Opinion
8:15-cr-277-PWG-1
04-20-2021
UNITED STATES OF AMERICA v. GBENGA BENSON OGUNDELE
MEMORANDUM OPINION AND ORDER
PAUL W. GRIMM UNITED STATES DISTRICT JUDGE
This Memorandum Opinion and Order addresses Defendant Gbenga Benson Ogundele's Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), ECF No. 956. Mr. Ogundele is currently incarcerated at FCI Fort Dix where he is serving a 234-month imprisonment for wire fraud conspiracy, in violation of 18 U.S.C. § 1349, money laundering conspiracy, in violation of 18 U.S.C. § 1956(h), and aggravated identity theft, in violation of 18 U.S.C. § 1028A. Jury Verdict, ECF No. 363; J., ECF No. 551. Mr. Ogundele has been detained (pretrial) and incarcerated following his conviction in connection with this case since October 1, 2015, and he has served 67 months out of his 234-month sentence. Order of Detention, ECF No. 56; J. On August 19, 2020, Mr. Ogundele moved to request that the Court release him in light of the global pandemic because his underlying health conditions-diabetes, high cholesterol, and hypertension-make him more vulnerable to COVID-19. Def.'s Mot. 1. The Government opposes Mr. Ogundele's motion for the reasons explained below. Gov't Resp., ECF No. 963. I have reviewed all the materials and find a hearing unnecessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons discussed below, Mr. Ogundele's motion is DENIED.
The motion is fully briefed. See ECF Nos. 956, 963, 969, 981, and 990.
BACKGROUND
On May 18, 2015, a federal grand jury for the District of Maryland returned an indictment charging the Defendant, Mr. Ogundele, with wire fraud conspiracy, in violation of 18 U.S.C. § 1349 (Count I); money laundering conspiracy, in violation of 18 U.S.C. § 1956(h) (Count II); and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count III). Indictment, ECF No. 1. On September 30, 2015, Mr. Ogundele-who had no criminal history-was detained upon arrest. Order of Temp. Detention, ECF No.22, Order of Detention, ECF No. 56. After a four-week trial, the jury convicted Mr. Ogundele on all counts. Jury Verdict, ECF No. 363.
Mr. Ogundele's pre-trial detention was upheld by this Court and by the Fourth Circuit. See Order Denying request for hearing, ECF No. 217; No. 16-4160, ECF No.11.
On March 22, 2017, the Court held a sentencing hearing. Gov't Resp. 2; Sentencing Hr'g, ECF No. 528. In reviewing the Sentencing Guidelines, the Court applied enhancements for loss (roughly $2.2 million), causing substantial hardship to more than five victims, the overseas nexus of the crime, the sophisticated nature of the money laundering scheme, and the defendant's leadership role, resulting in an offense level of 37 as to Counts I and II. Gov't Resp. 2. After considering all the 18 U.S.C. § 3553(a) factors, the Court sentenced the defendant to an aggregate term of incarceration of 234 months, comprised of 210 months for the two conspiracies and 24 months (consecutive to Counts I and II) for the aggravated identity theft count. Id.; J., 1-2. Mr. Ogundele's original period of incarceration is currently set to expire (assuming good time credits) on May 13, 2032, or (without good time credits) April 1, 2035. Gov't Resp. 15. Mr. Ogundele has served 5.5 years of his 19.5-year imprisonment since October 2015, or about 28% of his sentence.
Mr. Ogundele, who is 62 years old, suffers from diabetes, high cholesterol, and hypertension. According to the Center for Disease Control's (“CDC”) published guidelines for “People with Certain Medical Conditions, ” two of Mr. Ogundele's conditions, diabetes and hypertension, “can make [him] more likely to get severely ill from COVID-19.” Https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. Mr. Ogundele, is therefore, considered “at Increased Risk for Severe COVID-19.” Id.
