United States v. Gentille

• Decision Date: 09 April 2020
• Docket Number: 19 Cr. 590 (KPF)
• Parties: UNITED STATES OF AMERICA v. NUNZIO GENTILLE, Defendant.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA v. NUNZIO GENTILLE, Defendant.

19 Cr. 590 (KPF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 9, 2020

ORDER

KATHERINE POLK FAILLA, District Judge:

On November 1, 2019, Defendant Nunzio Gentille was sentenced by this Court principally to a term of six months' imprisonment. Gentille is serving the remainder of his sentence at the Metropolitan Correctional Center (the "MCC") in Manhattan; his scheduled release date is April 27, 2020. Gentille has moved for immediate release so that he may begin his term of supervised release, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), citing the risks to his health occasioned by his continued incarceration at the MCC during the current COVID-19 pandemic. As set forth in the remainder of this Order, the Court grants his motion and orders that the remainder of his sentence be reduced to time served, and that he immediately be released to begin his period of supervised release.

BACKGROUND¹

In April 2016, Nunzio Gentille was initially convicted in this District of conspiracy to distribute and possess with intent to distribute methylone,cocaine, and marijuana. See United States v. Gentille, No. 14 Cr. 608 (AJN). In that case, Gentille was sentenced on May 5, 2016, to a term of 60 months' imprisonment, to be followed by a term of five years' supervised release. (Id.; PSR ¶ 6).

On July 9, 2019, Gentille was transferred to the Bronx Community Reentry Center ("Bronx CRC"). (PSR ¶ 7). On July 24, 2019, Gentille walked away from the Bronx CRC and refused to self-surrender to the United States Marshals Service ("USMS"). (Id. at ¶¶ 8, 9). Gentille was ultimately arrested by the USMS on August 8, 2019. (Id.). On September 12, 2019, Gentille pleaded guilty to a one-count indictment charging him with escape. (Minute Entry for September 12, 2019). The Court sentenced Gentille to six months' imprisonment. (Dkt. #16). The Court did not impose a period of supervised release because Gentille was already subject to a term of five years' supervised release for his prior conviction in United States v. Gentille, No. 14 Cr. 608 (AJN). (Id.). Presumably because of the short period of time remaining on his prison term, the Bureau of Prisons (the "BOP") allowed Gentille to remain at the MCC for the remainder of his sentence.

On March 30, 2020, counsel for Gentille filed a motion for compassionate release on his behalf. (Dkt. #28). In it, counsel requested that the Court modify Gentille's sentence to time served so he could begin serving the five year term of supervised release remaining in his prior conviction. Among other things, defense counsel observed that the COVID-19 virus "thrives in densely packed populations, and the MCC is ill-equipped to contain the pandemic and prevent COVID-19 from becoming a de facto health threat for Mr. Gentille." (Id. at 1; see also id. at 9 ("The MCC has disclosed that as of March 25, 2020, nearly one-third of its current population is high-risk within the CDC's definition (205 inmates), creating a powerful likelihood that the coronavirus will spread throughout the facility, and particularly endanger the at-risk inmates, many of whom were already exposed to the virus by an inmate who tested positive and was housed on an open dorm unit with many of the at-risk inmates.")). In letter briefs dated March 31 and April 6, 2020 (Dkt. #30, 31), the Government expressed its opposition to Gentille's motion.

On April 8, 2020, the Government filed a letter reconsidering its earlier position, and stating that it would not oppose Gentille's motion for compassionate release. (Dkt. #33). Further, the Government stated that it would waive any argument that Gentille had failed to satisfy the exhaustion requirement set forth in 18 U.S.C. § 3582(c)(1)(A) on the unique facts of this case:

First, Gentille has served the vast majority of his sentence, and only has 19 days left to serve. Second, the crime for which Gentille pled guilty — escape — is non-violent in nature, and he does not appear to pose arisk of violence to the community. Third, given that Gentille's expected release date is April 27, 2020, if Gentille is required to wait 30 days before seeking relief from the Court, he would be unable to obtain the relief sought. Fourth, Gentille has been categorized by the Metropolitan Correctional Center ("MCC") as a high-risk inmate with respect to suffering severe symptoms resulting from COVID-19 [based on his medical history]. Fifth, Gentille proposed a plan for isolation in a studio-apartment upon release, which provides greater health and safety assurances.

