Opinion
No. 1:12-cr-00360-DAD-BAM
02-10-2021
UNITED STATES OF AMERICA, Plaintiff, v. RAYMOND ARTHUR GENTILE, Defendant.
ORDER DENYING DEFENDANT RAYMOND ARTHUR GENTILE'S EMERGENCY MOTION TO REDUCE SENTENCE UNDER 18 U.S.C. § 3582(c)(1)(A)
(Doc. No. 327)
Pending before the court is a motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) brought on behalf of defendant Raymond Arthur Gentile. (Doc. No. 327.) That motion is based in part on the purported risks allegedly posed to defendant Gentile by the ongoing coronavirus ("COVID-19") pandemic. For the reasons explained below, defendant's motion will be denied.
BACKGROUND
On October 18, 2012, defendant Gentile was indicted on one count of conspiracy to manufacture, distribute, and possess with the intent to distribute 100 or more marijuana plants in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B); one count of manufacturing 100 or more marijuana plants and/or aiding and abetting the same in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2; one count of possession with the intent to distribute 100 or more marijuana plants and/or aiding and abetting the same in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2; and two counts of making false statements on Firearms Transaction Statements in violation of 18 U.S.C. § 1001. (Doc. No. 12 at 1-4.) On July 22, 2016, defendant was found guilty of all charges following a jury trial. (Doc. Nos. 160, 163.) On June 5, 2017, the court sentenced defendant Gentile to a term of imprisonment of 60 months in the custody of the U.S. Bureau of Prisons ("BOP") on each of the five counts, with those terms to be served concurrently, to be followed by an aggregate term of supervised release of 48 months—concurrent terms of supervised release of 36 months on the false statement counts and 48 months for the remaining three counts. (Doc. No. 315 at 3-4.) The court also imposed the mandatory $500 special assessment. (Id. at 7.)
Defendant is now serving his sentence at Federal Medical Center Fort Worth ("FMC Forth Worth") in Fort Worth, Texas. (Doc. Nos. 327 at 6; 335 at 4.) As of the date of this order, with good time credits, defendant Gentile has now served approximately 40 months of his 60-month prison sentence and his projected release date is about 11 months from now on January 13, 2022. (See Doc. Nos. 335 at 4; 335-1 at 3.)
On April 22, 2020 defendant Gentile tested positive for COVID-19, and according to the government and defendant's medical records, he experienced an asymptomatic infection and was deemed recovered by May 13, 2020. (Doc. Nos. 334 at 22; 335 at 10.)
On August 28, 2020, defendant Gentile filed a pro se motion seeking a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc. No. 321.) The court referred defendant's motion to the Federal Defender's Office ("FDO") and on September 9, 2020 appointed counsel entered an appearance of defendant's behalf. (Doc. Nos. 322-24.) On December 7, 2020, appointed counsel filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) on behalf of defendant Gentile. (Doc. No. 327.) Upon the court granting leave to submit a supplemental filing, defendant's appointed counsel filed a supplemental brief in support of the pending motion on December 16, 2020. (Doc. No. 332.) The government filed its opposition on January 6, 2021, and on January 12, 2021, defendant filed his reply. (Doc. Nos. 335, 336.) ///// /////
LEGAL STANDARD
A court generally "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 824 (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."). Those limited circumstances include compassionate release in extraordinary cases. See United States v. Holden, 452 F. Supp. 3d 964, 968 (D. Or. 2020). Prior to the enactment of the First Step Act of 2018 ("the FSA"), motions for compassionate release could only be filed by the BOP. 18 U.S.C. § 3582(c)(1)(A) (2002). Under the FSA, however, imprisoned defendants may now bring their own motions for compassionate release in the district court. 18 U.S.C. § 3582(c)(1)(A) (2018). In this regard, the FSA specifically provides that a court may
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 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 [18 U.S.C. §] 3553(a) to the extent that they are applicable, if it finds that -
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]18 U.S.C. § 3582(c)(1)(A)(i) and (ii).
If the BOP denies a defendant's request within 30 days of receipt of such a request, the defendant must appeal that denial to the BOP's "Regional Director within 20 calendar days of the date the Warden signed the response." 28 C.F.R. § 542.15(a). If the regional director denies a defendant's administrative appeal, the defendant must appeal again to the BOP's "General Counsel within 30 calendar days of the date the Regional Director signed." Id. "Appeal to the General Counsel is the final administrative appeal." Id. When the final administrative appeal is resolved, a defendant has "fully exhausted all administrative rights." See 18 U.S.C. § 3582(c)(1)(A).