While the defense mentioned Type I diabetes in the motions, the Government points out that Mr. Ogundele's medical records for the past two years indicated Type II diabetes. Gov't Resp. 2, n.8. However, the CDC guidelines have now placed both Type I and Type II diabetes under the same category which “can make you more likely to get severely ill from COVID-19.” Https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. Therefore, whether Mr. Ogundele has Type I or Type II diabetes does not result in a significant legal difference, and I will refer to his condition as “diabetes” without the Type I or Type II specification.
Mr. Ogundele is housed at a BOP institution, FCI Fort Dix. It is the most populated federal prison in the nation, also unfortunately one of the most severely impacted by the coronavirus, with 2016 inmates who have had positive test results. See https://www.bop.gov/coronavirus/. Mr. Ogundele tested positive on or about October 25, 2020. Def.'s Suppl. 1, ECF No. 981; Gov't Sur-Reply, Ex. A, 3, 19, ECF No. 990. Mr. Ogundele's medical records shows that he received daily medical assessments from October 20 to November 6; he did not develop a fever and did not suffer from any substantial symptoms. Gov't Sur-Reply 2, Ex. A, 4-18. As of November 6, 2020, Mr. Ogundele was not symptomatic and stopped receiving daily medical assessments. Id. at 1.
As of April 6, there were 15 active cases among inmates, and 1808 inmates recovered from the virus at FCI Fort Dix, which houses 2701 male inmates. Additionally, 206 inmates and 217 staff members had been fully vaccinated. George Woolston, 2nd Inmate at FCI Fort Dix Dies from COVID-19 Complications, Burlington Cty. Times (Apr. 7, 2021, 5:01 AM).
The Government agrees that Mr. Ogundele has exhausted administrative remedies, and that Mr. Ogundele may have shown extraordinary and compelling circumstances given his hypertension and diabetes. Gov't Resp. 9, 2, n.8. However, the Government asserts that the § 3553(a) sentencing factors do not support his release. Id. at 12-15. I agree.
The Government states that “If the defendant has Type II diabetes, then he has a condition that the CDC agrees put him at increased risk for serious illness. If that is the case, then the Government concedes the defendant has shown extraordinary and compelling circumstances.” Gov't Resp. 2, n.8. However, as noted before, the CDC is no longer making the distinction between individuals with preexisting conditions that “may” or “are” at an increased risk of severe illness upon infection of COVID-19.
DISCUSSION
Ordinarily, a court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c); see United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020). However, there is an exception when modification is “expressly permitted by statute.” 18 U.S.C. § 3582(c)(1)(B). Here, Mr. Ogundele requests a modification of his sentence for “compassionate release” under the First Step Act, as amended. The First Step Act permits a defendant to petition a federal court directly after exhausting all administrative rights whenever “extraordinary and compelling reasons” warrant a reduction in sentence. 18 U.S.C. § 3582(c)(1)(A)(i). Under the statute, I must do the following: (1) determine whether the petitioner has fully exhausted all administrative remedies or 30 days have passed since the BOP received the request; (2) determine whether “extraordinary and compelling reasons” warrant a sentence reduction that is “consistent” with applicable policy statements issued by the Sentencing Commission; and (3) consider the sentencing factors set forth in 18 U.S.C. § 3553(a) “to the extent that they are applicable.” Id.
The “compassionate release” provision of the 1984 First Step Act, codified at 18 U.S.C. § 3582(c)(1)(A)(i), permitted a court to alter a sentence only upon a motion by the Director of the Bureau of Prisons (“BOP”). In 2018 Congress amended the compassionate release mechanism when it enacted the First Step Act of 2018. See Pub. L. 115-391, 132 Stat. 5239 (2018). As amended, the compassionate release provision allows the court to act on a motion for compassionate release filed by a defendant.
