Opinion
4:12-CR-00180(11)
05-12-2023
UNITED STATES OF AMERICA v. JAY JURDI
MEMORANDUM OPINION & ORDER
AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE
Pending before the Court is Defendant Jay Jurdi's Motion for Compassionate Release (Dkt. #655). The Court, having considered the Motion, the response, the record, and the applicable law, finds that the motion should be DENIED.
BACKGROUND
On October 20, 2014, Defendant Jay Jurdi (“Jurdi”) was found guilty by a jury of Conspiracy to Possess with the Intent to Distribute 500 Grams or More of a Mixture Containing Methamphetamine or 50 Grams or More of Methamphetamine (Actual), in violation of 21 U.S.C. § 846 (Dkt. #432). The Court sentenced Jurdi to life in prison on September 16, 2015 (Dkt. #550). Jurdi is serving his sentence at the United States Penitentiary, Beaumont (“USP Beaumont”). See https://www.bop.gov/inmateloc/ (Register Number: 20653-078).
Jurdi argues that his increased risk of contracting COVID-19 and his significant postsentencing rehabilitation efforts present “extraordinary and compelling reasons” which warrant compassionate release (Dkt. #655). The Government responded that Jurdi has presented no evidence that he has satisfied the administrative exhaustion requirement under 18 U.S.C § 3582(c) (Dkt. #656).
LEGAL STANDARD
A judgment of conviction imposing a sentence of imprisonment “‘constitutes a final judgment' and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting 18 U.S.C. § 3582(b)); see also 18 U.S.C. § 3582(c). One such circumstance arises from 18 U.S.C. § 3582(c)(1)(A)(i), commonly referred to as compassionate release.
Section 3582(c) was enacted as part of the Sentencing Reform Act of 1984. Under the first iteration of the relevant provision, district courts were authorized to grant sentence reductions on the motion of the Director of the Bureau of Prisons (“BOP”) if the BOP could establish the following conditions: (1) extraordinary and compelling reasons warranted a sentence reduction; (2) a reduction would be consistent with the applicable policy statements of the Sentencing Commission; and (3) a sentence reduction was warranted after consideration of the sentencing factors in 18 U.S.C. § 3553(a). United States v. Shkambi, 993 F.3d 388, 391 (5th Cir. 2021). Notably, Congress did not define “extraordinary and compelling reasons” or otherwise indicate how that phrase should be interpreted other than to specify that rehabilitation alone did not qualify. Id. (quoting 28 U.S.C. § 994(t)). Instead, Congress delegated that authority to the Sentencing Commission, directing it to “describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” 28 U.S.C. § 994(t).
The Sentencing Commission eventually followed Congress's direction to define “extraordinary and compelling reasons” and promulgated United States Sentencing Guidelines (“U.S.S.G.) § 1B1.13. In application note 1 to § 1B1.13, the Sentencing Commission described what circumstances constitute “extraordinary and compelling reasons” for purposes of § 3582(c)(1)(A)(i). U.S.S.G. § 1B1.13 cmt. n.1. The Sentencing Commission essentially created four categories of “extraordinary and compelling reasons,” which can broadly be characterized as: (1) circumstances arising from certain medical conditions; (2) circumstances arising from the age of the defendant;(3) issues arising from the defendant's family circumstances;and (4) other reasons that the BOP agrees are extraordinary and compelling in a specific case. Id. And because § 3582(c)(1)(A) requires that any sentence reduction be consistent with the Sentencing Commission's policy statements issued pursuant to § 994(t), the policy statements contained in § 1B1.13 were binding on district courts considering § 3582(c)(1)(A)(i) motions. See United States v. Garcia, 655 F.3d 426, 435 (5th Cir. 2011) (holding that the Sentencing Commission's policy statements issued pursuant to 28 U.S.C. § 994 are binding on district courts when considering motions brought under 18 U.S.C. § 3582(c)).
Specifically, a defendant, who is at least 65 years old, who “is experiencing a serious deterioration in physical or mental health because of the aging process” and also “has served at least 10 years or 75 percent of his or her term of imprisonment” may meet the requirement that “extraordinary and compelling reasons” exist. U.S.S.G. § 1B1.13, n.1(B).
Such family circumstances exist where: (1) a defendant has minor children whose caregiver dies or becomes incapacitated; or (2) “incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.” U.S.S.G. § 1B1.13, n.1(C).
