CRIMINAL ACTION NO. 09-224-01 CRIMINAL ACTION NO. 11-468-03
DuBOIS, J. MEMORANDUM
Pro se defendant, David Garcia, is an inmate at the Federal Detention Center in Morgantown, West Virginia ("FCI-Morgantown"). Presently before the Court is Pro Se Defendant's Emergency Motion for Compassionate Release/Reduction in Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) and related supplements (collectively, "Motion for Compassionate Release"). Pro se defendant argues compassionate release is warranted based on his medical conditions and family circumstances. For the reasons that follow, the Motion is dismissed and denied.
Pro se defendant also filed Pro Se Defendant's Amendment to Emergency Motion for Compassionate Release/Reduction in Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) I ("Defendant's First Supplement"); Pro Se Defendant's Amendment to Emergency Motion for Compassionate Release/Reduction in Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) II ("Defendant's Second Supplement"); Pro Se Defendant's Letter Dated August 2, 2021 ("Defendant's Third Supplement"); Pro Se Defendant's Amendment to Emergency Motion for Compassionate Release/Reduction in Sentence Pursuit [sic] to 18 U.S.C. § 3582(c)(1)(A) III ("Defendant's Fourth Supplement"); Pro Se Defendant's Rebuttal of Government's Response to Motion for Compassionate Release ("Defendant's Fifth Supplement"); Pro Se Defendant's Amendment to Emergency Motion for Compassionate Release/Reduction in Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) IV ("Defendant's Sixth Supplement"); Pro Se Defendant's Letter Dated October 12, 2020 ("Defendant's Seventh Supplement"); Pro Se Defendant's Second Supplemental Rebuttal to Government's Second Supplemental Response to Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) ("Defendant's Eighth Supplement"); Pro Se Defendant's Letter Dated November 30, 2020 ("Defendant's Ninth Supplement"); and Pro Se Defendant's Letter Dated January 18, 2021 ("Defendant's Tenth Supplement"). The Court considers these filings in ruling on the Motion for Compassionate Release/Reduction in Sentence.
Pro se defendant is currently serving concurrent sentences in Criminal Action Nos. 09-224-01 and 11-468-03, and a consecutive sentence for violation of supervised release in Criminal Action No. 06-139.
In Criminal Action No. 06-139, on May 12, 2006, pro se defendant pled guilty to a one-count Indictment charging him with possession with intent to distribute phencyclidine (PCP). Gov't's Resp. 4. The Court sentenced pro se defendant to time served and three years' supervised release in that case on August 7, 2008. Id.
On July 30, 2009, while on supervised release for the 2006 offense, pro se defendant "pled guilty to a one-count Information charging him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)" in Criminal Action No. 09-244-01. Gov't's Resp. 3. "The firearm had been reported stolen to the Ardmore [Pennsylvania] Police Department on February 1, 2008." Id.
Pro se defendant also has two prior convictions in state court. On April 4, 2003, he pled guilty to carrying a firearm without a license and carrying a firearm in public. PSR ¶ 135. On March 10, 2009, he pled guilty to carrying a firearm without a license. PSR ¶ 147.
While released on bail in the 2009 case, pro se defendant was indicted for his involvement with a drug trafficking group in Criminal Action No. 11-468-03. The drug trafficking group operated a "drug corner" in Philadelphia, Pennsylvania and "used firearms to protect themselves, the drugs, and the proceedings of the drug trafficking." Gov't's Resp. 1. "Over a three-year period covered by the indictment (June 2008 to July 2011), the [drug trafficking group] was responsible for the distribution of approximately 36 kilograms of cocaine." Id. at 1-2. Pro se defendant was the group leader's "right hand man." Id. at 2. At the time of his arrest, pro se defendant was picking up an assault rifle from the house of the leader's girlfriend. Id. On October 18, 2013, pro se defendant pled guilty to one count of conspiracy to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846; five counts of unlawful use of a communication device, in violation of 21 U.S.C. § 843(b); and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) in the 2011 case. Gov't's Resp. 2.