(Id. at 1).

DISCUSSION

"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti, No. 02 Cr. 743 (CM), 2020 WL 497987, at *1 (S.D.N.Y. Jan. 15, 2020); accord United States v. Monzon, No. 99 Cr. 157 (DLC), 2020 WL 550220, at *1 (S.D.N.Y. Feb. 4, 2020). One such statutory provision, known as the compassionate release provision, specifies in relevant part:

c) 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 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 (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 ....

18 U.S.C. § 3582(c)(1)(A)(i).

Of potential note, the compassionate release provision was amended by the First Step Act of 2018 to permit defendants, and not merely the BOP, to make such motions under certain circumstances. See First Step Act of 2018, Pub. L. 115-391, § 603, 132 Stat. 5194, 5239 (2018). As courts in this District have observed, the amended provision reflects a balance struck between "competing congressional objectives." United States v. Russo, No. 16 Cr. 441 (LJL), Dkt. #54 at 4 (S.D.N.Y. Apr. 3, 2020). On the one hand, the statute includes an exhaustion requirement in recognition of the fact that the "BOP is frequently in the best position to assess, at least in the first instance, a defendant's conditions, the risk presented to the public by his release, and the adequacy of a release plan." Id. On the other hand, the statute itself provides an exception to this exhaustion requirement, permitting a defendant to seek judicial review — even if he has not yet fully exhausted his administrative rights — where 30 days have elapsed from the warden's receipt of the defendant's request. This built-in exception to the statutory exhaustion requirement "unquestionably reflects congressional intent for the defendant to have the right to a meaningful and prompt judicial determination of whether he should be released." Id.

The instant motion is one of many filed by sentenced defendants in federal custody who are understandably worried about (and at particular medical risk for) contracting COVID-19. These motions seek immediate relief,recognizing the speed with which the virus spreads, the impracticability of social distancing in federal prison, and the marked deficiencies in hygiene and medical care in prison. This case is, in the Court's experience, one of comparatively few in which the Government does not oppose the motion. And while it would be easy for the Court to co-sign what is effectively a joint request of the parties, it must first address an issue common to nearly all of these motions — namely, whether the Court has the ability to overlook a defendant's failure to exhaust administrative remedies. (See Dkt. #33 (arguing that the Court has the power to waive the exhaustion requirement)).

The Court recognizes that thoughtful judges in this District have come to different conclusions on the point. Compare, e.g., United States v. Woodson, No. 18 Cr. 845 (PKC), 2020 WL 1673253, at *4 (S.D.N.Y. Apr. 6, 2020) (concluding that courts may not excuse or overlook the exhaustion requirement: "The Court expresses the hope that the BOP will state its position in a reasoned determination of Woodson's application. If the BOP anticipates that it will be unable to address the merits of Woodson's application, it should deny his application now and thereby open his pathway to seek judicial relief. For the agency to make the advance decision to allow the 30-day window to run out, but not to act to deny the application would be irresponsible.") (collecting cases), with United States v. Perez, No. 17 Cr. 513 (AT), 2020 WL 1546422, at *3 (S.D.N.Y. Apr. 1, 2020) (concluding that exhaustion requirement can be excused: "The Court concludes that requiring [the defendant] to exhaust administrative remedies, given his unique circumstancesand the exigency of a rapidly advancing pandemic, would result in undue prejudice and render exhaustion of the full BOP administrative process both futile and inadequate."). It has spent much time considering the arguments, and the judicial decisions, on both sides. For the reasons set forth in the following paragraph, this Court need not finally decide the issue in this case. However, after considering the arguments it has received to date, the Court is inclined to align itself with the Woodson court, and with its many colleagues who have concluded that courts lack the authority to waive the administrative exhaustion requirement stated in § 3582(c)(1)(A). See also, e.g., United States v. Gross, No. 15 Cr. 769 (AJN), 2020 WL 1673244, at *2 (S.D.N.Y. Apr. 6, 2020) ("However, the Court is skeptical that the ...