United States v. Amerson

• Docket Number: 05-CR-0301(JS)
• Decision Date: 06 July 2023
• Parties: UNITED STATES OF AMERICA, v. FREDERICK AMERSON, Defendant.
• Court: U.S. District Court — Eastern District of New York

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UNITED STATES OF AMERICA, v. FREDERICK AMERSON, Defendant.

No. 05-CR-0301(JS)

United States District Court, E.D. New York

July 6, 2023

For Defendant: Elizabeth E. Budnitz, Esq.^[1]

For United States: Charles P. Kelly, Esq.

ORDER

Joanna Seybert, U.S.D.J.

Currently before the Court is the counseled motion of DefendantFrederick Amerson(“Defendant”) seeking compassionate release or a sentence reduction (hereafter, the “Motion”).(SeeMotion, ECF No. 111;see alsoReply, ECF No. 116;Suppl. Motion, ECF No 117;Med. Update, ECF No. 119.)The Government opposes the Motion.(SeeOpp'n, ECF No. 114;see alsoMed. Update Response, ECF No. 120.)For the reasons that follow, the Motion is GRANTED.

RELEVANT BACKGROUND

I.Defendant's Underlying Conviction

After serving 10 years in New York and New Jersey prisons for a series of robberies, sometime in 2003 or 2004, Defendant resumed his criminal activities.(SeeMotionat 2-3.)Defendant again engaged in a criminal spree involving more than a dozen robberies, including the armed robbery of two different commercial establishments on Long Island with a .38 caliber Smith & Wesson revolver.(SeeSuperseding Indictment, ECF No. 9;Opp'nat 1.)He was arrested on January 26, 2005.(SeeMotionat 4.)

The Government indicted Defendant on April 14, 2005.(SeeIndictment, ECF No. 1.)A 17-count Superseding Indictment was brought against Defendant on August 3, 2005.(SeeSuperseding Indictment, ECF No. 9.)On February 21, 2007, Defendant pled guilty to two counts of brandishing a firearm during a crime of violence, to wit, Hobbs Act robbery.(SeeMinute Entry, ECF No. 69(Criminal Cause for GUILTY PLEA);see alsoJudgment, ECF No.81, Counts 11 and 13 (Judgment dated Nov. 2, 2007, and entered Jan. 2, 2008).)On November 2, 2007, the Honorable Arthur D. Spatt sentenced Defendant to, inter alia 32 years' imprisonment, with Judge Spatt directing that Defendant be given credit for time already served since January 26, 2005.(SeeMinute Entry of Sent'g Hr'g, ECF No. 83;Judgmentat 2.)

Defendant is currently serving his sentence at FCI Seagoville in Seagoville, Texas.(SeeOpp'nat 1);see alsoFed. Bureau of Prisons (“BOP”): Find an Inmate, Frederick Amerson (BOP Reg.No. 26945-050)(identifying Defendant's location as “Seagoville FCI”), https://www.bop.gov/inmateloc/ (last visited June 29, 2023).He has a scheduled release date of May 3, 2032.SeeId.

II.Relevant Procedural History

Defendant originally moved for compassionate release or a sentence reduction on March 13, 2021, during the height of the COVID-19 Pandemic.(See Motion.)After the Government's opposition thereto, Defendant supplemented his Motion on December 31, 2021.(See Suppl.Motion.)At this Court's behest,^[2]Defendant also filed an update regarding his medical conditions, to which the Government filed a response.(See Med. Update; Med. Update Response.)

DISCUSSION

I.Applicable Law

“A court may not modify a term of imprisonment once it has been imposed except pursuant to statute.”United States v. Rabuffo, No. 16-CR-0148, 2020 WL 2523053, at *1(E.D.N.Y.May 14, 2020)(quotingUnited States v. Gotti, 433 F.Supp.3d 613, 614(S.D.N.Y.2020)).

The First Step Act, which modified 18 U.S.C. § 3582(c), allows a court to modify a defendant's sentence upon a motion of either (i) the Director of the BOP, or (ii)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.”18 U.S.C. § 3582(c)(1)(A);see alsoUnited States v. Thrower, 495 F.Supp.3d 132, 137(E.D.N.Y.2020).“The statute imposes three independent, necessary requirements for release: exhaustion of remedies, existence of an extraordinary and compelling reason for sentence reduction, and that the § 3553(a) factors warrant reduction.”United States v. Hunter, No. 21-1773, 2022 WL 2288688, at *1(2d Cir.June 24, 2022)(citingUnited States v. Keitt, 21 F.4th 67, 71(2d Cir.2021)(per curiam)).“A defendant's failure to exhaust administrative remedies is a threshold matter preventing the [c]ourt from considering a Section 3582 application[, i.e., a motion for compassionate release].”United States v. Robinson, No. 10-CR-0789, 2022 WL 16924176, at *3(E.D.N.Y.Nov. 14, 2022)(quotingUnited States v. Alvarez, No. 89-CR-0229, 2020 WL 4904586, at *2(E.D.N.Y.Aug. 20, 2020));see alsoUnited States v. Torres, No. 16-CR-0500, 2022 WL 538323, at *2(S.D.N.Y.Feb. 23, 2022) (“Before a compassionate-release motion can be considered on the merits, the defendant must exhaust administrative remedies.”(quotingUnited States v. Williams-Bethea, 464 F.Supp.3d 562, 565(S.D.N.Y.2020)).And, “[i]f any one requirement is not satisfied, the district court may deny the motion without considering the remaining requirements.”Hunter, 2022 WL 2288688, at *1(citingKeitt, 21 F.4th at 72-73).