The 2009 and 2011 cases and the petition for violation of supervised release in the 2006 case were consolidated for sentencing on October 22, 2014. The Court sentenced pro se defendant to, inter alia: (1) in the 2011 case, a term of imprisonment of 180 months; (2) in the 2009 case, a term of imprisonment of 120 months to be served concurrently; and (3) in the 2006 case, a consecutive sentence of 15 months' imprisonment. The United States Sentencing Guidelines advisory sentencing range was 384-465 months.
Pro se defendant is serving his sentence at FCI-Morgantown. Gov't's Resp. 4. The Government reports his estimated release date is November 4, 2024. Id.
On May 26, 2020, amid the COVID-19 global pandemic, defendant submitted a request for compassionate release to the Warden of FCI-Morgantown. Def.'s Mot. 8. The request was denied on June 15, 2020. Id. On July 6, 2020, pro se defendant filed his Emergency Motion for Compassionate Release/Reduction in Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) seeking compassionate release from his sentences in the 2009 and 2011 cases.
Pro se defendant argues he presents two extraordinary and compelling reasons justifying his release. First, he argues his health conditions put him at an increased risk of suffering severe consequences from COVID-19. Specifically, pro se defendant claims that his obesity, history of smoking PCP and cigarettes, and psoriasis are recognized by the Centers for Disease Control and Prevention ("CDC") as COVID-19 risk factors. Pro se defendant's last documented weight was 228 pounds on October 4, 2018. Gov't's Ex. A, 2019 Records at 33. Given that he is five-feet-eleven-inches tall, his BMI was 31.8 on that date. Id.; Centers for Disease Control and Prevention, Adult BMI Calculator, https://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_calculator/bmi_calculator.html (accessed Feb. 18, 2021). Pro se defendant's medical records from 2014 to the present list "Body Mass Index 30.0-30.9" under his "Health Problems." Gov't's Ex. A, 2020 Records at 1, 9; 2019 Records at 26, 28, 30, 38. Pro se defendant also argues that he smoked "about half a pack of cigarette's [sic] a day for about 4 years." Def.'s Eighth Supp. 2; accord Gov't's Ex. A, 2019 Records at 16. His medical records report he quit smoking in or around 2010. Gov't's Ex. A, 2019 Records at 16. Pro se defendant further argues that other inmates at FCI-Morgantown smoke, exposing him to secondhand smoke. Def.'s Eighth Supp. 2. He also claims that this history of smoking cigarettes and his history of smoking PCP have caused him "shortness of breath." Def.'s Third Supp. 1. Additionally, pro se defendant suffers from psoriasis, which he claims compromises his immune system. Def.'s Fifth Supp. 8. In response, the Government reports he is fully ambulatory and engages in all normal activities of daily living. Gov't's Resp. 5.
Pro se defendant asserts his "current weight is 240 to 242 pounds" but does not provide documentation supporting this assertion. Def.'s Eighth Supp. 1.
Second, pro se defendant argues his family conditions warrant compassionate release. He has twin sons, one of whom has Oppositional Defiant Disorder and high functioning autism and the other of whom has Attention Deficit Hyperactivity Disorder. Def.'s Fifth Supp. 12. Both sons also suffer from asthma. Id. Pro se defendant's fiancé is the children's primary caretaker, but defendant argues her history of depression has caused her to become incapacitated in light of the COVID-19 pandemic. Def.'s Fifth Supp. 11. Pro se defendant's mother has assisted his fiancé with the caretaking responsibilities while defendant has been in prison, but defendant claims she is no longer able to assist with the children due to her declining health. Def.'s Fifth Supp. 11.
The Government responded to pro se defendant's Motion for Compassionate Release on August 7, 2020. Pro se defendant has continued to supplement his Motion, and the Government has supplemented its briefing in response to pro se defendant's supplements. The Motion is thus ripe for decision.
