Opinion
6:18-CR-06015 EAW
2020-07-21
UNITED STATES of America, v. Bryan DAY, Defendant.
Richard A. Resnick, Sean C. Eldridge, U.S. Attorney's Office, Rochester, NY, for United States of America. David Rothenberg, Rothenberg Law, J. Matthew Parrinello, The Parrinello Law Firm, LLP, Rochester, NY, for Defendant.
Richard A. Resnick, Sean C. Eldridge, U.S. Attorney's Office, Rochester, NY, for United States of America.
David Rothenberg, Rothenberg Law, J. Matthew Parrinello, The Parrinello Law Firm, LLP, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge I. INTRODUCTION
Pending before the Court is a motion filed by defendant Bryan Day (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 275). For the reasons set forth below, Defendant's motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2017, Defendant was charged by Criminal Complaint with wire fraud, conspiracy to commit wire fraud, and conspiracy to commit money laundering. (Dkt. 1). The underlying facts related to a fraudulent scheme involving toner obtained from Xerox Corporation. A superseding indictment was returned on April 3, 2018, charging Defendant with one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349, 61 counts of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). (Dkt. 71). Four other defendants were similarly charged, including brothers Kyle and Jason Haynes.
On November 2, 2018, Defendant appeared before the undersigned and pleaded guilty pursuant to a plea agreement to count 1 of the superseding indictment and a one-count information charging filing a false tax return in violation of 26 U.S.C. § 7206(1). (Dkt. 112; Dkt. 122). On July 25, 2019, after calculating an offense level of 24 and a criminal history category of I, resulting in a recommended incarceration sentence of 51 to 63 months, the Court imposed a below-Guidelines sentence of 27 months in prison. (Dkt. 240; Dkt. 244; Dkt. 245; Dkt. 259). The same offense level and criminal history category were calculated for co-defendant Kyle Haynes, who received a 30-month sentence. (Dkt. 248; Dkt. 249).
Defendant surrendered for his sentence on September 10, 2019. (Dkt. 275-1 at ¶ 17). Defendant, who is 40 years old (Dkt. 232 at 3), is currently housed at Federal Prison Camp Pensacola ("FPC Pensacola") in Pensacola, Florida, and he is scheduled to be released on August 8, 2021. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited July 20, 2020). Apparently Defendant has a Residential Reentry Center placement scheduled for February 10, 2021. (Dkt. 279 at 2). According to a Bureau of Prisons ("BOP") website, there are three staff members at FPC Pensacola who have tested positive for COVID-19, but no inmates. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited July 20, 2020). However, that same website indicates that only eight inmates have been tested for COVID-19. Id.
On July 2, 2020, Defendant filed the pending motion for compassionate release. (Dkt. 275). In support of his motion, Defendant cites to the COVID-19 pandemic; the fact that co-defendant Kyle Haynes has been released to "RRM Orlando" by the BOP while Defendant (who this Court assessed as deserving a lesser sentence than Kyle Haynes) remains imprisoned; the fact that this Court, with no opposition from the Government, granted a reduction in the 6-month prison sentence imposed on Jason Haynes (see Dkt. 271); Defendant's alleged greater risk of becoming seriously ill from COVID-19 due to his asthma ; the danger at FPC Pensacola from inmates leaving the facility pursuant to a UNICOR program and then returning with possible infections; and the lack of adequate testing at the facility (Dkt. 275-1). Defendant contends that he has made several requests for compassionate release at the facility: a handwritten note to his case manager on April 15, 2020, to which he never received a response; an electronic request to the Warden on May 13, 2020 (see Dkt. 275-3), to which he also never received a response; multiple letters sent by his girlfriend to the Warden who responded that Defendant was not being released due to discretionary factors; and a letter from his counsel dated June 29, 2020 (Dkt. 275-1 at ¶¶ 51-57). On July 11, 2020, Defendant submitted a supplemental submission in support of his motion, outlining the increase of COVID-19 cases in Florida and further communications with the Warden. (Dkt. 277). Five days later, Defendant submitted a further supplemental submission. (Dkt. 278).
It is not clear whether Kyle Haynes is serving the remainder of his sentence on home confinement or in a residential reentry center.
Defendant's asthma was not referenced in the Presentence Investigation Report. (See Dkt. 232 at ¶¶ 131-32). However, Defendant has submitted medical records supporting a diagnosis of asthma. (Dkt. 275-2). The severity of Defendant's asthma is unclear. Defendant states in his motion that other than a three-week period of upper respiratory issues in 2019, he was not experiencing any persistent symptoms associated with his asthma at the time the Presentence Investigation Report was prepared. Notably, according to the Centers for Disease Control and Prevention ("CDC"), "[h]aving moderate-to-severe asthma may increase your risk for severe illness from COVID-19," Coronavirus Disease 2019 (COVID-19): People of Any Age with Underlying Medical Conditions , CDC (July 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html, but there is "mixed evidence" as to whether the condition puts an individual at increased risk of serious illness from COVID-19, Coronavirus Disease 2019 (COVID-19): Evidence Used to Update the List of Underlying Medical Conditions that Increase a Person's Risk of Severe Illness from COVID-19 , CDC (July 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html.
The Government filed a memorandum in opposition to Defendant's motion on July 16, 2020, arguing that Defendant had failed to exhaust his administrative remedies because "apparently the BOP considers the defendant attorney's letter to the BOP dated June 29, 2020, as the defendant's application for compassionate release under 18 U.S.C. § 3582(c) on the basis of COVID." (Dkt. 279 at 3). The Government also contends that Defendant's medical records from the BOP do not reference any problems or issues Defendant has had with asthma since his incarceration commenced (id. at 6), and that FPC Pensacola is effectively managing the impacts of the pandemic (id. at 6-7).
In addition, the United States Probation Office ("USPO") submitted a memorandum to the Court on July 16, 2020, in connection with Defendant's motion, expressing the view that a reduction in his sentence was not warranted. (Dkt. 280).
III. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the 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 (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.
The Government contends that Defendant has not satisfied the administrative exhaustion requirement because "the BOP considers the defendant attorney's letter to the BOP dated June 29, 2020, as the defendant's application for compassionate release under 18 U.S.C. § 3582(c) on the basis of COVID." (Dkt. 279 at 3). The Government fails to address Defendant's evidence that he previously submitted a request to the Warden by email dated May 13, 2020 (for which he never received a response). (See Dkt. 275-3; Dkt. 275-1 at ¶ 54). In other words, without explanation, the Government's position requires the Court to disregard Defendant's May 13th email. Instead, according to the Government, the Court must dismiss the motion because it will not be until July 29 (another eight days) that 30 days will have lapsed since his counsel's letter to the Warden dated June 29, 2020.
This Court has previously criticized the Government's insistence "in the face of a once-in-a-century pandemic, on opposing motions for compassionate release on technical grounds," United States v. McIndoo , ––– F. Supp. 3d ––––, No. 1:15-CR-00142 EAW, 2020 WL 2201970, at *9 (W.D.N.Y. May 6, 2020), and the Court continues to be frustrated by the Government's current tactics. The unjust disparity caused by the Government's approach is highlighted in this case where the Government previously took the position with respect to co-defendant Jason Haynes that the administrative exhaustion requirement could be waived (Dkt. 270), but here, where more than 30 days have lapsed since Defendant submitted his email to the Warden, the Government takes the position that the Court should deny the motion for failure to exhaust and only rely on Defendant's attorney's letter. As another judge in this District appropriately observed:
The most the government could stand to gain by holding steadfast to the exhaustion period would be to forestall the inevitable, to say nothing of the lives it would jeopardize and the resources it would waste in the meantime by litigating the issue and requiring courts to issue two decisions in many cases.
United States v. Bess , 455 F.Supp.3d 53, No. 16-CR-156 (W.D.N.Y. Apr. 22, 2020).
