United States v. Richardson

Decision Date19 June 2020
Docket NumberNo. 2:17-cr-00048-JAM,2:17-cr-00048-JAM
PartiesUNITED STATES OF AMERICA, Plaintiff, v. JESSE RICHARDSON, Defendant.
CourtU.S. District Court — Eastern District of California
ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE

Before the Court is Defendant Jesse Richardson's ("Defendant") Pro Se Emergency Motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A). In his motion, Defendant contends that his health conditions make him particularly susceptible to COVID-19 complications and that the odds of contracting them at FCI Terminal Island are high. Mot. for Comp. Release ("Mot."), ECF No. 69. Defendant filed two supplemental motions. Suppl. Mot. #1, ECF No. 71; Suppl. Mot. #2, ECF No. 72. The Government Opposed Defendant's request, ECF No 73; and Defendant replied to the Government's opposition. ECF No. 80. After careful consideration of the arguments and exhibits submitted by the parties, the Court GRANTS Defendant's motion.

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

On March 23, 2017, Defendant pleaded guilty to conspiracy to distribute Oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), 846. See Plea Agreement, ECF No. 57. After calculating Defendant's advisory guideline range and considering the United States Probation Officer's Presentence Investigation Report ("PSR"), the Court imposed a low-end sentence: 72 months of imprisonment followed by 36 months of supervised release. See Minutes for Judgment and Sentencing, ECF No. 65.

Defendant is currently serving his sentence at FCI Terminal Island. Mot., Exh. A, at 1. He has served more than 52% of his sentence (38 Months). Mot. at 2. Defendant is projected to be released on April 18, 2021 but is eligible for home confinement starting October 18, 2020. Id., Exh. A., at 1.

On March 13, 2020, President Trump declared a national emergency concerning the COVID-19 global outbreak. See Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, The White House (March 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. Because of the severity posed by this pandemic, the U.S. Attorney General ordered the Bureau of Prisons (BOP) to prioritize home confinement when appropriate "to protect the health and safety of BOP personnel and the people in [] custody." The Attorney General, Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic, Memorandum for Director of Bureau Prisons, Office of The Attorney General (March 26, 2020),https://www.themarshallproject.org/documents/6820452-Memorandum-from-Attorney-General-to-BOP-re-Home. Defendant therefore attempted to request compassionate release with the BOP on April 16, 2020, stating that his hypertension, severe obesity, and pre-diabetes, place him at higher risk of COVID-19 complication. Mot. at 3-6. Defendant had difficulties getting the BOP to acknowledge and respond to his request; he therefore continued to contact and submit requests even after the filing of this motion with the Court. Reply at 15-16. Defendant most recently filed a motion for compassionate release directly with the Warden on May 5, 2020. Id. at 15.

Given the BOP's lack of response, Defendant filed this motion with the Court on April 28, 2020. Mot. at 1. At the time of Defendant's filing, over 100 inmates had contracted Covid-19 at his facility, two of them died. Mot. 5. By the time of his reply, the situation had dramatically worsened—more than 70% of the inmate population became infected and 8 had inmates died. Reply at 2. Defendant therefore asks the Court to consider these circumstances extraordinary and compelling given his health complications and convert his remaining time to "time served." Mot. at 11.

II. OPINION
A. Legal Standard

A court may generally "not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); Dillon v. United States, 560 U.S. 817, 824-25(2010). Passed in 2018, the First Step Act (FSA) modified 18 U.S.C. Section 3582 to grantfederal courts such authority under certain exceptions. 18 U.S.C. § 3582(c)(1)(A). To file a motion for modification with the court, a Defendant must first submit a request for release with the Bureau of Prisons ("BOP"). Id. A defendant must then exhaust administrative remedies by either (1) administratively appealing an adverse result or (2) waiting for 30 days to pass. Id. Only then may a Defendant, or the Director of the BOP, file a motion for modification. Id. The court can then modify the term of imprisonment after considering any relevant factors set forth in Section 3553(a), and if it finds, in relevant part, that "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i).

B. Analysis
1. Exhaustion Requirement

As a threshold matter, a defendant must generally exhaust his administrative remedies before the Court can address the merits of a motion for compassionate release. See U.S. v. Kesoyan, No. 2:15-cr-00236-JAM, 2020 WL 2039028, at *2 (E.D. Cal. April 28, 2020).