At the Court's order, the Government filed Government's Supplemental Response to Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) ("Government's First Supplement"), Government's Second Supplemental Response to Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) ("Government's Second Supplement"), and Government's Letter Dated October 28, 2020 ("Government's Third Supplement").
A. Applicable Law
Pro se defendant seeks compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Section 3582(c)(1)(A)(i) permits a federal prisoner to petition a court for compassionate release for "extraordinary and compelling reasons" after first filing a request for compassionate release with the prison warden. 18 U.S.C. § 3582(c)(1)(A)(i). Generally, "extraordinary" means "[b]eyond what is usual, customary, regular, or common" and a "compelling need" is a "need so great that irreparable harm or injustice would result if it is not met." United States v. Rodriguez, 451 F. Supp. 3d 392, 401. (E.D. Pa. 2020) (quoting Extraordinary, Black's Law Dictionary (11th ed. 2019)). "Extraordinary and compelling reasons," for purposes of § 3582(c)(1)(A)(i), were previously defined by a policy statement in § 1B1.13 of the United States Sentencing Guidelines, which cites the (A) medical conditions, (B) age, and (C) family circumstances of the defendant and (D) "reason[s] other than, or in combination with, the reasons described in subdivisions (A) through (C)," as determined by the BOP. U.S.S.G. § 1B1.13 cmt. n.1(A)-(D). While courts have concluded that this policy statement is no longer binding after enactment of the First Step Act, the "old policy statement provides helpful guidance" for courts applying § 3582(c)(1)(A)(i). United States v. Beck, No. 13-cr-186, 2019 WL 2716505, at *6 (M.D.N.C. June 28, 2019); see also Coleman v. United States, No. CV 20-1769, 2020 WL 2079406, at *6 (E.D. Pa. Apr. 30, 2020) (DuBois, J.).
Because defendant submitted a request for compassionate release with the warden of FCI-Morgantown on May 26, 2020, and the request was denied on June 15, 2020, he has exhausted his administrative remedies.
The Third Circuit has held that "the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release." United States v. Raia, 954 F.3d 954, 597 (3d Cir. 2020). Moreover, "the existence of some health risk to every federal prisoner as the result of this global pandemic does not, without more, provide the sole basis for granting release to each and every prisoner." United States v. Roeder, 807 F. App'x 157, 161 n.16 (3d Cir. 2020). Therefore, a general fear of contracting COVID-19 alone does not satisfy the "extraordinary and compelling reasons" requirement of the statute. United States v. Ramirez-Ortega, No. CR 11-251-07, 2020 WL 4805356, at *2 (E.D. Pa. Aug. 18, 2020) (DuBois, J). However, an inmate may be able to establish extraordinary and compelling circumstances when the inmate suffers from a medical condition that the CDC has identified as a risk factor for COVID-19. Rodriguez, 2020 WL 1627331, at *7.
"Not every defendant who presents a qualifying extraordinary and compelling reason is entitled to relief under Section 3582(c)(1)(A)." United States v. Babbitt, No. 18-cr-384, 2020 WL 6153608, at *9 (E.D. Pa. Oct. 21, 2020). Before granting compassionate release, a court must consider (1) whether the defendant would present a danger to the community under 18 U.S.C. § 3142(g); and (2) whether a sentence reduction would be consistent with the factors enumerated in 28 U.S.C. § 3553(a). Babbitt, 2020 WL 6153608, at *9. To determine whether a defendant would be a danger to the community, the Court considers "the nature and circumstances of the offense charged," "the history and characteristics of the person," including "the person's character, physical and mental condition, family ties, . . . community ties, past conduct, history relating to drug or alcohol abuse, [and] criminal history," and "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g). Then, § 3553(a) instructs the court to "impose a sentence 'sufficient, but not greater than necessary' to accomplish the goals of sentencing." Kimbrough v. United States, 552 U.S. 85, 101 (2007) (quoting 18 U.S.C. § 3553(a)). The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the defendant's history and characteristics; (2) the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide punishment, deter criminal conduct and protect the public from further crimes by the defendant; (3) the kinds of sentences and sentencing ranges available; and (4) the need to avoid unwarranted sentence disparities among defendants committing similar offenses.Babbitt, 2020 WL 6153608 at *10 (citing 18 U.S.C. § 3553(a)). Ultimately, compassionate release is appropriate only when there are extraordinary and compelling circumstances, the defendant's release would not pose a danger to the community, and release would be consistent with the § 3553(a) factors.
