Opinion
6:18-CR-06044 EAW
2022-06-06
UNITED STATES of America, v. Joshua VANDEGRIFT, Defendant.
Kyle P. Rossi, Meghan K. McGuire, Government Attorneys, U.S. Attorney's Office, Rochester, NY, for United States of America.
Kyle P. Rossi, Meghan K. McGuire, Government Attorneys, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Defendant Joshua Vandegrift (hereinafter "Defendant") has filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 179). For the reasons set forth below, the motion is denied.
I. BACKGROUND
Pursuant to the terms and conditions of a plea agreement, on July 19, 2019, Defendant pleaded guilty to Count 3 of a superseding indictment, charging receipt and attempted receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1). (Dkt. 42; Dkt. 113; Dkt. 114). According to the Presentence Investigation Report ("PSR"), between October 2014 and December 2014, Defendant engaged in sexually explicit electronic communications with a 12-year-old minor victim, despite that the victim informed Defendant she was only 12 years old. (Dkt. 129 at ¶¶ 38-39). Further investigation revealed that Defendant was engaged in similar communications with three additional minor victims. (Id. at ¶ 40). In March 2015, law enforcement executed a search warrant at Defendant's residence, wherein they seized computers, cameras, and digital storage devices, and at which time Defendant admitted to engaging in sexually explicit communications with minor victims. (Id. at ¶¶ 41-43). Defendant is 35 years old, and according to the PSR, he has three prior misdemeanor convictions for aggravated harassment, some of which also involved his engaging in sexually explicit communications with minors. (Id. at ¶¶ 76-78). On December 2, 2019, the undersigned sentenced Defendant to 156 months in prison with ten years of supervised release to follow. (Dkt. 134; Dkt. 136).
The instant motion is not Defendant's first motion seeking compassionate release. He previously filed a motion for compassionate release on July 21, 2020. (Dkt. 151). In a Decision and Order entered on August 7, 2020, the Court concluded that Defendant had not established that he exhausted his administrative remedies before the Bureau of Prisons ("BOP"), and therefore it denied the motion without prejudice. (Dkt. 156). Subsequent to the issuance of the Decision and Order, Defendant submitted proof that, in fact, he did make a request for compassionate release to the BOP (Dkt. 161), and the Court treated Defendant's submission as a renewed motion for compassionate release (Dkt. 162). Thereafter, on October 13, 2020, the Court denied Defendant's motion, concluding that he failed to establish extraordinary and compelling reasons to justify release, and he further failed to establish that the factors set forth at 18 U.S.C. § 3553(a) supported modification of his prison term. (See Dkt. 167 (the "October 2020 D&O")). The October 2020 D&O was subsequently affirmed by the Second Circuit Court of Appeals. See United States v. Vandegrift , No. 20-3877-cr, 2022 WL 102070 (2d Cir. Jan. 11, 2022).
On May 27, 2022, Defendant filed a Motion for an Extension of Time (Dkt. 183), seeking leave to submit supplemental briefing in connection with the instant motion. Defendant has had ample opportunity to submit materials in connection with his multiple motions for compassionate release, and he does not identify what additional materials he wants to submit. Accordingly, his motion for an extension of time (Dkt. 183) is denied.
Defendant is presently housed at Federal Correctional Institution Danbury ("FCI Danbury") in Connecticut, and his projected release date is February 11, 2030. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited May 26, 2022). According to a BOP website, FCI Danbury has no inmates currently testing positive for COVID-19, and no staff members currently testing positive. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited June 4, 2022). Accordingly, it appears that FCI Danbury is adequately managing COVID-19 within its inmate population.
In support of his request that the Court reduce his sentence, Defendant notes that he declined to receive the Moderna COVID-19 vaccination (Dkt. 179 at ¶ 4), and he suffers from several medical conditions, including hypertension, severe obesity, respiratory/pulmonary distress, GERD, asthma, a history of cigarette smoking and suicide attempts, thyroid disorder with possible cancer, anxiety, depression, post-traumatic stress disorder, and autism (id. at ¶ 5). He argues that his obesity, combined with his hypertension, would be "sure to bring about serious complications" if he was to become infected with COVID-19 (id. at ¶ 7), and that the "specific shortcomings" of FCI Danbury in controlling the virus, including the lack of ability to social distance at that prison, puts him at increased risk for infection (id. at ¶¶ 9-13). Defendant further contends that he refused vaccination due to his autism diagnosis, which makes it difficult for him to understand prison rules and makes him vulnerable to exploitation in prison, and also because the Moderna vaccine "is not a panacea" and does not prevent all COVID-19 infections, such as those caused by variants of the virus. (Id. at ¶¶ 14-16).
