Opinion
CR. NO. 15-00614 SOM
06-10-2020
UNITED STATES OF AMERICA, Plaintiff, v. GREGORY SCHER, Defendant.
ORDER DENYING DEFENDANT'S EMERGENCY MOTION FOR COMPASSIONATE RELEASE
I. INTRODUCTION.
In early 2019, Defendant Gregory Scher received an above-guidelines prison sentence of twenty months on one count of Social Security fraud in violation of 42 U.S.C. § 408(a)(3). He has served more than a year of his sentence, and he is scheduled to be released from FMC Rochester on September 24, 2020. He now argues that, in light of the COVID-19 pandemic, this court should release him early under 18 U.S.C. § 3582(c)(1)(A) and, as a condition of his release, place him on home confinement for the duration of what would have been his prison sentence. Scher is 67 years old and suffers from several serious medical conditions that place him at risk of complications if he contracts COVID-19. Those conditions, however, also mean that Scher may need medical care as soon as he leaves prison. Scher has not explained how he will receive that treatment or how he will practice social distancing after he is released. This court is left with a concern that a release before such a plan is in place might pose a threat to Scher's health. Although this court considers this a close case, it denies Scher's request.
II. ANALYSIS.
Scher's compassionate release request is governed by 18 U.S.C. § 3582(c)(1)(A), which provides:
[T]he court . . . 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.
This court begins by expressing some bewilderment about the Government's interpretation of § 3582(c)(1)(A). The Government contends that Scher establishes extraordinary and compelling reasons in the form of his age and medical conditions that make him vulnerable if he contracts COVID-19. However, the Government says that Scher nevertheless "is not entitled to relief after applying the § 3553(a) factors." ECF No. 284, PageID # 2885-86, 2888. That analysis does not track the language of § 3582(c)(1)(A). In conceding that Scher has shown extraordinary and compelling reasons, the Government is separating the words "extraordinary and compelling reasons" from the immediately following words in the statute. The statute requires a court to find "that extraordinary and compelling reasons warrant such a reduction." Treating Scher's reasons as "extraordinary and compelling" and only then turning to § 3553 requires treating in isolation words in § 3582(c)(1)(A) that cannot justifiably be isolated from the idea that the extraordinary and compelling reasons must be reasons that warrant a reduction. Indeed, § 3582(c)(1)(A) directs courts to determine whether extraordinary and compelling reasons warrant a reduction in sentence only after considering the factors in § 3553(a).
This court views the § 3582(c)(1)(A) analysis as being of a piece. This court cannot find that any reason is extraordinary or compelling without also finding that the reason warrants a sentence reduction. Thus, for the court to exercise its authority under § 3582(c)(1)(A), it must (1) find that the defendant exhausted his administrative remedies or that 30 days have passed since he filed an administrative compassionate relief request; (2) also find, after considering the factors set forth in section 3553(a), that extraordinary and compelling reasons warrant a sentence reduction; and (3) find that such a reduction is consistent with the Sentencing Commission's policy statements.
A. Scher has exhausted his administrative appeals.
As to exhaustion, on April 2, 2020, Scher submitted an administrative compassionate release request to the warden of his prison. ECF No. 284-2, PageID # 2902. That request was ultimately denied, and it appears that Scher has completed the administrative appeals process. The Government is not contesting Scher's satisfaction of the exhaustion requirement.
B. Scher has not demonstrated that extraordinary and compelling circumstances justify his early release.
This court therefore turns to § 3582(c)(1)(A)'s second requirement: whether extraordinary and compelling reasons warrant a sentence reduction. This court recognizes that it possesses considerable discretion in determining whether a particular defendant has established the existence of extraordinary and compelling reasons that justify early release. United States v. Kamaka, 2020 WL 2820139, at *3 (D. Haw. May 29, 2020); see also Woolem v. United States, 2020 WL 2820140, at *4 (D. Haw. May 29, 2020); United States v. Maka, 2020 WL 2544408, at *3 (D. Haw. May 19, 2020).
Scher is a nonviolent offender who has nearly completed his sentence and faces a substantial risk of complications if he contracts COVID-19. According to Scher, he is "on continuous 3- liters-per-minute (LPM) oxygen [during] the waking hours and 4-5 LPM [Oxygen] CPAP bleed-in while sleeping. Further, [he] is now on a total of ten medications every twelve hours to maintain his well-being." ECF No. 268. In his initial request for compassionate release, Scher stated that, once released, he will have "live-in home health care nurse(s) to provide for the Petitioner should he experience an acute respiratory event[.]" Id. Scher may be suggesting that he indeed needs a health care worker to live with him to ensure that his conditions remain under control.
