Opinion
3:10-cr-00049
2020-09-29
UNITED STATES of America, Plaintiff, v. Ted H. GRAUER, Defendant.
Clifford R. Cronk, III, U. S. Attorney's Office, Davenport, IA, Maureen McGuire, U. S. Attorney's Office, Des Moines, IA, for Plaintiff.
Clifford R. Cronk, III, U. S. Attorney's Office, Davenport, IA, Maureen McGuire, U. S. Attorney's Office, Des Moines, IA, for Plaintiff.
ORDER GRANTING COMPASSIONATE RELEASE
ROBERT W. PRATT, Judge
Before the Court is Defendant Ted H. Grauer's Motion for Compassionate Release filed by the Federal Public Defender (FPD) on August 16, 2020. ECF No. 191. The Government filed a Response on September 14, 2020. ECF No. 196. Defendant filed a Reply on September 21, 2020. ECF No. 21. The matter is fully submitted.
I. BACKGROUND
The Eighth Circuit Court of Appeals thoroughly reviewed the record in this case in United States v. Grauer , 701 F.3d 318 (8th Cir. 2012). ECF No. 178. In early 2010, Defendant began chatting online with an undercover officer posing as a fourteen-year-old girl. Grauer , 701 F.3d at 320. Defendant was arrested on April 9, 2010, after exchanging numerous explicit messages with the supposed minor and ultimately arranging to meet her in person. Id. at 321. Following the arrest, law enforcement legally searched Defendant's personal laptop and discovered user-created electronic folders containing images and videos depicting child pornography. Id. at 323–24.
On July 5, 2011, a jury found Defendant guilty of attempted enticement of a minor and possession of child pornography. ECF No. 121. This Court sentenced Defendant to 151 months of imprisonment on December 19, 2011. ECF No. 153. Defendant was fifty-nine years old at the time and had no prior criminal history. ECF No. 148 ¶¶ 49–50, 56. Defendant was taken into custody by the Federal Bureau of Prisons (BOP) and now resides in the low-security facility at Federal Correctional Institution (FCI) Beaumont. ECF No. 191 at 4.
Since Defendant's sentencing, the virus known as COVID-19 has killed more than 205,000 Americans and infected more than 7.15 million in a few months. Latest Map and Case Count , N.Y. Times (Sept. 28, 2020, 3:00 PM), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html. "At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others." S. Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 1613, 207 L.Ed.2d 154 (2020) (Roberts, C.J., concurring).
Despite some drastic efforts this summer, the virus has not gone away. E.g. , Arian Campo-Flores et al., U.S. Policy Patchwork Spurs New Covid Surge , Wall St. J., July 10, 2020, A1. Once again, many states have limited access to almost any place where there are too many people and too little space to keep the virus from spreading. This includes prisons. Already "tinderboxes for infectious disease," prisons now are even more dangerous than we typically accept. United States v. Rodriguez , 451 F.Supp.3d 392, 394 (E.D. Pa. 2020).
At least 1,887 inmates and 703 BOP employees have "open" and "confirmed" cases. COVID-19 Cases , Fed. Bureau Prisons (Sept. 28, 2020), https://www.bop.gov/coronavirus. Two employees and 124 inmates have died. Id. Meanwhile, 12,752 inmates and 1,127 staff have had the virus but recovered. Id. The pandemic is no distant threat at Defendant's prison, FCI Beaumont in Beaumont, Texas. Across the three prisons comprising the facility, over 600 inmates have contracted the virus and recovered. Id. At Defendant's facility, FCI Beaumont Low, five inmates and one staff member currently have open and confirmed cases. Id. In sum, though the Government notes cases at Defendant's facility are declining, FCI Beaumont Low has faced one of the largest COVID-19 outbreaks in the Federal prison system and continues to struggle with the virus.
