United States v. Rodriguez

• Decision Date: 08 June 2020
• Docket Number: 17-CR-157 (VEC)
• Parties: UNITED STATES OF AMERICA, v. HENRY RODRIGUEZ, Defendant.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA, v. HENRY RODRIGUEZ, Defendant.

17-CR-157 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 8, 2020

MEMORANDUM ORDER AND OPINION

VALERIE CAPRONI, United States District Judge:

Defendant Henry Rodriguez moves for compassionate release based on preexisting medical conditions that elevate his risk of serious and potentially fatal complications should he contract COVID-19. Although the Government concedes that Mr. Rodriguez's medical condition may constitute an extraordinary reason for release, it nevertheless contends that the motion should be denied because the Bureau of Prisons ("BOP") has adequately responded to the pandemic and because the considerations that informed Mr. Rodriguez's sentence remain unchanged. The Court, however, finds that BOP's pandemic response, while robust, falls short in key respects and cannot eliminate the heightened risks inherent in a carceral setting. Moreover, Mr. Rodriguez has served the vast majority of his sentence and would be eligible for release within the next month to a halfway house or home detention had he been transferred to his designated facility before the pandemic paralyzed BOP's prisoner movements. Considering the factors set forth in 18 U.S.C. § 3553(a), the Court has determined that a modest modification of his sentence is in order. Accordingly, Defendant's motion for compassionate release is granted.

The Court may reduce Mr. Rodriguez's sentence if "extraordinary and compelling reasons warrant such a reduction," and the reduction is consistent with the factors set forth in 18 U.S.C. § 3553(a) and applicable policy statements from the United States Sentencing Commission.¹ 18 U.S.C. § 3582(c)(1)(A); see United States v. Lisi, No. 15-CR-457, 2020 WL 881994, at *3 (S.D.N.Y. Feb. 24, 2020). The applicable policy statement provides guidance for ascertaining the existence of "extraordinary and compelling reasons" and further requires the Court to consider whether Mr. Rodriguez would pose a danger to others if released. See U.S.S.G. § 1B1.13(2) (cross-referencing bail factors set forth in 18 U.S.C. § 3142(g)) & appl. note 1.

The Government does not dispute the severity of Mr. Rodriguez's medical conditions, and the Court finds that they satisfy the "extraordinary and compelling reasons" threshold. See Gov. Opp. at 5 ("The Government does not dispute that Rodriguez suffers from the medical conditions set forth in his motion or that they may constitute a basis for the Court to find that the 'extraordinary and compelling reasons' threshold has been met."). Specifically, Mr. Rodriguez suffers from psoriatic arthritis, an autoimmune disorder for which he is prescribed an immunosuppressant that weakens his body's ability to fight infections. See Def. Decl., Ex. D (Dkt. 40-5). He has also been diagnosed with asthma since childhood and continues to use an albuterol inhaler. See Def. Decl., Ex. C (Dkt. 40-4). Both conditions—particularly the suppression of his immune system—elevate Mr. Rodriguez's risk for severe illness if he contracts COVID-19, a potentially fatal illness for which there is no known treatment or cure.²As other courts in this circuit have routinely found, such conditions satisfy the "extraordinary and compelling reasons" threshold for a sentence modification during the COVID-19 pandemic.³

The Government contends that, notwithstanding Mr. Rodriguez's serious health concerns, his risk of contracting COVID-19 has been sufficiently mitigated by BOP's comprehensive response to the virus. While the Court does not doubt that BOP has taken many notable steps to protect the health of prisoners in its custody, several aspects of the federal government's overall response to the pandemic have hampered BOP's ability adequately to protect inmates, particularly high-risk individuals like Mr. Rodriguez, from exposure. For instance, the Metropolitan Detention Complex ("MDC") in which Mr. Rodriguez is detained provides face masks to inmates—but, due to constraints on supply, an inmate receives only one disposable mask per week, even though masks are to be worn inside the facility "as a matter of course."⁴Gov. Opp. at 7; Gov. Opp., Ex. 1 ("Beard Report") at 3. Moreover, contrary to at least one expert's recommendation, inmates are not provided with N95 masks, which filter out small airborne particles, because the limited supply of such masks is reserved for medical staff. See Beard Report at 9. While the CDC has not recommended that inmates wear N95 masks and has opined that disposable masks may be reused, id., the CDC's recommendations appear to be dictated by resource scarcity⁵ (and the need to prioritize the needs of medical personnel) rather than being the result of a scientific determination that inmates—particularly those who are immunocompromised—would not significantly benefit from having more protective masks given the risks associated with living in a congregate setting.⁶