Under 18 U.S.C. § 3624(c)(2), the BOP may release an incarcerated defendant to home confinement "for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months." The Coronavirus Aid, Relief, and Economic Security Act ("the CARES Act"), Pub. L. 116-136, expands the BOP's authority to release incarcerated defendants without judicial intervention. The CARES Act allows the BOP to "lengthen the maximum amount of time" for which a prisoner may be placed in home confinement under § 3624(c)(2) "as the Director determines appropriate," assuming "the Attorney General finds that emergency conditions will materially affect the functioning" of the BOP. CARES Act, Pub. L. 116-136, Div. B, Title II, § 12003(b)(2) (2020). However, the BOP's authority in this regard is limited to "the covered emergency period." Id. The BOP's authority expires "30 days after the date on which the national emergency declaration terminates." Id. § 12003(a)(2). After the CARES Act was enacted, the Attorney General issued a memo instructing the BOP to "immediately review all inmates who have COVID-19 risk factors" beginning with those who are housed at facilities where "COVID-19 is materially affecting operations." Office of Att'y Gen., Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020). The BOP has acted on the Attorney General's guidance, including one case in which a sentenced prisoner was released to home confinement after serving less than half his sentence from a facility that reported no positive COVID-19 cases at the time of his release. See Hannah Albarazi, Paul Manafort Seeks Prison Release Over COVID-19 Fears, Law360 (Apr. 14, 2020), https://www.law360.com/articles/1263706/paul-manafort-seeks-prison-release-over-covid-19-fears (noting that the prisoner's counsel had argued that the CARES Act "broadens the authority" of the BOP to release prisoners to home confinement); Khorri Atkinson, Paul Manafort Released From Prison Amid COVID-19 Fears, Law360 (May 13, 2020), https://www.law360.com/articles/1273090/paul-manafort-released-from-prison-amid-covid-19-fears.
The applicable policy statement with respect to compassionate release in the U.S. Sentencing Guidelines sets out criteria and circumstances describing "extraordinary and compelling reasons." U.S. Sentencing Comm'n, Guidelines Manual ("U.S.S.G.") § 1B1.13 (Nov. 2018); see also United States v. Gonzalez, 451 F. Supp. 3d 1194, 1197 (E.D. Wash. 2020) (noting that courts "universally" rely on U.S.S.G. § 1B1.13 to define "extraordinary and compelling reasons," even though that policy statement was issued before Congress passed the FSA and authorized defendants to file compassionate release motions). However, a large and growing number of district courts across the country have concluded that because the Sentencing Commission has not amended the Guidelines since the enactment of the FSA, courts are not limited by the pre-FSA categories described in U.S.S.G. § 1B1.13 in assessing whether extraordinary and compelling circumstances are presented justifying a reduction of sentence under 18 U.S.C. § 3582(c). See, e.g., United States v. Parker, 461 F. Supp. 3d 966, 979 (C.D. Cal. 2020) (collecting cases); United States v. Rodriguez, 424 F. Supp. 3d 674, 681 (N.D. Cal. 2019).
The Sentencing Guidelines also require that to be granted a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A), the defendant must not pose "a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)." U.S.S.G. § 1B1.13(2).
In the past, when moving for relief under 18 U.S.C. § 3582(c), it was recognized that the defendant bore the initial burden of demonstrating that a sentence reduction was warranted. See United States v. Sprague, 135 F.3d 1301, 1306-07 (9th Cir. 1998). Although the Ninth Circuit has not specifically addressed the question of which party bears the burden in the context of a motion for compassionate release brought pursuant to § 3582(c) as amended by the FSA, district courts to have done so agree that the burden remains with the defendant. See, e.g., United States v. Greenhut, No. 2:18-cr-00048-CAS, 2020 WL 509385, *1 (C.D. Cal. Jan. 31, 2020); United States v. Van Sickle, No. 18-cr-0250-JLR, 2020 WL 2219496, *3 (W.D. Wash. May 7, 2020).
