JAMES L. ROBART United States District Judge

ORDER DENYING MOTION FOR COMPASSIONATE RELEASE

I. INTRODUCTION

Before the court is Defendant Joseph L. Garcia's motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(1), commonly referred to as a motion for compassionate release. (See Mot. (Dkt. # 169); see also Supp. Mot (Dkt. # 178); Reply (Dkt. # 189); Supp. Reply (Dkt. # 193).) Mr. Garcia's motion is premised on his assertion that he is at a high risk for developing significant complications from Coronavirus Disease 2019 ("COVID-19") should he contract the disease while incarcerated. (See Supp. Mot. at 1-2 ("Mr. Garcia presents extraordinary and compelling reasons for compassion based on his age and combined medical conditions causing his heightened risk to COVID-19 and his exposure to the serious COVID-19 outbreak at [Federal Correctional Institution ("FCI")] Fort Dix where he is serving his sentence . . . .").) Defendant United States of America ("the Government") opposes Mr. Garcia's motion. (See Resp. (Dkt. # 184).) The court has considered Mr. Garcia's motion, the parties' submissions filed in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES Mr. Garcia's motion.

II. BACKGROUND

On February 16, 2013, at 2:45 a.m., Whatcom County Sheriff's Office deputies conducted a traffic stop on Mr. Garcia. (PSR (Dkt. # 144) (sealed) ¶ 5.) The deputies impounded Mr. Garcia's vehicle. (See id.) On February 19, 2013, after obtaining a search warrant for the vehicle, officers located 445.1 net grams of methamphetamine (99.9% pure) under the front passenger seat. (Id.) On February 27, 2013, officers served a search warrant on Mr. Garcia's business and his mobile home in Bellingham, Washington. (Id. ¶ 6.) At Mr. Garcia's business, officers located two methamphetamine pipes, two digital scales, and a list of known drug users and sellers. (Id.) In his home, officers located a methamphetamine pipe, two jars of marijuana, expired medical marijuana paperwork, a pound of drying marijuana buds and stems, and several scales. (Id.) The officers also found several bags of packaged marijuana outside the home in a bag. (Id.) The officers located an indoor marijuana growing operation in another building and seized 117 marijuana plants. (Id.)

On February 28, 2013, Mr. Garcia turned himself in to the police and officers booked him into Whatcom County Jail. (Id.) During an interview, he told officers he had the ability to order 100 kilograms of marijuana, methamphetamine, or heroin from Mexican cartels. (Id.) Mr. Garcia later stated that he could purchase up to 200 pounds of methamphetamine, cocaine, or heroin with just a phone call to the cartel. (Id.)

On April 2, 2014, during a stipulated facts trial, the court found Mr. Garcia guilty of possession of methamphetamine with intent to distribute. (Verdict (Dkt. # 142) at 1; see also 4/2/14 Min. Entry (Dkt. # 143).) On July 7, 2014, the court sentenced Mr. Garcia 135 months of imprisonment pursuant to his conviction for one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). (See Judgment (Dkt. # 149).) Mr. Garcia is serving his sentence at FCI Fort Dix, and is currently scheduled to be released on October 1, 2022. (Resp. at 2.)

Prior to his 2014 conviction, Mr. Garcia's criminal record spanned decades. (See PSR ¶¶ 21-39.) His criminal history begins at age 14 when he was arrested for obstructing a law enforcement officer. (Id. ¶ 21.) Later that same year, he was convicted of possession of alcohol and drug paraphernalia. (Id. ¶¶ 22-23.) Indeed, throughout his teenage years, Mr. Garcia was repeatedly arrested and convicted for possession of alcohol or other intoxicants. (Id. ¶¶ 22-32.) At age 16, however, Mr. Garcia's offenses began to escalate, and he was convicted of disorderly conduct and assault in the second degree. (Id. ¶¶ 33-34.)

By age 20, Mr. Garcia began to engage in drug offenses when he was arrested and convicted of possession of methamphetamine by a prisoner. (See id. ¶ 36.) At age 22, he is arrested and convicted of unlawful possession of methamphetamine with intent to deliver. (Id. ¶ 37.) The court dismissed charges for possession of a stolen firearm and unlawful possession of a firearm in the first degree. (Id.) At the time of his arrest, officers searched his vehicle and located a stolen Ruger 9mm gun, three loaded magazines, ammunition, and almost one ounce of methamphetamine, drug packaging materials, drug paraphernalia, and $2,223.00 in cash. (Id.)

