CRIMINAL ACTION NO. 2:12-cr-105
Elizabeth Mullin, Assistant Federal Public Defender and the Office of the Federal Public Defender, Alexandria, VA, for Petitioner. Gregory David Stefan, Kevin Patrick Hudson, Melissa E. O'Boyle, United States Attorney's Office, Scott W. Putney, Scott W. Putney, P.C., Norfolk, VA, G. Wingate Grant, Katherine Lee Martin, United States Attorney's Office, Richmond, VA, Uzo Asonye, US Attorney's Office, Alexandria, VA, for Respondent.
Elizabeth Mullin, Assistant Federal Public Defender and the Office of the Federal Public Defender, Alexandria, VA, for Petitioner.
Gregory David Stefan, Kevin Patrick Hudson, Melissa E. O'Boyle, United States Attorney's Office, Scott W. Putney, Scott W. Putney, P.C., Norfolk, VA, G. Wingate Grant, Katherine Lee Martin, United States Attorney's Office, Richmond, VA, Uzo Asonye, US Attorney's Office, Alexandria, VA, for Respondent.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, UNITED STATES DISTRICT JUDGE
Before the Court is Edward J. Woodard's ("Petitioner") Emergency Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A). ECF No. 894. For the following reasons, Petitioner's Motion is GRANTED .
I. FACTUAL AND PROCEDURAL HISTORY
On July 11, 2012, Petitioner was named in a twenty-five count Indictment. ECF No. 1. A twenty-six count Superseding Indictment naming Petitioner was returned on December 20, 2012. ECF No. 191. Petitioner faced charges related to his role in a bank fraud conspiracy spanning from January 2008 through September 23, 2011 during his three-decade tenure as chairman and CEO of The Bank of the Commonwealth. Id. On May 24, 2013, Petitioner was found guilty of Count 1, Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. § 1349 ; Count 8, False Entry in a Bank Record, in violation of 18 U.S.C. §§ 1005 and 2; Counts 12, 16, 17, 18, Unlawful Participation in a Loan, in violation of 18 U.S.C. §§ 1005 and 2; Counts 13 and 15, False Statement to a Financial Institution, in violation of 18 U.S.C. §§ 1014 and 2; Counts 14 and 25, Misapplication of Bank Funds, in violation of 18 U.S.C. §§ 656 and 2; and Count 26, Bank Fraud, in violation of 18 U.S.C. §§ 1344 and 2. ECF No. 427. On November 6, 2013, Petitioner was sentenced to a concurrent term of 276 months on all counts. ECF No. 626, 630, 631. All of Petitioner's previous appeals and collateral attacks have failed.
On May 7, 2020, Petitioner filed his Motion to Appoint Counsel in Connection with Motion for Compassionate release. ECF No. 891. The Court ordered the appropriate responses on May 13, 2020. ECF No. 892. Petitioner, through counsel, responded to the Court's order on May 28, 2020. ECF No. 894. The Government responded in opposition on June 12, 2020. ECF No. 896. This matter is ripe for disposition.
II. LEGAL STANDARD
A. The Exhaustion Requirement
A district court may modify a petitioner's sentence "after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons ("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." 18 U.S.C. § 3582(c)(1)(A). Accordingly, a petitioner seeking compassionate release is generally required to exhaust his or her administrative remedies prior to bringing a motion before the district court. Id. ; see also Poulios v. United States , 2020 WL 1922775 (E.D. Va. Apr. 21, 2020) (detailing the circumstances under which the exhaustion requirement may be waived).
B. The Compassionate Release Standard
As amended by the FIRST STEP Act, a court may modify a term of imprisonment on the motion of the petitioner after considering the factors set forth in 18 U.S.C. § 3553(a) if "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). "Extraordinary and compelling reasons" was previously defined by the United States Sentencing Commission ("Sentencing Commission") in U.S.S.G. § 1B1.13, Application Note 1. Before the passage of the FIRST STEP Act, the Sentencing Commission provided that a sentence may be modified due to the petitioner's medical condition, age, or family circumstances and further defined the limits under which a sentence reduction may be given under those justifications. U.S.S.G. § 1B1.13, n. 1 (A)–(C). The Sentencing Commission also provided a "catch-all provision" that allowed for a sentence modification upon a showing of "extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)." Id. at n. 1 (D). Use of the "catch-all provision" prior to the FIRST STEP Act was severely restricted because it required approval from the Bureau of Prisons before an individual could petition the district court for relief. Id.
