United States v. White

• Decision Date: 12 June 2020
• Docket Number: CRIMINAL ACTION NO. 2:17-cr-00198-4
• Citation: 466 F.Supp.3d 666
• Parties: UNITED STATES of America, v. Ralph WHITE
• Court: U.S. District Court — Southern District of West Virginia

466 F.Supp.3d 666

UNITED STATES of America,

v.Ralph WHITE

CRIMINAL ACTION NO. 2:17-cr-00198-4

United States District Court, S.D. West Virginia, Charleston Division.

Signed June 12, 2020

John J. Frail, U.S. Attorney's Office, Charleston, WV, for United States of America.

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

A deadly pandemic provides extraordinary and compelling reasons for the world to take unprecedented measures to combat the spread of the lethal COVID-19 virus. This petitioner is locked down at the Federal Correctional Institution at Elkton. At that prison, the COVID-19 pandemic has struck with a vengeance, killing nine people and infecting almost 500 prisoners by some estimates and many staff. Approximately 25% of the inmates have tested positive for the virus. The question before this court is whether a federal prisoner who has been identified by the Bureau of Prisons as medically vulnerable to this deadly virus and who has petitioned this court for compassionate release has extraordinary and compelling reasons to justify his request pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). For the reasons that follow, Defendant Ralph White's Motion for Immediate Compassionate Release, [ECF No. 405], is GRANTED .

I. Background

On June 18, 2018, I sentenced Mr. White to a term of 60 months imprisonment followed by 4 years of supervised release for Conspiracy to Distribute 100 grams or more of Heroin, in violation of 21 U.S.C. § 846. [ECF No. 328]. Defendant is currently serving his sentence at Federal Correctional Institution ("FCI") Elkton. There is a dispute as to how much of his sentence he has already served, and the Defendant argues he has served at least 40 months imprisonment. Def.'s Mem. Supp. [ECF No. 406]. However, the Defendant incorrectly added time that he served for a state charge. Because of the way BOP calculates time served, he has served approximately 30 months incarceration. Gov't. Resp. [ECF No. 408]. According to the Bureau of Prisons ("BOP"), his projected release date is April 9, 2022. Since his incarceration, Mr. White has contracted Hepatitis C

and is receiving treatment while at FCI Elkton. He has not had any disciplinary records while in prison and has completed drug and substance abuse counseling offered by BOP while incarcerated.

FCI Elkton is a low-security prison in Lisbon, Ohio. It is "designed to house approximately 2,000 inmates at the main facility and 500 inmates at the satellite facility." Wilson v. Williams , No. 20-3447, 961 F.3d 829, 833 (6th Cir. June 9, 2020). FCI Elkton has hosted a massive outbreak of COVID-19 among its inmates, and the "situation at FCI Elkton appears dire." United States v. Brant , No. 218CR20155TGBMKM1, 2020 WL 2850034, at *2 (E.D. Mich. June 2, 2020) ; see also United States v. Rodriguez , No. 2:03-CR-00271-AB-1, 451 F.Supp.3d 392, 404 (E.D. Pa. Apr. 1, 2020) ("The situation at FCI Elkton in particular is alarming ... Elkton is filled to capacity and appears to have few tests.").

Judge Gwin of the Northern District of Ohio found, when issuing his April 22 preliminary injunction, that FCI Elkton's " ‘dorm-style’ design guarantees that inmates remain in close proximity to one another," which makes it nearly impossible for inmates to socially distance. See Wilson v. Williams , No. 4:20-CV-00794, 455 F.Supp.3d 467, 471 (N.D. Ohio Apr. 22, 2020), enforcement granted , No. 4:20-CV-00794, 2020 WL 2542131 (N.D. Ohio May 19, 2020), and vacated , No. 20-3447, 961 F.3d 829 (6th Cir. June 9, 2020) ; see also United States v. Bass , No. 1:10-CR-166 (LEK), 462 F.Supp.3d 176, 179 (N.D.N.Y. May 27, 2020) ("FCI Elkton has endured an outbreak of COVID-19 that has been exacerbated by features of the prison's internal architecture that inhibit social distancing."). Though FCI Elkton has claimed to have implemented measures to lessen the COVID-19 threat, Judge Gwin found that "the Elkton officials fight a losing battle. A losing battle for staff. A losing battle for inmates." Id. "With the shockingly limited available testing and the inability to distance inmates, COVID-19 is going to continue to spread, not only among the inmate population, but also among the staff." Id. Indeed, Judge Gwin's prophetic warning has proven correct. At the time he granted the preliminary injunction on April 22, FCI Elkton had 59 confirmed COVID-19 cases among inmates and 46 cases among staff. See id. As of June 11, 2020, there are 436 active COVID-19 cases among inmates, 7 cases among staff, and 9 inmate deaths. COVID-19 Cases, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus (last visited June 11, 2020).¹ FCI Elkton has the second highest mortality rate of any prison. See id.

