United States v. McCarthy, CRIM. CASE NO. 3:17-CR-0230 (JCH)

• Decision Date: 08 April 2020
• Docket Number: 3:92-CR-0070 (JCH),CRIM. CASE NO. 3:17-CR-0230 (JCH)
• Citation: United States v. McCarthy, 453 F. Supp. 3d 520 (D. Conn. 2020)
• Parties: UNITED STATES of America, v. John MCCARTHY, Defendant.
• Court: U.S. District Court — District of Connecticut

453 F.Supp.3d 520

UNITED STATES of America,

v.John MCCARTHY, Defendant.

CRIM. CASE NO. 3:17-CR-0230 (JCH)

3:92-CR-0070 (JCH)

United States District Court, D. Connecticut.

Signed April 8, 2020

John H. Durham, U.S. Attorney's Office, New Haven, CT, for United States of America.

RULING ON DEFENDANT'S EMERGENCY MOTION

Janet C. Hall, United States District Judge

I.INTRODUCTION

DefendantJohn McCarthy("McCarthy") moves for immediate transfer to a halfway house or, in the alternative, compassionate release under section 3582 of title 18 of the United States Code.SeeEmergency Motion(Doc. No. 88).McCarthy has filed an identical Motion in his other criminal case.SeeCaseNo. 3:92-CR-0070, Doc. No. 487.The Government opposes.See Memorandum in Opposition (Doc. No. 93).

On April 2, April 3, and April 6, the court held telephonic conferences in an attempt to explore the possibility of working with the Bureau of Prisons ("BOP") to coordinate the transfer of McCarthy from MDC Brooklyn to a halfway house in Connecticut without modifying or reducing McCarthy's sentence.SeeDocs.No. 96, 101, and 103.These efforts were unsuccessful.On April 8, the court heard oral argument on the Emergency Motion via videoconference.SeeDoc. No. 107.

For the reasons that follow, McCarthy's Motion for compassionate release is granted.McCarthy's sentence is reduced to time served pursuant to Section 3582(c)(1)(A) of title 18 of the United States Code, and he shall be immediately released from BOP custody.Upon his release, McCarthy shall be subject to the additional conditions imposed in the Court's Order of Release.All other aspects of McCarthy's sentence remain unchanged.¹

II.BACKGROUND

On January 4, 2019, McCarthy was convicted by guilty plea of one count of armed bank robbery in violation of section 2113(a)and2113(d) of title 18 of the United States Code.See Judgment (Doc. No. 81).This court sentenced McCarthy to a term of imprisonment of 38 months, followed by a term of supervised release of five years.Id.The court also imposed several Special Conditions of Supervised Release.The first Special Condition provides that, upon McCarthy's completion of his term of imprisonment, he would immediately begin his term of supervised release in a facility where he will receive intensive mental health treatment.Judgementat 1.The court also recommended to the Bureau of Prisons that it "not provide the defendant access to any early release programs as part of his sentence in light of the special conditions of supervised release that have been imposed immediately upon the defendant's release."Id. at 2.

While McCarthy was serving his sentence, a team, consisting of the United States Probation Officer who will supervise McCarthy, McCarthy's defense counsel and her staff, and a case counselor from the Bureau of Prisons, had worked together to secure McCarthy's admission to a facility where he can receive intensive mental health and substance abuse treatment upon release from prison consistent with the court's order.Seeid. 2–3.To facilitate McCarthy's ultimate discharge from the BOP on May 4, 2020, McCarthy was recently moved out from FCI Cumberland for transfer to FCI Danbury.It was expected that, while at FCI Danbury, the Greater Bridgeport Mental Health Center would interview McCarthy in advance of his discharge from Danbury.Id. at 3.

McCarthy's transfer to FCI Danbury never occurred.McCarthy was in transit at MDC Brooklyn when the BOP shut down all movement of inmates between facilities in response to the COVID-19 outbreak.Id.While incarcerated at MDC Brooklyn, New York City has become the epicenter of the COVID-19 epidemic in the United States.As expected, the virus has also spread to the city's prisons.On March 21, 2020, a person jailed at MDC Brooklyn was diagnosed with COVID-19, the first coronavirus case of a detainee in the federal prison system.SeeMichael Balsamo, 1st Fed Inmate Tests Positive for Corona Virus, Associated Press (Mar. 21, 2020), https://apnews.com/ec49cc7f4d1b00bc5010dfb6d935e042(last visited Apr. 8, 2020).As of April 7, 2020, two inmates at MDC Brooklyn and six staff have tested positive for COVID-19.SeeCOVID-19 Coronavirus, Bureau of Prisons, https://www.bop.gov/coronavirus/index.jsp(las visited Apr. 8, 2020).