ANALYSIS
As district courts have summarized, in analyzing whether a defendant is entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), the court must determine whether a defendant has satisfied three requirements:
First, as a threshold matter, the statute requires defendants to exhaust administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Second, a district court may grant compassionate release only if "extraordinary and compelling reasons warrant such a reduction" and "that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. Third, the district court must also consider "the factors set forth in Section 3553(a) to the extent that they are applicable." Id.Rodriguez, 424 F. Supp. 3d at 680; see also United States v. Ramirez-Suarez, No. 16-cr-00124-LHK-4, 2020 WL 3869181, at *2 (N.D. Cal. July 9, 2020); Parker, 461 F. Supp. 3d at 970; United States v. Trent, No. 16-cr-00178-CRB-1, 2020 WL 1812242, at *2 (N.D. Cal. Apr. 9, 2020) (noting that as to the third factor, under 18 U.S.C. § 3582(c)(1)(A) release must be "consistent with" the sentencing factors set forth in §3553(a)).
A. Administrative Exhaustion
Defendant asserts, and the government does not dispute, that defendant has exhausted his administrative remedies prior to filing his pending § 3582 motion. (Doc. Nos. 327 at 12-13; 335 at 5.) Because a failure to exhaust administrative remedies is normally viewed as an affirmative defense which must be pled and proven, the court will accept the government's concession with respect to administrative exhaustion and will address the merits of defendant's motion below.
B. Extraordinary and Compelling Reasons
According to the Sentencing Commission's policy statement, "extraordinary and compelling reasons" warranting compassionate release may exist based on a defendant's medical conditions, age and other related factors, family circumstances, or "other reasons." U.S.S.G. § 1B1.13, cmt. n.1 (A)-(D). Even though the catch-all of "other reasons" was included in the policy statement at a time when only the BOP could bring a compassionate release motion, courts agreed that it may be relied upon by defendants bringing their own motions for reductions in their sentence under the FSA. See, e.g., United States v. Kesoyan, No. 2:15-cr-00236-JAM, 2020 WL 2039028, at *3-4 (E.D. Cal. Apr. 28, 2020) (collecting cases).
The medical condition of a defendant may warrant the granting of compassionate release by the court where the defendant "is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory)," though "[a] specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required." U.S.S.G. § 1B1.13, cmt. n.1(A)(i). Non-exhaustive examples of terminal illnesses that may warrant a compassionate release "include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia." Id. In addition to terminal illnesses, a defendant's debilitating physical or mental condition may warrant compassionate release, including when:
The defendant is
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process,
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.Id. at cmt. n.1(A)(ii). Where a defendant has moderate medical issues that otherwise might not be sufficient to warrant compassionate release under ordinary circumstances, many courts have concluded that the risks posed by COVID-19 may tip the scale in favor of release when the particular circumstances of a case are considered in their totality. See, e.g., Parker, 461 F. Supp. 3d at 980 ("Since the onset of the COVID-19 pandemic, courts have determined that inmates suffering from conditions such as hypertension and diabetes are now at an even greater risk of deteriorating health, presenting 'extraordinary and compelling' circumstances that may justify compassionate release.") (collecting cases); United States v. Rodriguez, 451 F. Supp. 3d 392, 405 (E.D. Pa. 2020) ("Without the COVID-19 pandemic—an undeniably extraordinary event—Mr. Rodriguez's health problems, proximity to his release date, and rehabilitation would not present extraordinary and compelling reasons to reduce his sentence. But taken together, they warrant reducing his sentence.").
Compassionate release may also be warranted based on a defendant's age and other related factors. Thus, "extraordinary and compelling reasons" exist where a "defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less." U.S.S.G. § 1B1.13, cmt. n.1(B).
This provision, however, does not apply here. As noted above, defendant Gentile is only 59 years old, and thus his age and age-related factors do not play a role in consideration of his pending motion.
Defendant Gentile argues that extraordinary and compelling reasons warranting reduction of his custodial sentence exist because: (1) his age and health conditions, according to the Centers for Disease Control and Prevention ("CDC"), place him at a high risk of suffering a severe illness from COVID-19; (2) he is incarcerated at FMC Fort Worth, where inmates and staff have tested positive for COVID-19; and (3) he previously tested positive for COVID-19 while incarcerated at FMC Fort Worth. (Doc. No. 327 at 19-20, 27-28.) In particular, defendant asserts that he suffers from type 2 diabetes mellitus, hyperlipidemia, stage three kidney disease, a mass on his lungs affecting his ability to breathe, obesity with a body mass index (BMI) greater than 30, and a fatty liver. (Id. at 9, 20-25; Doc. No. 332 at 2, 5.) Moreover, defendant argues that, even though he has already contracted COVID-19, having tested positive for the virus on April 22, 2020 and experienced an asymptomatic infection, he nevertheless still faces a risk of serious illness if he were to be re-infected with COVID-19. (Doc. No. 327 at 25-26.)
