Opinion
Cr. 15-195 (GC)
07-21-2023
UNITED STATES OF AMERICA, v. KEITH BABBS, Defendant.
NOT FOR PUBLICATION
MEMORANDUM OPINION
GEORGETTE CASTNER, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court upon the Second Motion for Compassionate Release (the “Motion”) under 18 U.S.C. § 3582 (c)(1)(A) (the “First Step Act”) filed by pro se Defendant Keith Babbs (“Defendant”). (ECF No. 34.) The United States of America (the “Government”) did not oppose the Motion. The Court has carefully considered Defendant's submission and decides the matter without oral argument under Local Civil Rule 78., which applies to criminal cases under Local Criminal Rule 1.1. For the reasons stated herein, and other good cause shown, the Motion is DENIED without prejudice.
Citations to page numbers within record documents (i.e., “ECF No.”) refer to the page numbers stamped on the documents by the Court's e-filing system.
I. FACTUAL BACKGROUND
A. The Offenses
From March 2014 to December 2014, Defendant robbed or attempted to rob eight banks or credit unions throughout New Jersey. (ECF No. 22.) During several of these criminal acts, Defendant possessed or brandished a dangerous weapon. (See ECF No. 32 at 5[1] (Count One (stating “had his hand in his jacket pocket underneath his arm to make it appear that he was pointing a weapon at the teller[.]”)); 5 (Count Two); 5 (Count Three); 5-6 (Count Four); 6 (Count Five); and 6 (Count Eight).) An arrest warrant for Defendant was issued on January 6, 2015, and Defendant was arrested on January 8, 2015. (ECF Nos. 2, 16.) Defendant pled guilty to seven counts of bank robbery and one count of attempted bank robbery, all in violation of 18 U.S.C. §§ 2113(a) and 2. (ECF No. 26.) Defendant also pled guilty to a violation of supervised release arising from a previous criminal matter. See United States v Babbs, Cr. No. 13-462 (FLW).
On September 9, 2015, Defendant was sentenced to a prison term of 148 months. (ECF No. 28.) Defendant is currently serving out his sentence, and his projected release date is February 11,2027. Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited July 11,2023). Additionally, Defendant is currently fifty-one years old. Id.
On March 1, 2021, Defendant filed his first motion for a compassionate release under the First Step Act. (ECF No. 30.) Defendant purported to suffer from a variety of comorbidities, including without limitation hypertension, irregular heartbeat, obesity, high blood pressure, and high cholesterol. (Id. at 4.) Defendant alleged that the “CDC clearly listed my health conditions as risk factors for developing more severe Covid-19” and that “being confined to a cell with a cellmate, poor ventilation, and no outside recreation is very concerning.” (Id. at 1-2 (cleaned up).) The Court denied Defendant's first motion on July 16, 2021, because “Defendant's medical records do not support his early release,” and because Defendant's medical conditions “are actively being treated and controlled by the BOP medical personnel.” (ECF No. 33 at 4.)
Defendant filed this Motion, his second motion for a compassionate release under the First Step Act, on April 14, 2023. (ECF No. 34.) Defendant asserts two primary reasons why his sentence should be reduced: (1) Defendant's family circumstances and the need to take care of his seventy-year-old mother who has declining health and limited mobility, which amounts to an extraordinary and compelling circumstance; and (2) the § 3553(a) factors weigh in favor of his reduced sentence. (See generally ECF No. 34-1.)
D. LEGAL BACKGROUND
The First Step Act was enacted in December 2018. Pub. L. No. 115-391, 132 Stat. 5194 (2018). The First Step Act made one change to criminal statutes relevant to this case as it enables defendants to file motions for compassionate release on their own behalf. Before the First Step Act, the Bureau of Prisons (BOP) was the “sole arbiter of compassionate release motions.” See United States v. Brooker, 976 F.3d 228, 233 (2d Cir. 2020). Now, the BOP still has “the first opportunity to decide a compassionate release motion and may still bring a motion on a defendant's behalf.” Id.\ 18 U.S.C. § 3582(c)(1)(A).
III. DISCUSSION
A. Exhaustion of Administrative Remedies
Under the First Step Act, before a Court can evaluate the merits of a compassionate release motion, the defendant must first exhaust his or her administrative remedies. See 18 U.S.C. § 3582(c)(1)(A). Specifically, the First Step Act states in part:
[T]he 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[.][Id.]
Upon review of the available records and supporting documentation before the Court, it appears that Defendant exhausted his administrative remedies. Defendant filed a request on October 25, 2022, through a letter to the Warden of his facility, to have the BOP file a motion with the Court to reduce his sentence. (ECF No. 34-4 at 2.) However, Defendant's request was denied on October 26, 2022. (Id.) On December 8, 2022, Defendant filed another request to have the BOP file a motion with this Court to reduce his sentence. (ECF No. 34-5 at 2.) The BOP notified Defendant on December 21, 2022, that “his request for Administrative Remedy was closed and a response was provided to [Defendant] through [Defendant's] Unit Team.” (Id. at 3.) Defendant then submitted an appeal of the Warden's denial to the BOP's Regional Office on January 4, 2023. (Id. at 6-7.) Defendant alleges that he never received a response from the Regional Office. (ECF No. 34-1 at 5.) On February 28, 2023, Defendant submitted an appeal to the BOP's General Counsel, but according to Defendant, the General Counsel failed to respond to him. (Id. at 5.)
Defendant did not attach to this Motion a copy of his BP-9 related to his October 25, 2022, request to the Warden. Instead, Defendant attached a BP-9 to this Motion, which relates to Defendant's December 7, 2022 request to the Warden for a motion for a reduced sentence. (See ECF No, 34-5 at 2.) Within Defendant's December 7, 2022 request, Defendant asks for “a brief memorandum from the Regional Director with a brief explanation of the delay from the previously submitted BP-9 that was mishandled by staff.” (Id. (cleaned up).)
Pursuant to 28 C.F.R. § 542.15, “an inmate who is not satisfied with the Warden's response may submit an Appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response.” Also, “[a]n inmate who is not satisfied with the Regional Director's response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response.” Id. “Once filed, response shall be made by the Warden or CCM within 20 calendar days; by the Regional Director within 30 calendar days; and by the General Counsel within 40 calendar days. ... If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level,” 28 C.F.R. § 542.18. Here, Defendant timely filed an appeal within “20 calendar days” of the Warden's response. (ECF No. 34-5 at 1-2, 6-7.) Following Defendant's appeal to the Regional Director, Defendant alleges that the Regional Director did not respond within 30 calendar days. (ECF No, 34-1 at 5.) Defendant considered the absence of a reply as a denial, which he was permitted to do under 28 C.F.R. § 542.18. Defendant then appealed the Regional Director's “denial” to the BOP's General Counsel. Similarly, Defendant argues that the BOP's General Counsel did not respond within 40 days, which then resulted in Defendant filing this Motion on April 14,2023. (ECF Nos. 34, 34-1 at 5.)
Based on the record before the Court, the Court finds that Defendant exhausted his administrative remedies under 18 U.S.C. 3582 (c)(1)(A). Therefore, the Court must next evaluate whether Defendant has extraordinary and compelling reasons that warrant a reduced sentence.
B. Defendant's Extraordinary and Compelling Reasons