In 2018, Congress amended § 3582(c)(1)(A) with the passage of the First Step Act. The amendment provided that, in cases where the BOP does not file a compassionate-release motion on the prisoner's behalf, the prisoner may personally file a motion for compassionate release. Shkambi, 993 F.3d at 391-92. This was the First Step Act's only change to the compassionate-release framework. Id. at 391. Thus, while prisoners, in addition to the BOP, may now file motions for compassionate release, § 3582(c)(1)(A)(i)'s substantive requirements that govern a prisoner's entitlement to release remain the same. See id. at 392 (“But the [First Step Act] left undisturbed the other three § 3582 requirements.”).
Following the First Step Act's expansion of who may file a motion under § 3582(c)(1)(A), courts were confronted with the question of whether the Sentencing Commission's definition of “extraordinary and compelling reasons,” which was promulgated prior to the First Step Act when such motions could only be filed by the BOP, remained binding on district courts when considering compassionate-release motions. The Fifth Circuit addressed this question in Shkambi, holding that, while U.S.S.G. § 1B1.13 is a policy statement applicable to § 3582(c)(1)(A) motions filed by the BOP, it is inapplicable to § 3582(c)(1)(A) motions filed by prisoners. 993 F.3d at 392.Accordingly, while U.S.S.G. § 1B1.13 dictates the meaning of “extraordinary and compelling reasons” when a § 3582(c)(1)(A) motion is filed by the BOP on a prisoner's behalf, it does not do so when, as here, a § 3582(c)(1)(A) motion is filed by a prisoner himself. See id. (“[T]he policy statement continues to govern where it says it governs-on the motion of the Director of the [BOP]. But it does not govern here-on the newly authorized motion of a prisoner.” (internal quotations omitted)). Therefore, when a prisoner files a compassionate-release motion, courts must determine what constitutes an “extraordinary and compelling reason” under § 3582(c)(1)(A)(i).
Several other circuits have similarly concluded that U.S.S.G. § 1B1.13 is inapplicable to such compassionate-release motions filed by prisoners. See, e.g., United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (per curiam); United States v. McCoy, 981 F.3d 271, 281 (4th Cir. 2020); United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020). But see United States v. Bryant, 996 F.3d 1243, 1248 (11th Cir. 2021) (holding that U.S.S.G. § 1B1.13 is an applicable, binding policy statement for all § 3582(c)(1)(A) motions).
II. Extraordinary and Compelling Reasons
Though the Court is not bound by the Sentencing Commission's policy statement in U.S.S.G § 1B1.13 and its accompanying application notes when considering compassionate-release motions filed by prisoners, the policy statement is not wholly irrelevant. Courts should still look to the policy statement for guidance in determining what constitutes “extraordinary and compelling reasons” for a sentence reduction when a prisoner files a compassionate-release motion. See United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021) (“Although not dispositive, the commentary to the [U.S.S.G.] § 1B1.13 informs our analysis as to what reasons may be sufficiently ‘extraordinary and compelling' to merit compassionate release.”); see also, e.g., United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020) (“The substantive aspects of the Sentencing Commission's analysis in § 1B1.13 and its Application Notes provide a working definition of ‘extraordinary and compelling reasons'; a judge who strikes off on a different path risks an appellate holding that judicial discretion has been abused.”). Using the policy statement as guidance when considering prisoner-filed compassionate-release motions is warranted for several reasons.
First, whether a compassionate-release motion is filed by the BOP or a defendant, the statutory standard governing the motion is the same. Section 3582(c)(1)(A) provides that its requirements for obtaining a sentence reduction apply “upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant.” 18 U.S.C. § 3582(c)(1)(A). And as noted above, the First Step Act did not change § 3582(c)(1)(A)'s substantive requirements. Thus, a policy statement defining “extraordinary and compelling reasons” in the context of BOP-filed motions necessarily informs what “extraordinary and compelling” means in the context of defendant-filed motions because the same standard governs both motions. In other words, § 3582(c)(1)(A)(i)'s “extraordinary and compelling reasons” phrase does not implicate shifting substantive meanings depending on who invokes the statute.
Congress's application of a single standard to govern § 3582(c)(1)(A) motions-whether filed by the BOP or by defendants-is also evident in § 3582(c)(1)(A)'s exhaustion requirement.
