Opinion
6:19-CR-06147 EAW
2020-04-09
UNITED STATES of America, v. James N. GREENE, Defendant.
Cassie M. Kocher, U.S. Attorney's Office, Rochester, NY, for United States of America. Jeffrey L. Ciccone, Federal Public Defender, Rochester, NY, for Defendant.
Cassie M. Kocher, U.S. Attorney's Office, Rochester, NY, for United States of America.
Jeffrey L. Ciccone, Federal Public Defender, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Presently before the Court is a motion filed by defendant James N. Greene ("Defendant") on April 1, 2020, to revoke the magistrate judge's detention order pursuant to 18 U.S.C. § 3145(b) and for an order releasing Defendant on pretrial conditions due to the national emergency and worldwide pandemic caused by the Coronavirus Disease-2019 ("COVID-19"). (Dkt. 24). Because Defendant has not established by clear and convincing evidence that his release would not pose a danger to the community, the motion is denied.
According to the World Health Organization's website, as of April 8, 2020, there were 1,453,361 confirmed cases of COVID-19 worldwide, with 85,586 confirmed deaths and 214 countries impacted. See Coronavirus Disease (COVID-19) Pandemic, World Health Org., https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited April 9, 2020).
BACKGROUND
On September 11, 2019, defendant James N. Greene ("Defendant") waived indictment and pleaded guilty to a one-count Information charging a violation of 21 U.S.C. § 841(a)(1) (possession of cocaine with intent to distribute), for which the maximum possible sentence is a term of imprisonment of 30 years, a fine of $2,000,000, a mandatory $100 special assessment, and a term of supervised release of at least 6 years and up to life. (Dkt. 15; Dkt. 17; Dkt. 18; Dkt. 19). The plea agreement was entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), and calls for an agreed-upon sentence of 235 months in prison, unless the Government files a motion for a sentencing reduction as set forth in the plea agreement. (Dkt. 18 at ¶ 12). Consistent with the plea agreement, the Presentence Investigation Report as revised January 7, 2020 (the "PSR"), calculated an offense level of 31 and a criminal history category of VI, with a resulting recommended prison sentence under the Sentencing Guidelines of 188 to 235 months. (Dkt. 22 at ¶ 56).
As part of his plea, Defendant admitted that he conducted a hand-to-hand drug transaction on March 17, 2019, at a gas station on Clinton Avenue in Rochester, New York, and at the time he was in personal possession of 39 baggies of cocaine, 35 vials of marijuana, $80 in cash, and a firearm, specifically a 9mm Luger (9xl9mm) caliber, Hi-Point C9, semi-automatic pistol, bearing serial number P1237809, loaded with 4 rounds of 9mm Luger (9x19mm) caliber cartridges (2-CBC, 1-Winchester, 1-R-P). (Dkt. 18 at ¶ 6(b)). Defendant's plea agreement and the PSR acknowledge that Defendant is considered a career offender under U.S.S.G. § 4B1.1 because of the following prior convictions:
(1) Criminal Sale of a Controlled Substance in the Third Degree
Date of Conviction: January 12, 2007
Court of Conviction: Monroe County Court, New York
Sentence upon Conviction: 42 months imprisonment followed by 3 years post-release supervision
(2) Criminal Possession of a Controlled Substance in the Third Degree and Criminal Sale of a Controlled Substance in the Third Degree
Date of Conviction: November 15, 1999
Court of Conviction: Monroe County Court, New York
Sentence upon Conviction: 2 to 6 years imprisonment
(Dkt. 18 at ¶ 8; Dkt. 22 at ¶ 50). According to the PSR, Defendant violated the terms of post-release supervision with respect to both of the above convictions, and his parole was revoked. (Dkt. 22 at ¶¶ 45, 47). In addition, during his incarceration for the above-referenced 2007 conviction, he sustained infractions for Creating a Disturbance and Refusing a Direct Order on October 8, 2010; Creating a Disturbance, Escape, and Violation of Temporary Release on January 21, 2009; and Gambling on January 20, 2008. (Id . at ¶ 47).
In addition to the above convictions, Defendant was convicted in July 2003, of Criminal Possession Controlled Substance in the Fifth Degree, and sentenced to 2 to 4 years imprisonment. (Id. at ¶ 46). Like the above convictions, Defendant had difficulty complying with the terms of his post-release supervision, and his parole was revoked. (Id .). Also, during his incarceration for this 2003 conviction, Defendant sustained an infraction on November 23, 2003, for Creating a Disturbance and Interference. (Id. ).
The PSR reflects that Defendant also has had three orders of protection entered against him, one of which remains effective. (Id . at ¶ 51). Defendant also has charges pending related to a traffic stop on December 23, 2018, where he was allegedly driving without a license and purportedly found to be in possession of narcotics (a marijuana cigarette, a prescription bottle with 7 individually bagged crack cocaine rocks, and a plastic bag with 20 grams of marijuana). (Id . at ¶ 52). The PSR also reflects that as a student with the Rochester City School District, Defendant incurred multiple disciplinary infractions. (Id . at ¶ 84). Furthermore, Defendant, who is 44 years old (Id. at 2), is close with his family, including his mother and children who live in Rochester, New York (id . at ¶¶ 70-71); he has a history of substance abuse issues (id . at ¶¶ 81-83); and he has no real employment history (id . at ¶¶ 86-89).
Sentencing is currently scheduled for June 24, 2020, having been adjourned on two prior occasions at the request the parties. (Dkt. 23; Dkt. 26; see Dkt. 24 at ¶ 6).
