United States v. Kissi

• Decision Date: 26 June 2020
• Docket Number: 13-CR-51 (MKB)
• Citation: 469 F.Supp.3d 21
• Parties: UNITED STATES of America, v. Michael KISSI, Defendant.
• Court: U.S. District Court — Eastern District of New York

469 F.Supp.3d 21

UNITED STATES of America,

v.Michael KISSI, Defendant.

13-CR-51 (MKB)

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

Signed June 26, 2020

Erik David Paulsen, U.S. Attorney's Office, Brooklyn, NY, for United States of America.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

On July 31, 2013, a jury convicted Defendant Michael Kissi of conspiracy to possess and attempted possession with intent to distribute heroin, and on May 13, 2014, the Court sentenced Kissi to 120 months in custody, the mandatory minimum sentence. (Jury Verdict, Docket Entry No. 58; J. of Conviction, Docket Entry No. 76.) On April 4, 2020, having served sixty-eight months in custody, Kissi filed an emergency motion for compassionate release, seeking a modification of his sentence and immediate release to home confinement and supervised release, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (Def. Mot. for Compassionate Release ("Def. Mot."), Docket Entry No. 86.) Kissi argues that his hypertension

and resulting heightened vulnerability to COVID-19, the changes to the safety valve provisions enacted by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) (the "First Step Act"), and the "undue length" of his sentence despite his minimal role constitute extraordinary and compelling circumstances warranting the modification of his sentence and his release to home confinement. (Def. Mot.; Def. Suppl. Mem. in Supp. of Def. Mot. ("Def. Suppl. Mem."), Docket Entry No. 86.) The government opposes the motion on both procedural and substantive grounds. (Gov't Opp'n to Def. Mot. ("Gov't Opp'n"), Docket Entry No. 87; Gov't Suppl. Opp'n to Def. Mot. ("Gov't Suppl. Opp'n"), Docket Entry No. 92.) The government argues that the Court should deny the motion because Kissi has failed to exhaust his administrative remedies, and further argues that neither Kissi's medical circumstances, the changes to the safety valve provisions, nor the length of his sentence warrant the modification of his sentence. (Id. ) The Court heard oral argument on April 7 and May 13, 2020, (Min. Entry dated Apr. 7, 2020; Min. Entry dated May 13, 2020), and the parties submitted supplemental briefs, (Def. Suppl. Mem; Gov't Suppl. Opp'n).

For the reasons discussed below, the Court excuses Kissi's failure to exhaust his administrative remedies and grants the motion.

I. Background

On December 26, 2012, after arresting an individual at John F. Kennedy International Airport days earlier, agents of the Department of Homeland Security, Homeland Security Investigations, conducted a controlled delivery at a hotel where Kissi arrived to collect 100 pellets of heroin from a co-conspirator. (Presentence Investigation Report ("PSR") ¶¶ 5, 7, Docket Entry No. 59.)

On July 31, 2013, after a three-day trial, a jury convicted Kissi of conspiracy to possess with intent to distribute heroin and attempted possession with intent to distribute heroin. (Min. Entry dated July 29, 2013, Docket Entry No. 53; Min. Entry dated July 30, 2013; Min. Entry dated July 31, 2013, Docket Entry No. 56; Jury Verdict, Docket Entry No. 48.) Following his conviction at trial, Kissi, accompanied by counsel, met with the government for a safety valve proffer, but terminated the meeting without providing the relevant information outlined by the safety valve statute. (See Gov't Opp'n 1–2; Apr. 7, 2020 Hr'g Tr. ("Apr. 2020 Hr'g Tr.") 7:11–14, Docket Entry No. 93.) At a sentencing hearing held on May 13, 2014, the Court found that Kissi's guideline range was seventy-eight to ninety-seven months of imprisonment,¹ (May 13, 2014 Sentencing Hr'g Tr ("Sentencing Tr.") 5:25–6:5, annexed to Def. Mot. as Ex. A, Docket Entry No. 86-1), and sentenced him to 120 months in custody and three years of supervised release, (J. of Conviction). As the Court noted at sentencing, the Court did not believe 120 months was an appropriate sentence but had no discretion in the matter. (See Sentencing Tr. 10:13–21.) As of the date of the filing of this motion, Kissi had served sixty-eight months in custody. (Def. Mot. 2.)