Before a prisoner can file a compassionate-release motion, he must first present his case to the BOP and request that the BOP file the motion on his behalf. See 18 U.S.C. § 3582(c)(1)(A). Fulfilling this exhaustion requirement would be a nonsensical exercise if the standard governing the defendant's entitlement to release varied significantly depending on whether the BOP grants the defendant's request. A Defendant would request compassionate release based on the interpretation of “extraordinary and compelling reasons” applicable to his motions while the BOP would evaluate such requests based on the interpretation applicable to its motions. The fact that a defendant must first ask the BOP to file his compassionate-release motions before doing it themselves indicates that Congress intended no significant substantive distinction between BOP-filed and defendant-filed motions under § 3582(c)(1)(A).
Indeed, § 1B1.13 does not become useless as guidance for defendant-filed compassionate-release motions simply because its terms state that it applies to motions brought by the Director of the BOP. Rather, § 1B1.13 and its accompanying application notes “provide a working definition of ‘extraordinary and compelling reasons'” because the standard applies equally to BOP motions and prisoner motions. Gunn, 980 F.3d at 1180. When the Sentencing Commission promulgated § 1B1.13, its intent was not to specify a unique standard for BOP motions but rather to define “extraordinary and compelling reasons” for purposes of § 3582(c)(1)(A).
Further, 28 U.S.C. § 994(t) does not direct the Sentencing Commission to adopt standards governing prisoner motions and standards governing BOP motions. Rather, § 994(t) directs the Sentencing Commission to “describe what should be considered extraordinary and compelling reasons for sentence reduction” under § 3582(c)(1)(A). And as the Sentencing Commission itself has explained, U.S.S.G. § 1B1.13 and its application notes constitute the Commission's implementation of § 994(t)'s directive. See U.S.S.G. § 1B1.13 cmt. background (“This policy statement implements 28 U.S.C. § 994(a)(2) and (t).”). Because § 3582(c)(1)(A) governs BOP motions and prisoner motions alike, the Sentencing Commission's definition of § 3582(c)(1)(A)'s terms is instructive when considering a prisoner's motion brought under § 3582(c)(1)(A)(i).
For these reasons, the Court concludes that the “extraordinary and compelling reasons” applicable to defendant-filed motions are generally those that are similar in kind and scope to those listed in U.S.S.G. § 1B1.13's application notes. To be clear, the “extraordinary and compelling reasons” contained in the Sentencing Commission's policy statement are neither exhaustive nor binding on the Court. Shkambi, 993 F.3d at 392. But, in any event, the Court's analysis of whether Defendant has presented “extraordinary and compelling reasons” warranting the sentence reduction he seeks will be significantly guided-though not strictly bound-by the Sentencing Commission's description in U.S.S.G. § 1B1.13 and the accompanying application notes.
III. 18 U.S.C. § 3553(a) Factors
Even if extraordinary and compelling reasons exist, they must outweigh the 18 U.S.C. § 3553(a) factors to warrant sentence reduction. See 18 U.S.C. § 3582(c)(1)(A). These factors are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and sentencing range [provided for in the U.S.S.G.] . . .
(5) any pertinent [Sentencing Commission] policy statement . . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.Id. § 3553(a).
DISCUSSION
Jurdi moves for compassionate release based on the COVID-19 pandemic and his rehabilitation efforts (Dkt. #655). Jurdi argues that his heightened risk of complications arising from COVID-19, coupled with his rehabilitation efforts, warrants a sentence reduction. The Government argues Jurdi has not satisfied § 3582(c)(1)(A)'s exhaustion requirement (Dkt. #656).
Although Jurdi has met § 3582(c)(1)(A)'s exhaustion requirement, he has not established that “extraordinary and compelling reasons” warrant a reduction of his sentence. Jurdi's motion, therefore, must be denied.
I. Jurdi Has Met Section 3582(c)(1)(A)'s Exhaustion Requirement.
Jurdi's compassionate release motion may only be considered if he first meets § 3582(c)(1)(A)'s exhaustion requirement. Courts may not consider a modification to a defendant's sentence under § 3582(c)(1)(A)(i) unless a motion for such a modification is properly made by the Director of the BOP or by a defendant who has fully exhausted their administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Fully exhausting administrative remedies requires a denial by the warden of a defendant's facility or waiting thirty days without receiving a response to a request. Id.