On April 10, 2020, Defendant received a memorandum from his warden informing him he is "considered to be in the high-risk category" of experiencing severe effects of contracting COVID-19 due to his age and health conditions. ECF No. 191-8. On June 25, 2020, Defendant requested compassionate release from his warden pursuant to 18 U.S.C. § 3582(c)(1)(A). ECF No. 191-1 at 5. He argued his pre-existing conditions, which include diabetes, hypertension, and obesity, increased his risk of severe symptoms if infected with COVID-19. Given his lack of criminal history and substantial rehabilitation, Defendant argued extraordinary and compelling reasons supported his request for compassionate release. ECF No. 191-2. The warden denied Defendant's request in July. ECF No. 191-3.
II. ANALYSIS
The First Step Act amended numerous provisions of the U.S. Code to promote rehabilitation of prisoners and unwind decades of mass incarceration. Cong. Research Serv., R45558, The First Step Act of 2018: An Overview 1 (2019). Congress designed the statute at issue here, § 3582(c)(1)(A), for "Increasing the Use and Transparency of Compassionate Release." First Step Act of 2018, Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (2018). This provision allows defendants, for the first time, to petition district courts directly for compassionate release. § 3582(c)(1)(A). Under the old regime, defendants could petition only the BOP Director, who could then make a motion, at his or her discretion, to the district court. See U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.4 (U.S. Sentencing Comm'n 2018) [hereinafter U.S.S.G.]. The Director rarely did so. Public Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm'n , 66 (2016) (statement of Michael E. Horowitz, Inspector General, Dep't of Justice).
A. Exhaustion
The First Step Act's gatekeeping provision created two ways for a defendant to bring a compassionate release motion to a district court. The defendant may file a motion after he "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." § 3582(c)(1)(A) (emphasis added).
Here, Defendant satisfied the gatekeeping provision because thirty days have passed since the BOP received his request. ECF No. 191-1 at 5. The Court may address the merits.
The Government does not question whether Defendant satisfied § 3582(c)(1)(A) ’s gatekeeping requirement. See ECF No. 196; see also United States v. Alam , 960 F.3d 831, 834 (6th Cir. 2020) (holding § 3582(c)(1)(A) ’s gatekeeping requirement is a non-jurisdictional claim-processing rule the Government can waive or forfeit).
B. Merits
Compassionate release provides a path for defendants with "extraordinary and compelling reasons" to leave prison early. § 3582(c)(1)(A)(i). Such a sentence reduction must comply with the 18 U.S.C. § 3553(a) factors and "applicable policy statements issued by the Sentencing Commission." § 3582(c)(1)(A) (emphasis added).
1. Extraordinary and Compelling Reasons
Congress never defined what constitutes "extraordinary and compelling." See 28 U.S.C. § 994(t). Instead, Congress directed the Sentencing Commission to promulgate "the criteria to be applied and a list of specific" extraordinary and compelling examples. Id. Before the First Step Act, the Commission provided just three: severe illness, an elderly inmate's rapidly declining health, and care for dependent family members. U.S.S.G. § 1B1.13 cmt. n.1.
The Commission also provided a catch-all provision that allows the BOP Director to determine "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with," examples described above. Id. § 1B1.13 cmt. n.1(D). The question of what constitutes an extraordinary and compelling reason remained. "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." § 994(t) (emphasis added). Thus, rehabilitation is insufficient to be eligible for release, but its mention by Congress indicates rehabilitation may be considered.
Courts otherwise are left to themselves, because the Commission never updated its policy statement for the First Step Act. Rather, the outdated policy statement still assumes compassionate release "may be granted only upon motion by the Director of the Bureau of Prisons." U.S.S.G. § 1B1.13 cmt. n.4. This left district courts in a conundrum. On the one hand, Congress said it wished to "[i]ncreas[e] the [u]se ... of [c]ompassionate [r]elease," § 603(b), 132 Stat. at 5239, by allowing district courts to grant petitions "consistent with applicable policy statements" from the Commission. § 3582(c)(1)(A) (emphasis added). On the other hand, the Commission did not produce a policy statement applicable to the new statute.
