United States v. Baye

• Decision Date: 02 June 2020
• Docket Number: Case No. 3:12-CR-00115-RCJ
• Citation: 464 F.Supp.3d 1178
• Parties: UNITED STATES, Plaintiff, v. Thomas Edward BAYE, Defendant.
• Court: U.S. District Court — District of Nevada

464 F.Supp.3d 1178

UNITED STATES, Plaintiff,

v.Thomas Edward BAYE, Defendant.

Case No. 3:12-CR-00115-RCJ

United States District Court, D. Nevada.

Signed June 2, 2020

Megan Rachow, AUSA, U.S. Attorney's Office, Reno, NV, for Plaintiff.

ORDER

ROBERT C. JONES, United States District Judge

Defendant moves for compassionate release, claiming that his widowed mother's deteriorating health and his fears of contracting COVID-19 constitute extraordinary and compelling reasons for release. (ECF Nos. 48, 52.) Finding that Defendant has not exhausted the latter claim, neither reason is extraordinary and compelling, and that he is a danger to the society, the Court denies these motions.¹

FACTUAL BACKGROUND

Defendant has spent the bulk of his life in prison because of his extensive criminal history, which started when he was sixteen years old. Before his current conviction of bank robbery with a dangerous weapon (a BB gun),² Defendant had amassed numerous convictions: two for burglary, two for receipt of stolen property, one for battery, one for auto theft, one for escape from prison, one for use and carrying of a firearm during the commission of a crime of violence, one for felon in possession of a firearm, and five for bank robbery (one armed). (Presentence Rep. (PSR) at 6–9.) Despite these encounters with the law, Defendant always recidivated. For example, Defendant was released from prison on June 2012 after serving more than sixteen years for the convictions of armed bank robbery and related counts. (Id. at 9.) On November 2012—a mere five months later—Defendant committed his sixth bank robbery, (id. at 3), which resulted in his current sentence, (see ECF No. 33).

The guideline range for this conviction was between fifty-one and sixty-three months. (PSR at 17.) The Probation Office, however, recommended an upward departure to the statutory maximum of 300 months, finding that Defendant "poses a significant threat to the community based on his repeated criminal conduct." (Id. at 14.) The Government also advocated for imposing the statutory maximum during the sentencing hearing. (ECF No. 40 at 6:14–16.) The Court agreed that the guideline range was too low because the guideline calculation underrepresented his criminal history, this sentence should not be drastically less than the last sentence based on similar conduct, and many of Defendant's crimes, including the current one, were inherently violent. (Id. at 75:8–76:10.) It then variated upward and imposed a sentence of 144 months. (ECF No. 33.)

Defendant is eighty-nine months into this sentence with a projected release date of February 9, 2023. Find an inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited on May 22, 2020). He is now fifty-four years old and has pain in his left knee requiring the use of a cane. (See ECF No. 53.) While in prison, he has been a "model prisoner," who has not committed any disciplinary infractions in over twenty years. (ECF No. 54 Ex. A.) His correctional counselor states, "In my opinion [Defendant] is ready for the world. Personally, if I had a business and he wanted to work for me I would hire him in a second." (Id. )

Defendant's mother, Mrs. Slocum, is in failing health: She is seventy-one years old. (ECF No. 52 Ex. C.) She has had major heart issues since 2000. (Id. ) She had three strokes in the past seven years, leaving her partially deaf. (Id. ) She has poor nighttime vision and suffers from diabetes, degenerative joint disease, and severe arthritis. (Id. ) She has required four ambulance rides to the hospital in the past year. (Id. ) She has suffered from two serious falls in the past six years—one breaking her hip. (Id. ) A neighbor recently asked the police to conduct a welfare check on Mrs. Slocum after not seeing her for a few days; the police found her helpless in bed. (Id. ) In addition to basic necessities, Mrs. Slocum requires numerous prescription medications and doctor's appointments, and she struggles to meet these needs on her own. (Id. )

