United States v. Sawicz

• Decision Date: 10 April 2020
• Docket Number: 08-cr-287 (ARR)
• Citation: United States v. Sawicz, 453 F.Supp.3d 601 (E.D. N.Y. 2020)
• Parties: UNITED STATES of America, v. William SAWICZ, Defendant.
• Court: U.S. District Court — Eastern District of New York

453 F.Supp.3d 601

UNITED STATES of America,

v.William SAWICZ, Defendant.

08-cr-287 (ARR)

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

Signed April 10, 2020

Mia Eisner-Grynberg, Assistant Federal Defender, Brooklyn, NY, for United States of America.

Harold L. Levy, Flamhaft Levy Kamins, Hirsch & Rendeiro LLP, Brooklyn, NY, for Defendant.

Opinion & Order

ROSS, United States District Judge:

Before me is the defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) because of the COVID-19 global pandemic and outbreak at the Danbury Federal Correctional Institute ("Def.’s Mot.," ECF No. 62).The defendant asserts that he is especially vulnerable to the threat of contracting a severe case of COVID-19 because he has hypertension, for which he takes prescribed Lisinopril and baby aspirin.¹Def.’s Mot. 2, 4.Accordingly, the defendant requests that I order his immediate release to home confinement for a period of time to be followed by his already-imposed five-year term of supervised release.Def.’s Mot. 1.The government opposes because the defendant has not exhausted his administrative rights within the Bureau of Prisons.The defendant's motion is granted, as set forth below.

On August 23, 2016, I sentenced the defendant to five years’ imprisonment, to be followed by five years of supervised release, after the defendant violated the conditions of his term of supervised release by possessing child pornography.SeeMin. Entry, ECF No. 52.The defendant is currently imprisoned at FCI Danbury.The defendant asserts that he has received approval from his unit manager for transfer to a halfway house.Def.’s Mot. 3.The defendant further asserts that Probation has visited and approved his parents’ home in Deer Park, New York for his reentry.Id.;see alsoUpdates to Def.’sMot. 1, ECF No. 63("Updates").As of March 31, 2020, the Bureau of Prisons ("BOP")Residential Reentry Office was still processing the defendant's application for reentry.SeeFigueroa Email Def.’sEx. B, ECF No. 62;Def.’sMot. 3.

Under 18 U.S.C. § 3624(c)(2), a prisoner may be placed "in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months."18 U.S.C. § 3624(c)(2).Accordingly, under normal circumstances, the defendant would be eligible for release to home confinement on August 26, 2020.See Gov't Resp. 1;Def.’sMot. 3.However, the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") expanded the maximum amount of time that a prisoner may spend in home confinement: "if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau [of Prisons], the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement ...."CARES Act § 12003(b), Pub. L. No. 116-136,134 Stat. 281(2020).Attorney GeneralWilliam Barr made the requisite "finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons" on April 3, 2020, thereby triggering the BOP's authority to expand the amount of time that a prisoner may spend in home confinement.Mem. for Director of BOP, Def.’s Ex. Aat 1(Apr. 3, 2020).In particular, the Attorney General acknowledged the "significant levels of infection" at FCI Danbury and instructed the Bureau to "move with dispatch ... to move vulnerable inmates out of [this] institution[ ]."Id.Accordingly, on April 5, 2020, the defendant, through counsel, submitted a letter to the warden of FCI Danbury formally requesting transfer to home confinement.SeeEmail Attaching Request for Transfer Def.’sEx. C, ECF No. 62;Letter to Warden, ECF No. 61.On April 9, 2020, the defendant filed another letter with the warden, this time formally seeking compassionate release pursuant to the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i).SeeUpdatesEx. A, ECF No. 63.To date, the defendant has not received a response from the warden.

Separately from the statutory provisions regarding home confinement, the First Step Act allows prisoners to move for compassionate release from prison when "extraordinary and compelling reasons" warrant such release.18 U.S.C. § 3582(c)(1)(A)(i).This statutory provision is the one under which the defendant moves before me now.There are four prerequisites to a court's granting compassionate release under the First Step Act.First, the defendant must have exhausted his administrative rights with the BOP.§ 3582(c)(1)(A).Second, the court must find that "extraordinary and compelling reasons warrant" release.§ 3582(c)(1)(A)(i).Third, the court must consider the factors set forth in § 3553(a).§ 3582(c)(1)(A).Fourth, the court must find that release is consistent with the Sentencing Commission's policy statements.§ 3582(c)(1)(A)(i).

