United States v. Curtis

• Decision Date: 16 April 2021
• Docket Number: Case No. 17-20014-DDC-05
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. TERRY D. CURTIS (05), Defendant.
• Court: U.S. District Court — District of Kansas

UNITED STATES OF AMERICA, Plaintiff, v. TERRY D. CURTIS (05), Defendant.

Case No. 17-20014-DDC-05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

April 16, 2021

MEMORANDUM AND ORDER

Defendant Terry D. Curtis filed a pro se motion (Doc. 125) under 18 U.S.C. § 3582(c)(1) seeking a sentence reduction or compassionate release. The government filed a Response (Doc. 137). And Mr. Curtis filed a Reply (Doc. 146). For reasons explained below, the court dismisses the motion for lack of subject matter jurisdiction.

I. Background

On November 20, 2017, Mr. Curtis pleaded guilty to violating 18 U.S.C. §§ 1951 and 2. Doc. 28 at 1; Doc. 27. Based on Mr. Curtis's offense level and criminal history, the Guidelines range at sentencing was 100 to 125 months. Doc. 30 at 25 (PSR ¶ 115). On February 13, 2018, the court sentenced Mr. Curtis to a below guidelines sentence of 72 months' imprisonment. Doc. 34 at 2. His projected release date is May 21, 2022. See Terry D. Curtis, Reg. No. 52019-424, https://www.bop.gov/inmateloc/ (last visited Apr. 16, 2021). He now moves for compassionate release under § 3582(c)(1). Doc. 125 at 1-2; Doc. 146 at 5. The court now recites the law governing such motions, and then applies it to his request.

II. Legal Standard

"Federal courts are forbidden, as a general matter, to modify a term of imprisonment once it has been imposed, but th[at] rule of finality is subject to a few narrow exceptions. One such exception is contained in [18 U.S.C.] § 3582(c)(1)." See United States v. Maumau, ___ F.3d ___, No. 20-4056, 2021 WL 1217855, at *6 (10th Cir. 2021) (citation and internal quotation marks omitted). Even after it has imposed a term of imprisonment, the court may modify that term "upon motion of the defendant after [1] 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 [2] the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier[.]" 18 U.S.C. § 3582(c)(1)(A). "Under that statute, a district court may reduce a sentence if, after considering any applicable sentencing factors in 18 U.S.C. § 3553, it finds 'extraordinary and compelling reasons warrant such a reduction' and the 'reduction is consistent with applicable policy statements issued by the Sentencing Commission.'"¹ United States v. Haynes, 827 F. App'x 892, 895 (10th Cir. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)).

Our Circuit reads § 3582(c) to impose a jurisdictional requirement. "Unless the basis for resentencing falls within one of the specific categories authorized by section 3582(c), the district court lack[s] jurisdiction to consider [the defendant's] request." United States v. Poutre, 834 F. App'x 473, 474 (10th Cir. 2021).

III. Discussion

A. Whether Mr. Curtis Shows Exhaustion or Lapse Under § 3582(c)(1)(A)

The First Step Act subjects an inmate's motion for compassionate release to certain prerequisites. First, an inmate seeking compassionate release under § 3582(c)(1)(A) must "request that the BOP file a compassionate-release motion on his behalf to initiate his administrative remedies." United States v. Springer, 820 F. App'x 788, 791 (10th Cir. 2020) (citations omitted); see also 18 U.S.C. § 3582(c)(1)(A). And the court "may not modify a term of imprisonment once it has been imposed" unless (1) "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 (2) "the lapse of 30 days² from the receipt of such a request by the warden of the defendant's facility[.]" 18 U.S.C. § 3582(c)(1)(A).

Mr. Curtis submitted a request for compassionate release to the warden at Pekin FCI on August 11, 2020. Doc. 125 at 10. The warden failed to respond within 30 days. Doc. 125-2 at 5 (denying relief in letter dated Sept. 28, 2020). This 30-day lapse satisfies the statutory requirements. The government agrees. Doc. 137 at 9 & n.5. Satisfied that Mr. Curtis has met the statute's exhaustion or lapse requirement, the court now considers whether he also shows an extraordinary and compelling reason that might warrant compassionate release under § 3582(c)(1)(A).

B. Whether Mr. Curtis Shows Extraordinary and Compelling Reasons Under § 3582(c)(1)(A)

Mr. Curtis asserts that (1) his underlying health conditions as well as (2) his risk factors as an African American male and an incarcerated person during the COVID-19 pandemicconstitute extraordinary and compelling circumstances that warrant a sentence reduction. Doc. 125 at 1-2. The court now considers whether these reasons satisfy the statute.