However, U.S.S.G. § 1B1.13 is now outdated following the passage of the FIRST STEP Act, which allows individuals to petition the district court directly without clearance from the Bureau of Prisons. Therefore, U.S.S.G. § 1B1.13 is merely advisory and does not bind the Court's application of § 3582(c)(1)(A). McCoy v. United States , 2020 WL 2738225, at *4 (E.D. Va. May 26, 2020) ; see also United States v. Lisi , 440 F.Supp.3d 246, 250 (S.D.N.Y. Feb. 24, 2020) ("[T]he Court may independently evaluate whether [petitioner] has raised an extraordinary and compelling reason for compassionate release ... [but § 1B1.13's policy statement] remain[s] as helpful guidance to courts...."); United States v. Fox , 2019 WL 3046086, at *3 (D. Me. July 11, 2019) ("[T]he Commission's existing policy statement provides helpful guidance on the factors that support compassionate release, although it is not ultimately conclusive"). A petitioner's rehabilitation standing alone does not provide sufficient grounds to warrant a sentence modification. 28 U.S.C. § 994(t). In sum, the Court may consider a combination of factors, including but not limited to those listed in U.S.S.G. § 1B1.13, in evaluating a petitioner's request for a sentence modification under 18 U.S.C. § 3582(c)(1)(A)(i).
A. The Exhaustion Issue
Petitioner has submitted several administrative requests for compassionate release, first on August 29, 2019 with subsequent administrative requests and associated administrative appeals on September 16, 2019, September 30, 2019, October 20, 2019, November 30, 2019, January 20, 2020, and April 20, 2020. Each of Petitioner's administrative requests and appeals have been denied. Therefore, Petitioner has satisfied the exhaustion requirement within § 3582(c)(1)(A) due to the following findings: (1) 30 days have elapsed since each of his administrative requests for relief from his sentence were filed with the BOP; and (2) Petitioner's administrative requests for a sentence modification have all been denied.
B. Resolution of the Defendant's Request for Compassionate Release
In reevaluating the § 3553(a) factors, the Court notes that Petitioner is now 77 years old with the aforementioned conditions that increase his vulnerability to COVID-19. While Petitioner's conduct and criminal history have not changed, he is under extreme threat from a virus that may be fatal if he contracts it. He is also unlikely to present any threat to the public based on his weakened condition and advancing age and the likelihood he will present a physical threat to anyone is nonexistent. Petitioner has reliable family support to return to upon his release from prison, along with a plan to treat his ongoing health issues. ECF No. 894 at 24–25. Moreover, Petitioner's conduct may be adequately addressed with a sentence of home confinement that diminishes his risk of infection and protects the public without leaving deterrence or overlooking the serious nature of the offense at issue. 18 U.S.C. § 3553(a)(2)(A)–(C). Petitioner sentence includes a five-year term of supervised release at the conclusion of his incarceration. At the conclusion of Petitioner's supervised release, he will be in his early 80s, having served 7 years in prison, plus 5 years on home confinement as a condition of his supervised release. Under the circumstances, this penalty is sufficient but not greater than necessary for an individual who is in diminishing physical health and will not have access to the facilities of his offense.
The Court finds that Petitioner has set forth extraordinary and compelling reasons to modify his sentence because of the great risk that COVID-19 poses to a person of his age with underlying health conditions. In the midst of the COVID-19 pandemic, federal courts around the country have found that compassionate release is justified under such circumstances. United States v. Zukerman , 451 F.Supp.3d 329, 333–34 (S.D.N.Y. Apr. 3, 2020) citing United States v. Perez , 451 F.Supp.3d 288, 293–94 (S.D.N.Y. Apr. 1, 2020) ; United States v. Colvin , 451 F.Supp.3d 237, 241–42 (D. Conn. Apr. 2, 2020) ; United States v. Rodriguez , 451 F.Supp.3d 392, 400–01 (E.D. Pa. Apr. 1, 2020) ; United States v. Jepsen , 451 F.Supp.3d 242, 246–48 (D. Conn. Apr. 1, 2020) ; United States v. Gonzalez , 451 F.Supp.3d 1194, 1197–98 (E.D. Wash. Mar. 31, 2020) ; United States v. Muniz , ––– F.Supp.3d ––––, ––––, 2020 WL 1540325, at *2 (S.D. Tex. Mar. 30, 2020) ; United States v. Campagna , ––– F.Supp.3d ––––, ––––, 2020 WL 1489829, at *3 (S.D.N.Y. Mar. 27, 2020). Like the petitioners in the aforementioned cases, Petitioner is 77 years old and suffers from serious health conditions that would render him virtually defenseless if he were to become infected with COVID-19. See ECF No. 894 at 12. Notably, Petitioner has a history of heart problems, the most serious of which was a series of heart attacks he suffered in May 2019. Id. Petitioner has continued to struggle with cardiac issues since that heart attack, complaining of chest pains and dealing with a diminished cardio-pulmonary capacity. Id. at 12–17. Additionally, Petitioner is of advanced age, has severe obesity, and suffers from diabetes. Accordingly, Court is persuaded that the circumstances set forth by Petitioner constitute sufficient grounds for a sentence modification.
