United States v. Gross

• Decision Date: 06 April 2020
• Docket Number: 15-cr-769 (AJN)
• Citation: United States v. Gross, 452 F.Supp.3d 26 (S.D. N.Y. 2020)
• Parties: UNITED STATES of America, v. Trevon GROSS, Defendant.
• Court: U.S. District Court — Southern District of New York

452 F.Supp.3d 26

UNITED STATES of America,

v.Trevon GROSS, Defendant.

15-cr-769 (AJN)

United States District Court, S.D. New York.

Signed April 6, 2020

Eun Young Choi, Daniel Scott Noble, Won S. Shin, Catherine Elaine Ghosh, U.S. Attorney's Office, New York, NY, for United States of America.

OPINION & ORDER

ALISON J. NATHAN, District Judge:

On April 1, 2020, DefendantTrevon Gross filed an emergency motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(a)(i).SeeDkt. No. 753.The Government opposed Mr. Gross's motion on April 3, 2020 on the ground that the Court lacks statutory authority to grant Mr. Gross the relief that he seeks.SeeDkt. No. 757.For the reasons that follow, the Court DEFERS ruling on Mr. Gross's motion at this time.

I. COVID-19 POSES AN UNPRECEDENTED RISK TO MR. GROSS AND OTHERS LIKE HIM

Mr. Gross is a 50-year-old man who is severely overweight and suffers from high blood pressure and sleep apnea.SeeDkt. No. 753-1at 3.He takes several medications to manage these conditions, including Losartan Potassium, Spironolactone, Diltiazem, Metoprolol Tartrate, and Aspirin.Id. at 3–4.At least one—and perhaps all—of these conditions places him at a higher risk for severe illness if he contracts COVID-19.See Centers for Disease Control and Prevention, Information for Healthcare Professionals: COVID-19 and Underlying Conditions , https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html (noting that individuals with severe obesity, defined as a body mass index of 40 or higher, are considered to be "at high-risk for severe illness from COVID-19");see also, e.g. , Lei Fang et al., Are Patients with Hypertension and Diabetes Mellitus at Increased Risk for COVID-19 Infection? , The Lancet(Mar. 11, 2020), at 1, https://doi.org/10.1016/S2213-2600(20) 30116-8 (hypothesizing that hypertension treatment with angiotensin II receptor blockers, such as Losartan, "increases the risk of developing severe and fatal COVID-19").

The Court sentenced Mr. Gross—a first-time, non-violent offender—to 60 months in prison for the commission of various offenses related to an illegal and unlicensed Bitcoin exchange.SeeDkt. No. 657.Mr. Gross remained at liberty throughout his criminal prosecution up until the time that he surrendered to the custody of the Bureau of Prisons following his sentencing, as the Court determined that he posed neither a flight risk nor a danger to the community.He is currently serving his sentence, of which roughly half remains, at USP Canaan.SeeDkt. No. 753-1at 2;Dkt. No. 757at 3.

The combination of Mr. Gross's health conditions and his incarceration compounds the risk COVID-19 poses to him, placing him in "particularly grave danger,"seeUnited States v. Nkanga Nkanga , No. 18-cr-713 (JMF), 450 F.Supp.3d 491, 492–93(S.D.N.Y.Mar. 31, 2020); not only is he at a higher risk of serious illness if he contracts COVID-19 due to his underlying health conditions, but he is also at a higher risk of contractingCOVID-19 due to his incarceration.Indeed, as numerous courts within and without this District have recognized, "[i]ndividuals in carceral settings are at a ‘significantly higher ’ risk of spreading infectious diseases."Coronel v. Decker , No. 20-cv-2472 (AJN), 449 F.Supp.3d 274, 281(S.D.N.Y.Mar. 27, 2020)(emphasis added);accordUnited States v. Davis,449 F.Supp.3d 532, 536–38(D. Md.Mar. 30, 2020)("The inability to practice social distancing in jails makes ‘transmission of COVID-19 more likely.’ ");United States v. Harris , 2020 WL 1482342, at *1(D.D.C.Mar. 26, 2020)("The risk of the spread of the virus in the jail is palpable ....");Basank v. Decker , No. 20-cv-2518 (AT), 449 F.Supp.3d 205, 214–15(S.D.N.Y.Mar. 26, 2020)("The risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious.");United States v. Ramos , 450 F.Supp.3d 63, 64–65(D. Mass.Mar. 26, 2020)("[I]t is not possible for a medically vulnerable inmate ... to isolate himself in [an] institutional setting as recommended by the CDC ....").¹

