Opinion
CRIMINAL ACTION NO. 1:18-CR-319-AT-2
01-08-2021
UNITED STATES of America v. Breanna NOBLE, Defendant.
ATTORNEYS FOR GOVERNMENT: Michael V. Herskowitz, Teresa Marie Stolze, Office of the United States Attorney-ATL600, Northern District of Georgia, 600 United States Courthouse, 75 Ted Turner Dr., S.W., Atlanta, GA 30303, 404-581-6071. ATTORNEYS FOR DEFENDANT: Gretchen M. Stork, Federal Defender Program Inc.-Atl, Suite 1500, Centennial Tower, 101 Marietta Street, NW, Atlanta, GA 30303.
ATTORNEYS FOR GOVERNMENT: Michael V. Herskowitz, Teresa Marie Stolze, Office of the United States Attorney-ATL600, Northern District of Georgia, 600 United States Courthouse, 75 Ted Turner Dr., S.W., Atlanta, GA 30303, 404-581-6071.
ATTORNEYS FOR DEFENDANT: Gretchen M. Stork, Federal Defender Program Inc.-Atl, Suite 1500, Centennial Tower, 101 Marietta Street, NW, Atlanta, GA 30303.
ORDER
Amy Totenberg, United States District Judge
This case comes before the Court on Defendant Breanna Noble's Amended Motion for Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), as amended by Section 603 of the First Step Act [Doc. 20]. The Government has filed a Response in Opposition [Doc. 23], and Defendant Noble has filed her Reply [Doc. 24]. Having reviewed the record and applicable legal authority, the Court enters the following Order.
I. Background
On August 20, 2018, Ms. Noble plead guilty to one count of Hobbs Act Armed Robbery and one count of possession of a firearm during a crime of violence. (Doc. 3.) On November 16, 2018, Ms. Noble was sentenced to ninety-three months of incarceration (with a recommendation to the BOP for the final year to be served in a halfway house), and two years of supervised release. (Doc 11.) Her sentence was later reduced to 77 months on November 23, 2020 through a separate matter. (Docs. 16-19.)
Ms. Noble's charges flow from her involvement in several armed robberies. Ms. Noble acted as a getaway driver for her co-defendant, who was also her abusive boyfriend. (PSR ¶ 9.) On one occasion, Ms. Noble "cased" a restaurant prior to the planned robbery. (Id. ¶ 9.) Ms. Noble did not possess or brandish a gun; however, her co-defendant did, and fired two gunshots towards a restaurant employee at one of the robberies. (PSR ¶ 18.) At sentencing, this Court noted that Ms. Noble was extraordinarily influenced by her co-defendant boyfriend, who abused her physically and sexually and who was the father of her unborn child. (Doc. 15 at 16-17.) This abuse was the latest in Ms. Noble's long and distressing history of abuse and trauma at the hands of men. (PSR ¶¶ 68, 71, 77.)
Currently, Ms. Noble is housed at Atwood Satellite Camp, FMC Lexington in Lexington, Kentucky. There is apparently a discrepancy regarding what percentage of her sentence Ms. Noble has served. Ms. Noble contends that she has served over 61.5 percent of her sentence, including good time. (Mot. for Comp. Release, Doc. 20 at 5; Reply, Doc. 24 at 17.) The Government asserts that Ms. Noble has served only 46 percent of her anticipated sentence; however, it acknowledges that "any doubts regarding this issue should be resolved in favor of Noble's calculation." (Gov. Resp., Doc. 23 at 3, n.1.) The BOP's calculation of Ms. Noble's release date is January 27, 2023 for a total term of 65.5 months. Ms. Noble is over 40 months into that sentence, or over 60 percent.
On November 24, 2020, Ms. Noble filed an Amended Motion for Compassionate Release, arguing that her numerous medical conditions — including chronic asthma, obesity, major depressive disorder, post-traumatic stress disorder ("PTSD"), anxiety disorder, an additional mood disorder, elevated blood pressure, borderline diabetes, and latent tuberculosis — render her acutely vulnerable to severe illness from COVID-19. (Doc. 20 at 2-3.) Ms. Noble also argues that she is more susceptible to the virus because she is Black. (Id. at 3.) Further, Ms. Noble highlights the worsening conditions at the location where she is housed, Lexington FMC (Reply at 3-4) and argues that the Section 3553(a) factors weigh in favor of release. (Id. at 30-35.)
