Opinion
2:17-cr-00180-KJM
01-18-2022
United States of America, Plaintiff, v. Benjamin Andrade, Defendant.
ORDER
Defendant Benjamin Andrade moves to reduce his sentence to time served under 18 U.S.C. § 3582(c)(1)(A). See generally Mot., ECF No. 53. He argues his age and medical conditions put him at increased risk for severe COVID-19 if infected and that this risk, when combined with the difficulty of preventing infections within the prison, is an “extraordinary and compelling” reason to reduce his sentence under 18 U.S.C. § 3582(c)(1)(A)(i). See Mot. at 3-9. The United States opposes, briefing is complete, and the matter was submitted without oral argument. See generally Opp'n, ECF No. 57; Reply, ECF No. 59.
Mr. Andrade is fully vaccinated against COVID-19 and has recovered from a previous case of COVID-19. See generally Medical Records, Opp'n Ex. 2 (under seal). The Ninth Circuit has not decided in a published opinion whether defendants who are vaccinated against the virus that causes COVID-19 can obtain relief under § 3582(c)(1)(A) based on a risk of severe COVID-19. The Circuit has, however, affirmed the denial of a motion for compassionate release brought by a defendant who, like Mr. Andrade, was fully vaccinated and had previously recovered from COVID-19, but its decision is not precedential. See United States v. Decano, No. 21-10099, 2021 WL 4922348 (9th Cir. Oct. 21, 2021) (unpublished), aff'g No. 07-0608, 2021 WL 1095979 (D. Hawaii Mar. 22, 2021).
The government's and the defendant's motions to file confidential medical information under seal are granted. See, e.g., Chester v. King, No. 16-01257, 2019 WL 5420213, at *2 (E.D. Cal. Sep. 10, 2019) (“This court, and others within the Ninth Circuit, have recognized that the need to protect medical privacy qualifies as a ‘compelling reason' for sealing records.”).
The Sixth and Seventh Circuits, by contrast, have addressed this question in precedential opinions, and they have held that when defendants have access to a vaccine, the risk of severe COVID-19 is not normally an “extraordinary and compelling” reason to reduce a sentence under § 3582(c)(1)(A). See United States v. Lemons, 15 F.4th 747, 751 (6th Cir. 2021) (“[A] defendant's incarceration during the COVID-19 pandemic-when the defendant has access to the COVID-19 vaccine-does not present an ‘extraordinary and compelling reason' warranting a sentence reduction.”); United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021) (“[F]or the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling' reason for immediate release.”).
A number of other circuits have reasoned similarly, but not in precedential opinions. See, e.g., United States v. Aldissi, No. 20-14483, 2022 WL 16488, at *2 (11th Cir. Jan. 3, 2022) (per curiam) (unpublished) (affirming denial of motion for compassionate release because, among other reasons, defendant's “vaccination against the virus reduce[d] his risk both of contracting it and of suffering severe symptoms if he contracts it”); United States v. Battle, No. 21-2151, 2021 WL 4550925, at *2 (3d Cir. Oct. 5, 2021) (per curiam) (unpublished) (affirming denial of relief under § 3582 because, among other reasons, defendant had been vaccinated and did not show he was at greater risk of infection); see also United States v. Hald, 8 F.4th 932, 936 n.2 (10th Cir. 2021) (“As of oral argument in May 2021, [the defendants] had either been vaccinated or been offered the opportunity to be vaccinated against COVID-19. Although we do not consider this development in resolving their appeals, there is certainly room for doubt that Defendants' present circumstances would support a finding of ‘extraordinary and compelling reasons.'”), pet. cert. filed, No. 21-6594 (Dec. 15, 2021). It appears district courts around the United States are generally in agreement. See, e.g., United States v. Baeza-Vargas, 532 F.Supp.3d 840, 843-45 (D. Ariz. 2021) (collecting authority).
In the absence of binding authority, this court will apply, as it has before, the apparent majority rule: a rebuttable presumption that if a defendant has been vaccinated, then the risk of severe harm from COVID-19 is not an “extraordinary and compelling” reason under § 3582(c)(1)(A)(i). See United States v. Smith, 538 F.Supp.3d 990, 998-99 (E.D. Cal. 2021). A defendant can rebut this presumption by showing an elevated personal risk of severe harm despite vaccination. Id. In United States v. Mathews, for example, the defendant offered the uncontradicted opinion of an infectious disease specialist, who had concluded the defendant faced an increased risk of reinfection from a SARS-CoV-2 variant that was then circulating in the community where he was incarcerated. See __ F.Supp.3d __, No. 15-0118, 2021 WL 3883735, at *3-7 (E.D. Cal. Aug. 31, 2021).
Mr. Andrade has not offered evidence of an increased personal risk of infection and serious illness despite his vaccination against and previous recovery from COVID-19. He argues only that his age (55) and medical conditions (hypertension, “overweight” or “obese” body mass index, diabetes, and osteoarthritis) have been known to cause unusually severe cases of COVID-19 among those who are not vaccinated and that COVID-19 is difficult to control in prisons. See Mot. at 3-9. The record includes no evidence that vaccination will not protect Mr. Andrade against severe harm from COVID-19. Nor has Mr. Andrade claimed or proven that the facility where he is currently incarcerated is experiencing a surge in infections caused by a SARS-CoV-2 variant. His motion is not supported by the necessary “extraordinary and compelling reasons.” 18 U.S.C. § 3582(c)(1)(A)(i).
The motion for compassionate release is thus denied without prejudice to renewal if Mr. Andrade can offer reliable evidence-such as reports from health authorities, expert opinions, or scientific studies-showing he is at increased personal risk of severe COVID-19 despite his vaccination and previous recovery.
The parties' requests to file under seal at ECF Nos. 54 and 58 are granted.
This order resolves ECF Nos. 53, 54, and 58.
IT IS SO ORDERED.