United States v. Cassidy

• Decision Date: 24 April 2020
• Docket Number: 17-CR-116S
• Parties: UNITED STATES OF AMERICA, v. KENNETH CASSIDY, Defendant.
• Court: U.S. District Court — Western District of New York

UNITED STATES OF AMERICA, v. KENNETH CASSIDY, Defendant.

17-CR-116S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

April 24, 2020

DECISION AND ORDER

I. INTRODUCTION

Presently before this Court is Defendant Kenneth Cassidy's Motion for Release or Sentence Reduction under the federal compassionate-release statute (Docket No. 55), which the government opposes. See 18 U.S.C. § 3582 (c)(1)(A). Because Cassidy has failed to satisfy the mandatory exhaustion provisions of the statute, his motion is denied without prejudice.

II. BACKGROUND

On January 8, 2018, Cassidy waived indictment and pleaded guilty to a 2-count, superseding information charging him with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and willful failure to file an income tax return, in violation of 26 U.S.C. § 7203. (Docket Nos. 23-26.) These charges stemmed from Cassidy's participation in a conspiracy to defraud Lowe's Companies, Inc., out of millions of dollars through the creation and use of 173 false and fictitious "Lowe's Accounts Receivable" accounts and his failure to report his income from this criminal activity on his federal income tax returns from 2012 to 2015.

On December 18, 2018, this Court sentenced Cassidy to 60 months' imprisonment on Count 1, and 12 months' imprisonment on Count 2, to run concurrently, which fell within the range of the parties' sentencing provision providing for the imposition of a sentence between 57 and 71 months pursuant to Rule 11 (c)(1)(C) of the Federal Rules of Criminal Procedure. (Docket Nos. 25, 50, 52.) Cassidy's sentence also included 3 years' supervised release on Count 1, and 1 year of supervised release on Count 2, to run concurrently, a $125 special assessment, no fine, and $2,649,169.17 in restitution. (Docket Nos. 50, 52.) Cassidy is presently serving his sentence at FCI Danbury, with a release date of March 31, 2021. See https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results (last visited April 23, 2020).

On April 10, 2020, Cassidy moved for release to home confinement or for a sentence reduction to time served under 18 U.S.C. § 3582 (c)(1)(A) on the ground that he is at heighted risk to develop COVID-19 given his asthma and cardiac conditions and the outbreak of the coronavirus at FCI Danbury. (Docket Nos. 55, 58, 59.) Cassidy first applied for the same relief from the Bureau of Prisons on April 4, 2020.¹ (Docket No. 57-1, pp. 3-5.) The government opposes Cassidy's motion. (Docket No. 57.)

III. DISCUSSION²

A. Compassionate Release under 18 U.S.C. § 3582 (c)(1)(A)

"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti, 02 CR 743-07 (CM), 2020 WL 497987, at *1 (S.D.N.Y. Jan. 15, 2020). One such statute is 18 U.S.C. § 3582 (c)(1)(A)(i), which, as amended by the First Step Act of 2018,³ provides as follows:

The court may not modify a term of imprisonment once it has been imposed except that—in any case—the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant 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 the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the 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), after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if it finds that—(i) extraordinary and compelling reasons warrant such a reduction; . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute. See United States v. Ebbers, (S4) 02-CR-1144-3 (VEC), 2020 WL 91399, at *4 (S.D.N.Y. Jan. 8, 2020). A defendant proceeding on his or her own motion may meet that burden by demonstrating (1) that he or she satisfied the statutoryexhaustion requirement, (2) that extraordinary and compelling reasons exist for a sentence reduction, and (3) that a sentence reduction is consistent with the applicable Sentencing Guidelines provisions. See 18 U.S.C. § 3582 (c)(1)(A)(i); United States v. Perez, 17 Cr. 513-3 (AT), 2020 WL 1546422, at *2 (S.D.N.Y. Apr. 1, 2020). If the court finds, after consideration of the applicable 18 U.S.C. § 3553 (a) factors, that the defendant has met this burden, it may reduce the defendant's sentence under the statute. See 18 U.S.C. § 3582 (c)(1)(A)(i); see also United States v. Gileno, No. 3:19-CR-161-(VAB)-1, 2020 WL 1307108, at *1-2 (D. Conn. Mar. 19, 2020).