The Court disagrees with the Government that administrative exhaustion bars Defendant's requested relief. Defendant has submitted evidence that he requested compassionate release from the Warden on May 13, 2020, and the Government has not even attempted to explain why that email is not a sufficient request for release. In other cases, comparable requests have been considered sufficient, and the Court sees no reason to not consider that email as satisfying the administrative exhaustion request. The record is clear that more than 30 days have lapsed since the email was sent to the Warden, with no response, and therefore Defendant has satisfied the administrative exhaustion requirements of the statute.
With respect to the merits of Defendant's motion, however, the Court agrees with the Government that a reduction in the sentence is not warranted. First, the record is far from clear that Defendant suffers from a medical condition that places him at increased risk for serious illness from COVID-19. The CDC only categorizes moderate-to-severe asthma as presenting the possibility of increased risk, and it does not appear that Defendant's asthma can be classified as moderate or severe.
Second, even if Defendant's asthma places him at an increased risk for serious illness from COVID-19, that in and of itself does not constitute extraordinary and compelling circumstances justifying a reduction in the sentence. The Court acknowledges that Florida currently appears to be a hotbed for the COVID-19 pandemic, and the virus may be present at FPC Pensacola given the lack of testing among the inmate population. Indeed, administering only eight tests among the inmate population seems shockingly low. Moreover, it is troubling that the Warden communicated to Defendant's counsel on July 2, 2020, that FPC Pensacola had not had any positive COVID-19 tests among its staff (Dkt. 277-2), when in fact the BOP website indicated that as of July 1, 2020, at least one member of the staff had tested positive for COVID-19 (Dkt. 277 at ¶ 10). It is also troubling that the Warden never responded to Defendant's emailed request on May 13, 2020, for compassionate release, and now apparently takes the position that it was only once Defendant's attorney communicated with him that a request for compassionate release was made. This only reinforces the Court's perception that the BOP lacks "the capacity to timely and effectively consider the flood of compassionate release motions occasioned by the COVID-19 pandemic...." McIndoo , ––– F.Supp.3d at ––––, 2020 WL 2201970, at *8. However, being incarcerated in a geographical area where there is an influx of COVID-19, or even in a facility that has inmates and staff members with the disease, does not on its own constitute extraordinary and compelling circumstances justifying a reduction in a sentence—especially because the virus exists both inside and outside the prison walls. At best, Defendant has established that he suffers from a medical condition that may place him at increased risk of serious illness from COVID-19, and that he is housed in a facility located in a state where COVID-19 is raging. The Court does not find that these facts, without more, constitute extraordinary and compelling circumstances justifying a reduction in Defendant's prison sentence.
Finally, even if extraordinary and compelling circumstances were established, the Court finds that the § 3553(a) factors do not support a sentence reduction. See United States v. Ebbers , 432 F. Supp. 3d 421, 430-31 (S.D.N.Y. 2020) ("The Court thus finds that, in considering the section 3553(a) factors, it should assess whether those factors outweigh the ‘extraordinary and compelling reasons’ warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence."). The Court calculated the Sentencing Guidelines as recommending a prison sentence of 51 to 63 months, but imposed a sentence of 27 months, representing a significant reduction in the Guidelines recommendation. As it did at the time of sentencing, the Court continues to believe that the 27-month sentence was sufficient but not greater than necessary to comply with the objectives of sentencing set forth at 18 U.S.C. § 3553(a). The COVID-19 pandemic does not change the Court's assessment in that regard. With respect to Jason Haynes, whose sentence was reduced by the Court with no opposition from the Government, the Court had imposed a significantly lower sentence than Defendant's sentence (6 months versus 27 months). In addition, at the time the Court reduced his sentence, Jason Haynes was scheduled to be released in one month. (See Dkt. 270). With respect to Kyle Haynes, the Court does not disagree with Defendant's argument that it is inconsistent with the Court's assessment of their relative culpability for Kyle Haynes to have been released by the BOP from prison, but for Defendant to remain in custody. However, deficiencies in the BOP's handling of custody determinations with respect to its inmate population cannot influence the Court's determination as to whether a sentence should be reduced—to do so would only compound any errors by the BOP.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 275) is denied.
SO ORDERED.