DEFENDANT'S MOTION FOR RELEASE
On April 1, 2020, Defendant filed a motion seeking revocation of the Magistrate Judge's Detention Order pursuant to 18 U.S.C. § 3145(b) and for an Order releasing Defendant on conditions due to the COVID-19 pandemic. (Dkt. 24). Previously, after his arrest on the underlying criminal complaint, United States Magistrate Judge Jonathan W. Feldman granted the Government's motion to detain Defendant, finding that the Government had established by clear and convincing evidence that Defendant posed a danger to the community. (Dkt. 4; Dkt. 5). Defendant contends that the circumstances concerning the COVID-19 pandemic necessitate his release, because of Defendant's personal health situation (he suffers from rheumatoid arthritis (an autoimmune condition) and diabetes ). (Dkt. 24 at ¶ 10). Defendant argues that the conditions of confinement "create the ideal environment for the transmission of contagious disease" (id . at ¶ 11), and particularly in view of his medical conditions, exceptional circumstances as set forth at 18 U.S.C. § 3145(c) justify his release (id . at ¶¶ 15-16).
The PSR also notes that Defendant suffers from high blood pressure, a prior history of kidney stones, and crushed vertebrate, and Defendant is prescribed several medications for his physical conditions. (Dkt. 22 at ¶ 73).
The Government opposes Defendant's motion, arguing that Defendant has failed to meet his burden of proving a lack of risk of flight and danger. (Dkt. 27 at 4-7). The Government also devotes an entire section of its opposition to contending that Defendant should not be released under 18 U.S.C. § 3142(i) (providing for release where there are compelling circumstances) (Dkt. 27 at 7-8), but in fact, that provision is not cited anywhere in Defendant's motion papers (see generally Dkt. 24). Section 3142(i) applies to detention and release pre-conviction, not post-plea as in Defendant's case. See United States v. McDuffie , No. 19-CR-212 (VEC), 2020 WL 1659879, at *1 (S.D.N.Y. Apr. 3, 2020) (application to be released after guilty plea was not governed by § 3142(i), but rather § 3145(c) ).
"Once convicted, a defendant bears the burden of proof to establish his entitlement to bail." United States v. Harris , 192 F. Supp. 3d 337, 346-47 (W.D.N.Y. 2016). The standard for release or detention pending sentence is set forth at 18 U.S.C. § 3143(a). In this case, because Defendant has been convicted of a violation of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. , with a maximum term of imprisonment of thirty years, the Court must order Defendant detained pending sentencing unless "the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted ... or ... an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person" and "the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community." 18 U.S.C. § 3143(a)(2). In this case, there is neither a substantial likelihood that a motion for acquittal or new trial will be granted, nor has an attorney for the Government recommended that no sentence of imprisonment be imposed—instead, the agreed-upon sentence in the Rule 11(c)(1)(C) plea agreement is 235 months. However, an additional avenue for release is found at 18 U.S.C. § 3145(c), which states, in relevant part, as follows:
A person subject to detention pursuant to section 3143(a)(2) ... and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.
18 U.S.C. § 3145(c). Thus, in order for Defendant to be released pending sentencing, he would have to establish: (1) by clear and convincing evidence that he is not likely to flee; (2) by clear and convincing evidence that he does not pose a danger to any other person or the community; and (3) that exceptional reasons are clearly shown warranting his release.
For purposes of this motion, the Court assumes, without deciding, that Defendant has established that he is not likely to flee (Judge Feldman's initial detention determination concluded that dangerousness, not flight, justified Defendant's detention). (See Dkt. 5). Moreover, while noting that the Government represents that there have been no confirmed COVID-19 cases in the facility where Defendant is housed, the Court nonetheless assumes for purposes of this motion, without deciding, that Defendant has established exceptional circumstances pursuant to § 3145(c). Cf. McDuffie , 2020 WL 1659879, at *3 (finding exceptional circumstances under § 3145(c) where defendant suffered from rheumatoid arthritis, high blood pressure, and cardiac issues, and he was housed in a facility with inmates who had tested positive for COVID-19, with the court explaining "the combination of a once-in-a-lifetime pandemic and an immune system disorder suffices" to meet the exceptional circumstances standard).
Nonetheless, the fatal flaw in Defendant's motion is that he has failed to establish by clear and convincing evidence that his release would not pose a danger to the community—in fact, the Court reaches the exact opposite conclusion, finding (as did Judge Feldman) that Defendant's release would create an unreasonable risk of danger. Defendant's motion does not even reference this aspect of the legal analysis, instead focusing exclusively on whether exceptional circumstances exist under § 3145(c). But pursuant to § 3143(a), the issue of exceptional circumstances is never even reached if a defendant cannot establish his lack of danger.
Here, based upon a consideration of the factors set forth at 18 U.S.C. § 3142(g) —the nature and circumstances of the offense charged (i.e. , narcotics trafficking where Defendant possessed a loaded firearm); the weight of the evidence against Defendant (he has admitted to the alleged conduct); Defendant's history and characteristics (Defendant is a career offender with repeated history of parole violations, among other factors); and the nature and seriousness of the danger posed by Defendant's release, the Court concludes that Defendant has failed to establish by clear and convincing evidence that his release would not pose a danger to the community. Accordingly, notwithstanding the COVID-19 pandemic, and the assumption that this Court makes for purposes of this motion that Defendant's health situation places him at a greater risk of contracting this virus, particularly in a jail setting where the prescribed tactics for thwarting the spread of this virus are plainly more challenging, see United States v. Cooper , No. 1:18-CR-00126 EAW, 450 F. Supp. 3d 308, 311 (W.D.N.Y. Mar. 30, 2020), Defendant's release would pose too great a danger to the community to justify granting his motion. CONCLUSION
For the foregoing reasons, Defendant's motion to revoke the magistrate judge's detention order pursuant to 18 U.S.C. § 3145(b) and for an Order releasing Defendant on pretrial conditions (Dkt. 24) is denied.
SO ORDERED.