Defendant Gentile also asserts that in light of his age, medical conditions, and incarceration, he is unable to provide self-care during this pandemic because he cannot in prison take "extra precautions to maintain hygiene, a sterile environment, and physical distance from others" due to the conditions of his confinement at FMC Fort Worth. (Id. at 29.) Defendant avers that "[h]e cannot social distance" and that "he shares facilities, such as the bathroom, with multiple other individuals," and must share the "six showers, six toilets, six sinks . . . with over 200 other inmates." (Id.) Defendant Gentile argues that his lack of ability to provide self-care while incarcerated is demonstrated by his diagnoses of type 2 diabetes, hyperlipidemia, a fatty liver, and a BMI exceeding 30 while in custody. (Id. at 30; Doc. No. 332 at 4-5.) Defendant also emphasizes that COVID-19 has spread in numerous BOP facilities, including FMC Fort Worth, which has had over 600 inmates who have tested positive for COVID-19. (Doc. No. 327 at 10-11.) Defendant avers that the rising numbers of positive COVID-19 cases at FMC Fort Worth in recent months is "extremely concerning" for the "Federal Medical Complex[ which] hous[es] vulnerable people like [defendant] Gentile." (Id. at 11.) Accordingly, defendant's counsel argues that not only does "each one of Mr. Gentile's risk factors constitute[] an extraordinary and compelling reason for release" but also that "[e]ach of these risk factors builds on each other, creating an ever more precarious situation for [defendant] should he contract COVID-19 again." (Id. at 28.)
In its opposition to the pending motion, the government contends that "the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison" is not an extraordinary and compelling reason supporting defendant Gentile's early release from imprisonment. (Doc. No. 335 at 8.) The government argues that defendant has failed to carry his burden to establish his eligibility for compassionate release because "he has already recovered from illness and does not otherwise present extraordinary and compelling circumstances" to warrant his release. (Id. at 12.) The government does not dispute that defendant Gentile suffers from type 2 diabetes, stage three kidney disease, and a BMI over 30. (Id. at 9.) The government contends that the risks of severe illness from COVID-19 posed by defendant's health risks are "undermined by the fact that his age and health conditions did not result in serious complications or even worsening health" when defendant Gentile previously tested positive for COVID-19 and "remained asymptomatic." (Id. at 10.)
In his reply, defendant contends that his prior COVID-19 infection has no bearing on his risk of reinfection and that his health issues continue to pose a risk of severe illness if he were to contract the virus again. (Doc. No. 336 at 3-5.) Defendant also reiterates the seriousness of his health conditions, some of which were diagnosed after entering BOP custody. (Id. at 2-3.) Defendant Gentile asserts that because his "health has deteriorated while in BOP custody," he "has a substantially diminished ability to provide self-care" while incarcerated at FMC Fort Worth. (Id. at 3.)
As an initial matter, the undersigned does not discount the possibility of reinfection from the COVID-19 virus. As one district court has observed: "Without scientific conclusions as to whether reinfection is possible or how long COVID-19 immunity lasts, [courts have] err[ed] on the side of caution to avoid potentially lethal consequences." States v. Yellin, No. 3:15-cr-3181-BTM-1, 2020 WL 3488738, at *13 (S.D. Cal. June 26, 2020); see also United States v. Hanson, 470 F. Supp. 3d 1197, 1202 (D. Or. 2020) ("[T]here is no current scientific evidence to indicate that a 'recovered' COVID-19 patient is immune from reinfection, as several courts have recently acknowledged."); but see United States v. Molley, No. 15-cr-0254-JCC, 2020 WL 3498482, at *3 (W.D. Wash. June 29, 2020) (concluding that the uncertainty surrounding the danger of reinfection with COVID-19 "cuts against compassionate release," in part because it is the defendant's burden to establish that "extraordinary and compelling" reasons for release exist). Erring on the side of caution, the court finds that defendant's fear of reinfection, and the potential consequences to him were that to occur, to be potentially well-placed. Nevertheless, as explained below, the court does not find that compelling or extraordinary reasons warrant a reduction in defendant's sentence at this time.
It is undisputed that according to the CDC, "[a]dults of any age" who have certain medical conditions including type 2 diabetes, chronic kidney disease, or obesity with a BMI of 30 or higher are "at increased risk of severe illness from the virus that causes COVID-19," and adults with chronic liver disease "might be at an increased risk for severe illness from the virus that causes COVID-19." See People with Certain Medical Conditions, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last updated December 29, 2020); (Doc. Nos. 327 at 20-22, 24; 332 at 2-5; 335 at 9-10.) Defendant Gentile has shown that because he suffers from these medical conditions, he is at an increased risk for suffering severe illness if he were to be re-infected with COVID-19.