At age 25, Mr. Garcia was arrested and convicted for unlawful possession of a firearm in the first degree and unlawful possession of more than 40 grams of marijuana. (Id. ¶ 38.) When officers searched Mr. Garcia's vehicle following an altercation with his wife, they discovered a loaded semi-automatic handgun and a duffle bag containing 167 gross grams of marijuana. (Id.) During Mr. Garcia's supervision following these convictions, he was cited for several violations including failing to complete chemical dependency treatment and possessing controlled substances. (Id.) He also tested postive for methamphetamine on December 13, 2011. (Id.)

Finally, at age 26, Mr. Garcia was stopped for a traffic violation and searched for officer safety due to his criminal history. (Id. ¶ 39.) The officer discovered .8 grams of methamphetamine, .5 grams of marijuana, and a methamphetamine pipe. (Id.) Mr. Garcia was arrested and later convicted of attempted possession of methamphetamine and unlawful possession of marijuana. (Id.)

In addition to his criminal history in the United States, on November 22, 2001, Mr. Garcia was arrested by the Royal Canadian Mounted Police in British Columbia, Canada, on two counts of possessing unauthorized firearms. (Id. ¶ 41.) At the time of his sentencing on his current conviction, there was an outstanding warrant for Mr. Garcia's arrest in Canada. (Id.)

Mr. Garcia is 41 years old. (See Supp. Mot. at 7; Resp. at 3.) Mr. Garcia asserts that he is at high risk for developing severe or more serious complications if he contracts COVID-19 because he is Hispanic and because he is obese, has glaucoma, and suffers from mental illness. (Supp. Mot. at 7-10.) Mr. Garcia also states that he was diagnosed with asthma as a child but has not used an inhaler for the last 10 years. (Id. at 2.) The Government points out that Mr. Garcia's medical records at FCI Fort Dix, dating back to 2017, show no other health issues. (Resp. at 3, see also Gov't Ex. A (Dkt. # 186) (sealed) (attaching Mr. Garcia's medical records).) Further, the Government argues that none of the risk factors Mr. Garcia relies upon are recognized by the Centers for Disease Control ("CDC") as putting individuals at higher risk for severe illness from COVID-19. (Resp. at 9-10.)

In his supplemental reply, Mr. Garcia notes that although the CDC formerly defined obesity that increased COVID-19 risk as having a body mass index ("BMI") of 40 or more, the CDC recently redefined the COVID-19 obesity risk as having a BMI or 30 or more. (See Supp. Reply at 1 (citing https://www.cdc.gov/coronavirus/2019- ncov/need-extra-precautions/people-withmedical-conditions.html#obesity (last visited July 7, 2020)).) The Government does not dispute that Mr. Garcia has a BMI greater than 30. (See Resp. at 10 (acknowledging Mr. Garcia's BMI of 30.7).) In a reply brief in support of a stay that the Government filed in the Supreme Court in Williams v. Wilson, No. 19A1041, a civil lawsuit involving FCI - Elkton, the United States asserted the position that an "inmate's diagnosis with a medical condition that the CDC has identified as a risk factor for COVID-19, and from which the inmate is not expected to recover, presents an 'extraordinary and compelling reason[]' that may warrant compassionate release if other criteria are also met." (See Supp. Resp. at 2, Ex. AA.) Mr. Garcia argues that this admission is binding on the Government here. (See id.)

The court now considers Mr. Garcia's motion for compassionate release.

III. ANALYSIS

A court generally may not correct or modify a prison sentence once it has been imposed, unless permitted by statute or by Federal Rule of Criminal Procedure 35. United States v. Penna, 315 F.3d 509, 511 (9th Cir. 2003); see also Dillon v. United States, 506 U.S. 817, 824-25 (2010) ("'[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment' and may not be modified by a district court except in limited circumstances.") (quoting 18 U.S.C. § 3582(b)). One such statute is 18 U.S.C. § 3582(c)(1), which governs motions for compassionate release. See United States v. Fuller, No. CR17-0324JLR, 2020 WL 1847751, at * 2 (W.D. Wash. Apr. 13, 2020). Until recently, only the Bureau of Prisons ("BOP") could bring a motion for the compassionate release of a prisoner, but the First Step Act of 2018 amended 18 U.S.C. § 3582(c)(1) so that federal prisoners may now seek such release directly from the court. The statute now provides the court with authority to reduce a sentence upon the motion of an inmate if three conditions are met: (1) the inmate has either exhausted his or her administrative rights to appeal BOP's failure to bring such a motion on the inmate's behalf or has waited until 30 days after the applicable warden has received such a request; (2) the inmate has established "extraordinary and compelling reasons" for the requested sentence reduction; and (3) the reduction is consistent with the United States Sentencing Commission's policy statement. See 18 U.S.C. § 3582(c)(1)(A)(i); see also Riley v. United States, No. C19-1522JLR, 2020 WL 1819838, at *5 (W.D. Wash. Apr. 10, 2020). Here, the court need not consider whether Mr. Garcia has met the second condition of establishing "extraordinary and compelling reasons" for a reduction in his sentence because he has not met either of the other two criteria.