1. Extraordinary and Compelling Reasons
Pro se defendant argues compassionate release is warranted based on (1) his medical conditions and (2) his family circumstances. The Court addresses each in turn.
Pro se defendant first argues his medical conditions—obesity, history of smoking, and psoriasis—present extraordinary and compelling reasons because they place him at risk of suffering severe consequences from COVID-19. The Government argues that the CDC recognizes only two of pro se defendant's conditions as COVID-19 risk factors—obesity and history of smoking cigarettes—and compassionate release is not warranted based on those conditions alone. Gov't's First Supp. 2-4. The Court agrees with the Government on this issue.
As a preliminary matter, neither psoriasis nor a history of smoking PCP is identified by the CDC as a COVID-19 risk factor. See Centers for Disease Control and Prevention, People of Any Age with Underlying Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (accessed February 18, 2021). Although the CDC identifies obesity and a history of smoking cigarettes as COVID-19 risk factors, pro se defendant's conditions do not present extraordinary and compelling reasons in this case. Pro se defendant smoked cigarettes for only four years and stopped smoking over ten years ago. Gov't's Ex. A, 2019 Records at 16. His BMI is only slightly above the threshold for obesity. Id., 2020 Records at 1, 2019 Records at 16. Pro se defendant has no documented health problems related to these conditions, and the Government reports he is otherwise in good health. Gov't's First Supp. 2-3; Gov't's Resp. 5.
Defendant has provided no documentation supporting his claim that he experiences "shortness of breath," Def.'s Third Supp. 1, and the Court has not found any support for that claim in his medical records. Gov't's First Supp. 2-3; Gov't's Ex. A. --------
Courts have routinely denied motions for compassionate release in circumstances similar to those presented by pro se defendant. United States v. Hoopes, No. 16-cr-509-02, 2020 WL 6889211, at *4 (E.D. Pa. Nov. 2, 2020) (concluding that 74-year-old former smoker with an autoimmune disease and a BMI "just barely above" 30 did not present extraordinary and compelling reasons because his institution provided adequate care, there was no significant outbreak of COVID-19 at the institution, his conditions were well-controlled, and he was able to provide self-care); United States v. Jones, No. 02-cr-778, 2020 WL 7640944, *3 (E.D. Pa. Dec. 23, 2020) (denying compassionate because, in part, defendant "presents no ailments associated with smoking and has been in federal prison since 2011, where smoking is banned); United States v. Warrington, No. 18-cr-179 (WJM), 2020 WL 7383189, at *2 (D.N.J. Dec. 16, 2020) (denying compassionate release to defendant with obesity and hypertension because "he is at the low end of the spectrum" for both conditions, "neither condition is at such a level as to require any medical treatment," "[d]efendant is only fifty years old [and] is in good health," and "there is no indication that he is unable to provide self-care or access medical treatment, if necessary, to manage his conditions"). The Court thus concludes that pro se defendant's health conditions do not present extraordinary and compelling reasons for compassionate release in this case.
Pro se defendant next argues his family circumstances present extraordinary and compelling reasons justifying his release. Specifically pro se defendant's twin sons have asthma and other health conditions, his fiancé—the children's primary caretaker—has a history of depression that pro se defendant argues is exacerbated by the COVID-19 pandemic, and his mother—who lives with his fiancé and previously assisted her in taking care of the children—has health conditions that now prevent her from assisting with childcare responsibilities. The Government argues pro se defendant does not quality for compassionate release due to family circumstances under the Sentencing Commission's policy statement under § 1B1.13 because his fiancé, the caretaker for his minor children, is not incapacitated. Gov't's Resp. 13.