In support of his motion, Kissi argues that the "unprecedented threat of COVID-19 ... poses extraordinary risks" to his health because his medical condition of hypertension

"makes him especially vulnerable to the deadly risks of COVID-19."² (Id. ) Kissi also argues that, given that he has "served [sixty-eight] months of his 120-month mandatory minimum sentence," and in view of the fact that he "was a first-time offender, who had a minor role in the offense, and had always worked to support his wife and three children," as well as the "undue length of his sentence" noted by the Court at sentencing, "[r]elief is particularly appropriate here." (Id. )

On March 27, 2020, Kissi, through counsel, requested that the Bureau of Prisons ("BOP") move for compassionate release on his behalf. (Id. at 6.) As of April 2, 2020, when Kissi filed his motion, BOP had not responded to his request. (Id. ) After hearing oral argument on April 7, 2020, the Court held the motion in abeyance while Kissi attempted to exhaust his administrative remedies. (Min. Entry dated Apr. 7, 2020.) On April 19, 2020, BOP denied Kissi's request. (Letter from Warden dated Apr. 19, 2020, annexed to Gov't Suppl. Opp'n as Ex. C, Docket Entry No. 92-3.)

In his supplemental memorandum in support of his motion, filed on April 30, 2020, Kissi asserts that "his motion is now ripe for review." (Def. Suppl. Mem. 2.) Kissi argues that the Court should find that he has exhausted his administrative remedies because, although the Warden denied his application for compassionate release less than thirty days after he filed it, because it has now been more than thirty days since he filed the application, he has complied with the statutory requirement and has exhausted his administrative remedies. (Id. at 2–5.) Kissi also argues that even if the Court were to determine that he has not exhausted his administrative remedies, the Court should nevertheless waive his failure to do so because of the extraordinary circumstances present here. (Def. Mot. 8–12.)

In further support of his motion, Kissi reiterates his arguments as to why his hypertension

and the medical risks presented by the conditions at the Metropolitan Detention Center (the "MDC"),³ where Kissi is being held, represent extraordinary and compelling circumstances warranting relief. (Def. Suppl. Mem. 5–7.) Kissi also argues that the changes to the safety valve provisions enacted by the First Step Act create an unwarranted disparity between Kissi's sentence and the likely sentence of a comparable defendant today, providing a compelling basis for relief. (Id. at 7–12.) In particular, Kissi argues that because his failure to engage in a safety valve proffer was the sole barrier to a lesser sentence, if the current provisions preventing the use of information disclosed at a safety valve proffer to enhance the sentence of a defendant (provided the information does not relate to a violent offense) had been in place, Kissi likely would have been candid at a safety valve proffer and avoided the mandatory minimum sentence. (Id. at 9–12.)

In response, the government argues that because Kissi failed to appeal the Warden's denial of his application, the Court must deny his motion for failure to fully exhaust his administrative remedies as required by section 3582(c)(1)(A). (Gov't Suppl. Opp'n 2–13.) The government also opposes Kissi's substantive arguments. (Id. at 14–15; Gov't Opp'n 6–7.)

II. Discussion

As further described below, the Court finds that although Kissi has not exhausted his administrative remedies, under the circumstances of this case, he is not required to do so. The Court further finds that Kissi has demonstrated that there are extraordinary and compelling circumstances warranting modification of his sentence.

a. Compassionate release statutory scheme

"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F.Supp.3d 613, 614 (S.D.N.Y. 2020). Section 3582(c)(1)(A)(i) "empowers a court to reduce a defendant's term of imprisonment if it finds that ‘extraordinary and compelling reasons warrant such a reduction.’ " United States v. Ebbers , 432 F. Supp. 3d 421, 422 (S.D.N.Y. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i) ). "Prior to the enactment of the FIRST STEP Act, only the Director of the BOP could file a motion for compassionate release," but "[t]he FIRST STEP Act amended this provision to permit an inmate to file a motion in federal court seeking compassionate release." United States v. Haney , 454 F. Supp. 3d. 316, 318, No. 19-CR-541 (S.D.N.Y. Apr. 13, 2020) ; see also Ebbers , 432 F.Supp.3d at 423 ("The First Step Act created an independent avenue for defendants to seek relief from the federal courts.").

Under section 3582(c), and as relevant here, courts may modify a previously imposed sentence where:

(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 ... 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; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

and that such a reduction is

...