United States v. Clark

• Decision Date: 01 April 2020
• Docket Number: CRIMINAL ACTION 17-85-SDD-RLB
• Citation: United States v. Clark, 451 F. Supp. 3d 651 (M.D. La. 2020)
• Parties: UNITED STATES of America v. John E. CLARK
• Court: U.S. District Court — Middle District of Louisiana

451 F.Supp.3d 651

UNITED STATES of America

v.John E. CLARK

CRIMINAL ACTION 17-85-SDD-RLB

United States District Court, M.D. Louisiana.

Signed April 1, 2020

Dustin Michael Davis, Justin M. Woodard, Jared L. Hasten, U.S. Department of Justice, Washington, DC, Elizabeth Eudora White, John Brady Casey, United States Attorney's Office, Baton Rouge, LA, for United States of America.

John S. McLindon, Walters, Papillion, Thomas & Cullens, Baton Rouge, LA, Joe R. Whatley, Jr., Pro Hac Vice, Whatley Kallas LLP, Birmingham, AL, Nicholas B. Roth, Pro Hac Vice, Eyster Key Tubb Roth Middleton & Adams, LLP, Decatur, AL, for John Eastham Clark.

RULING

SHELLY D. DICK, CHIEF JUDGE

This matter is before the Court on the Motion to Modify Prison Sentence Pursuant to 18 U.S.C. 3582(c)¹ filed by Defendant, John E. Clark("Defendant").The Government opposes this motion.²For the following reasons, the motion is denied.

I.BACKGROUND

In July, 2017, the Defendant, a medical doctor engaged in a fraudulent billing scheme, was charged in an eight-count Indictment with various offenses, including conspiracy to commit health care fraud ("Count 1, Object (b)").³On February 13, 2019, the Defendant pled guilty, pursuant to a plea agreement, to Count 1, Object (b).On May 17, 2019, Defendant was sentenced to serve thirty-seven months’ imprisonment, and he was ordered to pay restitution in the amount of $254,962.86 and a $150,000 fine.⁴Defendant reported to the Bureau of Prison's ("BOP") designated facility on June 24, 2019, and he is currently housed at United States Penitentiary Atlanta, located in Atlanta, Georgia ("USP Atlanta").Defendant is scheduled to be released from BOP custody on February 6, 2022.⁵

II.ARGUMENTS

Defendant moves this Court pursuant to 18 USC § 3582(c) for a modification of his term of imprisonment and an early release from the custody of the BOP to a sentence of home confinement, for extraordinary and compelling reasons.Defendant notes that the Center for Disease Control (CDC) has issued guidance that individuals at higher risk of COVID-19 – adults over 60 years old and people with chronic medical conditions – take immediate preventative actions, including avoiding crowded areas and staying home as much as possible.

Defendant is 67 years old and has a history of high blood pressure and high cholesterol for which he takes a variety of medications.⁶Defendant also notes that he suffers from sleep apnea and uses a CPAP machine.He contends the conditions of his confinement are the ideal environment for the transmission of this contagious disease, and at 67, he is in the "high-risk" age group as defined by the CDC.

Defendant notes that he is housed in three connected barracks with 50 men each and contends it is impossible to implement social distancing.Further, he claims inmates cycle in and out of the facility coming from all parts of the United States.Defendant acknowledges that the BOP is now operating under modified conditions, but he argues that, based on his age and his confinement status, he is at serious risk of contracting this virus.Thus, due to his age, the pandemic of the corona virus, and the living conditions in which he and other inmates are housed, Defendant claims he has presented extraordinary and compelling reasons warranting his release from the BOP.Defendant requests that the remainder of his sentence be served as a home-detention/home confinement sentence.

The Defendant also acknowledges the requirement of Section 3582(c) that he request that the Warden take action for his early release, and he contends he has made such a request.However, at the time that he filed this motion, Defendant had not received a response from the Warden.Defendant acknowledges that the thirty days called for in Section 3582(c) have not passed but argues that, in light of the crisis, there is no reasonable expectation that the Warden will respond to his request.Further, Defendant contends "the situation at hand is truly extraordinary and unique, and the health of Dr. Clark as well as many other the inmates is at risk."⁷Thus, Defendant asks the Court to consider his motion although he has not exhausted administrative remedies as required by the statute.

