Opinion
6:17-CR-06079 EAW
2020-07-21
UNITED STATES of America, v. James WALTON, Defendant.
John J. Field, U.S. Attorney's Office, Rochester, NY, for United States of America. Anne M. Burger, Federal Public Defender, Rochester, NY, for Defendant.
John J. Field, U.S. Attorney's Office, Rochester, NY, for United States of America.
Anne M. Burger, Federal Public Defender, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court is a motion filed by defendant James Walton (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 110). For the reasons set forth below, Defendant's motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2016, Defendant was charged by Criminal Complaint with bank fraud in violation of 18 U.S.C. § 1344(2). (Dkt. 1). The underlying facts related to Defendant's embezzlement of security deposit checks from his employer. (Id. at ¶¶ 5-12). An Indictment was returned on August 22, 2017, charging Defendant with one count of bank fraud in violation of 18 U.S.C. § 1344, and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). (Dkt. 22). A trial was scheduled to commence on May 13, 2019 (Dkt. 63), but due to a conflict with his counsel, Defendant's request for assignment of new counsel was granted (Dkt. 86), and the trial was rescheduled to commence on September 30, 2019 (Dkt. 88).
On August 7, 2019, Defendant appeared before the undersigned and pleaded guilty to Count 1 of the Indictment charging bank fraud. (Dkt. 90). As part of his plea, Defendant admitted to stealing over $50,000 in security deposits from his former employer. (Id. at ¶ 4(e)). The plea agreement contained an appellate waiver for any prison sentence within the range of 18 to 24 months. (Id. at ¶ 24).
On January 10, 2020, Defendant appeared for sentencing. (Dkt. 100). After calculating an offense level of 14 and a criminal history category of II, consistent with the plea agreement, the Court imposed a prison sentence of 18 months to be followed by three years of supervised release. (Id. ; Dkt. 103). Defendant filed a notice of appeal (Dkt. 104), and that appeal is currently pending before the Second Circuit Court of Appeals. See Notice of Criminal Appeal, United States v. Walton , No. 20-213, Dkt. 1 (2d Cir. Jan. 17, 2020).
Defendant, who is 49 years old (Dkt. 99 at 2), is currently housed at Federal Correctional Institution Cumberland ("FCI Cumberland") in Cumberland, Maryland, and he is scheduled to be released on June 4, 2021. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited July 20, 2020).
On June 25, 2020, Defendant through assigned counsel filed the pending motion for compassionate release. (Dkt. 110). Defendant contends that he is at greater risk of becoming seriously ill from COVID-19 due to his condition of Type 1 diabetes. (Id. at 4). Defendant argues that the approximate four to five months that he has served of his sentence is sufficient to advance the objectives of sentencing set forth at 18 U.S.C. § 3553(a). (Id. at 17). The Government filed a memorandum in opposition to Defendant's motion on July 1, 2020, arguing that Defendant has failed to establish extraordinary and compelling circumstances justifying a reduction in his sentence, and that the § 3553(a) factors do not support a sentence reduction. (Dkt. 112). The Government also submitted Defendant's medical records from FCI Cumberland. (Dkt. 114).
On July 10, 2020, Defendant filed a reply in further support of his motion, arguing that Defendant's glucose levels are not being well controlled at FCI Cumberland, and his camp counselor may have been diagnosed with COVID-19. (Dkt. 113).
The United States Probation Office ("USPO") also submitted a memorandum to the Court on July 10, 2020, in connection with Defendant's motion. (Dkt. 115).
According to a Bureau of Prisons ("BOP") website, six inmates at FCI Cumberland have recovered from a positive COVID-19 test, and three staff have recovered—there are no staff or inmates who tested positive for COVID-19 and who have not yet recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited July 20, 2020). That website also indicates that 50 inmates have been tested for COVID-19, no inmates have pending tests, and five inmates have had positive tests. Id.
It is not clear how six inmates have recovered from COVID-19, but only five inmates have tested positive for COVID-19.
III. 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 Bureau of Prisons, or 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 ... 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; (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.
As both parties acknowledge, this Court lacks jurisdiction over Defendant's motion because of his pending appeal. However, pursuant to Fed. R. Crim. P. 37(a), the Court may "(1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." See, e.g. , United States v. Moseley , No. 16 CRIM. 79 (ER), 2020 WL 1911217, at *1 (S.D.N.Y. Apr. 20, 2020) (finding no jurisdiction over compassionate release motion based on COVID-19 pandemic because of pending appeal, and stating that "[a]bsent further factual development, the Court cannot say whether it would ultimately grant the motion if the case were remanded for such purposes, but neither is it willing to deny the motion outright. These are complex and time-sensitive issues, but they are ones that the Court can only take up if the Second Circuit agrees it would be useful to decide the instant motion before it decides the appeal"); United States v. Vigna , 455 F.Supp.3d 68, 71-72, No. S1 16-CR-786-3 (NSR), (S.D.N.Y. Apr. 17, 2020) (finding same regarding jurisdiction, and declining to issue indicative ruling because defendant had not exhausted administrative remedies); United States v. Martin , No. 18-CR-834-7 (PAE), 2020 WL 1819961, at *1-2 (S.D.N.Y. Apr. 10, 2020) (finding same regarding jurisdiction but denying motion on merits under Rule 37 ).