The Court notes that the § 1B1.13 policy statement is no longer binding after enactment of the First Step Act. However, because the policy statement addresses circumstances involving family hardship, it provides helpful guidance to pro se defendant's Motion. See United States v. Doolittle, No. 19-cr-501, 2020 WL 4188160, *2 (D.N.J. July 21, 2020) ("In light of the fact that § 1B1.13 addresses circumstances involving family hardship, and is thus particularly germane to the instant motion, the Court has consulted those guidelines in evaluating [defendant's] claim."). The policy statement provides that compassionate release is appropriate when the primary caretaker of the defendant's minor children dies or becomes incapacitated. U.S.S.G. § 1B1.13 cmt. n.1(C). "When it can be shown that family members, including minor children, are in dire need of a defendant's caregiving, and other family members are afflicted by incapacitating, life-threatening illnesses, courts have granted release." United States v. Seals, No. 11-cr-36-11, 2020 WL 7624948, at *3 (E.D.P.A. Dec. 22, 2020). On the other hand, "where a caregiver is inconvenienced by the defendant's incarceration, or is somewhat sick, but not incapacitated," courts have denied release. Id.
Pro se defendant has not shown that his fiancé, the children's primary caretaker, has become incapacitated or is otherwise unable to care for the children's medical needs. Pro se defendant argues only that his fiancé's history of mental illness combined with the COVID-19 pandemic has caused her to become incapacitated, but he does not provide an explanation of her condition, medical records demonstrating incapacity, or any other evidence of the way in which she has become unable to care for the children. Def.'s Fifth Supp. 11. The Court recognizes the difficulties the COVID-19 pandemic has created for pro se defendant's family, but these difficulties are inherent in pro se defendant's incarceration during this time and are not unique to his circumstances. United States v. Carr, 16-cr-054-WJM-1, 2020 WL 1815910, *4 (D. Colo. Apr. 10, 2020) ("While [the] COVID-19 public health crisis has added further stress to [defendant's minor children's caretaker's] daily routine, the record does not show that [she] is incapable of providing care to [defendant's] minor children. Moreover, the COVID-19 public health crisis and its attendant impacts on [defendant's] family are not sufficient reasons to modify [defendant's] sentence.").
Pro se defendant also argues that his mother has become too ill to assist his fiancé in caring for the children. However, the policy statement does not contemplate incapacitation of a secondary caregiver as an extraordinary and compelling reason warranting compassionate release, and the Court concludes it is not. Pro se defendant has not demonstrated that his fiancé, the children's primary caregiver, is unable to care for his children. Accordingly, he has not shown that a secondary caregiver is necessary at this time. Although the Court recognizes the difficulties pro se defendant's fiancé faces in caring for their children alone, those difficulties are inherent in pro se defendant's incarceration and thus are not extraordinary and compelling reasons. The Court thus concludes that pro se defendant's family circumstances do not present extraordinary and compelling reasons warranting his release.
Even if pro se defendant presented extraordinary and compelling reasons, compassionate release would be inappropriate in this case because pro se defendant presents a danger to the community under § 3142(g) and because the § 3553(a) factors counsel against release.