I. Administrative Exhaustion
A court may only consider a prisoner's motion for compassionate release if the prisoner 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 if 30 days have passed since the warden of a defendant's facility received such a request. 18 U.S.C. § 3582(c)(1)(A). This condition is satisfied because Mr. Ogundele has made the requisite requests for compassionate release to the Warden at his facility on or about April 1, 2020, and the Warden denied the request on or about April 12, 2020. Gov't Resp. 9. Mr. Ogundele then filed for Reconsideration on May 8, 2020, and his request was denied on May 12, 2020. Def.'s Mot. 3. As mentioned above, the Government agrees that Mr. Ogundele has exhausted his administrative remedies, and that the Court has the authority to rule on this motion. Id.
II. Extraordinary and Compelling Reasons
Second, I must determine whether “extraordinary and compelling reasons” warrant a sentence reduction and that such a reduction is “consistent” with Sentencing Commission statements. 18 U.S.C. § 3582(c)(1)(A). I join with the majority of courts finding that 18 U.S.C. § 3582(c)(1)(A)(i) as amended grants courts with independent discretion to decide whether there are “extraordinary and compelling reasons” to modify a sentence and does not require that a court defer to the Sentencing Commission's policy statements regarding this question. See United States v. Wise, ELH-18-72, 2020 WL 2614816, at *7-9 (D. Md. May 22, 2020) (holding the same and collecting cases). As the Fourth Circuit observed, district courts have discretion to independently assess whether circumstances meet the extraordinary and compelling threshold. United States v. McCoy, 981 F.3d 271, 281-82 (4th Cir. 2020). More specifically, “district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.'” Id. at 284 (citing United States v. Zullo, 976 F.3d 228, 230 (2d Cir. 2020). However, while not binding, id., the Sentencing Commission's policy statements may provide useful guidance.
See also United States v. Jones, 980 F.3d 1098 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020).
The Sentencing Commission's policy statements in U.S.S.G. § 1B1.13 offer guidance here. Section 1B1.13 recites the language of 18 U.S.C. § 3582(c)(1)(A) before it was amended in 2018, including the statement that “the defendant is not a danger to the safety of any other person or to the community.” The commentary to the policy statement provides four examples of what constitutes “extraordinary and compelling reasons” for a sentence reduction: (1) medical condition of the defendant; (2) age of the defendant; (3) family circumstances; and (4) a catch-all “other reasons.” U.S.S.G. § 1B1.13 app. note 1(A)-(C).
The Government, writing before the Fourth Circuit's opinion in McCoy, used the § 1B1.13 criteria to argue that Mr. Ogundele does not present extraordinary and compelling reasons. Gov't Resp. 9-11. But as I have repeatedly held, and as the Fourth Circuit affirmed in McCoy, the § 1B1.13 categories, while informative, are not binding in the compassionate release context. See McCoy, 981 F.3d at 281-82.
Mr. Ogundele asserts that his underlying medical conditions place him at a higher risk for serious illness as a result of COVID-19. Def's Mot. Mem. 14. Judges in this court have found that the standard of extraordinary and compelling reasons was met during the COVID-19 pandemic where a defendant had serious medical problems that placed them at high risk for complications if they contracted COVID-19. See, e.g., United States v. Jennings, No. 13-cr-46-PWG, 2020 WL 4748462, at *4 (D. Md. Aug. 17, 2020) (citing cases in this court and others and the application of multiple conditions). Certainly, the situation regarding COVID-19 is rapidly evolving, and new information about the virus and risk factors must be taken into account, as well as the changing conditions at prison facilities, for better or worse.
The CDC no longer makes the distinction between groups of vulnerable individuals that “might be at an increased risk” and “at increased risk” of severe illness upon infection of COVID-19. Therefore, two of Mr. Ogundele's conditions, diabetes and hypertension, place him at a heightened risk for serious illness. A defendant's health conditions that constitute a heightened risk of severe illness, including hypertension and diabetes, have been cited when granting compassionate release motions. See United States v. Benning, No. 16-cr-0527-PWG, 2020 WL 7054823, at *2 (D. Md. Dec. 2, 2020) (hypertension and hyperlipidemia); United States v. Benson, No. 09-CR-0240-PWG, 2020 WL 7239983 (D. Md. Dec. 9, 2020) (hypertension, hyperlipidemia, overweight, and prediabetes); United States v. Gutman, RDB-19-0069, 2020 WL 24674345 (D. Md. May 13, 2020) (finding defendant's age of 56 years, multiple sclerosis, and hypertension satisfied extraordinary and compelling reasons).
At the same time, there are also multiple cases denying compassionate release to defendants with hypertension or diabetes. See United States v. McKay, No. 18-CR-305-PWG, 2020 WL 7398865 (D. Md. Dec. 17, 2020) (hypertension and borderline obesity); United States v. Wright, No. TDC-17-388, 2020 WL 2571198 (D. Md. May 21, 2020) (denying compassionate release to defendant at the age of 66 with diabetes, hypertension, chronic kidney disease, asthma, and obesity); United States v. Barringer, PJM-13-0129, 2020 WL 2557035, at *4 (D. Md. May 19, 2020) (denying compassionate release to a 60-year-old defendant with hypertension, diabetes, chronic kidney disease, and extreme obesity). The fact that Mr. Ogundele has contracted COVID-19 while incarcerated also requires consideration, but in and of itself it is not a dispositive factor. See United States v. Fletcher, No. TDC-05-0179-01, 2020 WL 3972142, at *3-4 (D. Md. July 13, 2020) (finding “extraordinary and compelling reasons” when Fletcher, at 65 years old, suffered from diabetes, chronic kidney disease, and hypertension, was housed at the federal prison with the most COVID-19 cases in the nation, and had contracted COVID-19 again or continued to have significant symptoms).
I acknowledge that hypertension and diabetes, the two conditions that Mr. Ogundele claims to suffer from, can cause an individual-particularly someone 62 years of age-to be more susceptible to the effects of COVID-19. In addition, being housed at a severely impacted prison significantly elevates Mr. Ogundele's risk of contracting COVID-19; indeed, Mr. Ogundele has already contracted COVID-19 in October 2020. Def.'s Suppl. 1. Thus, Mr. Ogundele's age (62), his diabetes and hypertension, and the danger he faces of contracting COVID-19 and becoming severely ill while being housed at a BOP institution with rampant COVID-19 infections, combine to demonstrate extraordinary and compelling reasons for compassionate release. However, even if Mr. Ogundele shows extraordinary and compelling reasons, he also must not present a danger to the community and his request must be measured against the statutory factors of 18 U.S.C. § 3553(a).
III. Sentencing Factors
A finding of “compelling and extraordinary reasons” is a necessary, not sufficient, condition for compassionate release. I must also consider the factors set forth in 18 U.S.C. § 3553(a) “to the extent that they are applicable.” 18 U.S.C. § 3582(c)(1)(A). Those 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;” (3) “the kinds of sentences available;” (4) the sentencing guideline ranges; (5) “any pertinent policy statement;” (6) “the need to avoid unwarranted sentence disparities among defendants with similar records;” and (7) “the need to provide restitution to the victims of the offense.”
Nature and Circumstances of the Offense and Defendant's History and Characteristics.
First, it cannot be disputed, and Mr. Ogundele does not dispute, that his conduct was extremely serious in nature and harmed innocent victims. Def.'s Reply, 5. While Mr. Ogundele had no prior criminal convictions and no documented disciplinary infractions at Fort Dix, he was a leader of a conspiracy that spanned the course of four years, involving sophisticated and geographically diverse crimes. Gov't Resp. 13. Mr. Ogundele's offenses yielded an offense level 37 at sentencing, and he was sentenced to an aggregate term of incarceration of 234 months. J. As I stated at sentencing,
[T]he sentence has to reflect the seriousness of the offense…[I]t's hard to imagine a fraud that is as serious as this, a financial fraud. In this courthouse, day after day, the judges of this court sentence people who grew up on the street with no mother, no father, no chance, no education, no opportunity except to s[ell] drugs on the street. That's all they have. That's all they had. They have an addiction that fuels them into crime and many of those people that I have sentenced did not display the slightest amount of callousness or cruelty toward other individuals that this fraud has displayed.