In opposing Ms. Noble's Motion, the Government argues that there are not extraordinary and compelling reasons to reduce Ms. Noble's sentence. Although the Government acknowledges that Ms. Noble's obesity places her at increased risk of severe illness from COVID-19 (Gov. Resp. at 8), it argues that none of her other medical conditions constitute increased risk factors (id. at 9). In addition, the Government argues that the factors specified in 18 U.S.C. § 3553(a) factors do not weigh in favor of release because the current sentence is necessary to reflect the seriousness of the offense and to provide specific and general deterrence. (Gov. Resp. at 10.) The Government requests, however, that the Court order a 14-day quarantine period and medical clearance in the event it grants Ms. Noble's motion. (Id. at 11.)
Ms. Noble has a release plan to live with her sister in Rochester, New York, and with her children. (Mot. for Compassionate Release at 34.) Ms. Noble's sister has confirmed to defense counsel that Ms. Noble is welcome to live with her; in addition, Ms. Noble's grandmother is nearby to her sister and plans to assist in Ms. Noble's transition, if she is granted release. (Id. )
II. Legal Standard
Before the enactment of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 ("First Step Act"), compassionate release was only available if the Bureau of Prisons ("BOP") filed a motion requesting it. See 18 U.S.C. § 3582 (2002) ; see also U.S.S.G. § 1B1.13 ("Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce the term of imprisonment."). Now, however, the First Step Act enables a defendant to file a motion for compassionate release directly with the sentencing court, provided she has "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of [his] facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A) (2018). Here, Ms. Noble has provided satisfactory evidence of exhaustion as she filed a request for compassionate release with the BOP on August 3, 2020. (Doc. 12 at 3.) On October 2, Ms. Noble was informed that her request was denied. (Doc. 20 Ex. 4, Administrative Remedy Request Denial.)
Where the exhaustion requirement is satisfied, the First Step Act authorizes a court to modify a term of imprisonment "after considering the factors set forth in section 3553(a) to the extent they are applicable, if it finds that—(i) extraordinary and compelling circumstances warrant a reduction .... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. The Sentencing Commission's policy is found in § 1B1.13 of the Guidelines and that section's accompanying Application Notes. This policy statement provides that a court may reduce a term of imprisonment "if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent they are 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." U.S.S.G. § 1B1.13. Application Note 1 to this section lists three circumstances that would qualify as "extraordinary and compelling:" (1) medical condition; (2) advanced age; and (3) family circumstances. Id. § 1B1.13 cmt. n.1. Application Note 1 also includes a residual clause whereby the Director of the BOP may determine "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons" set out above. Id.
The Sentencing Commission has not updated this policy statement since the passage of the First Step Act. Section 1B1.13 therefore does not reflect the change in the procedural requirements for compassionate release. See United States v. Ebbers , 432 F. Supp. 3d 421, 427 (S.D.N.Y. 2020). Courts across the country—including this Court—still rely on § 1B.1.13 for guidance as to the "extraordinary and compelling reasons" that may warrant a sentence reduction. See United States v. Drummond , No. 1:97-cr-0019, Doc. 118 at 5 (N.D. Ga. Sept. 27, 2019) (viewing § 1B.1.13 as "non-binding guidance"); see also United States v. Solis , No. 16-015-CG-MU, 2019 WL 2518452, at *2–3 (S.D. Ala. June 18, 2019) ; United States v. Heromin , No. 8:11-cr-550-T-33SPF, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019).
However, the Court is not limited to the technical requirements set forth in § 1B1.13 in assessing whether a defendant's application for compassionate release provides "extraordinary and compelling reasons" for a sentence reduction under § 3582(c)(1)(A)(i). See, e.g., United States v. Maria Ullings , No. 1:10-cr-406-MLB, Doc. 34 at 6 (N.D. Ga. May 12, 2020) (citing United States v. Perez , 451 F. Supp. 3d 288, 293–94 (S.D.N.Y. 2020) ); United States v. Beck , 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019) ("While the old policy statement provides helpful guidance, it does not constrain the Court's independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A)(i)."); United States v. Beard , No. 1:16-CR-285-SCJ, Doc. 176 at 6-7, 10 (N.D. Ga. June 25, 2020); United States v. Hill , No. 1:05-CR-0081-LMM, Doc. 45 at 4 (N.D. Ga. June 10, 2020); United States v. Noble , No. 1:09-CR-315-MHC, Doc. 58 at 3-6 (N.D. Ga. Nov. 24, 2020); United States v. Evans , No. 1:07-CR-119-CAP-1, Doc. 219 at 5 (N.D. Ga. Oct. 13, 2020) ("Stated otherwise, the court finds it is ‘authorized to consider the enumerated circumstances, as well as circumstances other than, or in combination with, the enumerated circumstances.’ ") (citing United States v. Kowalewki , No. 2:13-CR-45-RWS, Doc. 251 at 10 (N.D. Ga. Apr. 30, 2020)). The Court therefore considers the § 3553(a) factors, the Sentencing Commission's guidance in § 1B1.13, and the individual situation and circumstances presented by Ms. Noble's Motion.
