United States v. Fuller
Decision Date | 13 April 2020 |
Docket Number | CASE NO. CR17-0324JLR |
Court | U.S. District Court — Western District of Washington |
Parties | UNITED STATES OF AMERICA, Plaintiff, v. DERICO FULLER, Defendant. |
ORDER DENYING MOTION FOR COMPASSIONATE RELEASE PURSUANT TO 18 U.S.C. § 3582(c)(1)
Before the court is Defendant Derico Fuller's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1). (Mot. (Dkt. # 38).) Plaintiff United States of America ("the Government") opposes the motion. The court has considered the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES Mr. Fuller's motion for compassionate release.
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On December 22, 2017, the Government charged Mr. Fuller with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1344(1) and (2) and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. (See Information (Dkt. # 1).) Mr. Fuller pleaded guilty to both charges on January 4, 2018. On July 2, 2018, the court sentenced Mr. Fuller to 65 months imprisonment and five years of supervised release. (See Judgment (Dkt. # 27) at 1-3.) Mr. Fuller is currently housed at a minimum security camp at the Federal Correctional Institution in Sheridan, Oregon ("FCI Sheridan"). (Zink Decl. (Dkt. # 39) ¶ 4.) Mr. Fuller alleges that his expected release date is November 29, 2021, meaning that he has more than 19 months remaining on his sentence. (See Mot. at 4.)
Mr. Fuller argues that he is entitled to compassionate release because he has asthma and sleep apnea, which he alleges puts him at a higher risk of suffering complications from COVID-19 if he contracts the disease while incarcerated. (See Mot. at 1-4.) Mr. Fuller did not include any documentary evidence in support of his alleged medical conditions. Instead, the sole evidence Mr. Fuller provides in support of his allegation regarding his medical conditions is a one sentence statement from his counsel that states "Mr. Fuller's medical conditions include asthma and sleep apnea." (Zink Decl. ¶ 4.) Although Mr. Fuller's motion does not state his age, Mr. Fuller submitted a letter to the court in support of his sentencing memorandum in which he stated that he was 38 years old at the time of sentencing. (See Def. Supp. Sent. Materials (Dkt. # 25-1) at 1.) Thus, Mr. Fuller is no more than 40 years old. Mr. Fuller's motion is not supported byany evidence of his specific conditions of confinement at FCI Sheridan or regarding steps that FCI Sheridan is taking to prevent the spread of COVID-19 at the facility. (See generally Zink Decl.; Dkt.)
Mr. Fuller's counsel emailed the Bureau of Prisons ("BOP") at 4:03 PM on Friday, April 3, 2020, requesting compassionate release for Mr. Fuller. (See Zink Decl. ¶ 2, Ex. 1.) Counsel's email to BOP makes no mention of the asthma and sleep apnea conditions that now serve as the basis for Mr. Fuller's motion. (See id.) Mr. Fuller's counsel attests that at the time she filed the current motion, neither she nor Mr. Fuller had received a response to her email. (See id. ¶ 3.) According to the court's records, Mr. Fuller filed this motion at 2:30 PM on Monday, April 6, 2020—less than one full business day after his counsel emailed BOP.
"'[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment' and may not be modified by a district court except in limited circumstances." Dillon v. United States, 560 U.S. 817, 824-25 (2010) (quoting 18 U.S.C. § 3582(b)). One such circumstance is a motion for compassionate relief under 18 U.S.C. § 3582(c)(1). Under that statute, and court may consider a motion to modify a term of imprisonment in one of three circumstances: (1) "upon motion of the Director of the Bureau of Prisons"; (2) "upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf; or (3) after "the lapse of 30 days from the receipt of such a
//request [for a motion from the BOP on the defendant's behalf] by the warden of the defendant's facility." 18 U.S.C. § 3582(c)(1)(A).
The court denies Mr. Fuller's motion for compassionate relief based on his failure to comply with the exhaustion requirements in 18 U.S.C. § 3582(c)(1)(A). Because Mr. Fuller filed this motion on his own behalf, the court may consider this motion only if Mr. Fuller has "fully exhausted all administrative rights to appeal" or if 30 days have lapsed since the BOP has received a request for compassionate release from Mr. Fuller. See id. Mr. Fuller emailed a petition for compassionate release to BOP on April 3, 2020 (Zink Decl. ¶ 2, Ex. 1), and filed this motion three days later, on April 6, 2020 (see Mot. at 12.) As of the time Mr. Fuller filed his motion, BOP had not responded to his request for compassionate release. (See Zink Decl. ¶ 3.) Thus, Mr. Fuller has not exhausted his administrative remedies or waited for a response from BOP for 30 days as required by § 3852(c)(1)(A). Indeed, Mr. Fuller concedes that he has not complied with the statutory requirements for filing this action. (See Mot. at 4-8.)
Mr. Fuller argues that his "failure to exhaust administrative remedies should be excused" due to the urgency created by COVID-19. (See id.) But Mr. Fuller failed to cite any binding Ninth Circuit or Supreme Court caselaw indicating that the court has authority to create judicial exceptions to the exhaustion requirement in § 3582(c)(1)(A)(i). (See id.) To the contrary, this court and other district courts in the Ninth Circuit who have considered this exact issue—whether district courts may create an exception to § 3582(c)(1)(A)(i)'s 30-day exhaustion requirement on the basis of the COVID-19 pandemic—have near unanimously concluded that failure to exhaustadministrative remedies is fatal to a compassionate release petition even in light of the urgency created by COVID-19.1 See, e.g., United States v. Holden, No. 3:13-CR-00444-BR, 2020 WL 1673440, at *7 (D. Or. Apr. 6, 2020) (); United States v. Young, No. CR14-5242RJB, 2020 WL 1673043, at *2 (W.D. Wash. Apr. 6, 2020) ( ); United States v. Schuett, No. 214CR00364JADGWF, 2020 WL 1677080, at *1 n.7 (D. Nev. Apr. 6, 2020) (); United States v. Carver, No. 4:19-CR-06044-SMJ, 2020 WL 1604968, at *1 (E.D. Wash. Apr. 1, 2020) () United States v. Garza, No. 18-CR-1745-BAS, 2020 WL 1485782, at *2 (S.D. Cal. Mar. 27, 2020) ( ); United States v. Eberhart, No. 13-CR-00313-PJH-1, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020) ().
The court sees no reason to break step with these decisions. The terms of § 3582(c)(1)(A) are plain. Pursuant to that provision, the court may modify a term of imprisonment only in one of the three circumstances enumerated in the statute. See 18 U.S.C. § 3582(c)(1)(A). Because Mr. Fuller has filed this motion on his own behalf without first exhausting his administrative remedies or providing BOP with 30 days to respond to his request, the court lacks authority to consider his motion for compassionate release. Accordingly, the court DENIES Mr. Fuller's motion without prejudice to re-filing the motion once he complies with the exhaustion requirements of § 3582(c)(1)(A).
Although the court does not reach the merits of Mr. Fuller's request, the court cautions Mr. Fuller that it considers motions for release from imprisonment due to the COVID-19 pandemic to be highly...
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