United States v. Ogarro
| Decision Date | 14 April 2020 |
| Docket Number | No. 18-cr-373-9 (RJS),18-cr-373-9 (RJS) |
| Parties | UNITED STATES OF AMERICA v. TYREEK OGARRO, Defendant. |
| Court | U.S. District Court — Southern District of New York |
By letter dated April 3, 2020, Defendant Tyreek Ogarro moved for compassionate release under the First Step Act of 2018, 18 U.S.C. § 3582(c)(1)(A), in light of the COVID-19 pandemic. (Doc. No. 644 ("Ogarro Ltr.").) The government opposes his motion. (Doc. No. 650 ("Gov't Ltr").) Because Ogarro has not yet exhausted his administrative remedies, his request is DENIED without prejudice.
From March 2018 until June 2018, Ogarro was a member of a drug trafficking organization known as the "Boss Crew," which operated in the Bedford Stuyvesant neighborhood of Brooklyn, New York. (Presentence Investigation Report ¶ 11 ("PSR").) Over those three months, Ogarro distributed approximately 157 grams of cocaine base and approximately 20 grams of fentanyl. (Id. ¶ 28.) Ogarro's participation with the Boss Crew ended on June 6, 2018, when he was arrested along with several other members of the organization. (Id. ¶ 41.) Since then, Ogarro has been detained at the Metropolitan Detention Center (the "MDC") in Brooklyn.
On May 14, 2019, Ogarro pleaded guilty pursuant to a plea agreement with the government to one count of conspiring to distribute cocaine base in violation of 28 U.S.C. §§ 841(b)(1)(C) and 846. (Doc. No. 358.) According to the plea agreement, the parties stipulated to a Sentencing Guidelines range of 70 to 87 months' imprisonment. The PSR likewise concluded that the advisory Guidelines range was 70 to 87 months' imprisonment (PSR ¶ 104), and recommended that the Court impose a sentence of 60 months, (id. at pg. 25). Nevertheless, on February 4, 2020, the Court sentenced Ogarro below that range to 50 months' imprisonment, in light of, among other things, Ogarro's role in the offense, his lack of youthful guidance, his remorse, his status as a non-violent offender, and his pre-sentence rehabilitation. (Doc. No. 609 at 2.) Ogarro has served approximately 22 months of that sentence thus far. (Gov't Ltr. at 2.)
On April 3, 2020, Ogarro requested that the Court order his "immediate temporary release to home confinement pursuant to 18 U.S.C. § 3582(c)(1)(A)" because of the current COVID-19 pandemic. (Ogarro Ltr. at 1.) He clarified that although release under section 3582(c) is often permanent, he is amenable to a "temporar[y]" release "to continue to serve his sentence under strict home detention" until after the COVID-19 pandemic subsides. (Id. at 5.)
Ogarro argues that the MDC is ill-equipped to limit the spread of COVID-19 among inmates, which is particularly dangerous to him because he is asthmatic and therefore at acute risk for severe illness if infected.1 Because of the urgency of his request, Ogarro did not wait 30 days after seeking relief from the Bureau of Prisons (the "BOP"), but sought relief through the BOP and this Court simultaneously. (Ogarro Ltr. at 2.) In any event, he posits that even "if the BOP did take any action, it would deny [his] requested relief." (Doc. No. 658 at 6 ("Ogarro Reply").)
The government opposes Ogarro's request, arguing that (i) the Court cannot provide relief under section 3582(c)(1)(A) because Ogarro has not exhausted his administrative remedies (Gov't Ltr. at 3-7); (ii) the statute does not contemplate "temporary" relief (id. at 7-8); and, in any event,(iii) Ogarro has not demonstrated extraordinary and compelling reasons warranting relief under section 3582(c)(1)(A) (id. at 8-12).
"[A] court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Roberts, No. 18-cr-528 (JMF), 2020 WL 1700032, at *1 (S.D.N.Y. Apr. 8, 2020) (quoting United States v. Gotti, No. 02-cr-743 (CM), 2020 WL 497987, at *1 (S.D.N.Y. Jan. 15, 2020)). Section 3582(c)(1)(A) provides one such exception, often referred to as "compassionate release." Through that provision, a court may "reduce" a defendant's sentence where "extraordinary and compelling reasons warrant such a reduction," and such relief would be consistent with both the factors in 18 U.S.C. § 3553(a) and "applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A).