III. DISCUSSION
A. Extraordinary and Compelling Reasons
Ms. Noble argues that her various chronic medical and mental health conditions — obesity, asthma, elevated blood pressure, prediabetes, latent tuberculosis, PTSD, anxiety disorder, major depressive disorder, and bipolar or other mood disorder — combined with the harrowing threat of COVID-19 within federal prisons and at FMC Lexington warrant compassionate release (Mot. for Compassionate Release at 23-24.) The Government argues that, aside from obesity, Ms. Noble does not suffer from any other condition which places her at increased risk of severe illness from COVID-19 and therefore she has not established extraordinary or compelling circumstances. (Gov. Resp. at 11.)
After thorough and careful review, the Court finds that Ms. Noble has adequately shown extraordinary and compelling circumstances to grant compassionate release based on her slew of medical and mental health conditions, most significantly, obesity and asthma, her race, and the serious surge of cases presently occurring at FMC Lexington, where Ms. Noble is housed.
1. Obesity, asthma, high blood pressure, prediabetes, latent tuberculosis
Ms. Noble suffers from a series of medical conditions, the most serious, for purposes of placing her at increased risk of severe illness from COVID-19, is obesity. It is undisputed that Ms. Noble suffers from obesity, with a Body Mass Index ("BMI") of 33.7 or higher. (Mot. for Compassionate Release at 2; Gov. Resp. at 8.) The Centers for Disease Control ("CDC") defines obesity as a BMI over 30, and has provided guidance that "[h]aving obesity ... increases your risk of severe illness from COVID-19." According to the CDC, people with obesity are three times more likely to be hospitalized for COVID-19 than those who are not obese.
The Government calculates Ms. Noble's BMI as 34.4. (Gov. Resp. at 8.) This higher BMI is apparently due to the fact that Ms. Noble has gained weight while incarcerated.
Centers for Disease Control, People with Certain Medical Conditions , updated Nov. 2, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited January 6, 2021).
Centers for Disease Control, COVID-19 Associated Hospitalization Related to Underlying Medical Conditions , August 8, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/downloads/covid-data/hospitalization-underlying-medical-conditions.pdf (last visited January 6, 2021).
Id. Additional research has found that individuals who have a BMI over 30 are a greatly increased risk for hospitalization (113%), more likely to be admitted to the intensive care unit (74%), and had a higher risk of death (48%) from COVID-19.
See, Obesity linked with Higher Risk for COVID-19 Complications , The University of North Carolina at Chapel Hill Health and Medicine, August 26, 2020, available at: https://www.unc.edu/posts/2020/08/26/obesity-linked-with-higher-risk-for-covid-19-complications/ (last visited January 6, 2021).
This is because obesity involves a buildup of fat, or adipose tissue, "around the rib cage and abdomen and in the visceral cavity," the interior of the abdomen, where vital organs are found. This buildup inhibits bodily functions, including those of the respiratory system; specifically, the increase in tissue reduces lung capacity, so that the lungs of an obese person contain less air after exhaling. Id. This reduced lung capacity increases the risk of airway closure. Id. at 5 n. 18. Further, obesity can cause shortness of breath, even where there is no obvious respiratory illness, and "stiffen" the respiratory system and "increase the mechanical work needed for breathing." Id. As COVID-19 is a disease that often results in pneumonia and acute respiratory distress, it thus poses serious danger to an obese individual. Ms. Noble's undisputedly suffers from obesity. She has gained over 30 pounds since entering prison. (Compare PSR ¶ 74 (listing weight as 130 pounds) with Doc. 20 Ex. 1 at 11 (listing weight as 194 pounds).) The dangers her obesity poses, were she to contract COVID-19, are not alleviated because of her relatively young age (30). See supra n. 2, People With Certain Medical Conditions ("Adults of any age with certain underlying medical conditions are at increased risk for severe illness from the virus ..."). Ms. Noble is therefore assuredly at real increased risk of developing severe symptoms if she contracts COVID-19. The Government does not dispute that Ms. Noble's obesity renders her at risk for severe illness from COVID-19. (Gov. Resp. at 8.)
