United States v. Drummondo-Farias

• Decision Date: 19 May 2020
• Docket Number: CR. NO. 12-00174(1) JMS
• Citation: 460 F.Supp.3d 1008
• Parties: UNITED STATES of America, Plaintiff, v. Jacob DRUMMONDO-FARIAS (1), Defendant.
• Court: U.S. District Court — District of Hawaii

460 F.Supp.3d 1008

UNITED STATES of America, Plaintiff,

v.Jacob DRUMMONDO-FARIAS (1), Defendant.

CR. NO. 12-00174(1) JMS

United States District Court, D. Hawai‘i.

Signed May 19, 2020

Mark A. Inciong, Office of the United States Attorney, Honolulu, HI, for Plaintiff.

ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE, ECF NO. 363

J. Michael Seabright, Chief United States District Judge

I. INTRODUCTION

Defendant Jacob Drummondo-Farias ("Defendant") has filed an emergency motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), asking the court to grant immediate release to avoid confinement at the Federal Correctional Institute Terminal Island ("FCI Terminal Island") due to the COVID-19 pandemic. See ECF No. 363 at PageID #3337. The court decides the motion without a hearing under Local Rule 7.1(c). Based on the following, the court DENIES the motion.

II. BACKGROUND

On November 14, 2013, a jury found Defendant guilty of violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (conspiracy to distribute and possession with intent to distribute 50 grams or more of methamphetamine). ECF Nos. 240, 259. On February 27, 2014, the court sentenced him to a 324-month (27-year) term of imprisonment. ECF No. 259 at PageID #1362. On August 5, 2015, the Ninth Circuit upheld his conviction and sentence, ECF No. 291, and the Supreme Court denied certiorari on January 27, 2016, ECF No. 302.

Defendant, proceeding pro se, filed his motion for compassionate release on April 22, 2020, ECF No. 363,¹ followed by a supplement received on May 1, 2020, ECF No. 365. On May 8, 2020, the Office of the Federal Public Defender for the District of Hawaii declined to represent Defendant in this matter. ECF No. 366. And on May 15, 2020, the United States filed its Opposition to the motion. ECF No. 368.

Defendant's motion alleges that COVID-19 cases have been confirmed at FCI Terminal Island, that inmates and staff have recently lost their lives due to the virus, and that social distancing is difficult at the facility. See ECF No. 363 at PageID #3337. These allegations cannot be disputed. See, e.g. , United States v. Fischman , 2020 WL 2097615, at *2 (N.D. Cal. May 1, 2020) ("As of [May 1, 2020] ... there have been 615 confirmed cases of COVID-19 out of a population of 1,051 total inmates [at FCI Terminal Island].").² He contends he fits the criteria for release because his primary offense was non-violent, he faces no detainer, he has had no incident reports in the past 12 months, and has "had impeccable conduct" since being incarcerated. ECF No. 363 at Page ID #3337. His motion states that he has family willing to help him with reentry. Id. His supplement then identifies a family member in Las Vegas for reentry or home confinement purposes, and implies that he has a COVID-19 risk factor of obesity. See ECF No. 365 at PageID #3344 ("According to the BMI scale 5'8-5'9 200 plus pounds is considered obese."). The record reflects that he is currently 37-years old. See ECF No. 258 at PageID #1327 (sealed presentence report).

Defendant also states that he made requests for release to administrative staff and the warden on April 15, 2020 and April 21, 2020, and that he has not received a response. ECF No. 363 at PageID #3337; see also ECF No. 363-2 at PageID #3340 (handwritten "request to administrative staff and warden Ponce," dated "4-15-20," stating in part that "I believe the warden is able to give me a sentence reduction or early release. [N]ow that covid-19 is here in this facility my health & life is in Danger.... I am requesting to be put on home confinement immediately to protect myself from this pandemic"). The government points out, however, that Defendant has no proof "that the letters were ever actually received by FCI-Terminal Island staff or even sent by Defendant." ECF No. 368 at PageID #3355.

III. DISCUSSION

A. The Court Lacked Authority to Act When the Motion was Filed Because Defendant had not Exhausted Administrative Remedies.

Defendant moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018,³ which provides in pertinent part:

[T]he 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 ... after considering the factors set forth in [ 18 U.S.C.] 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[.]

Id. (emphasis added).

As emphasized, the statute allows a court to consider a request for release (without a motion from the BOP), only after an inmate (1) has "fully exhausted all administrative rights," or (2) after "the lapse of 30 days from the receipt of such a request by the warden ... whichever is earlier." Id.

