United States v. Smith

• Decision Date: 13 April 2020
• Docket Number: No. 12 Cr. 133 (JFK),12 Cr. 133 (JFK)
• Citation: United States v. Smith, 454 F. Supp. 3d 310 (S.D. N.Y. 2020)
• Parties: UNITED STATES of America v. Phillip SMITH, Defendant.
• Court: U.S. District Court — Southern District of New York

454 F.Supp.3d 310

UNITED STATES of America

v.Phillip SMITH, Defendant.

No. 12 Cr. 133 (JFK)

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

Signed April 13, 2020

FOR DEFENDANTPHILLIP SMITH : Christopher Aaron Flood, Neil Peter Kelly, FEDERAL DEFENDERS OF NEW YORK INC.

FOR THE UNITED STATES OF AMERICA: Sarah L. Kushner, U.S. ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK.

OPINION & ORDER

JOHN F. KEENAN, United States District Judge:

Before the Court is an emergency motion by Phillip Smith for a sentence reduction to time served and release from the Metropolitan Detention Center, Brooklyn ("the MDC") or, in the alternative, for immediate transfer to home confinement or a halfway house, due to Smith's advanced age, compromised health, and his status as a "high-risk" inmate who is especially vulnerable to contracting the Coronavirus, COVID-19("COVID-19").The Government does not contest that extraordinary and compelling reasons exist for Smith's immediate release, but rather, opposes his motion as untimely because Smith did not first fully exhaust all of his administrative rights by waiting 30 days after he sought compassionate release from the Warden of the MDC before seeking judicial intervention.

For the reasons set forth below, Smith's motion is GRANTED.He is to be released from the MDC today, April 13, 2020, and his 36-month term of supervised release is to commence with the additional terms imposed below.

I.Background

On November 16, 2012, Smith pleaded guilty to conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2), conspiracy to produce false identification documents, in violation of 18 U.S.C. § 1028(f), and aggravated identity theft, in violation of 18 U.S.C. § 1028A.On April 10, 2013, the Court sentenced him to a term of imprisonment of 120 months, to be followed by 36 months of supervised release.Smith has been incarcerated since January 13, 2012.To date, he has served over 98 months of his original 120-month sentence.

Smith is 62 years old and suffers from multiple physical ailments.He has been treated for, among other things, asthma, high cholesterol, blood clots, a thyroid condition, and suspected multiple myeloma (a cancer of the bone marrow).Smith is currently serving his sentence at the MDC where, as of April 13, 2020, four inmates and 12 staff have tested positive for COVID-19.SeeCOVID-19Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Apr. 13, 2020).The MDC has placed Smith on its list of "high-risk" inmates who are especially vulnerable to contracting the disease.

On April 3, 2020, Smith filed¹ an emergency motion for compassionate release pursuant to the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), or immediate transfer pursuant to 18 U.S.C. § 3624(c)and34U.S.C. § 60541(g)(1)("the Motion").(Emergency Mot. for Sentence Reduction(Apr. 3, 2020), ECF No. 185.)The day prior to filing the Motion, however, Smith submitted a letter to the Warden of the MDC requesting a reduction in sentence pursuant to 18 U.S.C. § 3582(c) or an immediate transfer to home confinement or a halfway house pursuant to 18 U.S.C. § 3624(c)("the Petition").(Letter from Neil P. Kelly, Special Assistant Federal Defender, to Derek Edge, MDC Warden(Apr. 2, 2020), ECF No. 186-3.)Smith submitted an addendum to the Petition the following day—the same day he filed the Motion.(Letter from Neil P. Kelly, Special Assistant Federal Defender, to Derek Edge, MDC Warden(Apr. 3, 2020), ECF No. 186-4.)

On April 7, 2020, the Government filed a letter opposing the Motion.(Letter from Sarah L. Kushner, Assistant United States Attorney, to Hon. John F. Keenan(Apr. 7, 2020), ECF No. 192.)At that time, according to the Bureau of Prisons ("the BOP"), Smith was scheduled to be released on November 17, 2020, but he may have been eligible for home confinement beginning on May 17, 2020.(Id. at 1.)The Court scheduled a telephonic conference with parties for April 10, 2020.

The morning of the conference, shortly before it was to begin, the Government filed a letter stating that the MDC had scheduled Smith to be released to a halfway house on April 23, 2020.(Letter from Sarah L. Kushner, Assistant United States Attorney, to Hon. John F. Keenan(Apr. 10, 2020), ECF No. 195.)The Government's letter explained that, consistent with the BOP's current procedures for inmates scheduled to leave a BOP facility, the MDC had placed Smith into quarantine on April 8, 2020.(Id. )That same morning, Smith filed a response arguing that his selection for release to a halfway house further supported his application for immediate release.(Resp. (Apr. 10, 2020), ECF No. 196.)The Motion was heard during two telephonic conferences with counsel for the Government and Smith.²At the Court's request, a representative from the MDC's legal department joined the second telephonic conference to provide information regarding the current conditions of Smith's incarceration and quarantine.