1. Whether Mr. Curtis's Underlying Medical Condition During the COVID-19 Pandemic is an Extraordinary and Compelling Reason Under § 3582(c)(1)(A)

Mr. Curtis asserts that he suffers from chronic hepatitis C, which could cause severe complications if he were to contract the COVID-19 virus. Id. at 1-2, 8-9. Mr. Curtis states that chronic hepatitis C causes liver inflammation and inhibits the liver's ability to clear toxins from the bloodstream. Id. at 8-9; Doc. 125-2 at 7. Mr. Curtis also alleges that he has not received treatment for his condition because the COVID-19 pandemic has delayed treatment and rendered medical assistance insufficient. Doc. 125-1 at 1. Some of Mr. Curtis's fears have materialized. On December 4, 2020, he tested positive for COVID-19. Doc. 125-2 at 2. He alleges that he suffers many ongoing ill-effects from the virus, and fears "catastrophic" results if he were to contract COVID-19 or a variant again in the future. Doc. 146 at 4-5.

Although the CDC does not list hepatitis C as a condition that may increase risk from COVID-19, the agency identifies liver disease as a condition that might increase risk for severe illness from COVID-19. See CDC, People with Certain Medical Conditions (updated Mar. 29, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Apr. 16, 2021). Several federal district courts, including our own, have granted compassionate release to inmates suffering from hepatitis C during theCOVID-19 pandemic.³ Yet, other courts have held otherwise.⁴

Here, Mr. Curtis alleges that he suffers from chronic and untreated hepatitis C. Doc. 125-1 at 1-2. He states that he has been waiting for treatment since the end of 2019, but that the pandemic has strained prison medical resources and prevented him from receiving that treatment. Doc. 125-1. Mr. Curtis also tested positive for COVID-19 on December 4, 2020. Doc. 125-2 at 2; Doc. 146 at 4. He asserts that he continues to suffer from headaches, shortness of breath, fatigue, brain fog, and soreness. Doc. 146 at 4. Mr. Curtis fears that the virus (and potential reinfection by a variant) and his pre-existing conditions place him at high risk for complications. Doc. 125-1 at 1; Doc. 146 at 4-5. Although he asserts that this disease can cause inflammation of the liver, he does not allege that hepatitis C has scarred or inflamed his liver. See Doc. 125-1 at 8-9. However, because of the risks associated with his disease, especially when left untreated, and because Mr. Curtis already has developed complications from COVID-19, the courtconcludes that in the narrow circumstances of this case he has alleged a medical condition presenting extraordinary and compelling reasons under § 3582(c)(1)(A).

The court next considers another reason he asserts as "extraordinary and compelling" under the compassionate release statute: his race and related risks of COVID-19.

2. Whether Mr. Curtis's Race is an Extraordinary and Compelling Reason Under § 3582(c)(1)(A)

Mr. Curtis asserts that, as an African American male, he is more susceptible to the risks of COVID-19. Doc. 125 at 2. He states that "Black men are the most affected persons in the country according to the CDC." Id. Current CDC guidance cites evidence showing that social determinants of health and factors including discrimination, lack of healthcare access, income and wealth gaps, and inadequate housing contribute to disproportionate effects of COVID-19 on some racial and ethnic minority groups. CDC, Health Equity Considerations and Racial and Ethnic Minority Groups (updated Feb. 12, 2021), https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html (last visited Apr. 16, 2021).

The court has considered this data when ruling similar race-based arguments for COVID-19 compassionate release. See, e.g., United States v. Harris, No. 15-40054-01-DDC, 2020 WL 7122430, at *8 (D. Kan. Dec. 4, 2020) (discussing CDC guidance about inequities in social determinants of health that put some racial and ethnic minority groups at increased risk of getting sick and dying from COVID-19). But our court has concluded that this data alone does not show that a given inmate faces heightened COVID-19 risks. See id. at *8, 11 (concluding that defendant failed to show that he individually "faces more risk from COVID-19 because he is a Black American"). And our court repeatedly has declined to find an inmate's race during theCOVID-19 pandemic alone constitutes an extraordinary and compelling reason under § 3582(c)(1)(A).⁵

Here, Mr. Curtis asserts that COVID-19 affects "Black men" more than it affects others. Doc. 125 at 2. But he does not show how his race makes him, as an individual, more susceptible to contracting COVID-19 or to complications from the virus. See id. Mr. Curtis has not shown that his race alone presents an extraordinary and compelling reason that warrants modifying his sentence under the statute. The court thus turns to another circumstance that Mr. Curtis argues presents an "extraordinary and compelling" reason to modify his sentence: His incarceration during the COVID-19 pandemic.

3. Whether Mr. Curtis's Status as an Incarcerated Person During the COVID-19 Pandemic is an Extraordinary and Compelling Reason Under § 3582(c)(...