Opinion
CRIMINAL ACTION NO. 11-28 SECTION "R" (1)
07-28-2020
UNITED STATES OF AMERICA v. ALVIN NEAL
ORDER AND REASONS
Before the Court is defendant Alvin Neal's motion for appointment of counsel to assist him in filing a motion for compassionate release in light of the COVID-19 pandemic. The Court denies the motion.
R. Doc. 140.
I. BACKGROUND
Defendant Alvin Neal was charged with five counts of possession with intent to distribute cocaine hydrochloride and cocaine base. Neal pleaded guilty to three counts, and the government dismissed the remaining two counts. The Court sentenced Neal to 209 months' imprisonment. Neal is currently incarcerated at Oakdale I FCI, with an expected release date of July 10, 2021. Defendant represents that he will be moved to a halfway house on August 10, 2020.
R. Doc. 1.
R. Doc. 42 (plea agreement), R. Doc. 39 (minute entry).
R. Doc. 98 at 3 (judgment); R. Doc. 94 (minute entry).
See Inmate Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited July 27, 2020).
R. Doc. 140 at 1.
Neal now ask the Court to "appoint a public defendant counsel to file a motion of Compassionate Release due to the Extraordinary Circumstances facing Oakdale Federal Prison." Neal states that he has been " quarantine[d] for 2 months due to testing positive of COVID-19 in April." He also states that he is "considered high risk and the conditions of the prison isn't [sic] getting any safe [sic]."
Id.
Id.
Id.
II. DISCUSSION
Defendant requests that the Court appoint a public defender to assist him in filing a motion for compassionate release. But defendant has not demonstrated that his motion for compassionate release would have any merit. A reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). The application notes to the relevant policy statement identify three discrete "extraordinary and compelling reasons" that could warrant a reduction: a "terminal illness" or a 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"; (b) "[a]ge"—starting at age 65; and (c) "[f]amily [c]ircumstances." See U.S.S.G. § 1B1.13, application note 1 (emphasis removed). The Guidelines also identify a category of "[o]ther [r]easons," but state that such reasons are "[a]s determined by the Director of the Bureau of Prisons." See id. § 1B1.13, application note 1(D) (emphasis removed).
Here, defendant does not show he fits into any of these categories. He cites to no family circumstances, and he is only forty-five years of age. Neal states that he is "currently considered high risk" but does not cite to any specific medical issue, illness, or pre-existing condition. Moreover, Neal represents that he was already infected with COVID-19 three months ago. Courts have repeatedly found that defendants who contract COVID-19 and recover are not among those who fall within the guidelines or demonstrate "extraordinary and compelling reasons," meriting a reduction in their sentence. See, e.g., United States v. Wagner, No. 4:18-cr-155, 2020 WL 4034009, at *4 (E.D. Tex. July 15, 2020); United States v. Gates, No. 3:17-cr-150, 2020 WL 3159154, at *4 (S.D. Miss. June 12, 2020); United States v. Russo, No. 16-cr-441, 2020 WL 1862294, at *8 (S.D.N.Y. April 14, 2020). Because defendant has already contracted COVID-19 and seemingly recovered, he fails to show that whatever conditions make him "high risk" have "substantially diminishe[d] the ability of the defendant to provide self-care within the environment of a correctional facility and from which he [] is not expected to recover." U.S.S.G. § 1B1.13, application note 1 (emphasis removed).
R. Doc. 140 at 1.
Id.
Moreover, defendant represents that he has a "scheduled release date to the halfway hous[e] on August 10, 2020," or less than two weeks from the date of this Order. Neal's release to a halfway house will largely remedy his concerns regarding being imprisoned during the pandemic, as those concerns were focused on the conditions at Oakdale I FCI. Even were the Court to grant defendant's motion and appoint a public defender to assist Neal in filing a motion for compassionate release, such a motion may well be moot before the Court could consider it. This circumstance similarly counsels against granting defendant's motion.
R. Doc. 140 at 1.
See id. (seeking compassionate release because of "the extraordinary circumstances we are facing in Oakdale Federal Prison"). --------
III. CONCLUSION
For the foregoing reasons, the Court denies defendant's motion.
New Orleans, Louisiana, this 28th day of July, 2020.
/s/_________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE