United States v. Otero
| Decision Date | 17 April 2020 |
| Docket Number | Case No.: 17cr879-JAH |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ANDREW R. OTERO, Defendant. |
| Court | U.S. District Court — Southern District of California |
Pending before the Court is Defendant Andrew R. Otero's ("Defendant") Motion for Compassionate Release. See Doc. No. 234-3. On April 9, 2020, Plaintiff United States of America (hereinafter, "Government") filed a response in opposition. See Doc. No. 236. After a careful review of the pleadings submitted, IT IS HEREBY ORDERED the motion is DENIED for lack of jurisdiction.
Defendant Andrew R. Otero was indicted by a federal grand jury for conspiracy (18 U.S.C. § 371), major fraud against the United States (18 U.S.C. § 1031), wire fraud (18 U.S.C. § 1343), false statements (18 U.S.C. § 1001), aiding and abetting (18 U.S.C. § 2), and criminal forfeiture (18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c)). See Doc. No. 1. On November 21, 2018, a jury found Defendant guilty of the charges. See Doc. No. 157. On June 28, 2019, the Court sentenced Defendant to 18-months in custody and three years of supervised release. See Doc. Nos. 204, 208. Defendant surrendered to the custody of the Bureau of Prisons on October 7, 2019, per order of the Court. See Doc. No. 211.
On April 7, 2020, Defendant, through counsel, filed an ex parte application to shorten time requesting the Court hear his motion for compassionate release on April 8, 2020, citing ongoing health concerns caused by the outbreak of COVID-19. See Doc. No. 234. Defendant concurrently filed a Motion for Compassionate Release. See Doc. No. 234-3. The Court denied Defendant's ex parte application to shorten time, set a briefing schedule and set a telephonic hearing for April 16, 2020, at 1:00 p.m. See Doc. No. 235. The Government filed a response in opposition to Defendant's motion on April 9, 2020. See Doc. No. 236. The Court thereafter vacated the hearing and took the matter under submission.
A court generally may not correct or modify a prison sentence once it has been imposed, unless expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure. United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Defendant seeks modification of his sentence under the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). The amendment to § 3582(c)(1)(A) provided prisoners with two direct routes to court: (1) file a motion after fully exhausting administrative appeals of the BOP's decision not to file a motion, or (2) file a motion after "the lapse of 30 days from the receipt ... of such a request" by the warden of the defendant's facility, "whichever is earlier." 18 U.S.C. § 3852(c)(1)(A). Thereafter, upon considering the applicable factors set forth in section 3553(a), the court may determine whether "extraordinary and compelling reasons warrant such a reduction" and "that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."
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On April 6, 2020, Defendant submitted a letter to the warden at USP Lompoc (hereinafter "BOP"), where he is confined, requesting home confinement in light of the CARES Act1. See Doc. No. 234-3 at 19. Defendant filed the instant motion for compassionate release with this Court the following day.
Defendant petitions the Court to find COVID-19 is an extraordinary and compelling reason to merit a modification to his sentence. Id. at 11. He argues that COVID-19 poses a potentially fatal threat to him in light of his ongoing health issues: heart fibrillation, chronic bronchial issues, prostate issues, and multiple surgeries on his left knee. Id. at 10. Defendant posits that these underlying health issues and his potential to contract COVID-19 are exacerbated by his incarceration. Id. at 13. Defendant acknowledges he has not exhausted his administrative remedies. Id. at 19. He contends, however, the administrative exhaustion requirement is not mandatory and, as such, this Court has discretion to waive such a requirement. Defendant also asserts that the BOP's apparent reluctance to release inmates "with any sense of urgency makes any administrative appeal a futile exercise." Id.
The Government opposes Defendant's request and argues Defendant's motion for compassionate release should be denied because the Court lacks jurisdiction at this time to decide this matter, and urges the Court: (1) to find that failure to exhaust is jurisdictional, and (2) decline to consider the motion and allow the BOP to exercise its authority. See Doc. No. 236.
Defendant argues that the plain meaning of § 3582(c)(1)(A) suggests the exhaustion of administrative requirements is not mandatory because Congress made no suchmandatory requirement within the provision. See Doc. No. 234-3 at 21. In support of this argument, Defendant compares the language and the legislative history of the Prison Litigation Reform Act (PLRA) with that of the First Step Act. Id. at 22. Defendant also argues that the Court has the power to create an exception to the First Step Act's exhaustion requirement.
"The "doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law." McKart v. United States, 395 U.S. 185, 193 (1969). "The doctrine provides 'that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' " Id. (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)). The exceptions to the doctrine are very limited.2
Regardless, Defendant asserts that the omission in § 3582(c)(1)(A)'s plain text of the word "shall" renders the exhaustion requirement not mandatory. See Doc. No. 234-3 at 22 ().
§ 3582(c)(1)(A) states:
According to the Government, the First Step Act requires Defendant to exhaust his administrative remedies which is a jurisdictional requirement that cannot be waived. See Doc. No. 236. at 2. The Government cites to United States v. Raia, 2020 WL1647922 (3d Cir. April 2, 2020) in support. In Raia, the Third Circuit found that even though a defendant had significant health risks, he did not satisfy the exhaustion requirement, thus upholding the district court's decision finding it lacked jurisdiction. Raia, 2020 WL1647922 at *2.
The Government also points out that most district courts in the Ninth Circuit have found the exhaustion requirement to be jurisdictional even under the current circumstances presented by the COVID-19 pandemic. Id. at 5-6. (citing United States v. Hartsell, 15CR1442-JLS, ECF No. 654 (SDCA April 6, 2020) (); United States v. Eberhart, 2020 WL 145075, *2 (N.D. Cal. Mar. 25, 2020) ().
The Court finds the plain meaning of the statute is clear. The statute clearly dictates the protocol Defendant must follow. Defendant may file a motion with the Court 1) after he has fully exhausted his administrative remedies and upon the failure of the BOP to bring a motion on Defendant's behalf or 2) after the lapse of 30-days from the time the warden receives his request, whichever is earlier. (emphasis added). The fact that the plain text of the statute omits the word "shall" is not dispositive in determining whether judicial exhaustion is mandatory in light of its plain meaning.
In addition, the Court disagrees with Defendant's argument that the First Step Act's legislative history supports a finding of granting a motion for compassionate release without requiring full exhaustion of administrative remedies. Defendant posits that unlike the PLRA's legislative history, "which underscores the mandatory nature of its exhaustion regime," the legislative history of the First Step Act underscores the "BOP's failure to properly manage the compassionate release program" by "creating another, direct avenue for prisoners to file a motion, and thus minimizing the role of the BOP as a gatekeeper."See Doc. No. 234-3 at 24. This argument is tenuous at best, especially in light of the fact that courts, "can only look to legislative intent when a statute is ambiguous." Cleveland v. City of Los Angeles, 420 F.3D 981, 990, N. 11(9th Cir. 2005) (citing HUD v. Rucker, 535 U.S. 125, 132 (2002)). Defendant has failed to cite any binding Ninth Circuit or Supreme Court caselaw indicating that the Court has authority to create judicial exceptions to the exhaustion requirement in § 3582(c)(1)(A). The Court need not look elsewhere to interpret the statute. Here, because the statute is clear, review of the legislative history is unnecessary. The Court finds that exhaustion is a jurisdictional requirement.
The Court also finds Defendant's argument...
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