Opinion
Case No. 17-cr-00614-JST-1
12-31-2020
UNITED STATES OF AMERICA, Plaintiff, v. MAXWELL MASON, Defendant.
ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE
Re: ECF No. 40
Before the Court is Defendant Maxwell Mason's motion for compassionate release. ECF No. 40. The Court will grant the motion.
On April 21, 2018, Mason pleaded guilty to possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). ECF No. 21. On October 26, 2018, the Court sentenced Mason to 70 months of imprisonment and three years of supervised release, and ordered him to forfeit his interest in the handgun, ammunition, and accessories. ECF No. 36. Mason is 27 years old, and is currently in custody at Mendota FCI in Mendota, California with a projected release date of November 17, 2022. ECF No. 44 at 6.
On December 2, 2020, Mason submitted a motion for compassionate release pursuant to 18 U.S.C. § 3582. ECF No. 40. He argues that release is appropriate because his history of chronic lung ailments puts him "at an increased risk for suffering serious complications, and even death, from COVID-19 should he contract the virus." Id. at 1. He notes that he has already served more than fifty percent of his sentence, and asks the Court to consider the harshness of prison conditions during the COVID-19 pandemic. Id. at 4-5.
The government opposes Mason's motion, ECF No. 44, arguing that (1) Mason's medical conditions do not present an extraordinary and compelling reason warranting release, id. at 13, and (2) he remains a danger to the community, id. at 16. Mason filed a reply. ECF No. 46.
Mason brings his motion under the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018), which added a provision to allow defendants, not only the Director of the Bureau of Prisons ("BOP"), to file a motion for reduction of sentence. United States v. Eberhart, 448 F. Supp. 3d 1086, 1088 (N.D. Cal. Mar. 25, 2020). The Court may order the modification of an imposed prison sentence if, "after considering the factors set forth in section 3553(a) to the extent that they are applicable," it finds that "extraordinary and compelling reasons" warrant a modification, so long as the adjusted sentence remains "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). While "[g]eneral concerns" about COVID-19 may be insufficient to establish "extraordinary and compelling reasons" for a sentence modification, Eberhart, 448 F. Supp. 3d at 1086, the combination of an inmate's chronic medical condition and the risk of contracting COVID-19 in a custodial setting can satisfy that standard under some circumstances. See, e.g., United States v. Rodriguez, No. 3:17-cr-4477-BTM, 2020 WL 4592833, at *2 (S.D. Cal. Aug. 5, 2020) (finding that defendant's "combination of obesity, asthma, and major depressive disorder present extraordinary and compelling reasons to grant her compassionate release").
Here, although the Government does not dispute any of Mason's medical history, Mason and the Government disagree about the significance of his existing medical conditions. Compare ECF No. 40 at 7-8; ECF No. 46 at 3-4, with ECF No. 44 at 13-14. The Government argues that Mason's health conditions are "under control," based on his not having sought medical treatment for respiratory issues during his incarceration. ECF No. 44 at 13. It disputes Mason's claim to suffer from asthma, and contends that even if he does suffer from that disease, "there is no evidence that defendant's asthma is 'moderate to severe,' such that it puts him at heightened risk of severe illness related to COVID-19." Id. at 13-14.
The Court finds that Mason has shown extraordinary and compelling reasons for release. He submits persuasive evidence that his frequently recurring lung ailments are consistent with chronic bronchitis, a form of COPD (chronic obstructive pulmonary disease). ECF No. 40 at 7. The Center for Disease Control explains that "[h]aving COPD (including emphysema and chronic bronchitis) is known to increase your risk of severe illness from COVID-19." Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#copd (last visited Dec. 31, 2020); see also id. ("Adults of any age with the following conditions are at increased risk of severe illness from the virus that causes COVID-19: . . . COPD." (emphasis in original)). The CDC's guidance does not confine this risk to COPD patients showing active symptoms or "signs of respiratory distress." Cf. ECF No. 44 at 13; see also United States v. Juarez-Parra, No. CR 11-0125 RB, 2020 WL 5645703, at *2 (D.N.M. Sept. 22, 2020) (rejecting the argument that the defendant's conditions were "under control," and noting that "the CDC states that individuals with these underlying conditions are at a greater risk; not only individuals with uncontrolled conditions."). And other courts have considered COPD and chronic respiratory issues like Mason's to present "extraordinary and compelling reasons" to reduce a defendant's sentence in light of the COVID-19 pandemic. See, e.g., United States v. Bennen, No. 17-cr-3431-MMA-3, 2020 WL 5968922, at *3 (S.D. Cal. Oct. 8, 2020) (finding that the defendant's respiratory illness put him at higher risk for complications from COVID-19, warranting his compassionate release); United States v. Rich, 471 F. Supp. 3d 441, 444-45, 447 (D.N.H. 2020) (finding defendant's "history of chronic bronchitis and other respiratory illnesses" "combined with the increased likelihood that he may contract the virus while [incarcerated] constitute[d] an extraordinary and compelling reason" for his release).