Cheryl M. Salome et al., Physiology of Obesity and Effects on Lung Function , 108 J. APPLIED PHYSIOLOGY 206, 206 (2010), available at: https://journals-physiology-org.sw.library.ntpu.edu.tw:8443/doi/pdf/10.1152/japplphysiol.00694.2009 (last visited January 7, 2021).
Panagis Galiatsatos, What Coronavirus Does to the Lungs , JOHNS HOPKINS MEDICINE, Apr. 13, 2020, available at: https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-does-to-the-lungs (last visited January 7, 2021).
See also , David A. Kass et al., Obesity Could Shift Severe COVID-19 Disease to Younger Ages , 395 ELSEVIER PUB. HEALTH EMERGENCY COLLECTION 1544, 1544-45 (2020), available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7196905/ (last visited January 7, 2021) (detailing that researchers from Johns Hopkins University have concluded that obese younger patients with diagnosed COVID-19 are more likely to require hospitalization).
In addition to obesity, Ms. Noble also has a decades-long history of asthma, since childhood. (Doc. 20 Ex. 1 at 11.) She is prescribed an Albuterol Inhaler, which she uses up to three times a day for shortness of breath. (Id. at 14.) She is also prescribed two additional corticosteroids for her asthma. (Doc. 20 Ex. 1 at 11.) The CDC has explained that "having moderate to severe asthma might increase your risk for severe illness from COVID-19." See supra n 2, People With Certain Medical Conditions. The Government argues that Ms. Noble has not demonstrated that her asthma is "moderate to severe" and that, even if she had, CDC guidance only indicates that she might be at higher risk of getting severely sick from COVID-19 as a result of her asthma. (Gov. Resp. at 9.)
But, as Defendant points out, asthma is considered moderate if, without any treatment, symptoms occur daily. (Reply at 7-8.) Although Ms. Noble's medical records indicate that her asthma is under control at this time (Doc. 20 Ex. 1 at 22), these records also indicate that she takes three separate medications for her asthma daily. (Doc. 20 Ex. 1 at 5.) Consequently, her asthma can be characterized as moderate and, according to the CDC, she may be at increased risk of serious illness from COVID-19, not only because of her obesity but also because of her chronic asthma. The CDC indicates that asthma alone makes a person 1.5 times more likely to require hospitalization. See supra n. 3, COVID-19 Associated Hospitalization Related to Underlying Medical Conditions. Compounded with her obesity, Ms. Noble's risk of hospitalization, were she infected with COVID-19, is 4.5 times more likely, id. , warranting compassionate release. See United States v. Marshall , No. 1:16-CR-352-RWS-1, Doc. 337 at 6-7 (N.D. Ga. Dec. 4, 2020) (finding that defendant's asthma, obesity, gastro-esophageal reflux disease, and other conditions together created extraordinary and compelling reasons for release); United States v. Wright , No. 1:14-CR-280-CAP-1, Doc. 32 (N.D. Ga. Sept. 21, 2020) (granting release to defendant with asthma, obesity, depression, diabetes and other conditions); United States v. Ingram , No 1:15-cr-412-SCJ-1, Doc. 17 (N.D. Ga. June 26, 2020) (granting compassionate release to defendant with chronic asthma ); United States v. Rodriguez , 476 F.Supp.3d 1071 (S.D. Cal. 2020) (finding that the combination of obesity, asthma, and major depression presented extraordinary reasons to grant release); United States v. King , 2020 WL 5440324, at *7 n. 3 (E.D. Mich. Sept. 10, 2020) (grating compassionate relief where government disputed severity of defendant's asthma and hypertension because "considered as a whole" and in combination with defendant's obesity, these additional conditions, placed defendant at increased risk for severe outcome were he to contract COVID-19).
See, Classification of Asthma , University of Michigan Health Systems Library, updated June 9, 2019, available at: https://www.uofmhealth.org/health-library/hw161158 (last accessed January 7, 2021).
As explained in the chart supra at n. 3, an individual with two of the listed conditions, i.e asthma and obesity, is 4.5 times more likely to require hospitalization if infected with COVID-19.
