United States v. Hossain

• Citation: 465 F.Supp.3d 114
• Decision Date: 08 June 2020
• Docket Number: 1:04-cr-402 (TJM)
• Parties: UNITED STATES of America v. Mohammed Mosharref HOSSAIN, Defendant.
• Court: U.S. District Court — Northern District of New York

465 F.Supp.3d 114

UNITED STATES of America

v.Mohammed Mosharref HOSSAIN, Defendant.

1:04-cr-402 (TJM)

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

Signed June 8, 2020

As Amended June 8, 2020

Gregg N. Sofer, U.S. Department of Justice Counter-Terr. Section, William C. Pericak, Jenner, Block Law Firm, Washington, DC, Elizabeth C. Coombe, Sean K. O'Dowd, Office of United States Attorney, Albany, NY, for United States of America.

DECISION & ORDER

THOMAS J. MCAVOY, Senior United States District Judge

Before the Court is Defendant's motion for a reduction in his sentence. See dkt. # 732.

I. BACKGROUND

After a four-week trail, on October 10, 2006, a jury convicted Defendant Mohammed Mosharref Hossain on twenty-seven counts for his part in a scheme to procure a surface-to-air missile to be used against the Ambassador of Pakistan in New York City. See dkt. # 357. The confidential witness who played a role in promoting the plot told Hossain and his co-defendant that the attack would be carried out by an Islamic extremist group. See Court's Opinion denying Defendant's motions for acquittal or a new trial, dkt. # 440. On March 8, 2007, the Court sentenced Defendant to a total of 180 months imprisonment and a three-year term of supervised release. See dkt. # 448. The Second Circuit Court of Appeals affirmed the Defendant's conviction and sentence on September 17, 2008. See dkt. # 541.

On November 15, 2019, Defendant filed a motion to reduce his sentence. See dkt. # 732.¹ Defendant's initial motion argued that "extraordinary and compelling" reasons existed to reduce his sentence. He represented that his "health had steadily declined" since imprisonment. He suffered from "chronic and debilitating illnesses decreasing his life expectancy, requiring constant testing, regulation of his diet, and medical monitoring" during his incarceration. He represented that he suffered from Type 2 Diabetes

with renal manifestations, chronic kidney disease, hypertension, psoriasis, anemia, hypothyroidism, polyneuropathy, retinopathy, secondary hyperthyroidism, and bilateral osteoarthritis in his knees

. He had recently been diagnosed with glaucoma. Managing all of these conditions placed a burden on the prison medical staff. Allowing him to finish his sentence under home confinement, he argued, would benefit both him and the prison system. Defendant also represented that he was not a danger to the community and that his health status and age (65 years) made him worthy of mercy.

The government filed a brief opposing the motion on January 22, 2020. See dkt. # 740. The Court granted Defendant's request for an extension of time to file his reply to the government's briefing so that he could obtain additional documents from the Bureau of Prisons. See dkt. #s 741-742. Defendant filed his reply on March 26, 2020. See dkt. #s 743-775. Defendant argued that the Court could consider compassionate release because he had exhausted his administrative remedies as defined by the statute. He also argued that the health crisis brought about by the exploding number of cases of COVID-19 in the United States exacerbated the risks posed by the underlying medical conditions he described in his initial briefing. The pandemic's appearance and growth in the United States occurred between Defendant's initial filing and his March filing.

The Court consulted with the parties and the Probation Department after Defendant's filings in March. The Court understood from these conversations that Defendant was scheduled to be released soon, and that an Order from the Court granting Defendant's motion would not cause him to be released before the date on which his release had been scheduled. The Court therefore did not rule on the Defendant's motion, anticipating that it would soon become moot.

Defendant's counsel wrote the Court on May 27, 2020. See dkt. # 747. Counsel reported that Defendant still remained in the custody of the Bureau of Prisons, despite assurances from Defendant's counselor at the Federal Prison in Springfield, Missouri, that he would be released to home confinement on April 22, 2020. Id. at 2. The counselor informed defense counsel that Defendant had entered a 14-day quarantine and would soon be released. Id. On April 7, 2020, however, the counselor called to relate that Defendant had been removed from quarantine and returned to the general population. Id. He had a new cell and cell mate. Id. The reason the counselor gave for this change in status was that "monitoring could not be put in place." Id. This alleged problem with monitoring came despite the fact that the Probation Department for the Northern District of New York had spoken with Defendant's family to arrange for monitoring and had not expressed any problem with the arrangements. Id. Counsel contacted officials and eventually requested that they reconsider their decision about monitoring. Id. at 2-3.