In light of the unprecedented—and potentially life-threatening—risk COVID-19 poses to Mr. Gross, he has moved this Court to release him from USP Canaan to serve what remains of his sentence in home confinement.Immediately after filing the motion now before the Court, Mr. Gross's counsel sent a letter request seeking compassionate release to the Warden at USP Canaan, and the Warden confirmed receipt of that request on April 2, 2020.SeeDkt. No. 757at 4;Dkt. No. 757-1;Dkt. No. 757-2.Neither party has indicated that any action has been taken on Mr. Gross's request since it was received by the Warden just a few days ago.However, the Government represents that USP Canaan has indicated that it "[has] 30 days via statute and regulation to respond [to such requests], but oftentimes responds before that is complete."Dkt. No. 756.

II.UNDER CURRENT LAW, THE COURT IS SKEPTICAL THAT IT POSSESSES AUTHORITY TO GRANT MR. GROSS RELIEF AT THIS JUNCTURE

Having considered the parties’ briefing, the Court defers ruling on Mr. Gross's motion, because it is skeptical that it possesses the authority to grant Mr. Gross relief at this juncture.

"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), 433 F.Supp.3d 613, 614(S.D.N.Y.Jan. 15, 2020).18 U.S.C. § 3582(c)(1)(A) permits a court to reduce a term of imprisonment if, after considering the factors set forth in section 3553(a), "it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."18 U.S.C. § 3582(c)(1)(A).The First Step Act, enacted in 2018, allows a court to do so "upon motion of the defendant" either "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 after "the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier. "Id.(emphasis added).

The text of the First Step Act thus reflects a balance struck between "competing congressional objectives."United States v. Russo , No. 16-cr-441 (LJL), Dkt. No. 54at 4(S.D.N.Y.Apr. 3, 2020).On the one hand, the statute includes an exhaustion requirement in recognition of the fact that "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 statuteitself 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 parties agree that Mr. Gross has satisfied neither statutory prerequisite for judicial review, seeDkt. No. 753-1at 2, 8;Dkt. No. 757at 7, but he implores the Court to find the exhaustion requirement that § 3582(c)(1)(A) imposes waived rather than await the exhaustion of his administrative rights or the lapse of the statutorily-mandated 30-day period.The Court is aware that other courts have recently waived exhaustion under similar circumstances and proceeded to consider the merits of defendants’ motions for compassionate release.See, e.g. , United States v. Perez , No. 17-cr-513 (AT), Dkt. No. 98 at 2, 2020 WL 1546422(S.D.N.Y.April 1, 2020)(granting defendant's motion for compassionate release under 18 U.S.C. 3582(c)(1)(A), and holding "that [the defendant's] exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic").However, the Court is skeptical that the First Step Act admits of such exception to its statutory exhaustion requirement.Indeed, the Supreme Court cautions courts against "read[ing] futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise,"Booth v. Churner , 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 149 L.Ed.2d 958(2001), because, in the case of statutory exhaustion requirements, "Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to,"Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117(2016).Under this precedent, the case for carving out an equitable exception here is weak.Not only does the First Step Act explicitly circumscribe judicial review, requiring a defendant to first fully exhaust all administrative rights, but it also provides a built-in futility exception in the form of the 30-day rule.

Having expressed its skepticism regarding its authority to grant Mr. Gross the relief he seeks at this juncture, the Court will defer ruling on Mr. Gross's motion, including his exhaustion arguments, in order to afford the Bureau of Prisons the opportunity—that it requests and the First Step Act contemplates—to assess Mr. Gross's request in the first instance.SeeDkt. No. 757at 18.The Court is confident that BOP will act with the swiftness this situation demands, and sees "[n]othing in the agency's internal procedures for implementing the compassionate release statute that suggests that it cannot complete its review process, including any appeal, extremely quickly. "Russo , Dkt. No. 54at 5 n.1(emphasis added).Accordingly, the Government is hereby ordered to submit a letter immediately following any determination BOP makes on Mr. Gross's request for compassionate release.The Court expects BOP to be able to...