Mason also provides evidence that he has been treated for asthma. Id. at 7; ECF No. 43-2 at 54. The Government cites two cases for its argument that "there is no evidence that defendant's asthma is 'moderate to severe,' such that it puts him at heightened risk of severe illness related to COVID-19." ECF No. 44 at 14. These cases are distinguishable on their facts. In Washington, the court rejected the defendant's assertions that he "suffer[ed] from 'bronchial issues' and 'asthmatic problems,'" because the defendant's only evidence was "an affirmation from his mother." United States v. Washington, No. 14-cr-215, 2020 WL 1969301, at *4 (W.D.N.Y. Apr. 24, 2020). Because he provided no "medical evidence or the opinion of a physician," the court could not conclude "that COVID-19 poses 'increased lethality' to Washington." Id. By contrast, Mason has provided medical records from each of the seven episodes of bronchitis, asthma, and respiratory infections that he claims to have suffered. ECF No. 40 at 6; ECF Nos. 43-1; 43-2; 43-3; 43-4.
In Miller, the court did consider that the defendant's asthma was not "moderate or severe," but also credited evidence in the medical records that the defendant's asthma was controlled with medication. United States v. Miller, No. 18-cr-30034, 2020 WL 2093370, at *3 (C.D. Ill. May 1, 2020). Mason's medical records, in contrast, demonstrate that he continued to suffer from serious lung ailments even after receiving treatment for his asthma. See ECF No. 40 at 6-7. In addition, the Miller Court observed that there was not a single confirmed case of COVID-19 at the facility where the defendant was housed. Miller, 2020 WL 2093370, at *2. But at FCI Mendota, where Mason is serving his sentence, the Government acknowledges that 15 inmates have tested positive for COVID-19. ECF No. 44 at 16. In other words, "there is more than a mere speculative risk of infection" for Mason at FCI Mendota. See United States v. Brown, No. CR 13-176-4, 2020 WL 6146620, at *3 (E.D. Pa. Oct. 20, 2020).
Mason states that "[a]s of November 3, 2020, FCI Mendota has had seventy-nine (79) positive cases." ECF No. 40 at 3. As of December 30, 2020, that facility had seven positive cases among its residents and three among staff. Federal Bureau of Prisons: COVID-19 Coronavirus, https://www.bop.gov/coronavirus/index.jsp (last visited Dec. 30, 2020).
The Government's remaining argument is that Mason is a danger to the community based on the circumstances of his arrest and "several disciplinary infractions" that Mason has received while in custody. ECF No. 44 at 17. The United States Sentencing Guidelines policy statement for a reduction in term of imprisonment under Section 3582(c)(1)(A) states that the court should only reduce a prison sentence if "the defendant is not a danger to the safety of any other person or to the community." U.S. Sentencing Guidelines Manual § 1B1.13(2) (U.S. Sentencing Comm'n 2018). The Court acknowledges the facts surrounding Mason's arrest, which were partially responsible for the length of the custodial sentence he received. The Court also recognizes that Mason has had three disciplinary issues during his time in custody, though these appear to be minor, such as his participation in a demonstration related to inmate treatment in response to the COVID-19 pandemic. ECF No. 44 at 17; ECF No. 44-4.
"Courts are split on whether section 1B1.13 continues to control, as it has not been updated since the passage of the First Step Act." United States v. Burrill, 445 F. Supp. 3d 22, 24 n.2 (N.D. Cal. 2020); compare United States v. Cantu, 423 F. Supp. 3d 345, 347-48 (S.D. Tex. 2019), with United States v. Ebbers, 432 F. Supp. 3d 421, 429-30 (S.D.N.Y. 2020). "However, even courts which have found the provision to be outdated have held that it continues to provide 'helpful guidance.'" Burrill, 445 F. Supp. 3d at 24 n.2 (quoting United States v. Beck, 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019)).
On the other hand, his criminal history is not one of violence. See ECF No. 28 at 8-11. During his incarceration he has taken advantage of BOP programming, including anger management and drug and alcohol abuse treatment, and has participated in continuing education classes on a diverse range of topics. ECF No. 40 at 11; ECF No. 46 at 5. These considerations, particularly in light of Mason's health, and subject to the conditions of close supervision that will be imposed upon his release, lead the Court to conclude that Mason does not pose a danger to the community. And given that conclusion and the fact that Mason has served more than half of his sentence, Court concludes that a modified sentence would satisfy the need to "reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense," as well as to "afford adequate deterrence to criminal conduct," "protect the public from further crimes of the defendant," and "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2).
For these reasons, the Court grants Mason's motion for compassionate release. The remaining portion of Mason's original term of imprisonment shall be served as a special term of supervised release subject to the previously imposed conditions of supervised release imposed by the Court at sentencing on October 21, 2018, and will be followed by the originally ordered three-year term of supervised release.
There being a verified residence and an appropriate release plan in place, this order is stayed for up to fourteen days to make appropriate travel arrangements and to ensure Mason's safe release. Mason shall be released as soon as appropriate travel arrangements are made and it is safe for him to travel. There shall be no delay in ensuring travel arrangements are made. If more than fourteen days are needed to make appropriate travel arrangements and ensure Mason's safe release, the parties shall immediately notify the Court and show cause why the stay should be extended.
IT IS SO ORDERED. Dated: December 31, 2020
/s/_________
JON S. TIGAR
United States District Judge