When the Bureau of Prisons did not respond to counsel's requests, defense counsel again contacted Defendant's counselor at the prison. Id. at 3. That counselor informed defense counsel that the Bureau of Prisons had changed its standard on requests for release, and that a person convicted of the crimes for which Defendant had been convicted was no longer eligible for release to home confinement under the Bureau's program. Id. at 4. Faced with this situation, Defendant filed a supplemental memorandum of law, essentially renewing his request for compassionate release. The government continues to oppose the motion.

II. ANALYSIS

A. Exhaustion

The government argues that Defendant cannot obtain compassionate release because he failed to fulfill the statutory requirement to exhaust his administrative remedies before seeking relief from the Court.

Defendant relies on 18 U.S.C. § 3582(c)(1)(A) as a basis for relief. That Section provides that "in any case ... upon motion of the Director 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 request by the warden of the defendant's facility, whichever is earlier" a court may reduce the sentence of a defendant on certain grounds. 18 U.S.C. § 3582(c)(1)(A).

Several courts addressing requests like the Defendant's for consideration during the current pandemic have concluded that they cannot consider a motion under this statute until Defendant meets the exhaustion requirement. See, e.g., United States v. Ogarro, No. 18cr373-9, 2020 WL 1876300, at *3-4, 2020 U.S. Dist. LEXIS 65914, at *9 (S.D.N.Y. April 14, 2020) (cannot consider a motion for release under Section 3582(C)(1)(A) until Defendant exhausts his administrative remedies or 30 days have passed); United States v. Woodson, No. 18cr845, 2020 WL 1673253, at *2, 2020 U.S. Dist. LEXIS 60564, at *4 (S.D.N.Y. Apr. 6, 2020) ("If the BOP does not act favorably on the defendant's request after 30 days, the exhaustion requirement is dispensed with and the defendant may bring his application to the Court."); United States v. Brown, No. 13cr6006, 2020 U.S. Dist. LEXIS 91147, at *3-4 (W.D.N.Y. May 26, 2020) ("To be clear, the Court is not suggesting that it agrees with the Government's contention that mandating a 30-day waiting period in the face of this pandemic is prudent–indeed, as far as the Court is concerned, it is not. However, the Court cannot disregard the statutory language, and the Government has not waived compliance."); United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (Where 30 days have not passed following presentation of a request to a warden, Section 3582(c)(1)(A) ’s exhaustion requirement "presents a glaring roadblock foreclosing compassionate release at this point."). The undersigned Judge has previously considered this exhaustion requirement and concluded that it was mandatory. See United States v. Adams, Slip. Op., No. 13cr395 (N.D.N.Y. May 7, 2020) (finding exhaustion required before consideration of a § 3582(c)(1)(A) motion). Nothing has changed the Court's mind on the matter since.

As such, if the Defendant has failed to exhaust his administrative remedies, the Court cannot consider his claim. The government responded to Defendant's initial motion by arguing that he failed to exhaust his administrative remedies because he did not complete the entire administrative appeals process. The government has now changed its position and "is no longer asserting that Hossain failed to exhaust his administrative remedies other than to the extent that he relies on the pandemic." Instead, the government argues that Defendant cannot rely on that request, from July 2019, because it did not raise the dangers posed by COVID-19. The government insists that Defendant must file a new request for compassionate release, wait thirty days, and then file a new motion with the Court.²

The Court disagrees. The government admits that Defendant exhausted his administrative remedies by waiting thirty days before filing his motion in federal court. The Court has never ruled on that motion, which is still pending. The circumstances have changed in ways that Defendant could not have anticipated in November 2019, when he filed his motion. Defendant has supplemented his motion to reflect the present situation. The Court sees nothing in the Section 3582(c)(1)(A) that would require the Defendant to withdraw his motion and file a new one if circumstances change while his motion is pending. Defendant exhausted his administrative remedies before he filed his motion, and the Court cannot require him to go through that procedure again.³ The Court will therefore consider the Defendant's motion.

B. Extraordinary and Compelling Reasons

Under the relevant provision, a court can grant a sentence reduction only if it determines that "extraordinary and compelling reasons" justify the reduction and that "such a reduction is consistent with applicable policy...