United States v. Azianbidji
| Decision Date | 29 January 2021 |
| Docket Number | Case No. 17-cr-00253-PWG |
| Parties | UNITED STATES OF AMERICA v. KOKOU AZIANBIDJI |
| Court | U.S. District Court — District of Maryland |
This Memorandum Opinion and Order addresses Defendant Kokou Azianbidji's Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), ECF No. 332. In March 2019, Mr. Azianbidji was sentenced to a 44-month term of imprisonment after pleading guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C § 1349, and aggravated identity theft, in violation of 18 U.S.C. § 1028(a)(1). Plea Agreement, Ex. 1, ECF No. 338; Judgment, ECF No. 256. Mr. Azianbidji is currently serving his sentence at Moshannon Valley CI in Philipsburg, PA. Mot. Mem. 1, ECF No. 332; Gov't Resp. 15, ECF No. 337. He has served approximately 77% of his sentence. Reply 2, ECF No. 342. In his motion, he requests that the Court release him in light of the global COVID-19 pandemic and its potential impact on him due to his health conditions. Mr. Azianbidji seeks a reduction of his sentence to time served, or alternatively, an order modifying his judgment to add 15 months to his term of supervised release. Mot Mem. 1. The Government opposes Mr. Azianbidji's motion for the reasons explained below. I have reviewed all the materials1 and find a hearing unnecessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons discussed below, Mr. Azianbidji's motion is GRANTED.
From approximately December of 2016 through April of 2017, Mr. Azianbidji engaged in a conspiracy to defraud financial institutions. Plea Agreement. On November 30, 2018, Mr. Azianbidji pleaded guilty to conspiracy to commit bank fraud and aggravated identity theft. Id. On March 29, 2019, he was sentenced to 20 months on the conspiracy to commit bank fraud charge and 24 months on the aggravated identity theft charge. Judgment. While Mr. Azianbidji's full term release date is October 23, 2021, Mot. Mem. 3, the Bureau of Prisons ("BOP") projects that Mr. Azianbidji will be released on April 4, 2021. See Bureau of Prisons Inmate Locator for Kokou Azianbidji, Register Number: 85388-054, available at https://www.bop.gov/inmateloc/ (last visited Jan 14, 2021).
Mr. Azianbidji, currently 51 years old, alleges in his motion that he suffers from hyperlipidemia, hypertension, and is obese. Mot. Mem. 3; Medical Records 2, ECF No. 334. Hyperlipidemia (commonly known as high cholesterol) and obesity are conditions that may increase the risk of severe illness should the person contract COVID-19. See, e.g., https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7263494/ (last visited Jan 14, 2021) ( that "the level of cellular cholesterol is a core contributor to [COVID-19] viral entry); https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Jan 14, 2021) ( that people who are overweight may be at an increased risk of contracting a severe case of COVID-19). Further, hypertension (or elevated blood pressure) is a comorbidity that may exacerbate symptoms of COVID-19. See, e.g., https://www.covid19treatmentguidelines.nih.gov/overview/ (last visited Jan 14, 2021).
In opposition, the Government argues that Mr. Azianbidji's medical conditions are not serious enough to present an increased risk for severe illness from COVID-19. Gov't Resp. 8-15.The Government contends that Mr. Azianbidji has not been diagnosed with hypertension, although they concede that he has elevated blood pressure. Id. at 9-10. The Government also contends that because Mr. Azianbidji's conditions are responding well to medication, he is not at an increased risk of severe complications should he contract COVID-19. Id. at 11-12. However, these conditions can become exacerbated when combined with COVID-19, thus rendering the risks of severe complications unknown.
Further, the Government argues that "the BOP has taken aggressive action to mitigate the danger of COVID-19." Id. at 15. To that end, 12 inmates at Moshannon Valley CI are currently infected with COVID-19, 2 inmates have died, and 178 inmates have tested positive and recovered. Private Facilities, https://www.bop.gov/coronavirus/ (last visited Jan. 15, 2021). Given the exponential rise in cases around the country, and specifically within the BOP, it stands to reason that Moshannon Valley CI is experiencing an increased rate of COVID-19 cases. See https://www.npr.org/sections/health-shots/2020/09/01/816707182/map-tracking-the-spread-of-the-coronavirus-in-the-u-s; https://www.bop.gov/coronavirus/ (last visited Jan 14, 2021); Wise v. United States, Cr. No. ELH-18-72, 2020 WL 2614816 (D. Md. May 22, 2020) (). Among public federal prisons, there have been over 6,000 reported cases of inmates contracting COVID-19, and there have been over 180 deaths attributable to the virus.2 See https://www.bop.gov/coronavirus/ (last visited Jan 14, 2021). Further, Centre County, Pennsylvania, where Moshannon Valley CI is located, has reported over 9,000 total cases, and over 150 COVID-19 deaths. See https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last visited Jan 14, 2021). As such, COVID-19 presents a significant threat to Moshannon Valley CI inmates with underlying health issues, including Mr. Azianbidji.
