United States v. Johnson

Decision Date26 April 2023
Docket Number16-CR-319 (NGG)
CourtU.S. District Court — Eastern District of New York


Defendant Divine Johnson brings this pro se motion for compassionate release under 18 U.S.C § 3582(c)(1)(A), as amended by the First Step Act of 2018. Johnson contends (1) that the threat of the COVID-19 pandemic combined with his serious medical problems pose extraordinary risks to his health and (2) that his incarceration for the entirety of the pandemic has rendered his sentence overly punitive constituting extraordinary and compelling circumstances that warrant his early release. For the reasons set forth below Johnson's motion for compassionate release is GRANTED and his sentence is reduced to time served plus three years' supervised release.


Divine Johnson was arrested by federal authorities on May 12, 2016, in connection with armed robberies of two commercial establishments-the September 14, 2015 robbery of Hill Country BBQ, a restaurant located at 345 Adams Street in Brooklyn, New York, and the September 20, 2015 robbery of Washington Seafood, a seafood distributor located at 52 Washington Avenue in Brooklyn. (Presentence Investigation Report (“PSR”) (Dkt. 35) ¶¶ 5, 6, 8.) On January 24, 2017, Johnson pleaded guilty to one count of Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) and one count of Brandishing a Firearm During a Grime of Violence, in violation of 18 U.S.C. § 924(c)(1) (A) (ii). (Id. ¶¶ 1, 12, 13.)

Johnson was sentenced on October 20, 2017. (10/20/2017 Minute Entry (Dkt. 22).) His PS R calculated a total adjusted offense level of 17 and a criminal history category of III, for a guidelines range of 30 to 37 months of custody on the Hobbs Act robbery count. (PSR ¶ 78.) Johnson also faced a mandatory minimum sentence of 7 years of custody on the brandishing offense. (Id. ¶ 79.)[1] These crimes took place against the backdrop of a life of significant hardship. Johnson's mother abused crack cocaine and heroin throughout his childhood and fell victim to an untimely death when Johnson was just 15 years old. (Id. ¶¶ 39, 42, 44.) Johnson was diagnosed with post-traumatic stress disorder (“PTSD”) in 2011 and meets the criteria for borderline personality disorder. (Id. ¶¶ 55-56.) He has a long history of drug addiction and homelessness, throughout his teenage and adult years. (See id. ¶¶ 44,48, 59-64.) This court sentenced Johnson to 30 months' imprisonment for the Hobbs Act robbery, to run consecutively with 84 months' imprisonment for the brandishing offense, followed by three years of supervised release. (Judgment (Dkt. 24) at 2-3.) The court also requested that he be placed in a drug abuse treatment program while incarcerated. (Id. at 2.)

Based on the Bureau of Prison's (“BOP”) expected release date, Johnson has served over 104 months of his sentence[2] at multiple different correctional facilities, apparently including Elmira Correctional Facility in Elmira, New York, see Incarcerated Lookup, New York State, https://nysdoccslookup.doccs.ny.gov/ (last accessed Apr. 21, 2023) (“Incarcerated Lookup'); a facility referred to by Johnson as “Allegany Correctional [F]acility,” (Mot. For Compassionate Release (“Mot.”) (Dkt, 27) at 5); a correctional facility located in Ohio, (id. at 1); and the Williamsburg Federal Correctional Institute in Salters, South Carolina. (Gov't Opp'n to Mot. (“Gov't Opp.”) (Dkt. 30) at 2); see also Inmate Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last accessed Apr. 21, 2023) (“Inmate Located'). There is some confusion about how many months of Johnson's sentence remain. According to the Government, his estimated release date is February 1, 2024. (Gov't Opp. at 2.)[3] According to Johnson, although there have been “issues” with his “time computation sheet,” his estimated release date is October 6, 2023. (Mot. at 4.)

On August 29, 2022, Johnson moved for compassionate release under 18 U.S.C § 3582(c)(1)(A), as amended by the First Step Act of 2018. (See generally id.) First, Johnson argues that his serious medical problems-including diabetes, hypertension, and obesity-put him at increased risk from COVID-19, which has caused him to “fear for [his] life” and constitute “extraordinary and compelling reason[s] for sentence reduction. (Id. at 3, 5.) Second, he argues that COVID-19-related restrictions put in place at correctional facilities in which he has been housed-including “lockdowns” and the “curtailment of facility programs and visitation”-have made his term of imprisonment “harsher and more punitive” than anticipated. (Id. at 4.) Finally, he points out that he has served the vast majority of his sentence and indicates he has grown as a person, noting that his incarceration has shown him “more of what being a man and father is.” (Id. at 1, 4.) On November 21, 2022, the Government responded in opposition, arguing that Johnson failed to exhaust administrative remedies as required by § 3582(c)(1)(A), failed to demonstrate that the COVID-19 pandemic constituted an extraordinary and compelling reason supporting his release, and the § 3553(a) sentencing factors do not support his release. (See generally Gov't Opp.)