In addition to these two serious risk factors, Defendant also presented evidence that Ms. Noble has higher than ordinary blood pressure and is prediabetic. While Ms. Noble's blood pressure "oscillates into the range of hypertension," (Reply at 5) she has not been diagnosed with hypertension. And although she is prediabetic, with blood glucose levels higher than normal, she has not been diagnosed with diabetes. (Mot. for Compassionate Release at 3 n. 9, 12.) The Government suggests that because Ms. Noble has not been diagnosed with diabetes or hypertension, these concerns are irrelevant to the Court's calculus.
However, CDC guidance indicates that individuals with high blood pressure might be at an increased risk for severe illness from COVID-19. See supra n. 2, People With Certain Underling Conditions. Likewise, "having type 2 diabetes increases your risk of severe illness from COVID-19." Id. While Ms. Noble's blood glucose levels are not high enough to warrant a diagnosis of diabetes, the CDC explains that "prediabetes is a serious heath condition ....Prediabetes puts you at increased risk of developing type 2 diabetes, heart disease, and stroke." Thus, while neither Ms. Noble's sometimes-elevated blood pressure nor her prediabetes would alone (or even together, without more) rise to the level of extraordinary and compelling reasons for compassionate relief, these conditions add to the pile of evidence she has presented to support a finding of extraordinary and compelling circumstances for release. See United States v. Noble , No. 1:09-CR-315-MHC-1, Doc. 58 (N.D. Ga. Nov. 24, 2020) (finding that defendant with obesity, pre-diabetes, hypertension, and other conditions showed extraordinary and compelling reasons for compassionate release); United States v. Guerrero-Martinez , No. 1:07-CR-279-CAP-GGB, Doc. 2365 at 6 (N.D. Ga. Dec. 17, 2020) (finding that defendant with obesity and diabetes, who was also additionally susceptible to severe illness from COVID-19 as a minority, had shown extraordinary and compelling reasons).
Centers for Disease Control, Prediabetes – Your Chance to Prevent Type 2 Diabetes , available at: https://www.cdc.gov/diabetes /basics/prediabetes.html (last visited January 7, 2021).
Ms. Noble also has latent tuberculosis. (Doc. 20 Ex. 1 at 1.) Other district courts have found this condition to weigh in favor of granting compassionate release. See United States v. Alghaithi , No. CR-16-01430-002-TUC-JGZ (LCK), 2020 WL 6305485, at *3 (D. Ariz. Oct. 28, 2020) (granting compassionate release where defendant had asthma, latent tuberculosis and pre-diabetes); United States v. Johnson , No. H-96-176, 2020 WL 3618667, at *5 (N.D. Cal. Apr. 12, 2020) (citing study explaining that individuals with latent or active tuberculosis may be more susceptible to COVID-19 and that progression may be more rapid and severe).
2. Mental Health Conditions
In addition to her various physical conditions, Ms. Noble has offered evidence of her many mental disorders: major depression, PTSD, anxiety disorder, and bipolar/ major mood disorder. The Government argues that, according to the CDC, these conditions do not put Ms. Noble at increased risk for severe illness from the virus. (Gov. Resp. at 9.) Defendant has presented evidence to the contrary.
First, Ms. Noble presents a declaration from medical professionals detailing more generally how and why mentally ill prisoners are especially vulnerable to COVID-19. (Doc. 20 Ex. 3 ¶ 16, Declaration of Paul Good, Ph.D. and Terry Kupers, M.D., M.P.S.) (explaining that "recent research into the relationship between the brain and the immune system has found that mental illness weakens the immune system, making it easier for viruses like COVID-19 to infect the mentally ill"). This declaration details the particular dangers of certain mental health conditions that Ms. Noble suffers from, such as anxiety disorder and PTSD. (Id. ¶ 17) ("Past trauma is very prevalent among the incarcerated population, and recent research indicates a breakdown in the immune system in individuals suffering from Posttraumatic Stress Disorder.") In addition, individuals with serious mental illness, like Ms. Noble, often have high rates of co-morbid medical conditions, which can reduce the inmate's resilience, complicate treatment, and even increase mortality rates among COVID-19 patients. (Id. ¶ 18.)
In addition to this more generalized medical evidence, Ms. Noble has offered the declaration of neuro-endocrinologist Dr. Robert Sapolsky who addresses Ms. Noble's particular circumstances. (Doc. 20-2, Declaration of Dr. Sapolsky ("Dr. Sapolsky Decl.")) The Government, while presenting no contrary evidence, argues that Dr. Sapolsky's declaration "is not persuasive" because his declaration includes "generalized and speculative opinion" and because Dr. Sapolsky is not an epidemiologist and has not testified about viral infections in the past. (Gov. Response 10.) But the Court finds Dr. Sapolsky's declaration to be relevant and specific to Ms. Noble's situation.