In his Motion, Defendant stated he had attempted to file a request for compassionate release with the BOP on April 16, 2020, but the BOP had yet to reply. Mot. at 3. Defendant further noted "there appear[ed] to be an intentional effort by staff to prevent access to the administrative remedy process at this time." Id. at 3. In its Opposition, the Government argued that Defendant had not exhausted his remedies because "the BOP does not have any record" of his request. Opp'n at 8. The Government contends the Court does not have authority to grantrelief for this reason. Id. at 10.

This Court recently noted that over the past few months, the BOP has—on several occasions—incorrectly represented the status of inmates' exhaustion efforts. See U.S. v. Levario, No. 12-cr-00399-JAM, at *4 (E.D. Cal. June 15, 2020). While the Court is not assuming bad faith, it bears mentioning that these mistakes come at a cost to defendants. The Court therefore finds the BOP's alleged lack of records in this case not to be controlling. This is especially so given Defendant's detailed log of his multiple requests for compassionate release with the BOP. See Reply at 10. Most importantly, Defendant has attached one of his most recent requests with the BOP dated May 5, 2020. See Reply, Exh. C. Defendant has also attached a follow-up request dated May 18, 2020, which a BOP staff member signed stating that his May 5, 2020 request was under review. See id., Exh. E. More than thirty days have passed since Defendant filed the May 5, 2020 request with the BOP. The Court therefore finds Defendant has satisfied Section 3582(c)'s exhaustion requirement.

2. Extraordinary and Compelling Circumstance

After a defendant has met the threshold exhaustion requirement, a court may grant the motion if it finds "extraordinary and compelling reasons warrant" a reduction. 18 U.S.C. § 3582(c)(1)(A)(i). The reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." Id. Congress has not defined what constitutes as "extraordinary and compelling" other than that "[r]ehabilitation of the defendant alone" is insufficient. 28 U.S.C. § 994(t).Instead, it has delegated that responsibility to the Sentencing Commission. Id. Before the FSA was passed, the Commission concluded "extraordinary and compelling reasons" were limited to four scenarios. U.S.S.G. § 1B1.13. These scenarios include: (A) the medical condition of the defendant, (B) the age of the defendant, (C) family circumstances, and (D) a catchall provision. Id.

Defendant does not specify under which provision he asks the Court to consider his extraordinary and compelling circumstance. However, because Defendant asks the Court to consider his "health conditions" the Court will analyze his circumstances under provision (A)—the medical condition of the defendant. A defendant's medical condition may constitute an "extraordinary and compelling reason" if the defendant is suffering from "a serious physical or medical condition," "a serious functional or cognitive impairment," or is "experiencing deteriorating physical or mental health because of the aging process," which "substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." See U.S.S.G § 1B1.13(1)(A) & cmt. 1.

As the Government notes, [t]he general threat of COVID-19 . . . does not establish an "extraordinary and compelling reason for release." Opp'n at 12. But Defendant does not ask the Court to consider his circumstances under the general threat of COVID-19. Rather, Defendant claims that his hypertension, severe obesity, and pre-diabetes, coupled with the critical situation at Terminal Island, constitute extraordinarycircumstances that warrant his release. Reply at 18. The Court agrees.

The Government argues that although Defendant "appears" to have serious, chronic health conditions he has "failed to satisfy his burden and distinguish himself from many of the middle-age men in BOP custody." Opp'n at 14. Specifically, the Government attempts to discount the severity of Defendant's hypertension, severe-obesity, and pre-diabetes. Id. at 12-13. While the Court agrees with the Government that pre-diabetes may not place Defendant at high risk, this Court finds that hypertension or obesity alone—regardless of age—place a defendant at higher risk of COVID-19 complications. See e.g, Levario, No. 12-cr-00399-JAM, at *6 (Stating each of defendant's comorbidities alone, asthma, diabetes, hypertension, and severe obesity, would increase his risk of contracting COVID-19).

Here, Defendant's hypertension alone places him at significant risk of complications. See U.S. v. Sanders, No. 19-cr-20288, 2020 WL 1904815, at * 4 (E.D. Mich. April 17, 2020)(citing several courts that "have identified hypertension as an...

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