The Commission cannot amend its guidelines until it again has four voting commissioners. United States v. Cantu , 423 F. Supp. 3d 345, 348 n.1 (S.D. Tex. 2019) (quoting United States v. Handerhan , No. 1:10-CR-00298, 2019 WL 1437903, at *1 n.4 (M.D. Pa. Apr. 1, 2019) ). The Commission still has only two voting members. About the Commissioners , U.S. Sentencing Comm'n, https://www.ussc.gov/commissioners (last visited Sept. 8, 2020).
Many courts, including this one, have concluded this means the Commission lacks an applicable policy statement regarding when a court can grant compassionate release. United States v. Brown , No. 4:05-cr-00227-1, 457 F.Supp.3d 691, 699–700 (S.D. Iowa Apr. 29, 2020), appeal dismissed following government request , No. 20-2053 (8th Cir. June 16, 2020); United States v. Haynes , No. 93 CR 1043 (RJD), 456 F.Supp.3d 496, 513 (E.D.N.Y. Apr. 22, 2020) (citing thirteen such cases). In the absence of an applicable policy statement, "the Court can determine whether any extraordinary and compelling reasons other than those delineated in" the Commission's outdated commentary support release. Cantu , 423 F. Supp. 3d at 352 ; see also United States v. Fox , No. 2:14-CR-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019) (treating "the previous BOP discretion to identify other extraordinary and compelling reasons as assigned now to the courts"). The result is that the district court can consider anything—or at least anything the BOP could have considered—when assessing a defendant's motion. This now "appears to be the majority position." United States v. Scott , No. 17-CR-156, 461 F.Supp.3d 851, 861 (E.D. Wis. May 15, 2020). In sum, if the First Step Act is to increase the use of compassionate release as intended, the most natural reading of § 3582(c) is that the district court assumes the same discretion as the BOP Director when it considers a compassionate release motion properly before it.
2. COVID-19 and Defendant's Preexisting Conditions
The district courts holding that the COVID-19 pandemic constitutes an extraordinary and compelling reason for release are legion. E.g., United States v. Tillman , No. 12-cr-2024, 2020 WL 3578374, at *5 (N.D. Iowa June 30, 2020) ; United States v. Schneider , No. 14-CR-30036, 2020 WL 2556354, at *1 (C.D. Ill. May 20, 2020). It necessarily follows that COVID-19 presents a still-greater extraordinary and compelling reason for release when a defendant's prison is battling a bona fide outbreak. United States v. McKeel , No. 1:16-CR-88-LG-JCG-1, 2020 WL 5083863, at *2 (S.D. Miss. Aug. 26, 2020) (noting the "meteoric rise in COVID-19 cases at FCI Beaumont Low"). This is particularly so when an inmate has characteristics that increase the likelihood of COVID-19 complications. Advanced age, Type II diabetes, and obesity are three such conditions. Older Adults , Ctrs. for Disease Control & Prevention (Sept. 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html ("Eight out of ten COVID-19 deaths reported in the U.S. have been in adults 65 years and older."); People with Certain Medical Conditions , Ctrs. for Disease Control & Prevention (Sept. 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. Thus, Defendant's age, significant preexisting health conditions, and presence in a federal prison with an ongoing COVID-19 outbreak constitute extraordinary and compelling reasons under § 3582(c)(1)(A).