Pro se defendant committed serious and dangerous crimes involving drugs and firearms. See United States v. Santiago, No. 15-cr-280, 2020 WL 4015245, at *4 (E.D. Pa. July 15, 2020) ("[D]efendant pleaded guilty in two separate actions before this Court for trafficking large quantities of drugs and illegally purchasing firearms. . . . These crimes are of a serious nature and underscore the danger defendant poses to the community."). He was second in command of a drug trafficking group that was responsible for distributing a kilogram of heroin every month for three years. Gov't's Resp. 17. The weapon involved in the 2009 offense had been reported stolen, and the weapon involved in the 2011 offense was an assault rifle. Id. at 2-3. Pro se defendant also has two prior convictions in Pennsylvania state court for firearm offenses in 2002 and 2007, respectively. PSR ¶ 135, 147. See United States v. Ramsey, No. 14-cr-296, 2021 WL 534470, at *6 (E.D. Pa. Feb. 12, 2021) ("From the fact that [defendant] committed two drug-related offenses and one firearm offense prior to his conviction for serious drug offenses in the instant case, the Court cannot say with any certainty that [defendant] will not engage in similar criminal behavior if his sentence is reduced and he is release."). Further, pro se defendant committed the 2009 offense while on supervised release for the 2006 offense, and he committed the 2011 offenses while released on bail for the 2009 offense. See United States v. Parks, No. 17-cr-269-01, 2021 WL 354413, at *7 (E.D. Pa. Feb. 2, 2021) (concluding defendant would pose a danger to the community upon his release because, in part, "[d]efendant has shown a propensity to commit crimes while on supervised release"); United States v. Watson, No. 07-cr-238, 2021 WL 242478, at *6 (E.D. Pa. Jan. 25, 2021) (same). The Court thus concludes that, in light of his criminal history, pro se defendant would pose a danger to the community under 18 U.S.C. § 3142(g) upon his release.
The § 3553(a) factors also counsel against release. As stated supra, pro se defendant has a long criminal history of serious and dangerous drug and firearm offenses, and his sentence is significantly less than the Sentencing Guideline's advisory sentencing range. Accordingly, defendant has failed to show that the time he has served reflects the seriousness of the offences, promotes respect for the law, and provides just punishment. See United States v. Adigun, No. 11-cr-151, 2020 WL 3830917, at *4 (W.D. Pa. July 8, 2020) (concluding the § 3553(a) factors counseled against release because defendant "was involved in a large-scale fraud scheme" that involved "numerous, serious crimes," and his sentence "already reflects a substantial downward variance from his Guidelines range").
3. Home Confinement
In the alternative, pro se defendant requests release to home confinement, citing the Attorney General's authorization of the BOP to transfer prisoners with high vulnerability to COVID-19 to home confinement under the Coronavirus Aid, Relief, and Economic Security Act "(CARES Act"), Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281 (2020). Def.'s Mot. 14. In relevant part, the CARES Act provides that if the Attorney General "finds that emergency conditions will materially affect the functioning of the [BOP]," the BOP Director may temporarily "lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement" under 18 U.S.C. § 3624(c)(2). Pub. L. No. 116-136 § 12003(b)(2). Importantly, the BOP has sole authority to determine which inmates to move to home confinement under 18 U.S.C. § 3624(c)(2). See United States v. Mansaray, No. CR 13-236, 2020 WL 3077184, at *3 (E.D. Pa. June 10, 2020) ("This discretion rests solely with the Attorney General and the BOP Director."). Such a determination is not reviewable by courts. See 18 U.S.C. § 3621(b) ("[A] designation of a place of imprisonment . . . is not reviewable by any court."); see also United States v. Powell, No. CR 15-496-4, 2020 WL 2848190, at *2 n.5 (E.D. Pa. June 2, 2020). The Court is therefore without jurisdiction to adjudicate pro se defendant's request for home confinement under the CARES Act.
For the foregoing reasons, pro se defendant's Motion for Compassionate Release is dismissed and denied. To the extent that pro se defendant's Motion requests compassionate release under 18 U.S.C. § 3582(c)(1)(A), the Motion is denied because pro se defendant has not shown that extraordinary and compelling reasons warrant his release, that he would not pose a danger to the community upon his release under § 3142(g), and that the § 3553(a) factors counsel in favor of release. To the extent that pro se defendant's Motion requests home confinement under the CARES Act, the Motion is dismissed for lack of jurisdiction. An appropriate order follows.