BOP regulations define “warden” to include “the chief executive officer of . . . any federal penal or correctional institution or facility.” 28 C.F.R. § 500.1(a); United States v. Franco, 973 F.3d 465, 468 (5th Cir. 2020); c.f. United States v. Campagna, 16 Cr. 78-01 (LGS), 2020 WL 1489829, at *3 (S.D.N.Y. Mar. 27, 2020) (holding that “the denial of Defendant's request by the Residential Re-entry Manager suffices to exhaust his administrative rights”).
Section 3582(c)(1)(A)'s exhaustion requirement is not waivable. See United States v. Rivas, 833 Fed.Appx. 556, 558 (5th Cir. 2020) (“Because the statutory language is mandatory-that a prisoner must exhaust their BOP remedy before filing in district court-we must enforce this procedural rule . . .”); United States v. Reeves, No. 18-00294, 2020 WL 1816496, at *2 (W.D. La. Apr. 9, 2020) (“While the Court is well aware of the effects the Covid-19 pandemic . . . § 3582(c)(1)(A) does not provide this Court with the equitable authority to excuse Reeves' failure to exhaust his administrative remedies or to waive the 30-day waiting period.”). If a defendant has not sought relief from the BOP, or has not waited thirty days since seeking relief, the Court may not consider their motion.
Jurdi has presented evidence that, on August 23, 2022, he submitted a request for compassionate release to the warden at USP Beaumont, which the warden denied on October 14, 2022 (Dkt. #657, Exhibit 1).The Court is, therefore, satisfied that Jurdi has met § 3582(c)(1)(A)'s exhaustion requirement.
As the Government points out, Jurdi failed to establish that he had satisfied the exhaustion requirement at the time of his initial motion (Dkt. #656). Jurdi subsequently filed a reply with exhibits indicating that he did, in fact, submit a request to the warden at USP Beaumont before filing his motion before the Court (Dkt. #657). Although the Court does not typically consider arguments and evidence presented for the first time in a reply brief, it may do so if the Government has a sufficient opportunity to address those arguments. See, e.g., Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004) (“[A] district court may rely on arguments and evidence presented for the first time in a reply brief as long as the court gives the nonmovant an adequate opportunity to respond.”). The Government had the opportunity to address Jurdi's arguments in its sur-reply and did not do so. See Local Rule CR-47(b)(2). And, in any event, the Court will liberally construe Jurdi's filings because he is proceeding pro se. See United States v. Flores, 380 Fed.Appx. 371, 372 (5th Cir. 2010) (per curiam).
II. Jurdi Has Not Met Section 3582(c)(1)(A)'s Requirement that “Extraordinary and Compelling Reasons” Warrant a Sentence Reduction.
Jurdi's compassionate release motion primarily turns on his assertion that the risks to his health associated with COVID-19 constitute extraordinary and compelling reasons to reduce his sentence. Jurdi's assertion fails because those risks are not severe enough to constitute “extraordinary and compelling reasons” under § 3582(c)(1)(A)(i).
The Court has discretion to decide whether Jurdi's conditions present “extraordinary and compelling reasons” warranting a sentence reduction. See Shkambi, 2021 WL 1291609, at *4. The Court is not bound by the Sentencing Commission's policy statement and may consider any relevant facts in evaluating Jurdi's condition of incarceration. Id. Typically, courts consider whether a defendant suffers from a serious health condition, has a record of rehabilitation, the nature and circumstances of defendant's offense, and whether a sentence is based on outdated law. See Brooker, 976 F.3d at 238.
When considering if a defendant's health risks supports compassionate release, the mere existence of COVID-19 in society cannot independently justify a sentence reduction. See United States v. Miller, No. 2:17-CR-015-D, 2020 WL 2514887, *2 (N.D. Tex. May 15, 2020) (citing United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020)). For a defendant to be granted compassionate release based on COVID-19, defendant must have a serious comorbidity and evidence the facility is not effectively controlling the spread of the virus. See United States v. Vasquez, No. CR 2:18-1282, 2020 WL 3000709, at *3 (S.D. Tex. June 2, 2020) (“General concerns about the spread of COVID-19 or the mere fear of contracting an illness in prison are insufficient grounds to establish the extraordinary and compelling reasons necessary to reduce a sentence.”).