Until recently, a court could not order compassionate release unless the BOP made an affirmative request on a prisoner's behalf. See U.S.S.G. § 1B1.13. In December 2018, however, Congress passed the First Step Act, which did away with that long-standing restriction. But while the First Step Act stripped from the BOP the ability to unilaterally deny a prisoner compassionate release, it did not remove the BOP from the process entirely. Without a motion from the BOP, a court "may not" grant compassionate release unless the defendant either (i) "fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf" or (ii) waited "30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A).
Requiring would-be litigants to exhaust their administrative remedies before ascending the courthouse steps serves several purposes. It protects administrative agency authority by guaranteeing agencies the "opportunity to correct [their] own mistakes." Woodford v. Ngo, 548U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). It also promotes efficiency, as claims "generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court." Id.
Ogarro admits that he did not satisfy either of section 3582(c)'s exhaustion requirements. Nevertheless, he argues that the Court may "waive" unilaterally the statute's 30-day waiting period because of the exigencies caused by the COVID-19 pandemic. (Ogarro Reply at 5.) But whether the Court possesses such power depends on the nature of the statute's exhaustion requirement. United States v. Monzon, No. 99-cr-157 (DLC), 2020 WL 550220, at *1 (S.D.N.Y. Feb. 4, 2020) ().
There are two types of exhaustion requirements: jurisdictional ones and non-jurisdictional ones. Jurisdictional exhaustion requirements "govern a court's adjudicatory authority" and are not subject to any exceptions. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (internal quotation marks omitted). By contrast, non-jurisdictional requirements - sometimes referred to as "claim-processing rules" - may be "forfeited if the party asserting the rule waits too long to raise the point." Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019) (internal quotation marks omitted).
The Supreme Court has further distinguished between two varietals of claim-processing rules: rules created by express statutory directive and judge-made rules. While the former are "mandatory," the latter are "amenable to judge-made exceptions." Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016). In other words, a timely asserted mandatory claim-processing rule must be strictly enforced by courts even though it is not a jurisdictional bar; only where a claim-processing rule is judge-made can a court waive its requirements. Id. Accordingly, given the government's timely objection for lack of exhaustion, this Court may "waive" Ogarro's failure to exhaust hisavailable administrative remedies only if section 3582(c)'s exhaustion requirements are judge-made claim-processing rules.
The Second Circuit has provided little guidance on whether section 3582(c)'s exhaustion requirements are jurisdictional.2 See Monzon, 2020 WL 550220, at *2. The Court is mindful, however, that the Supreme Court has repeatedly "cautioned against the overuse of the term 'jurisdiction' or 'jurisdictional'" in interpreting the scope of statutory rules. United States v. Johnson, 732 F.3d 109, 116 n.11 (2d Cir. 2013); see also Fort Bend County, 139 S. Ct. at 1850; Gonzalez, 565 U.S. at 141-42; Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-62 (2010); Arbaugh v. Y & H Corp., 546 U.S. 500, 510-11, 515 (2006); Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004). Perhaps as a result, some courts in this district have concluded that section 3582(c) is a non-jurisdictional claim-processing rule. E.g., United States v. Gentille, No. 19-cr-590 (KPF), 2020 WL 1814158, at *2-4 (S.D.N.Y. Apr. 9, 2020). Here, Ogarro and the government appear to agree that section 3582(c) is such a claim-processing rule. (Ogarro Reply at 3-4; Gov't Ltr. at 7 n.3 ().). But regardless of whether the statute is jurisdictional or a claim-processing rule, its exhaustion requirements are clearly mandatory. See Monzon, 2020 WL 550220, at *2 ().
In fact, section 3582(c)'s exhaustion proscription is clear as day. See United States v. Woodson, No. 18-cr-845 (PKC), 2020 WL 1673253, at *2 (S.D.N.Y. Apr. 6, 2020) (). It mandates that where the BOP has not submitted an application for a sentence reduction, a court cannot, under any circumstances, grant compassionate release unless the defendant has either "fully exhausted all administrative rights to appeal" or waited at least 30 days from the receipt of such a request by the warden of the defendant's facility. See 18 U.S.C. § 3582(c)(1)(A); see also Roberts, 2020 WL 1700032, at *2. Because the statutory language is unambiguous and mandatory, it must be "strictly enforce[d]." Theodoropoulos v. INS, 358 F.3d 162, 172 (2d Cir. 2004). Numerous courts within this circuit that have considered the issue have reached the same conclusion. E.g. Roberts, 2020 WL 1700032, at *2-3; Woodson, 2020 WL 1673253, at *4; Monzon, 2020 WL 550220, at *2; United...
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