It is undisputed that Defendant had not fully exhausted the BOP's administrative process when Defendant's was motion was filed. Assuming Defendant's allegation that he made an administrative request on April 15, 2020 is true (and that it was received by the warden on that day), only 7 days had lapsed from that request until he filed this action by providing it to prison authorities at FCI Terminal Island on April 22, 2020. See ECF No. 363-1 (certificate of service attesting that Defendant provided the motion to authorities on April 22, 2020); Houston , 487 U.S. at 276, 108 S.Ct. 2379 (setting forth the prisoner "mailbox" rule).

Courts are split on whether exceptions to that statutory exhaustion requirement are permitted. Some cases addressing compassionate relief requests based on COVID-19 have concluded that a court may itself waive § 3582(c)(1)(A)'s statutory requirement under certain circumstances.

See, e.g. , United States v. Livingston , 2020 WL 1905202, at *1 (E.D.N.Y. Apr. 17, 2020) (concluding that "the crafting of judge-made exceptions to [the] statutory exhaustion requirement" is appropriate, but denying compassionate relief on the merits); United States v. McCarthy , ––– F.Supp.3d ––––, ––––, 2020 WL 1698732, at *4 (D. Conn. Apr. 8, 2020) (granting relief after excusing exhaustion where it would be futile, inadequate, and unduly prejudicial) (applying Washington v. Barr , 925 F.3d 109, 120-21 (2d Cir. 2019) ); United States v. Perez , ––– F.Supp.3d ––––, ––––, 2020 WL 1546422, at *2 (S.D.N.Y. Apr. 1, 2020) (applying Washington ); United States v. Ben-Yhwh , ––– F.Supp.3d ––––, ––––, 2020 WL 1874125, at *3 (D. Haw. Apr. 13, 2020) (relying on McCarthy and Washington ).

But many others disagree. See, e.g. , United States v. Hart , 2020 WL 1989299, at *4 (S.D.N.Y. Apr. 27, 2020) ("This language does not leave room for court-made exceptions.") (citation omitted); United States v. Dailey , 2020 WL 2195926, at *2 (E.D. Cal. May 6, 2020) (" ‘The administrative exhaustion requirement admits of no exception.’ ") (quoting United States v. Carver , ––– F.Supp.3d ––––, ––––, 2020 WL 1604968, at *1 (E.D. Wash. Apr. 1, 2020) (other citation omitted)); United States v. Cooper , 2020 WL 2064066, at *3 (D. Nev. Apr. 29, 2020) ("[T]his court lacks the power to create [a special-circumstances exception]."); United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020) (reasoning that the "fail[ure] to comply with § 3582(c)(1)(A)'s exhaustion requirement ... presents a glaring roadblock foreclosing compassionate release at this point").

After carefully examining the issue, this court follows the mandatory statutory language and therefore sides with the latter view—because Defendant had not exhausted administrative remedies, and 30 days had not passed after his request to the BOP, this court lacked authority to consider Defendant's motion when it was filed. The court must apply Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 195 L.Ed.2d 117 (2016), which rejected a judicial "special circumstances" exception to the mandatory administrative exhaustion set forth in the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Id. at 1858. Ross reasoned that

[J]udge-made exhaustion doctrines ... remain amenable to judge-made exceptions.... But a statutory exhaustion provision stands on a different footing. There, Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to. For that reason, mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.

Id. at 1857 (citations omitted).

Ross is directly on point. Here, as with the PLRA in Ross , § 3582(c)(1)(A) is a statutory exhaustion requirement—not a judicially-created requirement. Here, as with the PLRA in Ross , exhaustion is mandatory—nothing in the text of either statute suggests allowance for equitable or judicial exceptions. And here, as with the PLRA in Ross , the statute contains its own limitation "baked into its text," 136 S. Ct. at 1862 —the PLRA only requires exhaustion of "available" remedies, and § 3582(c)(1)(A) permits a motion after "the lapse of 30 days from the receipt of [an inmate's] request by the warden of the defendant's facility." As with Ross , then, the statute "foreclose[es] judicial discretion." Ross , 136 S. Ct. at 1857.⁴

This court also recognizes that other courts have focused on analyzing whether the exhaustion requirement in § 3582(c)(1)(A) is "jurisdictional" or merely a "claims-processing rule" subject to equitable exceptions. See, e.g. , United States v. Connell , ––– F.Supp.3d ––––, ––––, 2020 WL 2315858, at *5 (N.D. Cal. May 8, 2020) (concluding, after a thoughtful and comprehensive analysis, that § 3582(c)(1)(A) is not jurisdictional and is thus subject to...