Opinion
6:16-CR-06043 EAW
08-24-2020
UNITED STATES of America, v. Bruce KING, Defendant.
Charles E. Moynihan, U.S. Attorney's Office, Rochester, NY, for United States of America.
Charles E. Moynihan, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court is a pro se motion filed by defendant Bruce King (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 78). For the reasons set forth below, Defendant's motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 12, 2016, an Indictment was returned charging Defendant with various drug trafficking counts and firearms offenses. (Dkt. 1). On October 11, 2017, Defendant appeared before the undersigned and pleaded guilty to Counts 1 and 7 of the Indictment charging, respectively, possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm not registered in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(d). (Dkt. 63; Dkt. 64). The plea agreement was entered into pursuant to Fed. R. Crim. P. 11(c)(1)(C) and called for a 97-month prison sentence. (Dkt. 63 at ¶ 15). On February 27, 2018, the undersigned accepted the plea agreement and sentenced Defendant to an aggregate prison sentence of 97 months. (Dkt. 75; Dkt. 76).
Defendant is currently housed at Federal Correctional Institution Loretto ("FCI Loretto") in Loretto, Pennsylvania, and his projected release date is January 14, 2025. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Aug. 24, 2020). On July 7, 2020, Defendant filed a pro se motion for compassionate release and requested appointment of counsel. (Dkt. 78). Defendant contends that his preexisting medical conditions combined with the COVID-19 pandemic create extraordinary and compelling reasons to justify a reduction in his sentence. (Id. at 4). Defendant contends that he is at an increased risk of serious illness from COVID-19 due to hypertension, obesity, asthma, his age, and medication that he takes for sciatica. (Id. at 5-6). The Government recognizes that Defendant's medical conditions are "complicating and recognized by the CDC as creating heightened risk" (Dkt. 80 at 6), but opposes Defendant's motion on the grounds that he has not established extraordinary and compelling reasons to reduce his sentence and that the factors set forth at 18 U.S.C. § 3553(a) do not justify a sentence reduction (id. at 6-12).
Based on information in the Presentence Investigation Report ("PSR"), Defendant is almost 51 years old. (Dkt. 67 at 2). The PSR also indicated that Defendant stated he was in "good physical health," although it did identify high blood pressure and back pain related to herniated discs and sciatica as pre-existing medical conditions. (Id. at ¶ 86).
--------
According to a Bureau of Prisons ("BOP") website, FCI Loretto has 4 inmates and 7 staff currently testing positive for COVID-19, with 56 inmates and 1 staff member who have recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Aug. 24, 2020). A total of 848 tests have been administered to inmates at the facility. Id. No inmates or staff at the facility have died from the virus. Id.
The United States Probation Office ("USPO") has submitted a memorandum to the Court dated July 20, 2020, opining that compassionate release is not warranted here. (Dkt. 85).
Defendant has filed several replies in further support of his motion. (Dkt. 82; Dkt. 83; Dkt. 84). In addition, the Court has received several emails from an individual identified as "Christine Hager" in support of Defendant's motion. (Dkt. 86).
III. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons 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 section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.
The Government does not oppose Defendant's application on exhaustion grounds, as he has filed a request with the Warden at FCI Loretto for release and more than 30 days have elapsed since the Warden's receipt of that request. (Dkt. 80 at 3); see also United States v. Wen , 454 F. Supp. 3d 187, 192–94, No. 6:17-CR-06173 EAW (W.D.N.Y. Apr. 13, 2020) (as a claim-processing rule, § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional and thus subject to the doctrines of waiver and equitable estoppel). Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.
However, the Court agrees with the Government that Defendant has failed to establish extraordinary and compelling reasons justifying the grant of his motion, and furthermore, the § 3553(a) factors counsel against granting Defendant's motion. While Defendant's medical conditions may present a heightened risk for serious illness from COVID-19, see Coronavirus Disease 2019 (COVID-19): People with Certain Medical Conditions , Ctrs. for Disease Control & Prevention (Aug. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html, the record before the Court suggests that FCI Loretto is adequately addressing Defendant's medical conditions and the COVID-19 pandemic. Indeed, unlike some other BOP facilities, FCI Loretto has conducted extensive testing, and the number of inmates and staff currently suffering from the virus is small, with no inmate or staff deaths recorded.
Moreover, given Defendant's criminal history and the dangerous nature of his underlying offenses of conviction, the Court agrees with the Government that consideration of the factors set forth at 18 U.S.C. § 3553(a) counsel against granting Defendant's requested relief. See United States v. Ebbers , 432 F. Supp. 3d 421, 430-31 (S.D.N.Y. 2020) ("The Court thus finds that, in considering the section 3553(a) factors, it should assess whether those factors outweigh the ‘extraordinary and compelling reasons’ warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence.").
In sum, the Court appreciates that Defendant is concerned about the pandemic and being housed in a correctional facility with certain medical conditions that place him at an increased risk for serious illness from COVID-19. Moreover, the Court recognizes that prison settings can present challenges in thwarting the spread of this virus. However, on the record before the Court, a reduction of Defendant's prison sentence is not warranted.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) and corresponding request for counsel (Dkt. 78) is denied.
SO ORDERED.