This court is well aware of Scher's medical issues. It considered those issues during sentencing in two different cases. Indeed, Scher's sentencing in this case was continued to allow Scher to present more complete medical information to the court. ECF No. 205, PageID # 1272.
Scher is now serving his sentence at FMC Rochester in Minnesota. That facility is a specialized medical facility equipped to treat all of his conditions. No inmate is reported as having been infected with the coronavirus. https://www.bop.gov/coronavirus/ (last visited June 10, 2020). One staff member has been infected, but has recovered. Id. If these statistics are accurate, Scher is not presently at high risk of contracting COVID-19 while in that facility. This court is not questioning Scher's assertion that he is at risk of complications if he is infected. This court is instead noting the low risk that he will be infected at the facility in light of its present circumstances. This court is certainly not saying that relief is available only if COVID-19 is rampant in a facility. Such a position would clearly risk endangering people like Scher. But the risk that Scher will suffer complications if infected does need to be considered in the context of what risk he faces of being infected in the first place.
The BOP has implemented extensive measures designed to keep COVID-19 out of prisons like FMC Rochester. See ECF No. 284, PageID # 2890-91. As Scher notes, those measures have not always been successful, and it does appear that once COVID-19 enters a prison, it rapidly spreads. See ECF No. 286, PageID # 2962. For the moment, however, this court has no evidence that the BOP has failed to keep the coronavirus out of FMC Rochester. --------
This court also must consider the risks that Scher will face if he is released without adequate provision for his care. As discussed above, Scher has suggested that he will need to live with a health care worker to manage his physical condition. None of Scher's submissions show that he will actually receive that care if released. According to the probation office, both of the "live-in nurses" identified by Scher have denied that they are health care workers. ECF No. 277, PageID # 1941-42. One of the two barely knows Scher. Id. The other is a convicted felon who cannot associate with Scher under the terms of the supervised release Scher must complete following his release from custody. Id. Scher appears to be misrepresenting the care they might give him, apparently hoping to thereby influence this court's decision.
This court is not treating Scher's lie as something requiring punishment in the form of a denial of his request for compassionate release. But Scher's need to lie indicates that Scher does not have an actual plan to keep himself safe if released.
Nor has Scher explained how he plans to safely return to Honolulu. At Scher's sentencing, his doctor indicated that, in light of his condition, air travel presented such a risk to his health that he "shouldn't be in the air at all." ECF No. 284-4, PageID # 2929. Whether released early or not, Scher will, of course, finish his prison term and return to Hawaii. But returning now may be particularly risky. It is not clear how airlines will ensure passenger safety, and Scher offers no plan to mitigate the risks he would face on a plane.
This court is now forced to balance two different potential threats to Scher's health. If he remains in prison and contracts COVID-19, he will likely suffer serious complications. On the other hand, if he is released without a plan to address his significant medical needs, the illnesses he already has could become much worse. Moreover, if released from prison, he could still contract COVID-19. Although the coronavirus is not as active in Hawaii as it is elsewhere, to return to Hawaii, Scher will have to board an airplane, and that travel alone could present increased risks of contracting COVID-19. Possibly, the travel risks could lessen in the coming months, either because the virus subsides or because airlines implement better ways to reduce the risk.
This court must also consider the § 3553 factors. In considering Scher's history and characteristics and the need to afford adequate deterrence for his crime, this court notes Scher's extensive history of crimes of fraud or deceit. Indeed, this is Scher's second criminal case in federal court, and both involved deceptive conduct. Moreover, Scher does not appear to have been rehabilitated. According to the probation office, Scher's request for Federal Location Monitoring was denied because of his manipulative behavior, "untruthfulness," and "misrepresentations." ECF No. 277, PageID # 1941-42. Under § 3582(c)(1)(A), this court considers Scher's history of deceit before determining that extraordinary and compelling circumstances warrant Scher's release. Scher's deceit goes to far more than lying to the court. The underlying crime in this case involves taking money from Social Security that Scher was not entitled to. In short, this court has to be concerned that Scher will find new victims.
This is a close case. Scher's compassionate release motion is based on the threat that COVID-19 poses to his health. A person's health is naturally of primary concern. But at FMC Rochester, the risk of infection so far appears low, and the record suggests that release may pose its own dangers. After considering those circumstances along with Scher's continuing pattern of deceptive conduct, this court concludes that extraordinary and compelling circumstances do not justify Scher's early release. The court urges Scher to prepare for his scheduled relase in September by considering how to travel safely to Hawaii and how to ensure that he has lined up any necessary care once he is in Hawaii.
III. CONCLUSION.
Scher's request for compassionate release under 18 U.S.C. § 3582(c)(1)(A) is denied.
It is so ordered.
DATED: Honolulu, Hawaii, June 10, 2020.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge