United States v. Schultz

• Decision Date: 15 April 2020
• Docket Number: 17-CR-193S
• Citation: 454 F.Supp.3d 217
• Parties: UNITED STATES of America, v. Brett SCHULTZ, Defendant.
• Court: U.S. District Court — Western District of New York

454 F.Supp.3d 217

UNITED STATES of America,

v.Brett SCHULTZ, Defendant.

17-CR-193S

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

Signed April 15, 2020

Jonathan Paul Cantil, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Fonda Dawn Kubiak, Federal Public Defender, Buffalo, NY, for Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY, United States District Judge

I. INTRODUCTION

Presently before this Court is Defendant Brett Schultz's Motion for Release or Sentence Reduction under the federal compassionate-release statute (Docket No. 35), which the government opposes. See 18 U.S.C. § 3582 (c)(1)(A). Because Schultz has failed to satisfy the mandatory exhaustion provisions of the statute, his motion is denied without prejudice.

II. BACKGROUND

On November 8, 2017, Schultz waived indictment and pleaded guilty to a single-count information charging him with attempted receipt of child pornography in violation of 18 U.S.C. § 2252A (a)(2)(A). (Docket Nos. 16-18, 20.) This charge stemmed from Shultz's sexually explicit on-line chats with an undercover law enforcement officer whom he believed to be a minor female. Shultz sent this "girl" naked photographs of himself, requested that she reciprocate with explicit photographs and videos of her own, and coached her on how to perform sex acts. After a period of communication, Shultz arranged to meet this "girl" in person for the purposes of engaging in sexual activity with her and arrived at the meeting point with a condom in his pocket.

On March 7, 2018, this Court sentenced Schultz to 87 months' imprisonment pursuant to the terms of the parties' Rule 11 (c)(1)(C) plea agreement, 10 years' supervised release, a $100 special assessment, and no fine or restitution. (Docket Nos. 18, 32, 33.) He is presently serving his sentence at FCI Elkton, with a release date of May 17, 2023. See https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results (last visited April 14, 2020).

On April 7, 2020, Schultz moved for release to home incarceration or for a sentence reduction to time served under 18 U.S.C. § 3582 (c)(1)(A) on the ground that he is at heighted risk to develop COVID-19 given his asthma condition and the recent outbreak of the coronavirus at FCI Elkton. (Docket No. 37.) Shultz also claims to have applied to the Bureau of Prisons for release on April 7, 2020, but no proof of that request has been provided. (Docket No. 38, p. 2.) The government opposes Schultz's motion. (Docket No. 37.)

III. DISCUSSION

A. Compassionate Release under 18 U.S.C. § 3582 (c)(1)(A)

As amended by the First Step Act of 2018,¹ 18 U.S.C. § 3582 (c)(1)(A)(i) provides as follows:

The court may not modify a term of imprisonment once it has been imposed except that—in any case—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; ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute. See United States v. Ebbers, (S4) 02-CR-1144-3 (VEC), 432 F.Supp.3d 421, 426–27 (S.D.N.Y. Jan. 8, 2020). A defendant proceeding on his or her own motion may meet that burden by demonstrating (1) that he or she satisfied the statutory exhaustion requirement, (2) that extraordinary and compelling reasons exist for a sentence reduction, and (3) that a sentence reduction is consistent with the applicable Sentencing Guidelines provisions. See 18 U.S.C. § 3582 (c)(1)(A)(i) ; United States v. Perez, 17 Cr. 513-3 (AT), 451 F.Supp.3d 288, 291–92 (S.D.N.Y. Apr. 1, 2020). If the court finds, after consideration of the applicable 18 U.S.C. § 3553 (a) factors, that the defendant has met this burden, it may reduce his or her sentence under the statute. See 18 U.S.C. § 3582 (c)(1)(A)(i) ; see also United States v. Gileno, No. 3:19-CR-161-(VAB)-1, 2020 WL 1307108, at *1-2 (D. Conn. Mar. 19, 2020).

The statutory exhaustion requirement "must be strictly enforced." United States v. Monzon, No. 99 Cr. 157, 2020 WL 550220, at *2 (S.D.N.Y. Feb. 4, 2020) (citing Theodoropoulos v. I.N.S., 358 F.3d 162, 172 (2d Cir. 2004) ). The exhaustion requirement is met if the defendant establishes either (1) that the Bureau of Prisons denied his or her request that it bring a compassionate-release motion and he or she fully exhausted all administrative appeal rights with respect to that denial, or (2) that the warden of the facility took no action on his or her request for the filing of a compassionate-release motion within 30 days of receiving it. See 18 U.S.C. § 3582 (c)(1)(A).

Congress delegated to the Sentencing Commission the task of "describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction" under 18 U.S.C. § 3582 (c)(1)(A). See 28 U.S.C. § 994 (t). The Commission, in turn, promulgated a Policy Statement concerning sentence reductions under 18 U.S.C. § 3582 (c)(1)(A) in § 1B1.13 of the United States Sentencing Guidelines. The Commentary to that section contains four examples of circumstances that constitute "extraordinary and compelling reasons" for a sentence reduction: "Medical Condition of the Defendant"; "Age of the Defendant"; "Family Circumstances"; and "Other Reasons". U.S.S.G. § 1B1.13.

At issue here are the "Medical Condition of the Defendant" and "Other Reasons" examples. The "Medical Condition of the Defendant" example provides as follows:

Medical Condition of the Defendant—

(i) The defendant is suffering from a terminal illness (i.e. , a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e. , a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease and advanced dementia.

(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.

U.S.S.G. § 1B1.13 comment n. 1 (A).

The "Other Reasons" example is a catch-all provision encompassing "an extraordinary and compelling reason other than, or in combination with, the [other] reasons described." Id. n. 1 (D).

As it relates to the requirement that a sentence reduction be consistent with the applicable Sentencing Guidelines provisions, U.S.S.G. § 1B1.13 is once again the relevant provision. It provides that a court may reduce a sentence if, after consideration of the 18 U.S.C. § 3553 (a) factors, it determines that (1) 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 the U.S.S.G. § 1B1.13 policy statement. See U.S.S.G. § 1B1.13.

Finally, district courts have broad discretion in deciding whether to grant or deny motions for sentence reduction. See Gileno, 2020 WL 1307108, at *2.

B. Shultz's Motion for Compassionate Release

As indicated above, 18 U.S.C. § 3582 (c)(1)(A) contains a threshold exhaustion requirement. Conceding that he has not met this requirement, Schulz argues that this Court can and should excuse this failure given the extraordinary pandemic engulfing the nation. In opposition, the government argues that the exhaustion requirement is mandatory and must be enforced, even in the face of an extraordinary crisis. Mindful that courts have recently come down on both sides of this issue, this Court's examination of § 3582 (c)(1)(A) leads it to conclude that the exhaustion requirement is mandatory and must be enforced.

Statutory interpretation begins with examination of the statutory text, which is read with the understanding that the ordinary meaning of the language accurately expresses the legislative purpose. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S. Ct. 2149, 176 L. Ed. 2d 998 (2010) ; Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175, 129 S. Ct. 2343, 2350, 174 L. Ed. 2d 119 (2009). Plain and unambiguous statutory language is enforced according to its terms. See Hardt, 560 U.S. at 251, 130 S.Ct. 2149 (citing Carcieri v. Salazar, 555 U.S. 379, 387, 129 S. Ct. 1058, 172 L. Ed. 2d 791 (2009) and Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S. Ct. 681, 172 L. Ed. 2d 475 (2009) ).

As relevant here, 18 U.S.C. § 3582 (c)(1)(A) provides:

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

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