Petitioner's ongoing presence at FCI Fort Dix also presents a degree of risk to everyone he might infect should he contract COVID-19, in addition to the extreme personal consequences that would likely occur if Petitioner were to contract the virus. See United States v. Stephens , 447 F.Supp.3d 63, 65–67 (S.D.N.Y. Mar. 19, 2020) (discussing the heightened risk presented by a COVID-19 outbreak in a jail or prison to the community at large). In sum, the Court finds that the risks that would be presented by Petitioner's continued incarceration outweigh the risks of releasing him to home confinement. See United States v. Davis , 449 F.Supp.3d 532, 538–39 (D. Md. Mar. 30, 2020) (discussing the "spillover effect" that an outbreak in a jail or prison could have on the greater community and concluding that the risk of such a spillover effect is greater than the public safety interest protected by continued incarceration in some cases).
Contrary to the reasoning utilized by Bureau of Prisons' denial of Petitioner's administrative request for compassionate release, the overall percentage of a petitioner's sentence served is not controlling when the person is uniquely vulnerable to serious illness or death in the midst of a pandemic. See ECF No. 894-4 at 50. Although Petitioner's original sentence was lawfully imposed in accordance with the § 3553(a) factors, serious illness and the potential for an accelerated death was decidedly not among the reasons for it. See Zukerman , 451 F.Supp.3d at 336 citing Rodriguez , 451 F.Supp.3d at 407 ("the Court did not intend for that sentence to include incurring a great and unforeseen risk of severe illness or death brought on by a global pandemic"). Because Petitioner is extremely vulnerable to COVID-19, retaining him in prison simply to serve a higher percentage of his sentence at the risk of increasing his exposure to a fatal viral infection does not serve the § 3553(a) factors and implicates an extraordinary and compelling reason for release.
Additionally, the Court is aware of the growing evidence of the BOP's chronic mismanagement of its vulnerable population during the COVID-19 pandemic. See Wilson v. Williams , 2020 WL 2542131, at *1–2 (N.D. Ohio May 19, 2020) (documenting the "unacceptable" percentage of positive tests at FCI Elkton and BOP's "ineffective[ness] ... at stopping the spread"). The Wilson court criticized the BOP for having "made only minimal effort to get at-risk inmates out of harm's way" and being out of compliance with a previous court order on its use of the administrative discretion provided by the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") and recommendations for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Id. at *2.
Petitioner's request for compassionate release resembles the issues raised in Wilson , wherein the BOP identified 837 individuals as especially vulnerable to COVID-19, but recommended just 11 of them as potentially qualifying for home confinement. Id. Worse yet, the BOP's stated justification for denying Petitioner's request for home confinement is not being applied evenly, as several high-profile defendants have been released to home confinement prior to serving more than 50% of their sentences or have been released without delay upon satisfying BOP's supposed criteria. The Court is not a "rubber stamp for compassionate release decisions made by the Bureau of Prisons" and will not affirm compassionate release decisions that create the potential for unwarranted disparities. United States v. Maumau , 2020 WL 806121, at *3 n. 5 (D. Utah Feb. 18, 2020) ; see 18 U.S.C. § 3553(a)(6) (codifying the need to avoid unwarranted sentence disparities among defendants with similar records, in this case defendants with similar vulnerabilities to COVID-19). Based on the foregoing, Petitioner has presented extraordinary and compelling reasons for compassionate release.
For the foregoing reasons, Petitioner's Motion is GRANTED . Petitioner's sentence is reduced to TIME SERVED. Upon release Petitioner shall be on supervised release as previously ordered in his criminal judgment with a special condition of sixty (60) months of home confinement. The Bureau of Prisons is DIRECTED to place Petitioner in quarantine for fourteen (14) days prior to his release. Petitioner is DIRECTED to contact the United States Probation Office within seventy-two (72) hours of his release.
IT IS SO ORDERED.
See ECF No. 894 at 3 (discussing Paul Manafort's release to home confinement after serving just 30% of his 90 month sentence); Matt Zapotosky, Michael Cohen Released from Federal Prison Over Coronavirus Concerns , WASH. POST (May 21, 2020), https://www.washingtonpost.com/national/michael-cohen-released-from-federal-prison-over-coronavirus-concerns/2020/05/21/21660620-96ca-11ea-91d7-cf4423d47683_story.html (discussing BOP's timely release of Michael Cohen, 53, to home confinement as soon as there was less than 18 months left on his sentence despite a judge's denial of his request for early release); id. (reporting the "ongoing disfunction" and inconsistent application of the BOP's home confinement discretion); see also United States v. Rodriguez , 451 F.Supp.3d 392, 395 (E.D. Pa. Apr. 1, 2020) ("BOP's ‘compassionate release program had been poorly managed and implemented inconsistently, ... resulting in eligible inmates ... not being considered for release, and [ ] ill inmates dying before their requests were decided.’ ").