The Government raises two points in rebuttal. First, the Government argues the Sentencing Commission's policy statement, U.S.S.G. § 1B1.13, is binding upon the Court, citing Dillon v. United States , 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Dillon addressed the application of the Commission's policy statements to sentence modifications under § 3582(c)(2), which concerns the retroactive application of reduced sentencing ranges to earlier sentences. 560 U.S. at 817, 130 S.Ct. 2683. Dillon has no bearing on the applicability of the Commission's outdated policy statements under § 3582(c)(1). Further, the Government mischaracterizes the Court's position as concluding "it is not bound by policy statement at USSG § 1B1.13." Of course, the Court understands it must adhere to the policy statements when considering a reduction of sentence. As explained at length above and in numerous prior orders, the Court simply assumes the discretion of the BOP Director in finding extraordinary and compelling reasons for compassionate release as authorized by the First Step Act. See Brown , , 457 F.Supp.3d at 699–700. The commentary to U.S.S.G. § 1B1.13 specifically "encourages" the BOP Director to seek compassionate release "if the defendant meets any of the circumstances set forth in Application Note 1," including the catch-all provision. U.S.S.G. § 1B1.13 cmt. n.4 (emphasis added). Additionally, although § 3582(c)(2) applies only "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered ...," § 3582(c)(2), the First Step Act clearly authorizes the Court to apply its discretion to grant compassionate release "in any case," § 3582(c)(1) (emphasis added). Thus, while the Government would treat compassionate release as an exception to the generally applicable sentencing rules, Congress and the Sentencing Commission have made clear that they meant to encourage sentencing modification in appropriate circumstances. Releasing Defendant is therefore authorized by law and as legitimate an exercise of this Court's authority as its initial sentencing.
Second, the Government argues Defendant receives adequate medical care in BOP custody and is not more likely to contract COVID-19 at FCI Beaumont Low than if released. ECF No. 813 at 6. Assuming for the sake of argument the BOP can manage Defendant's health conditions, the Government still misses the point. The Court's concern is that Defendant's preexisting medical conditions create an untenable risk of death should Defendant contract a lethal, easily spread virus without a known cure or effective treatment. S. Bay United Pentecostal Church , 140 S. Ct. at 1613 (Roberts, C.J., concurring).
As to Defendant's likelihood of contracting COVID-19, the Government claims "Defendant's statistics are outdated," and notes the number of COVID-19 cases at FCI Beaumont Low is declining. ECF No. 196 at 16. This Court initially reviewed Defendant's case on September 8, 2020, when the BOP reported eighty-three inmates and ten staff had open and confirmed cases of the virus across the FCC Beaumont facilities. On September 9, 2020, the Government filed a Motion for Extension of Time to file its response, which the Court granted. ECF Nos. 194–95. In the intervening period, COVID-19 cases have declined, but new cases of the virus continue to arise, and over 600 FCC Beaumont inmates have contracted the virus since the onset of the pandemic. COVID-19 Cases , Fed. Bureau Prisons (Sept. 28, 2020), https://www.bop.gov/coronavirus. A mere decline in cases during the time the Government was preparing its case is insufficient to conclude the BOP is adequately protecting Defendant from the risk of COVID-19. Moreover, if released, Defendant would have the power to take all health precautions he deems necessary. At FCI Beaumont Low, Defendant lacks that power, and the BOP apparently lacks the ability or will to take those precautions for him. Thus, Defendant presents an extraordinary and compelling reason for a sentence reduction because he is incarcerated in a COVID-19 hotspot while battling several preexisting ailments that would make a case of COVID-19 particularly deadly.
3. Section 3553(a) Factors
The Court must also consider if compassionate release comports with any applicable § 3553(a) factors. § 3582(c)(1)(A). The Court's lodestar is to ensure the sentence is "sufficient, but not greater than necessary." § 3553(a). In Defendant's case, the "nature and circumstances of the offense"—attempted enticement of a minor—are serious. § 3553(a)(1). Nonetheless, with respect to the "characteristics of the defendant," § 3553(a)(1), the Court must assess Defendant as a whole person. Koon v. United States , 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Defendant had no criminal record before this offense. ECF No. 148 ¶¶ 49–50. At sentencing, the Court emphasized Defendant's "good characteristics" as evidenced by numerous letters of support from his community. ECF No. 164 at 106.
