United States v. Stevens

• Decision Date: 12 May 2020
• Docket Number: 04-CR-222S
• Parties: UNITED STATES of America, v. Hugh STEVENS, Defendant.
• Court: U.S. District Court — Western District of New York

459 F.Supp.3d 478

UNITED STATES of America,

v.Hugh STEVENS, Defendant.

04-CR-222S

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

Signed May 12, 2020

Thomas S. Duszkiewicz, Michael DiGiacomo, U.S. Attorney's Office, Buffalo, NY, for United States of America.

DECISION AND ORDER

WILLIAM M. SKRETNY, United States District Judge

I. INTRODUCTION

Presently before this Court is Defendant Hugh Stevens's Motion for Sentence Reduction under the federal compassionate-release statute (Docket Nos. 562, 569), which the government opposes (Docket No. 568). See 18 U.S.C. § 3582(c)(1)(A). For the reasons discussed below, Stevens's motion is denied.

II. BACKGROUND

On September 10, 2009, Stevens pleaded guilty to Count Six of the superseding indictment in this case, which charged him with engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a). (Docket Nos. 456, 457.) At that same time, as part of a global plea, Stevens also pleaded guilty to Count One of the superseding indictment in case number 09-CR-304S, which charged him with conspiring to import, possess, and distribute a List I chemical knowing and having reasonable cause to believe that it would be used to unlawfully manufacture a controlled substance, in violation of 21 U.S.C. § 846. (Id. )

Approximately six months later, on March 17, 2010, this Court imposed a combined sentence of, inter alia , 240 months’ imprisonment and 3 years’ supervised release, which was consistent with the sentencing provision in the plea agreement that called for imposition of an agreed-upon 240-month sentence pursuant to Rule 11 (c)(1)(C) of the Federal Rules of Criminal Procedure. (Docket Nos. 456, 514, 519.)

Stevens is a citizen of Scotland and a lawful permanent resident of the United States. At the time of his plea, it was contemplated that Stevens could possibly serve his sentence in Scotland if approved to do so under the Treaty for the Transfer of Offenders between the United States and Scotland. See Stevens v. United States, Nos. 09-CR-304S, 11-CV-236S, 2012 WL 2401384, at *1 (W.D.N.Y. June 25, 2012)¹ (denying Stevens's motion to vacate, set aside, or correct his sentence). The local United States Attorney's Office agreed not to oppose Stevens's request for transfer under the treaty, but the ultimate decision fell to the Office of Enforcement Operations of the U.S. Department of Justice and to Scottish officials. Id. Ultimately, Scottish officials denied Stevens's request for transfer because he had insufficient contacts with Scotland, resulting in Stevens serving his sentence in the United States. Id. at *3-5 ; Affirmation of Cheryl Meyers Buth, Esq. ("Buth Aff."), Docket No. 562-1, ¶¶ 17-18 and Exhibit C.

Stevens is currently housed at Correctional Institution Big Spring (Flightline) in Big Spring, Texas, which is a Bureau of Prisons contracted correctional institution operated by a private corporation. (Buth Aff., ¶¶ 34, 39.) By letter dated March 30, 2020, Stevens, through counsel, requested that the warden of Big Spring file a motion to reduce his sentence on his behalf. (Buth Aff., Exhibit A.) As of May 4, 2020, Stevens has received no response to that letter.² (See Reply Affirmation of Cheryl Meyers Buth, Esq. ("Buth Reply Aff."), ¶ 4.)

Anticipating that the warden would not act favorably on his request, and having served more than 80% of his sentence, Stevens moved in this court on March 31, 2020, for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i) on the basis that his age, medical conditions, the outbreak of COVID-19, and other reasons constitute extraordinary and compelling reasons warranting such relief. (Docket No. 562.) The government opposes Stevens's motion on all fronts. (Docket No. 568.)

III. DISCUSSION

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

"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti, 02 CR 743-07 (CM), 433 F.Supp.3d 613, 614 (S.D.N.Y. Jan. 15, 2020). One such statute is 18 U.S.C. § 3582(c)(1)(A)(i) which, as amended by the First Step Act of 2018,³ 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, 432 F.Supp.3d 421, 426–27 (S.D.N.Y.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 the defendant's 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, 448 F.Supp.3d 183, 184–85 (D. Conn. Mar. 19, 2020).

The statutory exhaustion requirement is mandatory and "must be strictly enforced." United States v. Monzon, No. 99 Cr. 157, ––– F.Supp.3d ––––, ––––, 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) ); United States v. Cassidy, 17-CR-116S, 2020 WL 1969303, at *3-8 (W.D.N.Y. Apr. 24, 2020) (finding exhaustion mandatory). The exhaustion requirement is met when the earlier of two circumstances occurs: (1) the defendant fully exhausts all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion to modify an imposed term of imprisonment on his or her behalf,⁴ or (2) 30 days lapse from the date the warden of the defendant's facility receives the defendant's request to file such a motion on his or her behalf. 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)(i). 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". See U.S.S.G. § 1B1.13.

At issue here are the "Medical Condition of the Defendant," "Age 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 "Age of the Defendant" example provides as follows:

The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

U.S.S.G. § 1B1.13 comment n. 1(B).

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) (A) extraordinary and compelling reasons warrant the reduction; or

(B) the defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned;

(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.

See U.S.S.G. § 1B1.13.

Finally, district courts have broad...