Similarly, while the BOP has implemented screening and testing procedures, such efforts are focused on identifying symptomatic individuals, see Gov. Opp. at 6, despite common knowledge that COVID-19 can be spread asymptomatically.⁷ Relying on the CDC's guidance that most people will develop only mild symptoms and not require treatment, the Governmentargues that most inmates do not need to be tested, and that asymptomatic patients should be de-prioritized for testing. See Gov. Opp., Ex. 2 ("Tekbali Report") at 2 ("There are virtually no clinical interventions for patients who present with mild symptoms. Asymptomatic patients are not prioritized for testing per CDC guidelines."). There is no question, however, that universal testing, apart from informing individual treatment decisions, would significantly aid efforts to detect and isolate infected individuals in order to reduce transmission in group settings.⁸ Thus, the Court can infer from BOP's triage strategy that the facility's containment efforts are hamstrung by an ongoing shortage of testing capacity, a phenomenon that has informed the CDC"s guidance.⁹

Accordingly, while the Court accepts that BOP is following CDC guidance, that guidance is itself the product of many missteps by the federal government earlier in the process; missteps that have cumulatively resulted in added risk to inmates being held in federal prisons. Put differently, the Court credits that the BOP is doing the best it can (and that, as of today, there appear to have been relatively few infections and no COVID-19 deaths in MDC), but even itsbest involves rationing masks and tests. BOP's containment efforts, therefore, do not negate Mr. Rodriguez's compelling circumstances.

Turning to the § 3553(a) factors, the Court finds that reducing Defendant's sentence to time-served is consistent with the goals of sentencing and does not second-guess or relitigate this Court's original judgment. See United States v. Ebbers, No. 02-CR-1144, 2020 WL 91399, at *6 (S.D.N.Y. Jan. 8, 2020) (explaining that compassionate release is "not an opportunity to second guess or to reconsider whether the original sentence was just"). First, Mr. Rodriguez is due to be released on January 9, 2021, Def. Decl., Ex. G (Dkt. 40-8), which means that, with good time credits, he has now served all but seven months of his 60-month sentence. Second, the balance of the § 3553(a) factors now tilts in favor of a slightly shorter sentence. As other courts have found, the "history and characteristics of the defendant" and the "need . . . to provide the defendant with needed . . . medical care," § 3553(a), are factors that can support a sentence reduction during pandemic conditions when the defendant is particularly susceptible to illness. See, e.g., United States v. Pena, No. 15-CR-551, 2020 WL 2301199, at *4 (S.D.N.Y. May 8, 2020). Although the Court was aware of Mr. Rodriguez's medical conditions at the original sentencing, his arthritis and asthma did not pose an out-sized risk of death pre-COVID-19. Thus, while the other sentencing factors, namely seriousness of the offense and the need for specific deterrence, remain unchanged, the extenuating circumstances of COVID-19 and Mr. Rodriguez's health favor a modest reduction of his sentence.¹⁰

Finally, the Court must consider dangerousness, which was a significant concern to the Court when sentencing Mr. Rodriguez. The Court notes that Mr. Rodriguez does not appear to have incurred disciplinary infractions since he was sentenced, and has instead consistently takenadvantage of dozens of courses offered by BOP. See Def. Decl., Ex. B (Dkt. 40-3). Additionally, the Court is modifying the conditions of supervised release to mandate that the first six months of Mr. Rodriguez's supervised release be served in home confinement. The Court finds that the risk to Mr. Rodriguez's health posed by COVID-19 and the possibility of a revocation of supervised release adequately ensure his expected compliance with the condition and sufficiently mitigate any risk to the community that he might otherwise pose. Hearing Tr. (April 4, 2019) at 48.

CONCLUSION

For the foregoing reasons, Defendant's motion for a sentencing reduction is GRANTED. Mr. Rodriguez's term of incarceration is reduced to time served. The following special conditions are hereby added to Defendant's term of supervised release:

1. The defendant shall serve the first six months of supervised release on home incarceration, to be enforced by GPS Monitoring at the residence approved by probation.

2. In light of the COVID19 pandemic, the defendant must remain at his approved residence except to seek any necessary medical treatment, in each instance with prior notice and approval by the Probation Department.

3. The defendant is to possess or have access to a telephone that will allow video conferencing by the Probation Department.

4. Mr. Rodriguez is ordered to report to the Probation Department at 500 Pearl Street, 6th floor, on June 22, 2020 at 10:00 AM (following 14 days of

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