Defendant is now sixty-eight years old, lowering his likelihood of recidivism. U.S. Sentencing Comm'n, The Effects of Aging on Recidivism Among Federal Offenders 23 (2017). During his nine years of incarceration, Defendant has not incurred any disciplinary violations. ECF No. 191-5 at 11. He has also completed numerous courses and work assignments during this time. Id. Given the nature of Defendant's non-violent behavior in prison since 2011, incarceration is not necessary "to protect the public from further crimes of the defendant." § 3553(a)(2)(C).
Nor is incarceration the only "kind[ ] of sentence available." § 3553(a)(3). Noncustodial sentences also curtail "prized liberty interests" and "the Defendant always faces the harsh consequences that await if he violates the conditions " attached to such a sentence. United States v. Gall , 374 F. Supp. 2d 758, 763 (S.D. Iowa 2005) (emphasis added), rev'd , 446 F.3d 884 (8th Cir. 2006), rev'd , 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In Defendant's case, his supervised release will be subject to conditions intended to detect and prevent further crimes without need for extended incarceration. ECF No. 153. Such restrictions also promote respect for the law, protect the public, and do not constitute any endorsement of Defendant's conduct. See Gall , 374 F. Supp. 2d at 763.
It is as true now as it was at Defendant's sentencing that his "offenses are among the most serious that the Court has to confront in sentencing." ECF No. 164 at 107. The Court therefore sentenced Defendant to a Guidelines term of 151 months. ECF No. 153 at 2. BOP records indicate Defendant has now served approximately 73% of his sentence, or 85.3% accounting for the good time he has accrued. ECF No. 191-6 at 3. Given Defendant's ailments and the COVID-19 outbreak at FCI Beaumont Low, Defendant's significant completion of his sentence of incarceration counsels in favor of release.
The Government would deny Defendant's motion, because Defendant never accepted responsibility for his offense. ECF No. 196 at 19. However, the Court sentenced Defendant based upon a total offense level of thirty-seven, without any adjustment for acceptance of responsibility. See ECF No. 148 ¶¶ 47–48. Defendant's initial sentence thus reflects his failure to accept responsibility for the offense. This factor does not outweigh the significant risk Defendant faces should he contract COVID-19 during the minimal time remaining in his sentence.
As the Court has repeatedly noted as of late, a decision does not cease to be an "exercise of reason simply because it is also an exercise of compassion." United States v. Likens , 464 F.3d 823, 827 (8th Cir. 2006) (Bright, J., dissenting), cited with approval in Gall , 552 U.S. at 52 n.7, 128 S.Ct. 586. The Court grants Defendant's Motion for Compassionate Release because it is supported by extraordinary and compelling reasons as well as the § 3553(a) factors.
C. Release Plan
Defendant's remaining term of imprisonment shall be served as a term of supervised release following a fourteen-day quarantine period with the BOP that begins September 29, 2020. When that supervised release term expires on his current release date, he shall serve the ten-year term of supervised release already imposed. See ECF No. 153. Both terms of supervised release will be subject to the conditions listed in the Judgment. See id.
Defendant is scheduled to be released February 19, 2022. ECF No. 191-6 at 3.
The Government asserts Defendant has not provided a suitable release plan to ensure he is properly monitored. ECF No. 196 at 18 (citing United States v. Van Dyke , 2:15-CR-0025-JLQ-1, 2020 WL 1811346, at *3 (E.D. Wash. Apr. 8, 2020) ). Defendant has in fact offered two release plans, one to live with his friend in Minnesota and one to live with his friends in West Des Moines, Iowa. ECF No. 191-1 at 10; ECF No 192. This Court has worked with the U.S. Probation Office (USPO) to ensure Defendant's release plan is workable and will ensure his compliance with the conditions of his supervised release. Defendant shall reside at the home of Rick and Diane Hickman at the address listed in Defendant's sealed Addendum. See ECF No. 192. Any change in address is subject to USPO approval. Upon release, Defendant shall contact the Southern District of Iowa USPO within seventy-two hours.
III. CONCLUSION
For the reasons stated herein, Defendant's Motion for Compassionate Release (ECF No. 191) is GRANTED.
IT IS SO ORDERED.