The government opposes Defendant's motion, arguing that he has neither established extraordinary and compelling circumstances nor that the factors set forth at 18 U.S.C. § 3553(a) justify his release. (Dkt. 181). Among other things, the government cites Defendant's refusal of the COVID-19 vaccine, and argues that nothing in Defendant's current motion warrants reconsideration of the October 2020 D&O and he remains a danger to the community. (Id. at 3-6).
In addition to the submissions from the parties, the Court received a memorandum from the United States Probation Office ("USPO") dated May 5, 2022. (Dkt. 184). According to the USPO, the Bureau of Prisons has designated Defendant as a Medical Care Level 2, indicating that "his medical concerns are stable but do require follow up care." (Id. at 2). The USPO reported that although Defendant's medical records reflect that he suffers from several medical conditions, he is receiving treatment for many of these conditions, and they are stable. (Id. at 3). While Defendant was diagnosed with a thyroid issue and "there was some concern noted in the medical paperwork about a potential cancer diagnosis ... Mr. Vandegrift has refused any medical follow-up or treatment for this issue." (Id. ). The USPO memorandum concludes:
Of final note, in his submission to the Court, the defendant indicates that persons convicted of child pornography offenses have "the lowest rate of recidivism." This argument seems particularly unpersuasive in this case as the defendant has been arrested on multiple occasions for sending sexually explicit imagery to, and soliciting sexually explicit imagery from, minor aged children.
(Id. (citation omitted)).
II. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director 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, 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 ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term. "The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney , No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd , 833 F. App'x 850 (2d Cir. 2020).
Although the statute references the Sentencing Commission's policy statements, the Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020).
Defendant states that he has fully exhausted his administrative remedies (Dkt. 179 at 15, 17) and the government agrees (Dkt. 181 at 3 n.1). Thus, the exhaustion requirement does not bar the relief sought by Defendant.
However, the Court concludes that Defendant has failed to establish extraordinary and compelling reasons, and further that the § 3553(a) factors do not support the relief sought by Defendant.
Although the Court concludes that on the present record Defendant has established that his existing medical conditions presents a risk factor for severe illness or death from COVID-19, given that FCI Danbury appears to have the virus under control, and the additional fact that Defendant has refused to be vaccinated against this virus, offering no sound reason for said refusal, the Court concludes that Defendant has failed to meet the standard of establishing extraordinary and compelling reasons. Indeed, releasing Defendant from prison would not insulate him from exposure to the virus causing COVID-19, and the rate of infection appears higher in the Rochester community than it is at FCI Danbury. See Ctrs. for Disease Control and Prevention, COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/ (last visited May 26, 2022) (noting that, as of May 26, 2022, Monroe County was at a high level of community transmission, as defined by the CDC, of the virus that causes COVID-19).
As noted above, in his motion, Defendant contends the vaccine that has been developed for COVID-19 "is not a panacea" and does not prevent all COVID-19 infections. However, Defendant offers no support for his contention that vaccines are not effective against variants of the COVID-19 virus, and in fact, the CDC advises that "vaccines reduce the risk of severe illness, hospitalization, and death from COVID-19," and "people who are up to date on vaccines, including booster doses when eligible are likely to have stronger protection against COVID-19 variants, including Omicron." See Ctrs. for Disease Control & Prevention, What You Need to Know About Variants, https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last visited May 26, 2022).
In addition, given the underlying nature of Defendant's conviction, coupled with his criminal history, the Court continues to believe that the 156-month prison sentence is reasonable and appropriate. As explained in connection with the October 2020 D&O, the § 3553(a) factors do not support Defendant's release. In December 2019, the Court sentenced Defendant to 156 months in prison to be followed by 10 years of supervised release for his crime of receipt and attempted receipt of child pornography (Dkt. 134; Dkt. 136), and he has yet to serve the majority of that sentence. The Court's assessment at the time of sentencing, and its continued assessment, is that Defendant is dangerous and his release would endanger the community. Defendant has a history of engaging in criminal activity in which he targets minors for sexually explicit interactions, and his underlying offense of conviction involved ongoing conduct in which he targeted minors as young as 12 years old online for sexually explicit chats and manipulated them into producing child pornography. (See Dkt. 129 at ¶¶ 38-56, 76-78). Due to noncompliance issues while under pretrial supervision involving a similar type of conduct, Defendant was taken into custody and his pretrial release was revoked. (Id. at ¶¶ 32-36).
In sum, Defendant has presented no new evidence following the October 2020 D&O which would justify reconsideration of that decision or his early release from prison. Under the circumstances, the § 3553(a) factors do not warrant a sentence reduction. As a result, granting compassionate release would not be consistent with the factors set forth at 18 U.S.C. § 3553(a), and it would seriously undermine the fairness and purpose of the original sentence.
III. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 179) is denied.
SO ORDERED.