judgment at 3. Based on these factors, the Court concludes that, with appropriate conditions of supervised release, Malufau is not a danger to the safety of others or to the community.
As to the section 3553(a) factors, which the Court set forth fully at the sentencing hearing when it considered what sentence to impose, these are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
... [and]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[.]
Section 3553(a). As to the first factor, Malufau's offense conduct is very serious and harmful to our community. He helped perpetuate a criminal racketeering conspiracy involving State of Hawai'i inmates and guards by receiving bribes from incarcerated gang members in return for smuggling prison contraband, including methamphetamine and marijuana, into Halawa Correctional Facility. [Presentence Investigation Report, filed 2/18/15 (dkt. no. 854), at ¶¶ 15-17.] He was given an upward adjustment for his role in the offense because his position of trust and his willingness to smuggle drugs were critical to the objectives of the criminal racketeering conspiracy. [Id. at ¶ 80.] His actions directly placed both his co-workers and inmates at greater risk of physical harm as well as grossly betrayed his duties as a correctional officer. His history and characteristics are: he has a history of arrests and convictions for Driving Under the Influence of Intoxicating Liquor and related offenses; [id. at ¶¶ 88, 91-93, 99-100;] he has a troubling history of violence-related arrests and an arrest for filing a false declaration in a bankruptcy petition (which was dismissed against Malufau and for which his spouse was convicted and sentenced to prison); [id. at ¶¶ 96, 102-03;] he has a history of alcoholism and describes himself as a recovering alcoholic; [id. at ¶¶ 115-16;] he has a high school degree as well as Bachelor of Social Work degree; [id. at ¶ 117;] and he was employed with the Department of Public Safety - Corrections Division for twenty-five years, [id. at ¶ 119]. The second factor, the need for the sentence imposed, must be viewed with an eye to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)." Section 3553(a). Malufau was: sentenced to 97 months of incarceration and 3 years of supervised release; [Judgment at 2-3;] and has a projected release date of June 12, 2021. Federal Bureau of Prisons, Find an Inmate, https://www.bop.gov/inmateloc (last visited July 22, 2020). He has thus served approximately 86 months or 89% of his total sentence. No evidence was presented that he has been a disruptive inmate. To prolong his incarceration further under the circumstances of the COVID-19 pandemic and with his risk factors would be to impose a sentence "greater than necessary" to comply with the statutory purposes of punishment. There may be a meaningful sentence disparity between Malufau and others who have been found guilty of similar offenses, but the Court exercises its discretion as to this factor because Malufau's medical conditions pose a significant risk for serious complications (including death) if he should again contract COVID-19. This Court concludes therefore it is required to make this distinction to avoid a sentence that is not "greater than necessary."
CONCLUSION
For the foregoing reasons, Malufau's Renewed Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Compassionate Release), filed June 24, 2020, is GRANTED. Malufau's sentence is reduced to TIME SERVED plus three days. Upon his release from custody, Malufau is HEREBY ORDERED to commence serving his three-year term of supervised release and shall abide by all of the mandatory, standard, and special conditions of supervised release previously imposed, as well as the following additional special condition:
6. You will be monitored by radio frequency technology for a period of 180 days, and you must follow the rules and regulations of the location monitoring program, pursuant to the Participant's Agreement. You are restricted to your residence at all times except for employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities as pre-approved by the probation officer. You shall earn leave as determined by the probation officer.
It is FURTHER ORDERED that, within twenty-four hours of his release from the BOP, Malufau will contact the United States Probation Office for the District of Hawai'i, by telephone at (808)541-1283. Upon arrival in the District of Hawai'i, Malufau is ORDERED to remain in self-quarantine for a period of time of not less than fourteen days, as required by the State of Hawai'i.