Opinion
Criminal Action No. 05-10003-NMG-1
2021-01-15
UNITED STATES of America, v. Arthur GIANELLI, Defendant.
Christopher R. Donato, Fred M. Wyshak, Jr., Michael L. Tabak, John A. Wortmann, Jr., Natashia Tidwell, Kristina E. Barclay, United States Attorney's Office, Boston, MA, Joseph Wheatley, U.S. Department of Justice, Washington, DC, for United States of America.
Christopher R. Donato, Fred M. Wyshak, Jr., Michael L. Tabak, John A. Wortmann, Jr., Natashia Tidwell, Kristina E. Barclay, United States Attorney's Office, Boston, MA, Joseph Wheatley, U.S. Department of Justice, Washington, DC, for United States of America.
MEMORANDUM & ORDER
GORTON, United States District Judge Pending before the Court is the renewed motion of defendant Arthur Gianelli ("Gianelli" or "defendant") for compassionate release based on the COVID-19 pandemic pursuant to 18 U.S.C. § 3582(c)(1)(A). On December 23, 2020, this Court entered an Order denying without prejudice defendant's initial motion for compassionate release for failure to exhaust his administrative remedies. Thereafter, the number of positive COVID-19 cases at the FCI Fort Dix complex, in a unit of which Gianelli is housed, increased significantly and Gianelli, himself, tested positive for the virus, prompting the renewed motion. Gianelli is reported to have limited COVID-19 symptoms and is currently in a recovery unit.
I. Background
In 2009, Gianelli was convicted of and sentenced for operating an extensive racketeering enterprise involved in illegal gambling, loansharking, money laundering, extortion and arson. He was sentenced to 271 months incarceration and his projected date of release is October 16, 2024.
On December 1, 2020, Gianelli filed with this Court a motion for compassionate release seeking to replace the remainder of his lengthy sentence with home confinement. He asserted, inter alia, that he is especially vulnerable to contracting a severe case of COVID-19 due to his age (63) and his family history of diabetes, although he has not been diagnosed with the disease. This Court denied the motion without prejudice because Gianelli had failed to exhaust his administrative remedies. It also noted that the defendant had not shown that he suffers from any condition which would place him at an increased risk of severe illness due to COVID-19, nor, indeed, from any relevant medical condition.
In late December, 2020, Gianelli tested positive for COVID-19 and was subsequently quarantined in an isolation unit pursuant to Fort Dix protocol. As a result, defense counsel filed the pending renewed motion for compassionate release on January 6, 2021. The government opposes the motion because 1) defendant has reported no serious COVID-19-related symptoms and is in recovery, 2) defendant suffers from no relevant underlying health condition and 3) releasing defendant, who is currently infected with the virus and may still be contagious, would pose a serious risk to the community.
On January 14, 2021, this Court held a hearing on defendant's motion after which it invited counsel to submit within 24 hours supplemental information on 1) defendant's current physical state of health, 2) the number of COVID-19 infections in the specific unit in which defendant is housed and 3) the assessment of risk to the defendant and to the community if defendant is released under the current conditions. The Court has now received and considered the supplemental written submissions of the parties.
II. Motion for Compassionate Release
A. Legal Standard
A court may reduce a defendant's term of imprisonment pursuant to 18 U.S.C. § 3582(c) only if, after considering the factors set forth in § 3553(a), the Court finds that there are "extraordinary and compelling reasons" warranting such a reduction. § 3582(c)(1)(A)(i). Such a modification may be made upon a defendant's motion only after defendant has fully exhausted his administrative remedies. § 3582(c)(1)(A). Even if all other requirements are satisfied, a court should grant a motion for release only if it determines that the defendant is no longer a danger to the public. Id.
B. Application
Gianelli is not entitled to a modification of his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) because he has not demonstrated an "extraordinary and compelling" reason warranting his release. Although Gianelli has tested positive for COVID-19, he has not established that such an occurrence alone demonstrates an "extraordinary and compelling" reason for his release.
First, there is no basis in the record to indicate that Gianelli is not receiving adequate medical care at FCI Fort Dix. Second, to date, he has apparently experienced no severe symptoms and suffers from no underlying health condition that would put him at an increased risk sufficient to warrant his early release. He is, instead, reportedly near recovery which, as the government contends, essentially moots his argument for compassionate release. See United States v. Minyetty et al., No. 20-cr-10004, Dkt. 86 (D. Mass. June 29, 2020) (testing positive for COVID-19 was insufficient to warrant pretrial release); United States v. Pierre, No. 19-cr-00082, 2020 WL 6785328, at *5-6 (E.D. Cal. Nov. 18, 2020) (denying a motion for compassionate release for a defendant with mild asthma and who had seemingly recovered from asymptomatic COVID-19 at a facility with an outbreak); see also United States v. Hartley, 2020 WL 4926146, at *3-4 (W.D.N.C. Aug. 21, 2020) ("Recovery from a positive COVID-19 diagnosis, particularly where the inmate suffered only minor symptoms, is not enough to show that extraordinary and compelling circumstances warrant Defendant's release"); United States v. Zahn, No. 18-cr-00150, 2020 WL 3035795, at *2 (N.D. Cal. June 6, 2020) ("[T]he immediate threat to [defendant] has passed, fortunately with no serious complications of any kind. That is enough to find that he has not proffered an extraordinary and compelling reason for release under 18 U.S.C. § 3582(c)(1)(A)(i)").
In any event, transferring Gianelli from the recovery unit within FCI Fort Dix to home confinement could pose a serious risk to the community by facilitating the spread of the virus. Such a transfer might well expose to unnecessary risk not only his third-party custodian but also any FCI Fort Dix staff member involved in the release process.
Although the Court remains concerned about the rate of COVID-19 infections in FCI Fort Dix and is cognizant of the dangers associated with COVID-19, defendant, fortunately, appears to be recovering without serious repercussions. Accordingly, this Court will deny defendant's renewed motion for compassionate release but will do so without prejudice. The Court will, upon receipt of further information from the parties, continue to monitor the situation.
ORDER
For the foregoing reasons, defendant's renewed motion for compassionate release (Docket No. 1054) is DENIED without prejudice.