II.Discussion³

18 U.S.C. § 3582(c)(1)(A) authorizes a court to modify a term of imprisonment "upon motion of the [BOP], or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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."18 U.S.C. § 3582(c)(1)(A).Where this exhaustion requirement is met, a court may reduce the defendant's sentence if it finds that "extraordinary and compelling reasons warrant such a reduction" and "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."Id.In doing so, the Court must also consider "the factors set forth in [ 18 U.S.C. §] 3553(a) to the extent that they are applicable."Id.

A.Exhaustion

Courts are divided on whether the exhaustion requirement may be waived.On one side, some courts in this Circuit and elsewhere have ruled that the requirement is not absolute, and it may be waived in certain extraordinary circumstances, such as the threat posed by the COVID-19 pandemic to a specific individual.See, e.g., United States v. Haney, No. 19 Cr. 541 (JSR), Dkt. No. 27, 454 F.Supp.3d 316(S.D.N.Y.Apr. 13, 2020);United States v. Sawicz, No. 08 Cr. 287 (ARR), 2020 WL 1815851(E.D.N.Y.Apr. 10, 2020);United States v. McCarthy, No. 17 Cr. 230 (JCH), 453 F.Supp.3d 520, 525–26(D. Conn.Apr. 8, 2020);United States v. Zukerman, No. 16 Cr. 194 (AT), 451 F.Supp.3d 329, 333–34(S.D.N.Y.Apr. 3, 2020);United States v. Powell, No. 94 Cr. 316 (ESH), Dkt. No. 98, 2020 WL 1698194(D.D.C.Mar. 28, 2020);cf.United States v. Jemal, No. 15 Cr. 570 (JRP), 2020 WL 1701706, at *3(E.D. Pa.Apr. 8, 2020)("We are not convinced, however, that we must rigidly adhere to the statutory directive that the BOP be provided up to thirty days to address Defendant's compassionate release request, without considering a futility exception to exhaustion.").Many other courts, however, have declined to rule that such an exception to the statutory exhaustion requirement exists.See, e.g., United States v. Knox, No. 15 Cr. 445 (PAE), Dkt.No. 1084, at 2–3(S.D.N.Y.Apr. 8, 2020);United States v. Roberts, No. 18 Cr. 528 (JMF), ––– F.Supp.3d ––––, ––––, 2020 WL 1700032, at *2(S.D.N.Y.Apr. 8, 2020);United States v. Gross, No. 15 Cr. 769 (AJN), 452 F.Supp.3d 26, 28–29(S.D.N.Y.Apr. 6, 2020).

Here, the Government argues the latter; specifically, that the Court must read the statutory exhaustion requirements of 18 U.S.C. § 3582(c)(1)(A) strictly, and thus, it does not have the authority to grant the relief Smith seeks without either a final decision by the BOP on the Petition or the passage of 30 days without one.

Notably, however, the Government recently argued in a filing before a different court in this District that the exhaustion requirement is non-jurisdictional, which, it argued, allows it to waive the requirement by not raising it as a defense.SeeUnited States v. Gentille, No. 19 Cr. 590 (KPF), Dkt. No. 31, 2020 WL 1814158(S.D.N.Y.Apr. 6, 2020).In ruling on the defendant's compassionate release motion in that case, Judge Failla "agree[d] with the Government that § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional, but rather is a claims-processing rule that the Government can waive by failing to raise an exhaustion argument."United States v. Gentille, No. 19 Cr. 590 (KPF), 2020 WL 1814158, at *3(S.D.N.Y.Apr. 9, 2020);see alsoHaney, No. 19 Cr. 541, Dkt. No. 27, at 7, 454 F.Supp.3d at ––––(ruling the exhaustion requirement is non-jurisdictional).After the Government waived the requirement, Judge Failla proceeded to the merits of the defendant's request and granted the motion.Gentille, 2020 WL 1814158, at *4–5;see alsoUnited States v. Jasper, No. 18 Cr. 390 (PAE), Dkt. No. 440, 2020 WL 1673140(S.D.N.Y.Apr. 6, 2020)(letter from the Government waiving the exhaustion requirement);United States v. Knox, No. 15 Cr. 445 (PAE), Dkt.No. 1086(S.D.N.Y.Apr. 10, 2020)(same).

Relatedly, in United States v. Knox, No. 15 Cr. 445 (PAE), Dkt.No. 1088(S.D.N.Y.Apr. 10, 2020), Judge Engelmayer granted a defendant's motion for compassionate release after the Government reconsidered its initial opposition to the motion based on the exhaustion requirement and filed a letter waiving the objection.Prior to the Government's waiver, however, Judge Engelmayer had urged the Government "to relent on its invocation of administrative exhaustion as a barrier to judicial action" because "[t]he Court has explicitly stated, based on its superior familiarity with [the defendant]’s offense and the application of the 18 U.S.C. § 3553(a) factors to his circumstances, that he merits compassionate release."Id., Dkt. No. 1084, at 2, 3 (S.D.N.Y. Apr. 8, 2020).To the Government's credit, it quickly submitted a letter waiving the exhaustion requirement, thereby "clear...