As stated in his declaration, Dr. Sapolsky has a Ph.D. in neuroendocrinology and is a professor at Stanford University, with decades of experience working on issues concerning the relationship between stress and the body. (Dr. Sapolsky Decl. ¶¶ 1-2.) He has also conducted extensive laboratory research and analysis on viral vectors derived from specific viruses. (Id. ¶ 2.) In his declaration, Dr. Sapolsky concludes, based on his review of Ms. Noble's medical records, that Ms. Noble is at significantly heightened risk from COVID-19. (Id. ¶ 39.) Dr. Sapolsky specifically identifies Defendant's PTSD, flowing from her childhood sexual, physical, and emotional abuse, as causing a level of stress that very likely impacts her immune system. (Id. ¶ 34.) In addition, Dr. Sapolsky explains that stress worsens the pathological features of asthma, and that corticosteroids weaken the immune system, which Ms. Noble is prescribed for her asthma. (Id. ¶ 35.) As a result, the "combination of Ms. Noble's stress-induced and stress-generating mental disorders, coupled with her asthma, make her uniquely susceptible to the adverse consequences of COVID-19." (Id. ¶ 36.) "Were she to contract COVID-19, because of stress and her underlying conditions, Ms. Noble is likely at considerably heightened risk of becoming severely ill and even dying." (Id. )
The Court thus concludes that, while it is unclear whether Ms. Noble's mental health conditions alone would constitute extraordinary and compelling reasons for release, they show additional co-morbidities and thus add weight to the medical related reasons for compassionate release. See United States v. de la Vaca , No. 1:07-CR-370-MLB, Doc. 101 at 2 (N.D. Ga. Nov. 20, 2020) (explaining that defendant "suffers from depression and anxiety, which render him more susceptible to contracting the virus"); United States v. Preston , No. 1:19-CR-373-AT-1, Doc. 23 (N.D. Ga. July 31, 2020); United States v. Brown , 1:18-CR-33-LMM-2, Doc. 52 (N.D. Ga. Oct. 30, 2020). See also, United States v. Indarte , 2020 WL 6060299 (W.D. Wash. Oct. 14, 2020) (granting compassionate release to 29-year old defendant with major depression, PTSD, and obesity ); United States v. Galaz , 477 F.Supp.3d 1134 (S.D. Cal. 2020) (granting release to 33-year old suffering from depression, obesity, and latent tuberculosis ); Doe v. Barr , 2020 WL 1820667, at *4 (N.D. Cal. Apr. 12, 2020) (explaining that PTSD, anxiety, and depression "can lead to decreased immune response and increased risk of infections").
3. Conditions at FMC Lexington
Besides Ms. Noble's medical and mental health conditions, there is an additional reason for compassionate release here. Ms. Noble is housed in FMC Lexington, in Lexington, Kentucky. At the time Ms. Noble filed her Amended Motion for Compassionate Release on November 24, 2020, there were 10 current cases among inmates and 12 among staff. (Mot. for Compassionate Release at 2.) By the time Ms. Noble filed her Reply brief on December 22, 2020, that number had increased to 194 inmate infections and 18 staff infections. (Reply at 1-2.) As of January 6, 2021, there were 418 inmates infected and 9 staff. See, BOP COVID-19 cases , https://www.bop.gov/coronavirus/ (last visited January 6, 2021). Currently, FMC Lexington has the second most cases of any federal prison. (Id. ) FMC Lexington has 1,102 inmates. Thus, currently, over 37% of the inmate population at FMC Lexington is infected.
The BOP data also indicates that there are 284 inmates and 44 staff recovered at Lexington FMC, as of January 6, 2021. Id.
Federal Bureau of Prisons, FMC Lexington, available at: https://www.bop.gov/locations/institutions/lex/ (last visited January 7, 2021).
This surge presents an acute and real danger to Ms. Noble, in light of her obesity and asthma, as well as the additional medical and mental health concerns detailed above. Accordingly, the wildfire spread further tips the scales in favor of granting compassionate release in Ms. Noble's case. United States v. Evans , No: 1-07-CR-119-CAP-1, Doc. 219 n. 5 (N.D. Ga. Oct. 13, 2020) ("The court is unpersuaded by the government's argument that the BOP has taken steps sufficient to control COVID-19 within its facilities. The BOP's own data does not bear this out."); United States v. Hill , 1:-05-CR-0081-LMM, Doc. 45 at 9 ("The Court finds that [defendant's] vulnerability, taken in concert with his high-risk environment, constitutes an extraordinary and compelling reason to modify his sentence.").