A. Exhaustion of Administrative Remedies

The court first considers whether Mr. Garcia has exhausted his administrative remedies. Mr. Garcia "bears the burden of showing that he exhausted his administrative rights with the BOP before filing his compassionate-release motion." United States v. Van Sickle, No. CR18-0250JLR, 2020 WL 2219496, at *3 (W.D. Wash. May 7, 2020) (citing United States v. Johnson, No. 4:00-CR-40023, 2020 WL 1434367, at *1 (W.D. Ark. Mar. 24, 2020) and United States v. Davis, No. 2:15-CR-20067-SHM, 2019 WL 6898676, at *1 (W.D. Tenn. Dec. 18, 2019)); see also United States v. Greenhut, No. 2:18-CR-00048-CAS-1, 2020 WL 509385, at *1 (C.D. Cal. Jan. 31. 2020) (holding that a // defendant bears the burden of establishing his or her entitlement to a reduced sentence) (citing United States v. Sprague, 135 F.3d 1301, 1306-07 (9th Cir. 1998)).

Despite the Government's apparent concession that Mr. Garcia has exhausted his administrative remedies concerning his second motion for compassionate release (see Resp. at 8), the court disagrees as a matter of law. The Government states that because "30 days have passed since [Mr. Garcia's] request was made to the warden," it does not dispute that he "satisfied the exhaustion requirement." However, Section 3582(c)(1)(A) provides that a defendant may only file a motion for compassionate release after (1) fully exhausting his "administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf" or (2) a "lapse of 30 days" from the warden's receipt of the defendant's request. 18 U.S.C. § 3582(c)(1)(A). The statute does not allow a defendant to short-circuit the BOP's administrative procedures simply by waiting 30 days after filing the request if the warden timely acted on the request. United States v. Miller, No. 2:16-CR-00269-BLW, 2020 WL 113349, at *2 (D. Idaho Jan. 8, 2020), reconsideration denied, No. 2:16-CR-00269-BLW, 2020 WL 2202437 (D. Idaho May 6, 2020). "In this context 'lapse' clearly means that the warden must fail to act on the defendant's request for a period of 30 days." Id. (citing Lapse, Black's Law Dictionary (11th ed. 2019)). "The 30-day period gives the warden time to respond to the inmate's request but prohibits the warden from sitting on the request beyond 30 days." United States v. Sims, No. CR19-0262JLR, 2020 WL 2838611, at *4 (W.D. Wash. June 1, 2020).

Here, Mr. Garcia admits that he submitted two requests for compassionate release to his facility on April 28, 2020, and April 29, 2020, respectively. (Supp. Mot. at 3, Ex. A.) He also admits that he received responses to both his requests on May 4, 2020, and May 18, 2020, respectively. (See id.) Both responses asked Mr. Garcia to provide additional information, and both responses also advised Mr. Garcia that if he was "dissatisfied," he could "appeal the decision through the Administrative Remedy process." (See id., Ex. A at 4, 5.) On May 21, 2020, Mr. Garcia attempted to appeal both the May 4, 2020, and the May 18, 2020, responses to his requests for compassionate release. (See id. at 7-11.) On May 22, 2020, the Administrative Remedy Coordinator at FCI Fort Dix provided a "Rejection Notice" to Mr. Garcia concerning his attempted appeal. (Id. at 6.) In the Rejection Notice, the Administrative Remedy Coordinator advised Mr. Garcia that his appeal was "being rejected and returned" for three reasons. (Id.) First, he needed to submit the appeal through his counselor or "other authorized person" at the facility. (Id.) Second, he needed to submit the correct number of copies of his appeal. (Id.) Finally, he needed to attach to his appeal not only his requests for compassionate release to that he had submitted to the warden but the warden's response as well. (Id.) At this point, there is no evidence in the record that Mr. Garcia made the required corrections or attempted to resubmit his appeal in the proper format. (See generally Dkt.) Thus, the court concludes that Mr. Garcia failed to fully exhaust his administrative appeal rights. Mr. Garcia may not simply short-circuit the administrative process by filing his motion with the court within 30 days of his request to the Warden. Where the Warden has timely responded to a prisoner's request within 30 days, that prisoner must exhaust his administrative appeal rights before filing a motion with the court. See Sims, 2020 WL 2838611, at *4.