However, defendant Gentile has not shown, or even argued for that matter, that FMC Fort Worth is unable to properly monitor and adequately treat the medical conditions from which he suffers. See United States v. Ayon-Nunez, No. 1:16-cr-00130-DAD, 2020 WL 704785, at *3 (E.D. Cal. Feb. 12, 2020) ("Chronic conditions that can be managed in prison are not a sufficient basis for compassionate release.") (internal quotation marks and citation omitted); see also United States v. McCollough, No. 15-cr-00336-001-PHX-DLR, 2020 WL 2812841, at *2 (D. Ariz. May 29, 2020) ("Since Defendant has contracted COVID-19, the relevant questions concern (1) the course of his illness, (2) the state of his health, (3) his prognosis, and (4) the adequacy of the care and treatment being provided to him in BOP given his pre-existing conditions. . .. There is no evidence that the circumstances surrounding Defendant's health or treatment are extraordinary or compelling."). Defendant's medical records reflect that he has received regular medical treatment and attention from FMC Fort Worth clinical physicians for his kidney disease, hyperlipidemia, diabetes, and other medical conditions. (See Doc. Nos. 329—sealed, 334—sealed.) Moreover, after testing positive for COVID-19 in April 2020, defendant appears to have received regular monitoring for symptoms until May 13, 2020, when he was deemed to have recovered from, what in his case was fortunately an asymptomatic infection. (Doc. No. 329 at 2—sealed.) The medical records filed with the court under seal also reflect that FMC Fort Worth is providing adequate medical care to defendant because he is being prescribed and provided the medications necessary to care for his health conditions. (See Doc. Nos. 329—sealed, 334—sealed.)
Moreover, defendant Gentile has not persuasively argued that he is being prohibited from taking appropriate precautions to avoid contracting COVID-19 or that his ability to provide self-care at FMC Fort Worth is substantially diminished. It has been recognized by some courts that "the presence of COVID 19 . . . necessitates a more expansive interpretation of what self-care means" and that an inability of individuals with a high risk of becoming severely ill from COVID-19 to practice appropriate hygiene, wear a mask and maintain social distancing may constitute an inability to provide self-care under some circumstances. United States v. Gorai, No. 2:18-cr-00220-JCM, 2020 WL 1975372, at *3 (D. Nev. April 24, 2020)) (citation omitted). Here, however, defendant merely emphasizes the rising numbers of positive COVID-19 cases in FMC Fort Worth, and asserts that he is unable to practice social distancing and hygiene because "he shares facilities, such as the bathroom, with multiple other individuals," including the "six showers, six toilets, six sinks that are shared with over 200 other inmates." (Doc. No. 327 at 29.) Defendant Gentile does not provide any other specific allegations regarding his lack of access to protective gear or cleaning and sanitizing supplies, or lack of ability to social distance at FMC Fort Worth specifically. Defendant does note that as of January 12, 2021, the date his reply brief was filed, BOP reported that 14 inmates and 34 staff members were confirmed as having active COVID-19 cases in FMC Fort Worth, and that as of December 7, 2020, the date the pending motion was filed, there were 46 inmates and 18 staff members who had tested positive for the virus. (Id. at 11; Doc. No. 336 at 5.) Defendant also emphasizes that a total of 692 inmates at FMC Fort Worth have "tested positive [for COVID-19] since the pandemic began." (Doc. No. 336 at 5.) But defendant has not provided any evidence regarding the conditions that he is currently facing at FMC Fort Worth, or the ways in which he is unable to provide self-care at FMC Fort Worth as a result of those conditions.
The court certainly recognizes that FMC Fort Worth initially failed to control the outbreak of COVID-19 at that institution, as evidenced by the high number of inmates that have tested positive for the virus and the death of 12 inmates. See United States v. Degarmo, No. 18-cr-10128-01-JWB, 2020 WL 5253410, at *3 (D. Kan. Sept. 3, 2020) (finding that "inmates and staff at FMC Fort Worth have contracted and currently have COVID-19 in numbers higher than many other federal detention facilities"). That situation was obviously an extremely serious one and remains concerning. However, the infection rate at FMC Fort Worth has since dropped considerably. As the government noted at the time of filing its opposition on January 6, 2021, there were then "21 inmates and 32 staff [who] have tested positive for COVID-19" at that facility. (Doc. No. 335 at 6.) As of February 10, 2021, the BOP is now reporting that only 5 inmates and 34 staff members are confirmed as having active COVID-19 cases at FMC Fort Worth. See https://www.bop.gov/coronavirus/ (last reviewed February 10, 2021). Even if, as defendant argues, the number of positive COVID-19 cases at FMC Fort Worth has risen in recent months, which does not today seem to be the case, that increase in infections alone is not sufficient to demonstrate that extraordinary and compelling reasons exist for his compassionate release. See United States v. Rios-Ayon, No. 1:16-cr-00096-NONE, 2020 WL 7646408, at *6 (E.D. Cal. Dec. 23, 2020) (finding that even if a BOP facility "is still managing to control the outbreak at that prison to some extent, that alone does not tip the scales in favor of defendant's compassionate release in light of all the other relevant circumstances."). Further, as noted above, it appears that the prison medical staff at FMC Fort Worth have been able to, and continue to, adequately monitor defendant's various medical conditions and care for him. Thus, the court is not persuaded that extraordinary and compelling reasons exist warranting defendant's compassionate release based on his medical conditions and incarceration at FMC Fort Worth. See United States v. Dominguez, No. 1:16-cr-35-HAB, 2020 WL 5700742, at *3 (N.D. Ind. Sept. 24, 2020) (recognizing "that FMC Fort Worth has one of the highest positive test numbers in the BOP at 622" but concluding that despite those high numbers, "there is nothing that leads the Court to believe that FMC Fort Worth cannot protect Defendant from the virus or treat him should he become infected").
FMC Fort Worth has a total population of 1,221 inmates. FMC Fort Worth, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/locations/institutions/ftw/ (last visited Jan. 14, 2021.)
The undersigned does not necessarily accept these reported numbers at face value given the manner in which the CDC guidelines apparently allow for individuals to be counted as recovered from the virus without confirming test results. However, there is also no evidence before the court contradicting those reported numbers.
Accordingly, the court concludes that defendant Gentile has not met his burden of demonstrating extraordinary and compelling reasons for compassionate release under § 3582(c)(1)(A). Therefore, his motion will be denied.
C. Consistency with the § 3553(a) Factors
Finally, even if defendant Gentile's motion was supported by a showing of extraordinary and compelling reasons supporting his compassionate release, the undersigned is not persuaded that the requested reduction in his sentence would be consistent with consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a). See Parker, 461 F. Supp. 3d at 979.
Title 18 U.S.C. § 3553(a) provides that, in determining the sentence to be imposed, the court shall consider: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence, protect the public from further crimes of the defendant and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; the kinds of sentences available; the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines; any pertinent policy statement issued by the Sentencing Commission; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense.
As noted above, defendant Gentile is currently serving a 60-month sentence of imprisonment for conspiracy to manufacture, distribute, and/or possess with the intent to distribute 100 or more marijuana plants, manufacturing or aiding and abetting the manufacture of 100 or more marijuana plants, possession with the intent to distribute 100 or more marijuana plants or aiding and abetting the same, and making false statements on Firearm Transaction Statements. (Doc. Nos. 160, 315.) At the time of his sentencing on June 5, 2017, defendant Gentile was found to be responsible for 170 marijuana plants, 25.1 pounds of processed marijuana, 112.39 grams of kief (resin glands of marijuana plants), and an additional 1,666 grams of marijuana. (Doc. No. 251 at 7-8.) Defendant was also found to have submitted false statements under penalty of prosecution on two Alcohol, Tobacco, Firearms, and Explosives (ATF) transfer documents in connection with his firearms purchases and attempted purchases. (Id. at 6.) The U.S. Probation Office determined that defendant's total offense level was 22 and that his criminal history placed him in category III, resulting in an advisory sentencing guideline range calling for a term of imprisonment of 60 to 63 months, with the mandatory minimum prison sentence of 60 months on Counts One, Two, and Three. (Id. at 16.) The probation officer recommended a low-end of the guideline range sentence of 60 months in BOP custody in light of consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a). (Id.) The undersigned followed that recommendation and sentenced defendant to the mandatory minimum term (applicable to Counts One through Three) of imprisonment of 60-month on all five counts with those prison terms to run concurrently with one another, followed by an aggregate 48-month term of supervised release—48 months on the marijuana-related counts and 36 months on the false statement counts, to be served concurrently—and $500 in mandatory penalty assessments. (Doc. No. 315 at 3-4, 7.)