4. Ms. Noble's Race
Defendant also argues that she is particularly susceptible to severe illness from COVID-19 because she is Black. (Mot. for Compassionate Release at 14.) Data has shown that racial and ethnic minorities, with or without underlying comorbidities, are at even higher risk for severe COVID-19 illness. Id. According to what researchers from the Marshall Project could glean from the information available, Black individuals in prisons across the country have been disproportionately impacted by COVID-19. The Government does not respond to this argument. The Court finds that this data only further highlights why Ms. Noble may be increasingly susceptible to severe illness from COVID-19 and thus further tips the scales in favor of release. See United States v. de la Vaca , No. 1:07-CR-370, Doc. 101 at 2 (N.D. Ga. Nov. 20, 2020) ("As a racial minority, Defendant is also more likely to due or suffer severe problems from the coronavirus than [her] white counterparts."); United States v. Butler , No. 1:17-CR-207-CAP-2, Doc. 481 (N.D. Ga. Dec. 4, 2020) (explaining that defendant with obesity and hypertension was particularly susceptible to COVID-19 because he is Black).
Centers for Disease Control, COVID-19 Cases, Hospitalizations, and Deaths, by Race/ Ethnicity , November 30, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/downloads/covid-data/hospitalization-death-by-race-ethnicity.pdf (last visited January 6, 2021).
The Marshall Project, Is COVID-19 Falling Harder on Black Prisoners? Officials Won't Tell Us , May 28, 2020, available at: https://www.themarshallproject.org/2020/05/28/is-covid-19-falling-harder-on-black-prisoners-officials-won-t-tell-us (last visited January 7, 2021).
Considering all of the relevant circumstances presented by Ms. Noble's Amended Motion, the Court concludes that Ms. Noble's obesity and asthma, plus her additional medical and mental health conditions, plus her race, plus the rampant spread at FMC Lexington, all together show that she is at acute risk of severe illness from COVID-19, and therefore constitute extraordinary and compelling reasons for release.
B. Section 3553(a)
As noted above, Section 3582 requires the Court to consider any applicable factors within 18 U.S.C. § 3553(a). See 18 U.S.C. § 3852(c)(1)(A). Section 3553(a) requires that the Court "shall impose a sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing identified in paragraph 2 of the statute, The Section 3553(a) factors include:
(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;"
(3) the sentencing guidelines;
(4) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct;" and
(5) "the need to provide restitution to any victims of the offense."
18 U.S.C. § 3553 (2018) ; and see United States v. Chambliss , 948 F.3d 691, 693-94 n.3 (5th Cir. 2020) (quoting 18 U.S.C. § 3553(a) ).
The Government only briefly mentions the § 3553(a) factors but asserts that the factors do not weigh in favor of release because the current sentence is necessary to reflect the seriousness of the offense and to provide specific and general deterrence. (Gov. Resp. at 10.)
Ms. Noble has acknowledged the severity of her crimes and has been forthright with the Government. She had no criminal record prior to these crimes. As the Court recognized at sentencing, the nature of Ms. Noble's criminal involvement in part stemmed from her relationship with her co-defendant, who exerted heavy influence on her through physical and sexual abuse, and as Ms. Noble was then-pregnant with his child. (Doc. 15 at 8, 15-16.) The Court explained that it did not believe that Ms. Noble would be a threat when released. (Doc. 15 at 15-16.) The Court reiterates that finding here.
Recognizing Ms. Noble's serious history of trauma and abuse by men as relevant to the criminal activity at issue, the Court recommended in its Judgment and Commitment Order that the BOP make mental health counseling available to Ms. Noble. (Id. at 14, 17.) The Court also recommended drug treatment and vocational training. (Id. at 18.) While incarcerated, Ms. Noble, prior to COVID-19's curtain, successfully completed a number of relevant programs in accordance with the Court's recommendations, including a Drug Abuse Treatment Program, a Threshold Re-entry Class, Financial Counseling, the prerequisite workshop for Trauma Recovery Psychology Treatment Program, 300 hours of vocational training in carpentry, and religious study. (Doc. 12 at 7-12.) These efforts show signs of rehabilitation on Ms. Noble's part. Finally, Ms. Noble has served over 60 percent of her expected sentence. The 40 months she has so far served have provided serious punishment for her crimes and afford adequate deterrence under the circumstances.