On February 2, 2023, the court directed the Government to provide information regarding whether Johnson had received substance abuse treatment during his incarceration, and if so, the nature of such treatment. (2/02/2023 Text Order). The government responded with two letters to the court. As of March 6, 2023, Johnson “ha[d] not yet completed a drug treatment program,” notwithstanding the Gourds October 2017 recommendation that he be enrolled in one. (Gov't Second Letter on Drug Treatment (“Second Gov't Letter”) (Dkt. 33) at 1; Judgment at 2.) Johnson signed up for the Medication-Assisted Treatment (MAT) Program, but seven years after he entered federal custody and nearly six years after this court requested such treatment, the Government reports that he is “still in the screening process to determine his need for MAT treatment.” (Second Gov't Letter at 2.) In the meantime, there are indications that Johnson continues to struggle with addiction. (See Gov't First Letter on Drug Treatment (“First Gov't Letter”) (Dkt. 32) at 1.)


Section 3582(c) (1) (A), as amended by the First Step Act of 2018, allows courts to reduce a defendant's sentence upon a motion of either the Director of the BOP or the defendant. 18 U.S.C. § 3582(c)(1)(A). Although often referred to as “compassionate release,” this Section actually pertains to sentence reductions of any length, up to and including immediate release. Reynolds v. United States, No. 99-CR-520 (NGG), 2022 WL 1444167, at *4 (E.D.N.Y. May 6, 2022); see also United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020). A district court may reduce a defendant's sentence upon a motion of the defendant where (1) they have exhausted the available BOP administrative remedies; (2) extraordinary and compelling reasons warrant such a reduction; and (3) the applicable § 3553(a) factors weigh in favor of said reduction. § 3582(c)(1)(A).

If the court finds that any of these three conditions is not met, it need not address the others. United States v. Keitt, 21 F.4th 67, 73 (2d Cir. 2021). District courts may, however, analyze the remaining factors to aid appellate review. United States v. Jones, 17 F.4th 371, 374-75 (2d Cir. 2021). “[District courts have broad discretion in deciding whether to grant or deny” a § 3582(c)(1)(A) motion. United States v. Antney, No. 17-CR-229 (CBA), 2021 WL 4502478, at *1 (E.D.N.Y. Sept. 20, 2021) (citing Brooker, 976 F.3d at 237).[4] The court discusses administrative exhaustion and the two substantive requirements in turn below.

A. Exhaustion of Administrative Remedies
1. Legal Framework

A defendant may bring a motion pursuant to § 3582(c)(1)(A) “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.” § 3582(c)(1)(A). [A] defendant seeking compassionate release should include evidence of compliance with the First Step Act's mandatory administrative exhaustion requirement,” such as documentation of the request submission with their motion. United States v. Friedlander, No. 20-CR-441 (JS), 2022 WL 2305370, at *3 (E.D.N.Y. June 24, 2022).

The Second Circuit has held that the administrative exhaustion requirement of § 3582(c)(1)(A) is a mandatory “claim-processing rule,” rather than a “jurisdictional limitation,” with the result that exhaustion may be “waived or forfeited by the government.” United States v. Saladino, 7 F.4th 120,121 (2d Cir. 2021). It has not explicitly decided whether the administrative exhaustion requirement of § 3582(c)(1)(A) is waivable by courts, but it has articulated three situations in which exhaustion requirements under other statutes are so waivable. See Washington v. Barr, 925 F.3d 109,118-19 (2d Cir. 2019). Several district courts within the Circuit have waived § 3582(c) (1)(A)'s exhaustion requirement in contexts where exhaustion would be futile, incapable of granting adequate relief, or would result in undue prejudice, applying Washington v. Barr to the compassionate release context. See, e.g., United States v. Fragoso, No. 18-CR-179 (JMA), 2021 WL 5205633, at *2 (E.D.N.Y. Nov. 9, 2021) (recognizing the three types of Washington v. Barr waivers as applicable to § 3582(c) (1) (A)); United States v Sawicz, 453 F.Supp.3d 601, 604 (E.D.N.Y. 2020) (holding that a COVID-19 outbreak at defendant's facility...

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