Nancy E. Brasel, United States District Judge

Bradley M. Endicott, DOJ-USAO, Saint Paul, MN, for Plaintiff.

ORDER ON EMERGENCY MOTION FOR SENTENCE REDUCTION PURSUANT TO 18 U.S.C. § 3852(c)(1)

Nancy E. Brasel, United States District Judge

This matter is before the Court upon defendant Mario Ariel Alvarado's motion for compassionate release under the First Step Act. (ECF No. 82 (citing 18 U.S.C. § 3852(c)(1)).) For the reasons that follow, the Court grants the motion.

BACKGROUND

In November 2018, Alvarado was charged with one count of conspiracy to distribute methamphetamine in violation of 28 U.S.C. §§ 841(a) & 846, and one count of possession to distribute methamphetamine in violation of 28 U.S.C. § 841(a). He pled guilty in March 2019 and was sentenced in November 2019. The Court sentenced him to eleven months in prison and, due to favorable reports of his pre-sentencing conduct, allowed him to self-report to the Bureau of Prisons ("BOP") in February 2020. He did so, and he is currently serving his sentence at FPC-Duluth.

In April, Alvarado moved for compassionate release under the First Step Act. 18 U.S.C. § 3852(c)(1). Alvarado has asthma, which puts him at increased risk for complications due to COVID-19. (See Mot. Ex. A.) While in prison, Alvarado has had no disciplinary incidents. In addition, he had no criminal history before his conviction to the instant offense. As required by the statute, he first requested the Warden of FPC Duluth to reduce his sentence under the First Step Act on April 9, 2020. His request was denied on April 17, 2020, and he administratively appealed that decision on April 27, 2020. (Id. Exs. D, E.) No further action has been taken by the BOP in this case. The government opposes Alvarado's request, arguing that he has not established "extraordinary and compelling reasons" to grant relief and that the § 3553(a) sentencing factors weigh against relief.

ANALYSIS

Under 18 U.S.C. § 3582(c)(1)(A), "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," a court may reduce such defendant's sentence after considering the "factors set forth in section 3553(a)," if it finds that "extraordinary and compelling circumstances warrant such a reduction," and that "such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). Before a defendant may seek such relief from a district court, however, he must have "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or [30 days must have elapsed] from the receipt of such a request by the warden of the defendant's facility." Id. More than 30 days have elapsed since Alvarado made his request to the BOP; his motion is properly before the Court.

In determining whether "extraordinary and compelling circumstances" warranting relief exist, the court must consider whether a sentence reduction is consistent with applicable policy statements issued by the United States Sentencing Commission. Id. The Sentencing Commission has indicates there are extraordinary and compelling circumstances where the defendant is "suffering from a serious physical or medical condition ... 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."1 U.S.S.G. § 1B1.13(1)(A) & cmt. n.1(A). The defendant must also not be a danger to the community and the reduction must be consistent with the Commission's policy statement. Id. § 1B1.13(2)–(3).

The Court finds the recent decision in United States v. Hernandez instructive. No. 18-CR-834-04 (PAE), 451 F.Supp.3d 301 (S.D.N.Y. Apr. 2, 2020). In Hernandez , the defendant had asthma and was serving his sentence in a minimum-security prison. The court granted his request for compassionate release finding the circumstances present were extraordinary and compelling:

The COVID-19 pandemic is extraordinary and unprecedented in modern times in this nation. It presents a clear and present danger to free society for reasons that need no elaboration. COVID-19 presents a heightened risk for incarcerated defendants like Mr. Hernandez with respiratory ailments such as asthma. The Centers for Disease Control warns that persons with asthma are at high risk of serious illness if they contract the disease. Further, the crowded nature of municipal jails such as the facility in which Mr. Hernandez is housed present an outsize[d] risk that the COVID-19 contagion, once it gains entry, will spread. And, realistically, a high-risk inmate who contracts the virus while in prison will face challenges in caring for himself.

Id. at 303–04, see generally United States v. Stephenson , NO. 3:05-CR-00511, 461 F.Supp.3d 864 (S.D. Iowa May 21, 2020) (outlining the considerations for granting compassionate release and granting compassionate release because, among other things, the defendant was at increased risk of COVID-19 complications due to underlying medical conditions). The same considerations are present in Alvarado's claim. Alvarado has been diagnosed with asthma and prescribed an inhaler to be used every four hours as needed for coughing, wheezing, or shortness of breath. (Mot. Ex. A.) The Court accordingly finds, in its discretion, and in light of the heightened medical risk to Alvarado by the COVID-19 pandemic, that there are extraordinary and compelling reasons to reduce Alvarado's sentence.

This conclusion is not inconsistent with the application of the § 3553(a) factors. Prior to his offense of conviction, Alvarado had no criminal history; he does not present a danger to the community; he has a plan for when he is released, which includes re-enrolling in college; and he has a supportive family with whom he will live once he is released (and whose residence has already been approved by the United States Probation Office). Other courts considering similar factors have also found the § 3553(a) factors are satisfied to grant compassionate release. See, e.g., United States v. Wen , No. 6:17:CR-96173 EAW, 454 F.Supp.3d 187, 196–97 (S.D.N. Y Apr. 13, 2020) (granting compassionate release as not inconsistent with § 3553(a) factors where defendant had no prior criminal history, was not a danger to community, would live with supportive family after release, and residence had been approved by probation office).

When a court grants a sentence reduction, it "may impose a term of ... supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment." 18 U.S.C. § 3582(c)(1)(A). In doing so, the court may modify an existing term of supervised release to add a period of home detention, only if it finds that home detention is a "substitute for imprisonment." U.S.S.G. § 5F1.2 ; see 18 U.S.C. § 3583(e)(2) (providing that the court may "extend a term of supervised release if less than the maximum authorized term was previously imposed" and "modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release"). The Court finds home detention is a substitute for imprisonment in this case. See United States v. Campagna , ––– F.Supp.3d ––––, 2020 WL 1489829 (S.D.N.Y. Mar. 27, 2020) (finding home detention was a substitute for imprisonment satisfying the § 3553(a) factors). The Court therefore orders Alvarado's release from custody and requires him to serve the first eight months of supervised release in home detention.

CONCLUSION

Based on the foregoing and on all the files, records, and proceedings herein, defendant's emergency motion for sentence reduction under 18 U.S.C. § 3582 is GRANTED. Accordingly, IT IS HEREBY ORDERED THAT:

1. Under 18 U.S.C. § 3582(c)(1)(A)(i), the Court reduces the Alvarado's term of incarceration such that he is released from the custody of the Bureau of Prisons;

2. Alvarado is placed on supervised release and the Court re-imposes the terms and conditions of supervised release as set forth in the November 25, 2019 Judgment (ECF No. 80) with the following amendments:

a. The defendant shall serve the first eight (8) months of supervised release on home detention, at the

defendant's parent's home, which has previously been approved by the United States Probation Office;

b. During home detention, the defendant shall be restricted to his residence at all times except for: employment; education; religious services; medical, substance abuse or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities as pre-approved by the probation officer;

c. In its discretion, the United States Probation Office may utilize appropriate location monitoring technology to ensure defendant's compliance with home incarceration; and

3. The execution of this order is stayed for ten (10) days to allow the Bureau of Prisons and U.S. Probation an opportunity to make the necessary arrangements for Alvarado's release.