United States v. Gargan
| Decision Date | 04 October 2022 |
| Docket Number | CRIMINAL ACTION 1:20-cr-110 (RDA) |
| Parties | UNITED STATES OF AMERICA v. JOSEPH E. GARGAN, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
UNITED STATES OF AMERICA
v.
JOSEPH E. GARGAN, Defendant.
CRIMINAL ACTION No. 1:20-cr-110 (RDA)
United States District Court, E.D. Virginia, Alexandria Division
October 4, 2022
MEMORANDUM OPINION AND ORDER
Rossie D. Alston, Jr., United States District Judge.
This matter comes before the Court on Defendant Joseph Gargan's (“Defendant”) Motion for Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (“Motion”), Reply, Supplemental Motion, and Addendum to Supplemental Motion, and Second Addendum to Supplemental Brief (together “Supporting Documents”). Dkt. Nos. 39; 53; 56; 60; 68. Considering the Motion, the Supporting Documents, and the Government's Opposition (Dkt. 46), and for the reasons that follow, it is hereby ORDERED that Defendant's Compassionate Release Motion (Dkt. 39) is GRANTED and Defendant's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 (Dkt. 41) is DENIED.
I. BACKGROUND
On June 15, 2020, Defendant Joseph Gargan pleaded guilty in this Court to a two-count indictment for (1) embezzlement of government funds, in violation of 18 U.S.C. § 641; and (2) wire fraud, in violation of 18 U.S.C. § 1343. On September 23, 2020, the Court sentenced Defendant to 70 months of imprisonment and three years of supervised release on both counts, to run concurrently. On January 5, 2021, Defendant self-reported to FCI Loretto to begin his sentence. His projected release date is December 24, 2025.
On May 10, 2021, Defendant's request for compassionate release was denied by Warden Moser at FCI Loretto. On June 14, 2021, Defendant appealed his denial. To date, the Bureau of Prisons has not acted on the request. At some point after July 20, 2021, the Bureau of Prisons moved Defendant to a different prison, Federal Medical Center - Butner (“FMC Butner”) Defendant asserts that he contracted COVID-19 at FCI Loretto and continues to suffer from the effects of post-acute sequelae SARS-COV-2 (more commonly known as “long COVID”). After Defendant filed his pro se compassionate release motion in this Court, the Court appointed counsel to represent Defendant. See Dkt. 52. The Court then extended the Government's and Defendant's respective supplemental briefing deadlines.
II. ANALYSIS
Defendant requests that, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), this Court release him from detention. Defendant asserts that he has exhausted administrative remedies, as he had not received a response from the warden thirty days after filing his request for compassionate release with FCI Loretto. The Government agrees that Defendant has exhausted his administrative remedies. Recent authority from the Fourth Circuit makes clear that Defendant's motion is ripe for review. See United States v. Muhammad, 16 F.4th 126, 129 (4th Cir. 2021) (“The text of § 3582(c)(1)(A) plainly provides that a defendant may file a motion on his own behalf 30 days after the warden receives his request, regardless of whether the defendant exhausted his administrative remedies.”).
Having determined that Defendant has satisfied the exhaustion requirement, the Court must next determine whether “extraordinary and compelling reasons” and the “factors set forth in section 3553(a)” warrant Defendant's release. 18 U.S.C. § 3582(c)(1)(A); see also United States v. McCoy, 981 F.3d 271 (4th Cir. 2020).
The First Step Act, the statute authorizing courts to consider motions for compassionate release like the one Defendant brings, states that release is appropriate only in “extraordinary and compelling” circumstances. 18 U.S.C. § 3582(c)(1)(A). The text of the statute does not define the term, however, and Congress instead delegated to the United States Sentencing Commission (“the Sentencing Commission”) the responsibility of defining the scope of that phrase. McCoy, 981 F.3d at 276. Accordingly, 28 U.S.C. § 994(t) provides that:
[t]he Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason
28 U.S.C. § 994(t). The Sentencing Commission determined, in pertinent part, that:
[u]pon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that - (1)(A) 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 this policy statement.
U.S.S.G. § 1B1.13.