On April 3, 2020, Attorney General William Barr directed BOP to identify inmates considered medically vulnerable to COVID-19 at a number of prisons, including FCI Elkton. Prison officials identified Mr. White as one of its medically vulnerable inmates. See Ex. 1 [ECF No. 411].

On April 22, Judge Gwin granted a preliminary injunction to a subclass of medically vulnerable inmates, mandating that inmates in that subclass be immediately transferred out of FCI Elkton. Wilson , 455 F.Supp.3d at 481. On April 30, 2020, BOP submitted the Subclass List of 837 vulnerable inmates at FCI Elkton, which includes Mr. White. Wilson , No. 20-CV-794, [ECF No. 35-1] 3. On May 19, 2020, Judge Gwin granted a motion to enforce the April 22 preliminary injunction and ordered BOP to comply. Wilson , No. 20-CV-794, ("May 19 Order") [ECF No. 85]. However, on June 9, 2020, the Sixth Circuit vacated the preliminary injunction. Wilson , 961 F.Supp.3d 829.

The Sixth Circuit, however, found in its majority opinion by Judge Gibbons that inmates at FCI Elkton face a substantial risk of serious harm and that "[t]he infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP's efforts." Id. at 840. The Sixth Circuit further explained that the "transmissibility of the COVID-19 virus in conjunction with Elkton's dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass's health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death." Id. Chief Judge Cole, in his dissent, calling FCI Elkton an "epicenter of the pandemic within the federal prison system," further expounded on BOP's flaws in responding to the outbreak at Elkton. Id. at 845–46 (Cole, C.J., concurring in part and dissenting in part). Chief Judge Cole lamented that BOP's response "does not include a single phase that allows for meaningful social distancing," and has been inadequate in providing inmates personal protective equipment. Id. ("But the record reflects that inmates received four ounces of soap per week and only two disposable masks, and that the disinfectant provided was ‘watered down.’ "). "The government's assurances that the BOP's ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease." Id. (quoting Rodriguez , 451 F.Supp.3d at 402 ).

Mr. White requested relief from the Warden of FCI Elkton on April 9, 2020 and May 14, 2020. Id. ; see also Exs. 2, 3 [ECF No. 411]. The Warden denied his request on May 18, 2020 and June 9, 2020. Ex. 4 [ECF No. 411]; Ex. 1 [ECF No. 415]. Mr. White now asks the court for compassionate release to home confinement because of his underlying medical condition and the current public health crisis caused by COVID-19. [ECF No. 405]. A telephonic hearing was held on this matter on June 9, 2020 and June 12, 2020.

II. Discussion

The First Step Act "embodies Congress's intent to reduce the Bureau of Prison's authority over compassionate release petitions and authorizes the district courts to exercise their independent discretion to determine whether there are ‘extraordinary and compelling reasons’ to reduce a sentence." United States v. Galloway , No. CR RDB-10-0775, 2020 WL 2571172, at *3 (D. Md. May 21, 2020) (internal citations removed); see also United States v. Stephenson , No. 3:05-CR-00511, 461 F.Supp.3d 864, 871 (S.D. Iowa May 21, 2020) ("Unqualified deference to the BOP no longer makes sense now that the First Step Act has reduced the BOP's role.").

For me to reduce Mr. White's sentence under compassionate release, I must find that Mr. White has exhausted his administrative remedies, has demonstrated "extraordinary and compelling reasons," is not a danger to the safety of others, and find that his release is consistent with § 3553(a) factors. See e.g., United States v. Howard , No. 4:15-CR-00018-BR, 2020 WL 2200855, at *2 (E.D.N.C. May 6, 2020) ; U.S.S.G. § 1B1.13 (2018). U.S.S.G.

a) Exhaustion of Administrative Remedies and Section 3582(c)(1)(A)

The First Step Act empowers criminal defendants to request compassionate release for "extraordinary and compelling reasons." 18 U.S.C § 3582(c)(1)(A)(i). But before they make such requests, defendants must ask BOP to do so on their behalf and give BOP thirty days to respond. See § 3582(c)(1)(A). Upon such a motion from BOP or from a defendant (after BOP denies the request or thirty days has elapsed since the request was filed), a court "may reduce the term of imprisonment...." 18 U.S.C. § 3582(c)(1)(A)(i).

The Government argued in the hearing that Mr. White's request for home confinement on April 9, 2020, was not a request for compassionate release. I determined at the June 9, 2020 hearing that Mr. White's request to the Warden on April 9, 2020 was indeed a request for compassionate release. See United States v. Nash , No. 19-40022-01-DDC, 2020 WL 1974305, at *1–2 (D. Kan. Apr. 24, 2020) ("Mr. Nash seeks to serve the remainder of his custody sentence in home confinement under this provision of the CARES Act. Doc. 42 at 1–2. The government responds that Mr. Nash's motion should be construed as a motion...