The Government does not contend that administrative exhaustion operates as a bar to Defendant's requested relief, and indeed, it appears as though more than 30 days have elapsed since Defendant submitted a request for compassionate release to the Warden. (See Dkt. 110-3). The Government does contest, however, the presence of extraordinary and compelling circumstances, and that the § 3553(a) factors support a sentence reduction.
The website for the Centers for Disease Control and Prevention ("CDC") indicates that people at any age with Type 2 diabetes mellitus are at increased risk of severe illness from COVID-19, but people like Defendant with Type 1 diabetes mellitus "might" be at increased risk of severe illness. See Coronavirus Disease 2019 (COVID-19): People of Any Age with Underlying Medical Conditions , CDC (July 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. That same website indicates that there is "limited evidence" that Type 1 diabetes causes an increased risk of serious illness from COVID-19. See Coronavirus Disease 2019 (COVID-19): Evidence Used to Update the List of Underlying Medical Conditions that Increase a Person's Risk of Severe Illness from COVID-19 , CDC (July 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html. However, as the CDC acknowledges, COVID-19 is a new disease and there is limited data and information about the impact of underlying medical conditions. Id. Moreover, Defendant has submitted an apparent statement from the American Diabetes Association suggesting that there is no difference in risk between an individual with Type 1 and Type 2 diabetes when it comes to risk factors for COVID-19. (Dkt. 110-4).
Thus, the Court will assume for purposes of this motion that Defendant's Type 1 diabetes places him at increased risk of serious illness from COVID-19. But that on its own is not enough to establish extraordinary and compelling circumstances. Pursuant to 28 U.S.C. § 994(t), Congress delegated authority to the Sentencing Commission to "describe what should be considered extraordinary and compelling reasons for sentence reduction[.]" The Sentencing Commission's applicable policy statement is U.S.S.G. § 1B1.13, but "this statement is at least partly anachronistic because it has not yet been updated to reflect the new procedural innovations of the First Step Act." United States v. Ebbers , 432 F. Supp. 3d 421, 427 (S.D.N.Y. 2020).
Application Note 1 to U.S.S.G. § 1B1.13 enumerates the circumstances that can constitute extraordinary and compelling reasons. These include situations where a defendant is "suffering from a serious physical or medical 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[.]" U.S.S.G. § 1B1.13, Application Note 1(A)(ii)(I). Application Note 1 also includes a catch-all circumstance where "the Director of the Bureau of Prisons [determines that] there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in [the other subdivisions of the Application Note]." Id. at Application Note 1(D).
The anachronistic nature of Application Note 1 is demonstrated by the catch-all provision's sole reference to the BOP Director, but this Court agrees with those other courts that have concluded that the discretion afforded the BOP Director under that catch-all provision also extends to a court considering a compassionate release motion, consistent with the expansion of § 3582(c)(1)(A) relief under the First Step Act. See, e.g. , United States v. Daugerdas , ––– F. Supp. 3d ––––, ––––, No. 09-CR-581, 2020 WL 2097653, at *2 (S.D.N.Y. May 1, 2020) ("Thus, this Court aligns itself with other judges in this district finding that the amendments to the compassionate release statute ‘grant this Court the same discretion as that previously give[n] to the BOP Director, and therefore the Court may independently evaluate whether [a defendant] has raised an extraordinary and compelling reason for compassionate release’ under the ‘catch-all’ provision." (alterations in original) (quoting United States v. Lisi , 440 F. Supp. 3d 246, 249-50, (S.D.N.Y. 2020) )).
The Court cannot conclude on this record that Defendant's Type 1 diabetes substantially diminishes his ability to provide self-care at FCI Cumberland, nor can the Court conclude that there otherwise exists an extraordinary and compelling reason justifying a reduction in Defendant's sentence. Certainly, as the Court has acknowledged in other cases, prison settings present unique challenges in preventing the spread of infectious diseases. See generally Brown v. Plata , 563 U.S. 493, 519-20, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011) (describing overcrowded California prison system as "breeding grounds for disease"). Those challenges appear particularly acute when dealing with COVID-19, where social distancing is one of the most effective means by which to prevent the spread of the disease. However, at least up to this point, FCI Cumberland appears to be doing a successful job in preventing the spread of COVID-19 within its facility. Thus, simply being imprisoned with a condition that places one at increased risk of becoming seriously ill from COVID-19, does not satisfy the requirement of extraordinary and compelling circumstances so as to justify a sentence reduction.
Moreover, even if Defendant could establish extraordinary and compelling circumstances, the § 3553(a) factors warrant against granting the relief requested by Defendant. He has only served a limited portion of the sentence imposed, and the underlying offense conduct was serious and harmful. Moreover, this is not the first time that Defendant has been convicted of theft-related offenses, with a misdemeanor conviction in 2006 for petit larceny involving the endorsement and depositing of three checks drawn on a closed account, and another misdemeanor conviction in 2008 for attempted grand larceny in the fourth degree, related to failing to record deposits for a former employer for whom Defendant worked as a bookkeeper. (Dkt. 99 at ¶¶ 65-66). Under the circumstances, the Court concludes that the § 3553(a) factors counsel against granting Defendant's motion. See Ebbers , 432 F. Supp. 3d at 430-31 ("The Court thus finds that, in considering the section 3553(a) factors, it should assess whether those factors outweigh the ‘extraordinary and compelling reasons’ warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence.").
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 110) is denied.
SO ORDERED.