The Government opposes Defendant's request.First, the Government notes that Defendant has failed to exhaust his administrative remedies as required by the statute; thus, this motion is not ripe for the Court's consideration.Second, the Government maintains that Defendant has failed to present extraordinary and compelling reasons for the modification of his sentence.Specifically, the Government contends Defendant's basis for seeking modification of his sentence is not any of the three specified reasons delineated in the Sentencing Commission's policy statement.⁸First, Defendant is not suffering from a terminal illness; second, although over sixty-five, Defendant has not served seventy-five percent of his sentence; and third, Defendant is not alleging the death or incapacitation of a caregiver for his minor children, spouse, or partner.Thus, the Defendant is seeking relief pursuant to the catchall provision of ApplicationNote 1(D), which authority may or may not be available to the Court, according to the Government.

Even assuming the Court, and not solely the Director of the BOP, has the authority to determine extraordinary and compelling reasons pursuant to Section 1B1.13, ApplicationNote 1(D), the Government argues that the presence of the COVID-19 pandemic in the United States, generally, is insufficient to grant the relief Defendant seeks." ‘BOP institutions, as a matter of policy and procedure, have pandemic plans for preparedness in the event of any infectious disease outbreak.’ "⁹Thus, the Government contends, "the BOP is equipped, prepared, and ready to deal with pandemics such as the coronavirus, as it has had in place, since at least October 2012, a robust plan to deal with other pandemics, including Pandemic Influenza, by taking steps such as increased hygiene, ‘social distancing,’ and quarantining."¹⁰

Moreover, the Government highlights the measures the BOP has recently implemented specifically in response to the COVID-19 pandemic.Citing information found at the BOP's webpage regarding its Coronavirus Response, the Government notes that the BOP has taken aggressive steps to protect inmates’ health and to keep COVID-19 outside of its facilities."[M]aintaining safety and security of [BOP] institutions is [its] highest priority."¹¹The BOP website indicates it began planning for COVID-19 in January 2020, when it established a task force to develop policies in consultation with the CDC.Further, the BOP implemented Modified Operations, including suspending social visits, suspending legal visits (but continuing to allow confidential legal calls), limiting inmate movement, maximizing social distancing, enhanced screening of staff, and continued screening of inmates.Additionally, for inmates who have COVID-19 symptoms, or a temperature greater than 100.4 degrees Fahrenheit, such inmates will immediately be placed in isolation, and on March 24, 2020, the BOP announced that it would quarantine all newly arriving inmates for fourteen days so as to not introduce the infection within the receiving facility.

As to the specific facility wherein Defendant is housed, USP Atlanta, the Government notes that it has a dedicated Health Services Department that "provides routine, urgent and chronic care to the inmates as needed."¹²Additionally, "[a]ll medical emergencies or injuries [are] given priority for treatment," and "[e]mergency care is provided twenty-four (24) hours a day, seven (7) days a week."¹³The Government notes that, at the time of the filing of its brief, two inmates at USP Atlanta have tested positive for coronavirus, as has one staffer in the Atlanta area, and the inmates are in isolation.¹⁴

Based on the above, the Government contends the BOP has a plan in place to protect inmates, including this Defendant.Further, although the COVID-19 pandemic is a new problem, health claims by imprisoned defendants seeking relief under this statute are not, and the Government maintains that Defendant has not presented an exceptional reason justifying his release to home confinement.

III.LAW AND ANALYSIS

A.Exhaustion of Remedies

The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act on December 21, 2018, provides in pertinent part:

(c) Modification of an Imposed Term of Imprisonment.—The court may not modify a term of imprisonment once it has been imposed except that—

(1) in any case—

(A)the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendantafter 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 concedes that he has failed to comply with the exhaustion requirements under the statute; therefore, this motion is not ripe for review.Alternatively, the Court finds that Defendant has failed to set forth extraordinary and compelling reasons to modify his sentence.

B.Extraordinary and Compelling Reasons

28 U.S.C. § 994(t) provides: "The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of...