Ms. Noble has been unable to participate in additional programs since the onslaught of COVID-19 and related lockdown restrictions. (Doc. 20 Ex. 5 at 2, BOP Program Review.) Thus, Ms. Noble in the immediate months ahead, if incarcerated, will continue to be blocked from accessing the types of transitional mental health and vocational training programs that would be helpful to her transition back to civil society.
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The Court also notes that Ms. Noble has three children, ages 12, 7, and 3, who are being cared for by her sister in Rochester, New York. If released, she plans to live with her sister and thus be reunited with her children.
Taking all relevant factors into account, the Court determines that the § 3553(a) factors support granting compassionate release. While the Court agrees that Ms. Noble's offenses were very serious ones, she has served a substantial amount of her sentence, shows signs of rehabilitation, does not appear to be a danger to the public, and has a verifiable plan to live with her sister and children, and near her grandmother, in New York. See United States v. Butler , No. 1:17-CR-207-CAP-2 (N.D. Ga. Dec. 4, 2020) (finding that Section 3553(a) factors weighed in favor of release for defendant who served as getaway driver in bank robbery who had no prior criminal history and served just shy of 50% of his sentence). The Court's conditions of release will include mental health counseling and an initial period of home detention to assist in Ms. Noble's safe and successful transition.
IV. Conclusion
It is hereby ORDERED that Defendant's Amended Motion for Compassionate Release [Doc. 20] is GRANTED . Accordingly, Defendant's term of imprisonment is REDUCED to TIME SERVED . Upon release from custody, Breanna Noble is HEREBY ORDERED to commence serving the previously imposed 2-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 conditions:
Ms. Noble shall be placed on home detention and shall reside at the home of her sister in Rochester, New York, with her children. Defendant's counsel is DIRECTED to provide the Court and the Probation Office information regarding the property and its suitability for Ms. Noble as soon as possible for Probation approval. Defendant's home detention is subject to the conditions set forth below for a period of six months.
For the first 90 days, Defendant shall be restricted to her residence and the immediate property that is associated with the home of Defendant's sister, except Defendant shall be authorized to travel for appointments to address medical needs, court appearances, mental health counseling appointments, substance abuse programming, and other activities approved by the Court or the Probation Office.
Defendant shall be subject to location electronic monitoring for a period of 180 days and must abide by all program rules and requirements. The type of location monitoring technology will be at the discretion of the probation officer. The Probation Officer is authorized to terminate location monitoring after five months if Defendant demonstrates full compliance.
If Defendant successfully complies with these restrictions after 90 days, Defendant shall then, for the subsequent 90 days, be authorized to leave the house solely based on a probation officer approved schedule and arrangements for: (1) Defendant's employment or job interviews, if any; (2) Defendant's enrollment in higher educational coursework or vocational training, if any; (3) medical and legal appointments; (4) 75 minutes of daily exercise outside the house or in combination with child care (i.e., playground visits), within a perimeter of 5 miles of her sister's home; (5) attendance at religious services; (6) grocery shopping, and any other activities approved by the probation officer. If the Probation Office believes any additional or alternative arrangements would be preferable, the Court will consider any such arrangements. Thereafter or at such earlier time as recommended by the Probation Officer, Defendant shall be subject to normal terms of supervised release.
Accordingly, the Court ORDERS that Defendant be released upon her completion of a 14-day quarantine period imposed to minimize the possibility of any spread of COVID-19. Medical clearance also shall be provided prior to her release and arrangements be made for provision to Defendant of a quantity of medication needed to address Defendant's medical conditions for a one-week period, until she can obtain prescriptions for her medical treatment in New York. The Probation Department should contact Ms. Noble's counsel and Ms. Noble as soon as feasible to discuss and make appropriate arrangements for her return to her sister's home and for transportation. In no event shall Ms. Noble be confined within the Bureau of Prisons beyond January 27, 2021, unless exceptional circumstances exist and the Court is promptly notified of such. The Clerk is DIRECTED to provide a copy of this Order to the United States Probation Office. The Assistant United States Attorney in this matter or his designee is DIRECTED to contact the Bureau of Prisons immediately on this date (January 8, 2021) to notify an appropriate representative of the issuance of this Order and its requirements.
IT IS SO ORDERED this 8th day of January, 2021.