United States v. Pabon

• Decision Date: 04 May 2020
• Docket Number: Criminal Action No. 17-165-1
• Citation: 458 F.Supp.3d 296
• Parties: UNITED STATES of America v. Michael PABON
• Court: U.S. District Court — Eastern District of Pennsylvania

458 F.Supp.3d 296

UNITED STATES of America

v.Michael PABON

Criminal Action No. 17-165-1

United States District Court, E.D. Pennsylvania.

Filed May 4, 2020

Robert E. Eckert, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Philip A. Steinberg, Bala Cynwyd, PA, Louis T. Savino, Jr., Louis T. Savino and Associates, S. Philip Steinberg, Schatz & Steinberg PC, Philadelphia, PA, for Michael Pabon.

MEMORANDUM

ANITA B. BRODY, J.

We are in the midst of a massive global crisis. COVID-19 has radically altered life as we know it. A new lexicon has emerged in response to these changed conditions such that terms like "social distancing" and "flattening the curve" have become part of our everyday conversations. There are over 3.5 million confirmed cases of COVID-19 worldwide, and over 1.15 million confirmed cases in the United States.¹ At this point, there is no approved cure, treatment, or vaccine to prevent it.² People with pre-existing medical conditions—like Petitioner Michael Pabon—face a particularly high risk of dying or suffering severe health effects should they contract the disease.

Mr. Pabon is 54 years old and suffers from diabetes

, hypertension, hemophilia, atopic dermatitis, gastroesophageal reflux disease, peptic ulcer, and diverticulitis. He is convicted of aiding and abetting the attempted possession with intent to distribute a mixture and substance containing a detectable amount of cocaine. The instant offense is Mr. Pabon's first contact with the criminal justice system—his record is devoid of any other convictions or arrests. Before he began serving his sentence, Mr. Pabon spent two years on pre-trial release as a result of Judge Legrome D. Davis's determination at a bond hearing that Mr. Pabon was neither a flight risk nor a danger to the community.³ During his time on pretrial release, Mr. Pabon fully complied with all Court-ordered conditions.

On April 19, 2019, Mr. Pabon self-surrendered and began serving his 46-month sentence.⁴ He has served nearly 14 months of his sentence, committed no disciplinary infractions, and has a projected release date of June 6, 2022. Mr. Pabon is currently an inmate at Lewisburg Camp, a minimum security camp adjacent to United States Penitentiary Lewisburg. He moves for a reduction of his prison sentence and immediate release under the "compassionate release" statute, 18 U.S.C. § 3582(c)(1)(A). He argues that "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i).

For Mr. Pabon, nothing could be more extraordinary and compelling than this pandemic. "People with diabetes

, high blood pressure or severe obesity are more likely to experience dangerous symptoms if infected with COVID-19."⁵ This is particularly unfortunate for Mr. Pabon because he suffers from both diabetes and high blood pressure.⁶ According to a CDC report, "nearly 90% of adult patients hospitalized with COVID-19 in the US had one or more underlying diseases," and out of those patients 49.7% of them had hypertension and 28.3% of them had diabetes.⁷

These statistics become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being reexamined every day as outbreaks continue to emerge and new testing efforts reveal that the rate of infection in many correctional facilities is far higher than previously imagined.⁸ After reviewing the law, holding oral argument, and evaluating all the evidence that has been presented, I conclude that Mr. Pabon must be granted "compassionate release."

I. DISCUSSION

18 U.S.C. § 3852(c)(1)(A) allows a court to reduce an inmate's sentence if the court finds that (1) "extraordinary and compelling reasons" warrant a reduction, (2) the reduction would be "consistent with applicable policy statements issued by the Sentencing Commission," and (3) the applicable sentencing factors under § 3553(a) warrant a reduction.⁹ Congress has not defined the term "extraordinary and compelling," but the Sentencing Commission ("Commission") has issued a policy statement defining the term. The policy statement lists three specific examples of "extraordinary and compelling reasons," as well as a "catchall" provision if the Director of the Bureau of Prisons ("BOP") determines that "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described." U.S.S.G. § 1B1.13, cmt. n.1(A)-(D). In addition, the policy statement provides that a sentence reduction may only be granted if "[t]he defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)." Id. § 1B1.13(2). Furthermore, the policy statement mirrors the language of § 3582(c)(1)(A) and requires a court to consider the applicable § 3553(a) factors.