Further, the Sentencing Commission has indicated that if a 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),” then “extraordinary and compelling reasons exist” if the defendant's medical condition, age, family circumstances, or other reason justify such release. U.S.S.G. § 1B1.13, cmt. n.1. In weighing the danger the defendant poses to the community, courts are directed to consider a number of factors, including “the nature and circumstances of the offense charged, including whether the offense is a crime of violence, . . . or involves a minor victim[;]” “the weight of the evidence against the
person;” “the history and characteristics of the person[;]” and “the nature and seriousness of the danger to any person or the community that would be posed by the person's release.” 18 U.S.C. § 3142(g).
After the First Step Act's enactment, many district courts, including this Court, have determined that the factors set forth in U.S.S.G. § 1B1.13, cmt. n.1 “provide[ ] helpful guidance, but . . . do[ ] not constrain a court's independent assessment of whether ‘extraordinary and compelling reasons' warrant a sentence reduction under § 3582(c)(1)(A).” United States v. Rodriguez, 451 F.Supp.3d 392, 401 (E.D. Pa. 2020) (quoting United States v. Beck, 425 F.Supp.3d 573, 582 (M.D. N.C. 2019)) (citing United States v. Redd, 444 F.Supp.3d 717, 725-26 (E.D. Va. 2020) and other cases). To be sure, § 3582(c)(1)(A) “requires [ ] that sentence reductions be consistent with ‘applicable policy statements.'” McCoy, 981 F.3d at 281 (quoting 18 U.S.C. § 3582(c)(1)(A)). But there remains “no ‘applicable' policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.'” McCoy, 981 F.3d at 284 (emphasis in original) (quoting United States v. Zullo, 976 F.3d 228, 230 (2d Cir. 2020)).
As such, this Court has “join[ed] other courts in concluding that a court may find . . . that extraordinary and compelling reasons exist based on facts and circumstances other than those set forth in U.S.S.G. § 1B1.13 cmt. n.1(A)-(C)....” Redd, 444 F.Supp.3d at 726. Accordingly, this Court will treat the § 1B1.13 cmt. n.1(A)-(C) factors as a guide, but not as an exhaustive list of circumstances that could justify compassionate release.[1] See also United States v. Jackson, No.
3:17-cr-29-2, 2021 WL 1723653, at *1 (E.D. Va. Apr. 30, 2021) (finding “[t]he policy statements are not binding but are informative and may be considered”) (citing McCoy, 981 F.3d at 276).
A. Extraordinary and Compelling Reasons
Defendant, who is 62 years old, argues that his age and health conditions present an extraordinary and compelling medical reason for his release. Specifically, Defendant asserts that he has several long-term pre-existing medical conditions the CDC identifies as extreme risk factors related to COVID-19. These include skin cancer, prostate cancer, post-acute sequela SARS-COV-2 (“PASC”), post-traumatic stress disorder (“PTSD”), chronic traumatic encephalopathy (“CTE”), sleep apnea, coronary artery disease (“CAD”), liver dysfunction, and polytrauma of chest and abdomen. Dkt. 39 at 2. Of these health conditions, prostate cancer is the one for which Defendant has supplied the Court with the most extensive medical records.
An extraordinary and compelling reason for compassionate release exists where the defendant suffers from a terminal illness. U.S.S.G. § 1B1.13 n.1(A)(i); see also United States v. Mumford, 544 F.Supp.3d 615, 617 (E.D. Va. 2021) (finding that end-stage renal disease requiring hemodialysis three times per week was a terminal illness and thus constituted an extraordinary and compelling reason for compassionate release); United States v. Webster, No. 3:91-cr-138, 2020 WL 618828, at *5 (E.D. Va. Feb. 10, 2020) (finding that Stage IV colon and prostate cancer was a “terminal illness” [that] constitutes an extraordinary and compelling reason for compassionate release”).
Defendant's records indicate he has prostate cancer with a Gleason score of either a 7 or 8. According to the Prostate Cancer Foundation, a Gleason score of 7 equates to an intermediategrade cancer, while 8 represents a high-grade cancer.[2] For his part, Defendant cites evidence that his Gleason score should instead be considered an 8 out of 10, which would suggest a high-grade, more aggressive form of prostate cancer. Defendant points to biopsy samples that show the aggressiveness of his cancer, including that it has spread to both sides of his prostate; an expected treatment regimen involving hormone therapy and 42 days of radiation; and potential chemotherapy...
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