Opinion
Case No. 17-cr-195 (TSC)
07-10-2020
UNITED STATES of America, v. Steven MASON, Defendant.
Daniel Joseph Lenerz, Thomas P. Swanton, U.S. Attorney's Office for the District of Columbia, Kenneth F. Whitted, U.S. Attorney's Office Violent Crimes & Narcotics Trafficking Section, Washington, DC, for United States of America. John James Carney, Tucson, AZ, for Defendant.
Daniel Joseph Lenerz, Thomas P. Swanton, U.S. Attorney's Office for the District of Columbia, Kenneth F. Whitted, U.S. Attorney's Office Violent Crimes & Narcotics Trafficking Section, Washington, DC, for United States of America.
John James Carney, Tucson, AZ, for Defendant.
ORDER
TANYA S. CHUTKAN, United States District Judge
Steven Mason has moved for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A)(i). (See ECF No. 183, Release Mot.) Mason is a 50-year-old African-American male with hypertension. (Id. at 1, 25, 27.) He argues that these health factors, in tandem with the risk of COVID-19, warrant a sentence of time served. (Id. ) The Government opposes the motion. (See ECF No. 186, Opp.)
I. BACKGROUND
Mason was convicted after trial of one count of Conspiracy to Distribute and Possess with Intent to Distribute One Hundred Grams or More of Heroin and a Quantity of Fentanyl and Alprazolam, in violation of Title 21, United States Code, Section 846. (ECF No. 95.) He was sentenced to the mandatory minimum term of five years of imprisonment to be followed by four years of supervised release. (ECF No. 166.) Mason has served over two years and four months (not including good time credit), and his projected release date is September 4, 2022. (ECF No. 186-1 at 2.)
II. DISCUSSION
As modified by the First Step Act, 18 U.S.C. § 3582(c)(1)(A) allows a court to modify a term of imprisonment "upon motion of the [BOP], or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A).
While there has been some confusion related to the timing of Mason's requests to the Bureau of Prisons (BOP) for compassionate release, it is clear he has met the exhaustion requirement. Mason asserts, through a letter to his counsel that is attached to the motion for release, that he submitted two requests to the BOP in the first two weeks of April and received no responses. (ECF No. 183-1). In Opposition, the Government asserts, without more, that there is "no record that the defendant had ever submitted such requests." (Opp. at 9.) In a Supplemental Brief, Mason suggests that the confusion arose because he submitted the requests to one case manager (Mr. Bagley) before he was re-assigned to a different case manager (Ms. O'Donnell), who fielded inquiries from the Government and did not know of Mason's earlier requests. (ECF No. 188, Supplement, at 1.) The only evidence before the court is Mason's assertion that he submitted requests and that he has received no response. (ECF No. 183-1.) The court credits this assertion, and because thirty days has passed since submission, finds that the exhaustion requirement has been met.
Once the exhaustion requirement is met, the court must then decide whether "extraordinary and compelling reasons warrant such a reduction" and whether "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). In doing so, the court must also consider the 18 U.S.C. § 3553(a) sentencing factors, to the extent they apply. Id.
The rapid spread and lethality of COVID-19 within prisons, combined with Mason's health factors, provide extraordinary and compelling reasons justifying release. COVID-19 is a national emergency, but the danger it poses is particularly acute in carceral settings:
Jails and prison are powder kegs for infection. People in jails and prisons cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear protective clothing, obtain specific products for cleaning and laundry, avoid frequently touched surfaces, or sanitize their own environment. "Realistically, the best—perhaps the only—way to mitigate the damage and reduce the death toll is to decrease the jail and prison population by releasing as many people as possible." United States v. Nkanga , No. 18-CR-713, 2020 WL 1529535, at *1, 2020 U.S. Dist. LEXIS 56188, at *1 (S.D.N.Y. Mar. 31, 2020).
United States v. Skelos , 2020 WL 1847558, at *1 (S.D.N.Y. Apr. 12, 2020). The risk is compounded yet again for individuals with Mason's health characteristics. The COVID-19 fatality rate increases with age, is higher for men than women, and is among the highest for African Americans. Mason's diagnosed hypertension further increases his risk. (ECF No. 183-6 Stern Decl. at 1 ("The effects of COVID-19 are very serious, especially for people ... over the age of 50, and those of any age with underlying health problems such as ...hypertension."). Therefore, Mason's risk of becoming seriously ill or dying from COVID-19 while incarcerated is itself an extraordinary and compelling reason to warrant a sentence reduction.
Moreover, releasing Mason is consistent with the Sentencing Commission's section 3553(a) sentencing factors and applicable policy statements. See 18 U.S.C. 3553(a) ; U.S.S.G. § 1B1.13. The sentence that Mason has served thus far, over two years for a non-violent drug offense, and the sentence he will continue to serve while on supervised release for four years, balances the seriousness of his crime with his acceptance of responsibility. Further, in sentencing Mason, the court did not intend for his sentence to "include incurring a great and unforeseen risk of severe illness or death brought on by a global pandemic." United States v. Zukerman , No. 16-cr-194, Dkt. No. 116, 451 F.Supp.3d 329 (S.D.N.Y. Apr. 3, 2020).
Multiple factors suggest that Mason does not pose "a danger to the safety of any other person or to the community." U.S.S.G. § 1B1.13(2). According to the BOP, Mason's security level is "minimum," and he has a "low" risk of recidivism. (ECF No. 186-3.) Further, his record in prison is very good; his only disciplinary incidents involve destruction of a mattress and possession of a "hazardous tool" (in this case, a cell phone). (ECF No. 186-2.)
Having found extraordinary and compelling reasons to reduce Mason's sentence, and finding such a reduction consistent with the section 3553(a) factors and the applicable policy statements, the court will reduce Mason's sentence to time-served plus the original 48 months of supervised release.
III. ORDER
In light of the foregoing discussion, it is hereby
ORDERED that Mason's motion is GRANTED and that Mason's sentence is hereby REDUCED to time-served plus 48 months of supervised release under the conditions in the original judgment;
ORDERED that Mason must call the Probation Office within 72 hours of his release; and
ORDERED that all other provisions of the original sentence imposed remain in effect.
See Chris Mooney et al., All across the United States, the coronavirus is killing more men than women, data show, WashingtonPost.com (Apr. 4, 2020); Reis Thebault et al., The coronavirus is infecting and killing black Americans at an alarmingly high rate , WashingtonPost.com (Apr. 8, 2020); Eleanor Cummings, What We Know About Whom COVID Kills , Slate (May 1, 2020), https://slate.com/technology/2020/05/covid-deaths-demographics-age-racegender.html; Akilah Johnson & Talia Buford, Early Data Shows African Americans Have Contracted and Died of Coronavirus at an Alarming Rate , ProPublica (Apr. 3, 2020), https://www.propublica.org/article/early-data-showsafrican-americans-have-contracted-and-died-of-coronavirus-at-an-alarming-rate.