McCarthy is especially vulnerable to the virus because of his age and his health.McCarthy is 65 years old and suffers from a host of medical ailments, including chronic obstructive pulmonary disease ("COPD") and asthma.SeeBOP Health Problems (Doc.No. 73-6).Additional BOP records document that McCarthy suffered from pneumonia and lung infection in 2019 at MDC Brooklyn while in transit to his BOP designation.See BOP Health Services Clinical Encounter (Doc. No. 99).According to the Center for Disease Control and Prevention, McCarthy's age and underlying medical conditions put him at a higher risk for severe illness from COVID-19.SeeGroups at Higher Risk for Severe Illness, Center for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html(last visited Apr. 8, 2020).

While incarcerated at MDC Brooklyn, GBMHC staff have been unable to connect with McCarthy, facilitate his screening, or speak with BOP mental health staff.Id. at 3.Furthermore, McCarthy's counsel has been able to speak with McCarthy only once briefly, in spite of many attempts to do so.²Id. at 4.Because counsel has not had the opportunity to speak with McCarthy in any significant way, it is unclear if McCarthy has submitted to the BOP an application for a sentence modification or compassionate release.The inability of counsel and GBMHC to communicate with McCarthy also frustrate discharge planning efforts and McCarthy's ability to comply with the court's Special Condition of Supervise Release involving inpatient mental health treatment.

On March 31, 2020, McCarthy filed an Emergency Motion(Doc. No. 88).In that Motion, McCarthy moves the court to release McCarthy from MDC Brooklyn, and allow him to serve the remainder of his sentence at a halfway house.Mot.at 1.In the alternative, McCarthy moves for a reduction of his term of imprisonment under the federal compassionate release statute.Id.(citing18 U.S.C. § 3582(c)(1)(A) ).

III.DISCUSSION

McCarthy moves for release under section 3582(c)(1)(A) of title 18 of the United States Code.As amended by the First Step Act, section 3582(c)(1)(A) authorizes the court to modify terms of imprisonment as follows:

[T]he court ... 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 ... 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).

Accordingly, in order to be entitled to relief under the statute, McCarthy must both meet the exhaustion requirement and demonstrate that "extraordinary and compelling reasons" warrant a reduction of his sentence.The court addresses these requirements in turn.

A.Exhaustion

Section 3582(c)(1)(A) imposes "a statutory exhaustion requirement" that "must be strictly enforced."United States v. Monzon, No. 99-CR-157, 2020 WL 550220, at *2(S.D.N.Y.Feb. 4, 2020)(citingTheodoropoulos v. I.N.S., 358 F.3d 162, 172(2d Cir.2004)(internal quotation marks and alterations omitted)).However, as courts in this Circuit have held, the requirement of completing the administrative process may be waived "if one of the recognized exceptions to exhaustion applies."United States v. Perez, No. 17-CR-513-3, 2020 WL 1546422, at *2(S.D.N.Y.Apr. 1, 2020);see alsoUnited States v. Colvin, No. 19-CR-179, 2020 WL 1613943, at *2(D. Conn.Apr. 2, 2020)("[I]n light of the urgency of [d]efendant's request, the likelihood that she cannot exhaust her administrative appeals during her remaining eleven days of imprisonment, and the potential for serious health consequences, the [c]ourt waives the exhaustion requirement of Section 3582(c)(1)(A).");United States v. Zukerman, No. 16-CR-194, 2020 WL 1659880, at *2(S.D.N.Y.Apr. 3, 2020).

"Even where exhaustion is seemingly mandated by statute ..., the requirement is not absolute."Washington v. Barr, 925 F.3d 109, 118(2d Cir.2019).There are generally three bases for waiver of an exhaustion requirement.SeePerez, 2020 WL 1546422, at *2(discussing exceptions to statutory exhaustion in context of motion for compassionate release during COVID-19 pandemic).

"First, exhaustion may be unnecessary where it would be futile, either because agency decisionmakers are biased or because the agency has already determined the issue."Washington, 925 F.3d at 118."[U]ndue delay, if it in fact results in catastrophic health consequences, could make exhaustion futile."Id. at 120.Second, "exhaustion may be unnecessary where the administrative process would be incapable of granting adequate relief," including situations where "the relief the agency might provide could, because of undue delay, become inadequate."Id. at 119-20.Third, "exhaustion may be unnecessary where pursuing agency review would subject plaintiffs to undue prejudice."Id. at 119.

All three exceptions apply here.First, exhaustion would be futile."[U]ndue delay, if it in fact results in catastrophic health consequences, could make exhaustion futile."Washington, 925 F.3d at 120–21.Here,...