In the instant case, Jurdi fails to show any serious comorbidities that would warrant compassionate release. Absent COVID-19, Jurdi would present no basis for compassionate release based on medical ailments and there is no indication that he cannot receive adequate medical care while in confinement. Additionally, Jurdi has refused the vaccine, which undercuts his argument that the risk of COVID-19 presents an extraordinary and compelling reason for his release. See United States v. Nasmir, No. 4:12-cr-2952021 WL 2806942 (E.D. Tex. July 2, 2021) (collecting cases); United States v. Greenlaw, No. 1:18-CR-00098, 2021 WL 1277958, at *7 (D. Me. Apr. 6, 2021) (“To reward [the defendant] for his vaccination refusal would create a perverse incentive for defendants like [the defendant] to refuse COVID-19 vaccines and put their lives and the lives of others in jeopardy in an effort to bolster their compassionate release motions.”); United States v. Pruitt, No. 3:14-CR-0384, 2021 WL 1222155, at *3 (N.D. Tex. Apr. 1, 2021) (finding that the defendant “cannot refuse the vaccine to prevent against COVID-19 on the one hand and then argue for compassionate release because he faces an increased risk of severe illness or death should he contract COVID-19 on the other hand”); United States v. Jackson, No. CR 07-40-2, 2021 WL 1145903, at *2 (E.D. Pa. Mar. 25, 2021) (holding that because the defendant refuse the COVID-19 vaccine, she “voluntarily declined to ‘provide self-care' and mitigate her risk of a severe COVID-19 infection”); United States v. Austin, No. 15-20609, 2021 WL 1137987, at *2 (E.D. Mich. Mar. 25, 2021) (“Defendant cannot establish that his conditions are exceptional and demand immediate release when he intentionally prevents the BOP from mitigating dangers to his health and safety.”); United States v. King, No. 16-CR-478-11 (CS), 2021 WL 736422, at *2 (S.D.N.Y. Feb. 24, 2021) (“In declining vaccination[, Defendant] declined the opportunity to reduce his risk [of] exposure to COVID-19 dramatically; he cannot reasonably expect that prolonging his risk by declining vaccination will be rewarded with a sentence reduction.”). Thus, Jurdi fails to present evidence demonstrating a serious risk to his health.
Likewise, rehabilitation alone cannot support a claim for sentence reduction, although it may be considered as a factor in evaluating “extraordinary and compelling reasons.” See Brooker, 976 F.3d at 237-38; United States v. Hudec, No. 4:91-cr-0001, 2020 WL 4925675, at *5 (S.D. Tex. Aug. 20, 2020). Here, Jurdi has successfully completed numerous BOP adult education courses and other rehabilitative programs during his incarceration (Dkt. #655 at p. 2). Accordingly, the Court finds that Jurdi's rehabilitative record supports his release. That said, without evidence of additional “extraordinary and compelling” reasons, Jurdi's admirable rehabilitative record is insufficient to justify his release.
Weighing the evidence, Jurdi fails to prove that his incarceration is “extraordinary and compelling” under § 3582(c)(1)(A)(i) framework. See United States v. Stowe, No. 4:11-CR-00803(2), 2019 WL 4673725, at *2 (S.D. Tex. Sept. 25, 2019) (citation omitted) (stating that the defendant generally “has the burden to show circumstances meeting the test for compassionate release”).* * *
Given Defendant's failure to meet § 3582(c)(1)(A)'s requirements, the Court need not address whether the applicable 18 U.S.C. § 3553(a) factors support a sentence reduction.
Under the rule of finality, federal courts may not “modify a term of imprisonment once it has been imposed” unless one of a few “narrow exceptions” applies. Freeman v. United States, 564 U.S. 522, 526 (2011) (citing 18 U.S.C. § 3582(c)) (plurality op.); see also Dillon, 560 U.S. at 819 (same). Compassionate release is one of those exceptions, but a defendant must conform both to the procedural and substantive requirements of § 3582(c)(1)(A) for a court to modify a sentence. Because Jurdi has failed to meet the controlling requirements for compassionate release set forth in § 3582(c)(1)(A)(i), his Motion must be denied.
In the alternative, the Court is also unable to order home confinement. The BOP has exclusive authority to determine where a prisoner is housed; thus, the Court is without authority to order home confinement. 18 U.S.C. § 3621(b); see also United States v. Miller, No. 2:17-CR-015-D (02), 2020 WL 2514887, at *1 (N.D. Tex. May 15, 2020) (“[N]either the CARES Act nor the First Step Act authorizes the court to release an inmate to home confinement.”).
CONCLUSION
It is therefore ORDERED that Defendant Jay Jurdi's Motion Requesting Compassionate Release (Dkt. #655) is DENIED.