United States v. Russo, 16-cr-441 (LJL)

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: LEWIS J. LIMAN, United States District Judge
• Citation: 454 F.Supp.3d 270
• Parties: UNITED STATES of America v. Robert RUSSO, Defendant.
• Docket Number: 16-cr-441 (LJL)
• Decision Date: 14 April 2020

454 F.Supp.3d 270

UNITED STATES of America
v.
Robert RUSSO, Defendant.

16-cr-441 (LJL)

United States District Court, S.D. New York.

Signed April 14, 2020

454 F.Supp.3d 271

FOR DEFENDANT ROBERT RUSSO : Robert M. Baum, FEDERAL DEFENDERS OF NEW YORK.

FOR THE UNITED STATES OF AMERICA: Catherine Elaine Ghosh, U.S. ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK.

OPINION & ORDER

LEWIS J. LIMAN, United States District Judge:

Defendant Robert Russo moves this Court for compassionate release, pursuant to 18 U.S.C. § 3582(c).

The Court assumes familiarity with the background of this case, which was set forth in this Court's Order of April 3, 2020. (See Dkt. No. 51.) In brief, Mr. Russo is a 64 year-old man who is currently incarcerated at the Metropolitan Correctional Center ("MCC"). He suffers from many serious medical ailments that put him at high-risk for contracting COVID-19 and for very serious medical consequences should he contract it. See CDC, "Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities" (March 23, 2020), available at: https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf ("Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors."). On October 16, 2018, Mr. Russo was sentenced by Judge Batts to a term of imprisonment of 60 months. He is serving that sentence at the MCC for medical reasons. He is now at the tail end of his term of incarceration and is currently scheduled for release on October 6, 2020.

Mr. Russo made his motion to this Court on March 31, 2020, in which he sought release to a halfway house. He is unable to return home because his mother is in her late eighties. Mr. Russo had no plan to ensure that he did not spread COVID-19 that he might have picked up at MCC to others at the halfway house.

In its Order of April 3, 2020, the Court deferred ruling on Mr. Russo's motion for compassionate release pending a decision on his previously-filed application for such release with the Bureau of Prisons ("BOP"). (Dkt. No. 54.) In its Order, the Court noted that it could discern "competing objectives" from the language of Section 3582(c) :

First, the language recognizes that the BOP is frequently in the best position to assess, at least in the first instance, a defendant's conditions, the risk presented to the public by his release, and the adequacy of a release plan ... At the same time, permitting a defendant to seek judicial relief within 30 days of making a request to the facility's warden unquestionably reflects congressional intent for the defendant to have the right to a meaningful and prompt judicial determination of whether he should be released.

(Id. at 4.) The Court also highlighted that "the 30-day rule was meant as an accelerant to judicial review." (Id. at 5.) In order to receive relevant information from the

454 F.Supp.3d 272

BOP, and in light of the Government's assurance that the BOP would "endeavor to expedite its response," (Dkt. No. 53), the Court deferred ruling on the motion.¹ The Court ordered the Government to update the Court by noon yesterday on when the BOP would make a final determination on Mr. Russo's application for compassionate release. (Dkt. No. 54 at 5–6.) In the same order, the Court directed counsel for Mr. Russo to submit a proposed modification of Mr. Russo's sentence. (Dkt. No. 51 at 6.)

Yesterday, the Court received the Government's letter. It stated:

The Government respectfully writes in response to the Court's April 3, 2020 order directing the Government to obtain information from the Bureau of Prisons regarding when the BOP will resolve the defendant's request for compassionate release (Dkt. No. 54). As of the time of the filing of this letter, the Government has been unable to obtain that information from the BOP.

(Dkt. No. 58.) The defendant has submitted a proposed order that would require Mr. Russo to serve the remainder of his sentence at a halfway house. (Dkt. No. 57.) Although the Government reiterated its position that it does not "believe the Court has the authority to act sooner than April 26, 2020, thirty days after the defendant's request to BOP," it also expressed that it "has no objections to the language in the order proposed by the defendant." (Dkt. No. 58.)

The Court can no longer avoid a decision. The question is whether it can grant relief now or whether it must wait 12 days to make a decision. For the reasons that follow, the Court concludes that it has the power to grant relief and can do so under these extraordinary circumstances, notwithstanding that 30 days have not passed from Mr. Russo's request for compassionate release to the warden. However, for reasons explained at the conclusion of this opinion, the Court denies the motion without prejudice.

Applicable Law

18 U.S.C. § 3582(c) permits courts to modify an imposed term of imprisonment. Specifically, in relevant part,

The court may not modify a term of imprisonment once it has been imposed except that—

(1) in any case—

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—

(i) extraordinary and compelling reasons warrant such a reduction

454 F.Supp.3d 273

...

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

Section 1B1.13 of the United States Sentencing Guidelines (U.S.S.G.) contains policy statements issued by the Sentencing Commission that pertain to compassionate release. Those policy statements, which have not been amended since the amendment to Section 3582(c), state, in relevant part:

Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that—

(1) (A) extraordinary and compelling reasons warrant the reduction; ...

(2) the 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) ; and

(3) the reduction is consistent with this policy statement.

Application Note 1 to U.S.S.G. § 1B1.13 provides, in relevant part:

Extraordinary and Compelling Reasons.—Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the circumstances set forth below:

(A) Medical Condition of the Defendant.—

...

(ii) The defendant is—

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

that 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.

Application Note 2 explains:

For purposes of this policy statement, an extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

Application Note 4 "encourages the Director of the Bureau of Prisons to file such a motion if the defendant meets any of the circumstances set forth in Application Note 1." It continues:

The court is in a unique position to determine whether the circumstances warrant a reduction (and, if so, the amount of reduction), after considering the factors set forth in 18 U.S.C. § 3553(a) and the criteria set forth in this policy statement, such as the defendant's medical condition, the defendant's family circumstances, and whether the defendant is a danger to the safety of any other person or to the community.

As indicated above, U.S.S.G. § 1B1.13 has not been amended since the First Step Act permitted a defendant to move for compassionate release over the objection of the Bureau of Prisons. Some courts have determined that, therefore, "there does...