Mrs. Slocum lives alone in the rural community of Gates, North Carolina—twenty-three miles from her hospital, Naval Medical Center, in Portsmouth, Virginia. (ECF No. 52 Ex. C.) She receives full medical benefits at the Naval Medical Center due to her late husband's military service. (Id. ) She has been a widow since 2003. (Id. ) While she has another son and two daughters, none of them take care of her. (Id. ) She has not seen the son in over twenty years, and her two daughters live across the country in California. (Id. ) One suffers from schizoaffective disorder and epilepsy, and the other serves as her caregiver, as well as caring for her own children. (Id. )

Defendant concludes from these facts that his mother is in dire need of someone to live with her and tend to her needs. He further contends that he is willing and able to be that person. On March 31, 2020, he therefore sent a letter to the warden of his prison, requesting that the Director of the Bureau of Prisons (the Director) file a motion for compassionate release on his behalf on this basis. (ECF No. 49.) The warden denied this request, finding that this circumstance is not extraordinary and compelling. (Id. ) Defendant did not administratively appeal this decision. (ECF No. 52 at 9:8–10.)

Defendant also claims that he is at a high risk of becoming infected with COVID-19 while incarcerated in Federal Correctional Institution, Butner Low. As of May 26, 2020, there are 107 inmates and three staff members with confirmed and active cases of COVID-19 in this institution. COVID-19 Coronavirus: COVID-19 Cases , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited May 26, 2020). Defendant, however, does not claim that he falls into a high-risk category (i.e., a person who is in danger of becoming severely ill from the disease). See Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk for Severe Illness , Ctr. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last visited May 26, 2020).

LEGAL STANDARD

A district court may not generally "modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). One exception to this rule is that a court may grant a reduction to a term of imprisonment "(and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment)" based on "extraordinary and compelling reasons." § 3582(c)(1)(A). Before granting such relief, the court must consider "the factors set forth in [ 18 U.S.C. §] 3553(a) to the extent that they are applicable" and find that "a reduction is consistent with applicable policy statements issued by the Sentencing Commission." § 3582(c)(1)(A). Either the Director or a defendant may bring a motion under § 3582(c)(1)(A), but a court may not consider a motion brought by a defendant unless he "has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [his] 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." Id.

ANALYSIS

Defendant argues both his mother's deteriorating condition and concerns of his exposure to COVID-19 while incarcerated constitute extraordinary and compelling reasons for his release. The Government opposes these motions, maintaining Defendant has not exhausted his claim based on COVID-19, neither of his claims constitute an extraordinary and compelling reason, and he is a danger to the community. The Court agrees with the Government on all accounts and thus denies the motions.

I. Defendant Failed to Exhaust the COVID-19 Claim

The Court first turns to whether Defendant has overcome the procedural hurdle of exhaustion for the COVID-19 claim. Defendant admits that he has not presented this issue to the warden but argues there is no requirement to raise every issue in the letter. He alternatively argues the pressing nature of COVID-19 and the futility of presenting this claim to the warden excuse his failure to do so. The Court disagrees.

A. Failure to Exhaust Under § 3582(c)(1)(A) Deprives a Court of Jurisdiction

The Government argues that the exhaustion requirement under § 3582(c)(1)(A) raises the issue of subject-matter jurisdiction. This argument is correct because the provision speaks directly to judicial authority.

The Court does not make this determination lightly. Casting the issue in such a way has drastic consequences because "challenges to subject-matter jurisdiction may be raised by the defendant ‘at any point in the litigation,’ and courts must consider them sua sponte." Fort Bend Cty. v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1849, 204 L.Ed.2d 116 (2019) (quoting Gonzalez v. Thaler , 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) ). Parties may consequently raise "[t]ardy jurisdictional objections" which "can ... result in a waste of adjudicatory resources and can disturbingly disarm litigants." Sebelius v. Auburn Reg'l Med. Ctr. , 568 U.S. 145, 153, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013). Also, and of significance here, a court may not expand its jurisdiction "by judicial decree," Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), which prevents the Court from excusing a failure to exhaust where the statute does not provide authority to do so. See Bowles v. Russell , 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (holding courts have "no authority to create equitable exceptions to jurisdictional requirements"). Thus, branding a statutory obstacle as a matter of jurisdiction requires a clear statement from Congress because of the "harsh consequences" that attend such a label. United States v. Kwai Fun Wong , 575 U.S. 402, 409, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015).

While courts require that Congress clearly state an intent to make a...