United States v. Asmar
| Decision Date | 05 June 2020 |
| Docket Number | Case No. 18-20668 |
| Citation | 465 F.Supp.3d 716 |
| Parties | UNITED STATES of America, Plaintiff, v. Junior ASMAR, D-1, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Paul Kuebler, J. Michael Buckley, U.S. Attorney's Office, Detroit, MI, for Plaintiff.
ORDER DISMISSING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE [ECF No. 58]
Defendant Junior Asmar moves the Court for compassionate release from prison due to dangers posed by COVID-19. For the reasons set forth below, Defendant's motion is DISMISSED without prejudice.
Defendant Junior Asmar pled guilty to conspiring to distribute marijuana and launder money arising from his participation in a conspiracy involving an unlicensed medical marijuana dispensary. The scheme began as early as 2016 and involved growing marijuana in the Detroit Metro Area and using a number of businesses to launder the millions of dollars in proceeds.
Defendant was indicted in 2018, and on May 6, 2019 he was sentenced to a term of 60 months imprisonment, followed by a term of supervised release of four years. Defendant began serving his sentence on June 20, 2019 and has a projected release date of September 21, 2023. He has served approximately 22% of his projected prison term. Defendant is housed at FCI Morgantown in Morgantown, West Virginia.
Defendant is 47 years old and asserts he has medical conditions which place him at a greater risk of contracting and suffering the most severe consequences of COVID-19. Specifically, Defendant describes his health as follows:
(1) is medically obese; (2) was an everyday cigarette smoker (before he entered prison); (3) has struggled with substance abuse in the past (including the regular smoking of marijuana and the over-consumption of alcohol); (4) is a borderline diabetic (with a Hemoglobin A1C
count of between 5.8-6.0, which means that he is at a significantly increased risk of full-blown diabetes ); and (5) has fluctuating blood pressure (indicating hypertension ), which has been as high as 154/98 and is almost consistently over 135/80 (over the past year). Moreover, in the past, Mr. Asmar was diagnosed as someone who suffered from sciatic nerve and acid reflux.
[ECF No. 59, PageID 709]. Defendant asserts that these medical conditions taken in the aggregate, along with his status as a prisoner, put him at high risk of falling ill with COVID-19 and having serious medical complications or death if he is infected.
Defendant's medical records show that upon arriving at FCI Morgantown, he declined the influenza
and Tdap vaccines [ECF No. 65-2, PageID 893-94]. Defendant did not report any notable health concerns during his initial screening with the Bureau of Prisons ("BOP"). He denied having diabetes, cardiovascular problems and hypertension. Defendant did report daily marijuana use and his medical exam recorded his blood pressure as 154/98. Defendant did not report taking any medications [ECF No. 65-4, PageID 898-903].
Defendant's November 14, 2019 medical record showed that his BMI was 38.4 which the CDC categorizes as "obese." [ECF No. 65-3, PageID 895-97]. The BOP reports that Defendant currently has the following conditions: tinea cruris
(jock itch); cannabis use disorder, severe; retinopathy, NOS (eye condition); dermatitis, unspecified (skin inflammation
); low back pain; hematuria, unspecified (blood in urine); and prediabetes [ECF No. 65-5, PageID 904].
On April 8, 2020, Defendant sent a request to the Warden at FCI Morgantown requesting that the BOP file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(1)(A)(I). Defendant's request was denied by the Warden on April 27, 2020 for the following reason: "Our review of your request indicates that you have not provided the minimum criteria for review at this time." [ECF No. 65-7, Page ID 906]. The Program Statement followed by the BOP requires that requests based on Extraordinary or Compelling Circumstances at a minimum must contain (1) the extraordinary or compelling circumstances that the inmate believes warrant consideration and (2) proposed release plans, including where the inmate will reside, how the inmate will support himself, and if the basis for the request involves the inmates health, information on where the inmate will receive medical treatment. Id. In his request for compassionate release to the Warden, Defendant did not reference any health conditions or concerns, nor did he propose any release plans.
At present there have been no confirmed cases of COVID-19 at FCI Morgantown. However, because of the lack of widespread testing, there is no guarantee that FCI Morgantown does not have any active cases, even if they are asymptomatic. In his request for release, Defendant asks the Court to modify his sentence under such restrictions and conditions as it deems appropriate.
The BOP has been directed by the Attorney General to assess its entire prison population to determine which inmates face the most risk from COVID-19, pose the least danger to public safety, and can safely be granted home confinement. 03-26-2020 Directive to BOP; 04-03-2020 Directive to BOP. This process necessarily requires the BOP to identify the best candidates for release, ensure that their homes are suitable for home confinement, and arrange a way to quarantine each of them for 14 days. As of June 1, 2020, these directives have resulted in at least 3,544 inmates being placed on home confinement. See BOP COVID-19 Website.
This Court's authority to grant Defendant's request for compassionate release is governed by 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018. This section allows for judicial modification of an imposed term of imprisonment when three criteria have been met: (1) the defendant has first exhausted all administrative remedies with the BOP or at least allowed the BOP 30 days to act on his request before seeking compassionate release on their own motion; (2) extraordinary and compelling reasons warrant such a reduction; and (3) the reduction is consistent with the applicable policy statements issued by the Sentencing Commission and the court has considered the factors set forth in section 3553(a). 18 U.S.C. § 3582(c)(1)(A)(i).
An "extraordinary and compelling reason" for the reduction can be satisfied in cases where a defendant's medical conditions or overall state of health are such that they cannot be treated effectively or will worsen in a custodial environment. To qualify, a defendant must have a medical condition, age-related issue, family circumstance, or other reason that satisfies the criteria in USSG § 1B1.13(1)(A) & cmt. n.1, and he must "not [be] a danger to the safety of any other person or to the community," USSG § 1B1.13(2).
Before granting a motion for compassionate release, the Court must review the § 3553(a) factors to the extent that they are applicable and determine whether they support or...
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