The statutory exhaustion requirement "must be strictly enforced." United States v. Monzon, No. 99 Cr. 157, 2020 WL 550220, at *2 (S.D.N.Y. Feb. 4, 2020) (citing Theodoropoulos v. I.N.S., 358 F.3d 162, 172 (2d Cir. 2004)). The exhaustion requirement is met if the defendant establishes either (1) that the Bureau of Prisons denied his or her request that it bring a compassionate-release motion and he or she fully exhausted all administrative appeal rights with respect to that denial,⁴ or (2) that the warden of the facility took no action on his or her request for the filing of a compassionate-release motionwithin 30 days of receiving it. See 18 U.S.C. § 3582 (c)(1)(A).

Congress delegated to the Sentencing Commission the task of "describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction" under 18 U.S.C. § 3582 (c)(1)(A). See 28 U.S.C. § 994 (t). The Commission, in turn, promulgated a Policy Statement concerning sentence reductions under 18 U.S.C. § 3582 (c)(1)(A) in § 1B1.13 of the United States Sentencing Guidelines. The Commentary to that section contains four examples of circumstances that constitute "extraordinary and compelling reasons" for a sentence reduction: "Medical Condition of the Defendant"; "Age of the Defendant"; "Family Circumstances"; and "Other Reasons". U.S.S.G. § 1B1.13.

At issue here are the "Medical Condition of the Defendant" and "Other Reasons" examples. The "Medical Condition of the Defendant" example provides as follows:

Medical Condition of the Defendant—

(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease and advanced dementia.

(ii) The defendant is—

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctionalfacility and from which he or she is not expected to recover.

U.S.S.G. § 1B1.13 comment n. 1 (A).

The "Other Reasons" example is a catch-all provision encompassing "an extraordinary and compelling reason other than, or in combination with, the [other] reasons described." Id. n. 1 (D).

As it relates to the requirement that a sentence reduction be consistent with the applicable Sentencing Guidelines provisions, U.S.S.G. § 1B1.13 is once again the relevant provision. It provides that a court may reduce a sentence if, after consideration of the 18 U.S.C. § 3553 (a) factors, it determines that (1) extraordinary and compelling reasons warrant the reduction, (2) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142 (g), and (3) the reduction is consistent with the U.S.S.G. § 1B1.13 policy statement. See U.S.S.G. § 1B1.13.

Finally, district courts have broad discretion in deciding whether to grant or deny motions for sentence reduction. See Gileno, 2020 WL 1307108, at *2.

B. Cassidy's Motion for Compassionate Release

As indicated above, 18 U.S.C. § 3582 (c)(1)(A) contains a threshold exhaustion requirement. Conceding that he has not met this requirement, Cassidy argues that this Court can and should excuse this failure given the extraordinary pandemic presently engulfing the nation. In opposition, the government argues that the exhaustion requirement is mandatory and must be enforced, even in the face of an extraordinary crisis. Mindful that courts have recently come down on both sides of this issue, this Court's examination of § 3582 (c)(1)(A) once again leads it to conclude that the exhaustion requirement is mandatory and must be enforced. See, e.g., United States v.Schultz, 17-CR-193S, 2020 WL 1872352, at *3-6 (W.D.N.Y. Apr. 15, 2020) (Skretny, J.) (finding that § 3582 (c)(1)(A)'s exhaustion requirement is mandatory).

Statutory interpretation begins with examination of the statutory text, which is read with the understanding that the ordinary meaning of the language accurately expresses the legislative purpose. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S. Ct. 2149, 176 L. Ed. 2d 998 (2010); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175, 129 S. Ct. 2343, 2350, 174 L. Ed. 2d 119 (2009). Plain and unambiguous statutory language is enforced according to its terms, without resort to legislative history. See Hardt, 560 U.S. at 251 (citing Carcieri v. Salazar, 555 U.S. 379, 387, 129 S. Ct. 1058, 172 L. Ed. 2d 791 (2009) and Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S. Ct. 681, 172 L. Ed. 2d 475 (2009)); BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S. Ct. 1587, 158 L. Ed. 2d 338 (2004) ("[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous."); Novak v. Kasaks, 216 F.3d 300, 310 (2d...