Where exhaustion is satisfied, in their consideration of motions brought pursuant to the First Step Act, courts are not restricted to the Sentencing Commission's applicable policy statements, but may consider “the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.”United States v. Brooker, 976 F.3d 228, 237(2d Cir.2020);seeid. at 236(finding that “ [b]ecause Guideline§ 1B1.13 is not ‘applicable' to compassionate release motions brought by defendants[as compared to those brought by the BOP], Application Note 1 (D) cannot constrain district courts' discretion to consider whether any reasons are extraordinary and compelling”^[3]);see alsoKeitt, 21 F.4th at 71(“A court deciding a compassionate release motion can consider ‘the full slate of extraordinary and compelling reasons that an imprisoned person might bring before [it].'”(alteration in original)(quotingBrooker, 976 F.3d at 237));United States v. Souza, No. 20-3829, 2021 WL 3871262, at *1(2d Cir.Aug. 31, 2021)(“[T]he Sentencing Commission's policy statements do not ‘constrain district courts' discretion to consider whether any reasons are extraordinary and compelling.'”(quotingBrooker, 976 F.3d at 236)).Rather, “[t]he only statutory limit on what a court may consider to be extraordinary and compelling is that ‘[Rehabilitation . . . alone shall not be considered an extraordinary and compelling reason.'”Brooker, 976 F.3d at 23738(emphasis and alteration in original)(quoting28 U.S.C. § 994(t));see alsoAmbrosio, 541 F.Supp.3d at 254(same).“Additionally, district courts may consider ‘intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act.'”United States v. Monteleone, No. 92-CR-0351, 2023 WL 2857559, at *2(E.D.N.Y.Apr. 10, 2023)(quotingConcepcion v. United States, 142 S.Ct. 2389, 2404(2022)).

Even where extraordinary and compelling reasons exist, the Court must “consider all the Section 3553(a)[F]actors to the extent they are applicable, and may deny such a motion if, in its discretion, compassionate release is not warranted because Section 3553(a)[F]actors override, in any particular case, what would otherwise be extraordinary and compelling circumstances.”United States v. Davies, No. 17-CR-0057, 2020 WL 2307650, at *2(E.D.N.Y.May 8, 2020)(citation omitted);see alsoAmbrosio, 541 F.Supp.3d at 254(same);United States v. Reid, No. 05-CR-5596, 2021 WL 837321, at * 4(E.D.N.Y.Mar. 5, 2021)(“Even if extraordinary and compelling reasons exist, they must outweigh the [Section]3553(a)[F]actors to warrant sentence reduction.”(citing18 U.S.C. § 3582(c)(1)(A))).“The defendant bears the burden of showing that the circumstances warrant a sentence reduction.”United States v. Sellick, No. 21-2328, 2022 WL 16936829, at *1(2d Cir.Nov. 15, 2022)(summary order)(citingUnited States v. Jones, 17 F.4th 371, 375(2d Cir.2021));see alsoUnited States v. Friedlander, No. 20-CR-0441, 2022 WL 2305370, at *3(E.D.N.Y.June 24, 2022) (“A defendant‘bears the burden of showing that his release is justified.'”(quotingUnited States v. Patterson, No. 06-CR-0080, 2020 WL 3451542, at *1(S.D.N.Y.June 23, 2020)).

II.Application

A.The Parties' Positions

Pursuant to the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i)(the “First Step Act” or the “Act”)Defendant moves for compassionate release and/or the reduction of his 32-year sentence arguing that, given his advanced age (66-years-old) and various health issues (i.e., Type II Diabetes, obesity, hypertension, and asthma), he is “among those most at risk of dying from COVID-19”.(Motionat 8;see alsoid. at 12(“Mr. Amerson's serious medical conditions of obesity, hypertension, Type 2 diabetes, and asthma necessitate his early release or reduction in sentence because of the dangers of the Covid-19 pandemic.”).)Moreover, he contends that it is of no moment that he“has contracted and recovered from Covid-19,” since “this in no way protects him from reinfection.”(Id. at 12.)Similarly, Defendant's receipt of the COVID-19 vaccine “only confers partial protection, and likely will not protect [him], with his significant co-morbidities, against new variants that have been detected worldwide, and in the United States.”(Id. at 13;see alsoid. at 15(acknowledging that cases at Seagoville FCI have lessened, but arguing the “possibility of another flare up of cases is always present”), and at 17(arguing further that “the long-term effects of contracting [COVID-19] may affect [Defendant's] pre-existing conditions”).)In addition, Defendant argues that his BOP incarceration “during the pandemic...