A prisoner exhausts his administrative rights when the BOP fails to bring a motion for compassionate release on his behalf and he exercises all administrative rights to appeal, or after "the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier[.]"§ 3582(c)(1)(A).In this case, the defendant has not exhausted his administrative rights with the BOP, as he transmitted his requests for release to the warden of FCI Danbury on April 5, 2020 and April 9, 2020—fewer than thirty days ago.SeeUpdatesEx. A, ECF No. 63;Def.’sEx. C, ECF No. 62;Letter to Warden, ECF No. 61.

However, I waive the exhaustion requirement in this case."Even where [administrative] exhaustion is seemingly mandated by statute or decisional law, the requirement is not absolute."Washington v. Barr , 925 F.3d 109, 118(2d Cir.2019).A court may waive an administrative exhaustion requirement "where [exhaustion] would be futile, ... where the administrative process would be incapable of granting adequate relief ... [or] where pursuing agency review would subject [the person seeking relief] to undue prejudice."Id. at 118–19(citingMcCarthy v. Madigan , 503 U.S. 140, 146–48, 112 S.Ct. 1081, 117 L.Ed.2d 291(1992), superseded by statute on other grounds as recognized inBooth v. Churner , 532 U.S. 731, 740, 121 S.Ct. 1819, 149 L.Ed.2d 958(2001) )."[U]ndue delay, if it in fact results in catastrophic health consequences," can justify waiving an administrative exhaustion requirement for any of those three reasons.Id. at 120–21.

The COVID-19 outbreak at FCI Danbury, combined with the fact that the defendant is at risk of suffering severe complications if he were to contract COVID-19 because of his hypertension, justifies waiver here.SeeOrder at 7–8, United States v. Zuckerman , No. 16 Cr. 194 (AT)(S.D.N.Y.Apr. 3, 2020), ECF No. 116;United States v. Colvin , No. 3:19cr179 (JBA), 451 F.Supp.3d 237, 239–40(D. Conn.Apr. 2, 2020);United States v. Perez , No. 17 Cr. 513-3 (AT), 451 F.Supp.3d 288, 292–93 n.3(S.D.N.Y.Apr. 1, 2020);Def.’s Ex. Aat 1(acknowledging "significant levels of [COVID-19] infection" at FCI Danbury).The delay that the defendant would experience if he had to wait for thirty days to expire before pursuing a motion for compassionate release in this court would put him at significant risk of suffering catastrophic health consequences.See, e.g. , Perez , 451 F.Supp.3d at 292–93.In fact, given the COVID-19 outbreak at FCI Danbury, any delay at all puts the defendant at an increased risk.

Next, I find that extraordinary and compelling reasons warrant the defendant's release from prison.18 U.S.C. § 3582(c)(1)(A)(i).The Sentencing Commission has issued a Policy Statement that defines "extraordinary and compelling reasons."U.S. Sentencing Guidelines Manual§ 1B1.13(U.S. Sentencing Comm'n2018)("USSG");seeUnited States v. Ebbers , 432 F.Supp.3d 421, 426(S.D.N.Y.2020);United States v. Bellamy , No. 15-165(8)(JRT/LIB), 2019 WL 3340699, at *2(D. Minn.July 25, 2019).While the defendant's hypertension does not place him squarely within any of the Policy Statement's definitions of "extraordinary and compelling reasons,"seeUSSG § 1B1.13 cmt. n.1(A)–(D), the defendant asserts that the COVID-19 pandemic, combined with his particular vulnerability to complications from COVID-19 because of his hypertension, constitutes an "extraordinary and compelling reason" for his release.Def.’s Mot. 10–11.The government does not dispute this assertion, and I agree with the defendant that the risk of serious illness or death that he faces in prison constitutes an extraordinary and compelling reason militating in favor of his release.²

The defendant's motion does not specifically speak to the § 3553(a) factors, which I must consider in deciding whether to grant compassionate release.See§ 3582(c)(1)(A).Under § 3553(a), I must consider what is "sufficient, but not greater than necessary, to comply with the purposes of [sentencing]."§ 3553(a).In particular, I must consider:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4)[the kinds of sentence and sentencing range provided for in the USSG]

(5) any pertinent [Sentencing Commission policy statement]

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

Id.In considering these factors, I "should assess whether [they] outweigh the ‘extraordinary and compelling reasons’ warranting compassionate release...