Although § 3582(c)(1)(A) requires a reduction in sentence to be "consistent with applicable policy statements issued by the Sentencing Commission," this Court recently concluded, in light of amendment to § 3582(c)(1)(A) by the First Step Act of 2018, and the Sentencing Commission's failure to "update[ ] its policy statement to account for the changes imposed by the First Step Act," that "the policy statement is now clearly outdated." United States v. Rodriguez , No. 2:03-cr-00271-AB-1, ––– F.Supp.3d ––––, ––––, 2020 WL 1627331, at *3 (E.D. Pa. Apr. 1, 2020). Accordingly, while "the policy statement may provide ‘helpful guidance’ [it] does not limit the Court's independent assessment of whether ‘extraordinary and compelling reasons’ exist under § 3582(c)(1)(A)(i)."¹⁰ Id. at ––––, 2020 WL 1627331, at *4. I consider (1) whether "extraordinary and compelling reasons" exist to reduce Mr. Pabon's sentence based on the enumerated criteria in the policy statement and an independent assessment; (2) whether Mr. Pabon is a danger to the community under § 3142(g) ; and (3) whether the § 3553(a) factors support a sentence reduction.

A. Extraordinary and Compelling Reasons Exist

Mr. Pabon's circumstances—particularly the outbreak of COVID-19 and his underlying medical conditions that place him at a high risk should he contract the disease—present "extraordinary and compelling reasons" to reduce his sentence.

In the policy statement, the Sentencing Commission provides three specific circumstances that qualify as "extraordinary and compelling reasons" that warrant a sentence reduction: (A) terminal illness diagnoses or serious medical, physical or mental impairments

from which a defendant is unlikely to recover, and which "substantially diminish[ ]" the defendant's capacity for self-care in prison; (B) aging-related health decline where a defendant is at least 65 years old and has served at least ten years or 75% of his sentence; or (C) two family related circumstances: (i) death/incapacitation of the caregiver for the inmate's minor children or (ii) incapacitation of an inmate's spouse, if the inmate is the spouse's only caregiver. U.S.S.G. § 1B1.13 cmt. n.1(A)-(C). The policy statement also includes a catchall provision that gives the Director of the BOP the authority to determine if "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with," the other three categories. Id. cmt. n.1(D).

In this case, the government concedes that Mr. Pabon's serious medical conditions qualify as one of the enumerated "extraordinary and compelling reasons" under the policy statement:

The government acknowledges that the risk of COVID-19 presents "a serious physical or medical condition ... that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility," ... as, due to his comorbidities, Pabon may be less able to protect himself against an unfavorable outcome from the disease.

Resp. in Opp'n to Mot. Reduce Sentence 9, ECF No. 113 [hereinafter "Resp."] (quoting. U.S.S.G. § 1B1.13 cmt. n.1(A)). The government thus states that "this Court need not consider the suggestion that the defendant's ... condition falls under the ‘catch-all’ provision of note 1(D), as the government acknowledges that [Mr. Pabon] meets the threshold test of a medical condition defined in note 1(A)" of the policy statement.¹¹ Id. at 9 n.3.

After taking into consideration the government's concession that Mr. Pabon qualifies for one of the enumerated "extraordinary and compelling reasons" for a sentence reduction under the policy statement, the Court agrees—after an independent assessment—that Mr. Pabon has presented "extraordinary and compelling reasons" to reduce his sentence.

Black's Law Dictionary defines "extraordinary" as "[b]eyond what is usual, customary, regular, or common." Extraordinary , Black's Law Dictionary (11th ed. 2019). It defines "compelling need" as a "need so great that irreparable harm or injustice would result if it is not met." Compelling Need , Black's Law Dictionary (11th ed. 2019).

A review of the BOP's voluminous medical records for Mr. Pabon—several hundred pages—indicates that Mr. Pabon is especially vulnerable to COVID-19¹² and prison is a particularly dangerous place for him at this moment.¹³ As the government recognizes, Mr. Pabon's comorbidities place him at high risk of grave illness or death if he gets infected with coronavirus. Both diabetes

and hypertension have been identified as "specific comorbidities associated with increased risk of infection and worse outcomes."¹⁴ A recent study of 5,700 patients with COVID-19 in the New York City area reveals, "[t]he most common comorbidities were hypertension (3026; 56.6%), obesity (1737; 41.7%), and diabetes (1808; 33.8%)."¹⁵ In New York State, 89.2% of the 19,189 total fatalities caused by COVID-19 have at least one comorbidity and the top two comorbidities are hypertension (11,014 fatalities) and diabetes (7,183 fatalities).¹⁶

In addition to having two of the leading comorbidities...