The court also recognizes that some courts have interpreted 18 U.S.C. § 3582(c)(1) to mean that a motion for compassionate release may be submitted to the sentencing judge once 30 days have passed after a warden's receipt of a defendant's request regardless of whether the warden acted upon the request within 30 days. See, e.g., United States v. Peuser, No. 8:17CR60, 2020 WL 2732088, at *1 & n.1 (D. Neb. May 26, 2020) (recognizing the alternate interpretation but stating that most courts agree that if the Warden denies a request within 30 days, the defendant must exhaust his administrative remedies and citing myriad cases); United States v. Arthaloney, No. 8:18CR127, 2020 WL 2571171, at *1 & n.1 (D. Neb. May 21, 2020) (same). Nevertheless, most courts have interpreted the language to mean that a motion for compassionate release may be submitted to the sentencing judge if 30 days have lapsed and the warden failed to respond, but if the warden denied the request within 30 days of receipt, the defendant must exhaust his administrative remedies within the BOP before filing a motion with the court. See Peuser, 2020 WL 2732088, at *1; Arthaloney, 2020 WL 2571171, at *1. This court is persuaded that the majority's interpretation of 18 U.S.C. § 3582(c)(1) is the correct one.

"This court and other district courts in the Ninth Circuit that have considered [the exhaustion] issue have nearly unanimously concluded that failure to exhaust administrative remedies is fatal to a compassionate release motion even in light of the urgency created by COVID-19." Sims, 2020 WL 2838611, at *4 (citing Van Sickle, 2020 WL 2219496, at *4 and Fuller, 2020 WL 1847751, at *2 (citing numerous cases)). // Accordingly, the court DENIES Mr. Garcia's motion for compassionate release for failure to exhaust his administrative remedies.

B. The United States Sentencing Commission's Policy Statement

In addition, however, even if Mr. Garcia did exhaust his administrative remedies, Mr. Garcia's motion is deficient for a second reason. As noted above, before granting compassionate release, the court must find that the defendant's release is consistent with the United States Sentencing Commission's policy statement. See 18 U.S.C. § 3582(c)(1)(A)(i); see also Riley, 2020 WL 1819838, at *5. The Sentencing Commission's policy statement is found in the United States Sentencing Guidelines ("USSG") § 1B1.13. The policy statement provides in relevant part:

[T]he court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court 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.

In determining whether a prisoner continues to be a danger to the safety of any other person or to the community, Subsection (2) of USSG § 1B1.13 points the court to the factors listed in 18 U.S.C. § 3142(g). See USSG § 1B1.13. Under Section 3142(g), relevant factors that the court should consider here include: the nature and circumstances of the crime charged, including whether the offense involves a controlled substance, the defendant's history and characteristics, including his character, his physical and mental condition, his family and community ties, his employment, his past conduct, his history relating to drug and alcohol abuse, and his criminal history. See 18 U.S.C. § 3142(g). As // discussed below, a review of these factors precludes the court from finding that Mr. Garcia is not a danger to the safety of others and the community.

First, the court considers the nature and circumstances of the crime charged. At the time he was interviewed regarding the offense for which he is currently incarcerated, Mr. Garcia stated that he could order a substantial amount of controlled substances, such as methamphetamine, cocaine, or heroin with just a phone call to a Mexican cartel. (PSR ¶ 6.) The fact that the crime for which Mr. Garcia is presently serving time involved the possession of a controlled substance with the intent to distribute weighs against a finding that Mr. Garcia no longer poses a danger to the community. See 18 U.S.C. § 3142(g). Further, although Mr. Garcia's statement concerning his access to Mexican cartels occurred more than seven years ago (see PSR ¶ 6), the court has no reason to believe that Mr. Garcia could not and would not attempt to refresh those connections.

In addition, Mr. Garcia's history, including his criminal history, his past conduct, and his history relating to drug and alcohol abuse, all weigh against finding that he no longer poses a danger to the safety of others or the community. See 18 U.S.C. § 3142(g). Mr. Garcia has spent decades of his life incarcerated for drug related offenses. (See PSR ¶¶ 21-39.) Incarceration has not deterred further criminal conduct. (See id.) His abuse of controlled substances and alcohol dates back to his teenage years and has continued unabated whenever he is not incarcerated. (See id.) In addition to his numerous offenses related to controlled substances, Mr. Garcia has also been arrested and convicted of firearm offenses—both in the United States and in Canada. (See id. ¶¶ 37-38, 41.) Based upon the foregoing analysis, the court finds that Mr. Garcia would be a danger to the community if he were released. Accordingly, he cannot satisfy the requirements for compassionate release, and the court DENIES his motion on this independent ground as well.

IV. CONCLUSION

For the reasons set forth above, the court DENIES Mr. Garcia's motion for compassionate release (Dkt. # 169).

Dated this 8th day of July, 2020.

/s/_________

JAMES L. ROBART

United States District Judge