In his pending motion, defendant contends that, in light of the COVID-19 pandemic, "the time that [defendant] Gentile has served [] in custody is sufficient to satisfy the purposes of sentencing[.]" (Doc. No. 327 at 33.) Although defendant concedes that "the circumstances of the present offense qualified [defendant] Gentile for the serious sentence this Court originally imposed," he contends that his 60-month sentence is "significantly longer- almost double- that of the average sentence for marijuana" and that "the government's prosecutions of marijuana cases has also declined substantially" since defendant's sentencing. (Id. at 33-34.) Accordingly, defendant Gentile argues that "reducing his sentence to credit for time served would still provide a sufficient punishment for his actions" consistent with the § 3553(a) sentencing factors.
The government counters that defendant "[i]s a [c]ontinuing [d]anger" and that consideration of the § 3553(a) sentencing factors "do not support his request for premature, permanent release." (Doc. No. 335 at 12, 14.) The government argues that defendant Gentile "poses a very real danger to the community" in part because the investigation into his offenses "was initiated as a result of threats made to a victim" who "reported he was held at gunpoint by the defendant and threatened." (Id. at 13.) The government underscores the volume of defendant's marijuana operation, noting that a search of defendant's business led to the discovery of two firearms and the seizure of "170 marijuana plants, 25.1 pounds of processed marijuana, 112.39 grams of kief (resin glands of marijuana plants), 735 pills containing morphine, 1,831 pills containing hydrocodone, 177 Seroquel pills and a small quantity of methamphetamine." (Id.) The government emphasizes that defendant "was not operating [his business] in strict compliance with California law and the jury found that he was operating in violation of federal narcotics and firearms laws." (Id.) The government also contends that defendant's prior criminal conviction involving the cultivation of marijuana and his attempt to evade arrest in connection with this case (Doc. No. 218 at 6, ¶10), in combination with the circumstances of defendant Gentile's offense, "support his original sentence." (Doc. No. 335 at 14.)
Although the government seized methamphetamine and morphine, hydrocodone and Seroquel pills during its search at defendant's business, the pills and methamphetamine were not included in the charges filed or in the advisory sentencing guideline calculations. (Doc. No. 251 at 8.)
In his reply, defendant asserts that "the government's concern is unfounded" because "any violence associated with this crime represents an anomaly" and his only prior criminal history consists of "one prior misdemeanor conviction for marijuana in 1999." (Doc. No. 336 at 5.) Defendant points to his lack of disciplinary issues while in BOP custody as evidence that he had "absolutely no pattern of violence, theft, or general criminal involvement throughout his life." (Id. at 6.) He asserts that the COVID-19 pandemic led to "life-threatening conditions of [] incarceration" as well as "anxiety and stress" and "long hours of isolation" that caused defendant to serve "'hard' time . . . at such a facility" as FMC Fort Worth. (Id.)
As an initial matter, and based on defendant's criminal history as described above, the court finds that consideration of the risk of recidivism on the part of the defendant weighs to some degree against the granting of compassionate release in this case. See United States v. Magana-Lopez, No. cr-11-04200-001-TUC-RCC (JR), 2020 WL 3574604, at *2 (D. Ariz. July 1, 2020) (denying compassionate release for a non-violent offender and discounting defendant's contentions that he was at low risk of recidivism in part because he was "serving his sentence after receiving prior drug trafficking").
Defendant asserts that his lack of disciplinary issues while in BOP custody attests to his contention that he no longer poses a danger to the community. (Doc. No. 336 at 5.) Defendant also avers that he participated in and completed several classes and programs, including a course on changing criminal thinking patterns. (Doc. No. 327 at 8.) Some courts have granted compassionate release where defendants in those cases have participated in similar programs. See Parker, 461 F. Supp. 3d at 982 (granting a defendant compassionate release in part because he demonstrated rehabilitation during his imprisonment by earning two associate degrees, participating in other continuing education courses and working as an education instructor, "suicide companion," and career services clerk) (collecting cases). The court acknowledges the efforts on the part of defendant Gentile cited above are laudable and will assume that defendant has also participated in the 500-hour BOP Substance Abuse Treatment Program recommended at the time of his sentencing. (Doc. No. 315 at 3.) Nonetheless, even actual rehabilitation, which has not necessarily been established, alone is not enough to warrant compassionate release. See 28 U.S.C. § 994(t); U.S.S.G. § 1B1.13, cmt. n.3.