Mr. Azianbidji filed for compassionate release with the warden of Moshannon Valley CI on May 20, 2020, and his request was denied on June 24, 2020. Inmate Request to Warden, Ex. 2, ECF No. 332. The Government disputes that Mr. Azianbidji has exhausted his administrative remedies on the grounds that he did not raise his underlying medical conditions in his request to the warden. Gov't Resp. 5-6. Further, the Government asserts that but for the COVID-19 pandemic, Mr. Azianbidji would have been required to serve his full sentence due to the seriousness of the crime and his past criminal record. Id. at 19.
Ordinarily, a court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020). However, there is an exception when modification is "expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B). Here, Mr. Azianbidji requests a modification of his sentence for "compassionate release" under the First Step Act, as amended.3 The First Step Act permits a defendant to petition a federal court directly after exhausting all administrative rights whenever "extraordinary and compelling reasons" warrant a reduction in sentence. 18 U.S.C. § 3582(c)(1)(A)(i). Under the statute, I must do the following: (1) determine whether the petitioner has fully exhausted all administrative remedies or 30 days have passed since the BOP received the request; (2) determine whether "extraordinary and compelling reasons" warrant a sentence reduction that is "consistent"with applicable policy statements issued by the Sentencing Commission; and (3) consider the sentencing factors set forth in 18 U.S.C. § 3553(a) "to the extent that they are applicable." Id.
A court may only consider a prisoner's motion for compassionate release if the prisoner 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 if 30 days have passed since the warden of a defendant's facility received such a request. 18 U.S.C. § 3582(c)(1)(A). This condition is satisfied. The Government responded to Mr. Azianbidji's motion by arguing that he has not exhausted his administrative remedies because he did not raise his underlying medical conditions in his request to the warden. Gov't Resp. 5-6. Although the Fourth Circuit has not weighed in on this issue, district courts in this circuit have found that exhaustion is not conditioned on a defendant raising specific "arguments" or "claims" in their request to the warden. See United States v. Fletcher, C.A. No. TDC-05-0179-01, WL 2020 3972142, at *2 (D. Md. July 13, 2020) (); United States v. Gutman, C.R. No. RDB-10-0069, 2020 WL 2467435, at *1 (D. Md. May 13, 2020) ().4 The Government's hyper technical argument on exhaustion is unpersuasive, but the conclusions of the other courts that have rejected it is quite persuasive to me. Accordingly, I adopt it.
Under 18 U.S.C. § 3582(c)(1)(A), the only pre-requisite to Mr. Azianbidji filing in this Court is that he waits "30 days from the receipt of such a request by the warden." The Government concedes that Mr. Azianbidji made a request for compassionate release with the warden on May 16, 2020. Gov't Resp. 5. Mr. Azianbidji's request was denied by the warden on June 24, 2020. Warden Response, Ex. 2, ECF No. 332. Mr. Azianbidji subsequently filed his motion with this Court on August 28, 2020. Mot. Mem. 19. Thus, the 30-day period was met; Mr. Azianbidji has fulfilled his administrative exhaustion requirement.
Second, I must determine whether "extraordinary and compelling reasons" warrant a sentence reduction and that such a reduction is "consistent" with Sentencing Commission statements. 18 U.S.C. § 3582(c)(1)(A). I join with the majority of courts finding that 18 U.S.C. § 3582(c)(1)(A)(i) as amended grants courts with independent discretion to decide whether there are "extraordinary and compelling reasons" to modify a sentence and does not require that a court defer to the Sentencing Commission's policy statements regarding this question. See United States v. Wise, ELH-18-72, 2020 WL 2614816, at...
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