"The length of the sentence remaining is an additional factor to consider in any compassionate release analysis,' with a longer remaining sentence weighing against granting any such motion." United States v. Shayota, No. 1:15-cr-00264-LHK-1, 2020 WL 2733993, at *6 (N.D. Cal. May 26, 2020) (quoting United States v. Connell, No. 18-cr-00281-RS, 2020 WL 2315858, at *6 (N.D. Cal. May 8, 2020)); see also United States v. Lonich, No. 1:14-cr-00139-SI-1, 2020 WL 2614874, at *3 (N.D. Cal. May 21, 2020) (denying motions for compassionate release, noting, "the Court finds it significant that defendants have served far less than half of their sentences"). As of the date of this order, defendant Gentile has only approximately 11 months to serve on his mandatory minimum 60-month sentence. Nonetheless, in the court's view, a reduction of defendant's 60-month sentence effectively to one of 40 months would not adequately reflect the seriousness of his offenses of conviction, promote respect for the law, ///// provide just punishment, or afford adequate deterrence to criminal conduct. See United States v. Purry, No. 2:14-cr-00332-JAD-VCF, 2020 WL 2773477, at *2 (D. Nev. May 28, 2020); Shayota, 2020 WL 2733993 at *5; 18 U.S.C. § 3553(a). The court observes that because defendant was sentenced to a mandatory minimum term of imprisonment established by Congress, the granting of his request for compassionate release to a sentence below that mandatory minimum term could be viewed as "likely conflict[ing] with the policy goals of both Congress and the Sentencing Commission." United States v. Brown, Crim. Case No.: SAG-10-0344, 2020 WL 3833284, at *5 (D. Md. July 8, 2020).
Defendant requests that the court either reduce his sentence to time served or amend the conditions of his supervised release to require him to serve what would have been the remaining portion of his custodial term on home confinement. (Doc. No. 327 at 34.) First, the CARES Act "'authorizes the BOP—not courts—to expand the use of home confinement' under 18 U.S.C. § 3624(c)(2)." United States v. Fantz, No. 5:14-cr-32-BR, 2020 WL 3492028, at *1 (E.D.N.C. June 26, 2020) (quoting United States v. Nash, No. 19-cr-40022-01-DDC, 2020 WL 1974305, at *2 (D. Kan. Apr. 24, 2020) (collecting cases)); see also United States v. Rice, No. 12-cr-818-PJH, 2020 WL 3402274, at *4 (N.D. Cal. June 19, 2020) (denying a defendant's request for release to home confinement made in conjunction with his motion for compassionate release because "the court has no authority to designate the place of confinement" but rather the "Bureau of Prisons has the statutory authority to choose the locations where prisoners serve their sentence."); United States v. Gray, No. 4:12-cr-54-FL-1, 2020 WL 1943476, at *3 (E.D.N.C. Apr. 22, 2020) (holding that the CARES Act "does not authorize the court to order defendant's placement in home confinement"). The district court may only impose home detention as a condition of supervised release, rather than as part of a sentence of imprisonment. See Connell, 2020 WL 2315858, at *5, n.6 & *7. Accordingly, to do as defendant requests, the court would be required to reduce his sentence to one of time served (i.e., 40 months) and modify the conditions of supervised release to require home confinement for the remainder of his term. The court is unwilling to do so for the reasons set forth above. The BOP knows its capabilities to effectively and appropriately care for defendant Gentile in a custodial setting. If the BOP determines that the defendant should be released to home confinement to serve his sentence under the Attorney General's expanded authority in that regard (see fn. 2, above), the court trusts it will do so. The court notes that according to the BOP, defendant Gentile is eligible to serve the remainder of his sentence on home detention beginning July 16, 2021. (Doc. No. 335-1 at 3.) The court will go so far to say that not only is it not opposed to defendant's designation to home confinement as soon as he is deemed eligible by the BOP, but that the court would endorse that designation as appropriate in light of the arguments advanced in the pending motion. However, the issue the court resolves in ruling on the pending motion is only whether in its view, under the applicable legal standards, defendant's sentence should be reduced.
Thus, on balance, the court finds that granting defendant's motion and reducing his sentence to one of time served would not be consistent with the § 3553(a) sentencing factors.
CONCLUSION
Because defendant Gentile has failed to demonstrate that "extraordinary and compelling" reasons exist justifying a reduction of his sentence under 18 U.S.C. § 3582(c)(1)(A) or that such a reduction at this time would be consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a), his motion for compassionate release (Doc. No. 327) is denied. IT IS SO ORDERED.
Dated: February 10 , 2021
/s/_________
UNITED STATES DISTRICT JUDGE