The playing on the vulnerable emotions of individuals to get them to give all of their money with threats, with entreaties with false promises of love and affection, that is as calculated, cold, callous and harsh a crime as you can find.
And this is a case that befuddles me. There's no alcohol problem. There's no gambling addiction. There's no drug dependency. There's no serious mental health issues that are out there. There's just something wrong. The greed, the desire to steal from [an]other. And not just reach into an open purse and steal some cash, but to do it by manipulating and destroying -- knowing that's what you're doing.Gov't Resp. Ex. A at 4708-09, 4713. Thus, given the appalling nature of the crimes and Mr. Ogundele's leadership role, this factor weighs quite strongly in favor of continued incarceration.
Nature and Seriousness of the Danger Posed to the Community.
Second, I agree with the Government that Mr. Ogundele's release would impose an economic danger to the community. “‘Courts have long recognized that ‘danger' in the context of § 3148 refers to unlawful conduct, with little distinction between whether the nature of the conduct is economic or physical.'” United States v. Slade, No. CR-09-1492-1-PHX-ROS (DKD), 2013 WL 2455926, at *6 (D. Ariz. Jun. 5, 2013)) (citation omitted); see also United States v. Gallman, No. 14-cr-292-PWG-1, 2020 WL 3412995, at *5 (D. Md. Jun. 22, 2020) (finding that the economic danger posed to the community weighed against a sentence reduction). In light of the sophistication and seriousness of Mr. Ogundele's crimes, as well as the ease with which he could re-engage in similar fraudulent schemes, I cannot conclude that he no longer presents a danger to the community.
Purpose of Sentence.
Lastly, I should consider if the length of time already served by defendant meets the general goals of sentencing. See generally 18 U.S.C. § 3553(a). After considering all the § 3553(a) factors, the Court sentenced Mr. Ogundele to an aggregate term of incarceration of 234 months, comprised of 210 months for the two conspiracies and a consecutive 24 months for the aggravated identity theft count. J. As the Government contends, “the defendant's sentence represents one of the longest terms of imprisonment for an economic crime in this District in recent memory-and for good measure, because his crimes were horrific.” Gov't Resp. 2. The 234 months of incarceration was fairly imposed for purposes of both specific and general deterrence and accounting for a multi-million fraud scheme that destroyed dozens, if not hundreds, of victim's lives. As I noted at the sentencing hearing,
I need to deter others from committing criminal conduct…. And that's not deterred by a sentence that doesn't send a message…to those who sit sometimes in other countries in comfort staring at a computer screen, pulling the heart strings of ordinary people who just want what everyone else does, what your family wants, what your friends want; love, support, family, the opportunity to have
something to look forward to, someone to turn to at the end of the day to share your high points, and your low points with. And to manipulate that, vulnerable people paying hundreds of thousands of dollars…. I have to make sure that…opportunity never happens again for you to do that to anyone else.Gov't Resp. Ex. A at 4471-72. Importantly, Mr. Ogundele has served less than 30% of his sentence, which is not a significant portion of his sentence, unlike most of the defendants who were granted compassionate release. Compare United States v. Jennings, Crim. No. PWG-13-046, 2020 WL 4748462, at *5 (D. Md. Aug. 17, 2020) (early release of approximately two weeks after serving 94 months in prison is consistent with the sentencing factors) with McKay, 2020 WL 7398865, at *4 (finding it inconsistent with the sentencing factors to release a defendant with a lengthy history of violent crimes who has only served half of his fair sentence). Granting Mr. Ogundele's request to spend less than 30% of his original sentence in prison would not sufficiently serve the purposes of deterrence, accounting for the seriousness of the crimes, promoting respect for the law, and protecting the public.
Considering all of the circumstances, I find that granting release at this time would be inconsistent with the sentencing factors set forth in § 3553(a), even though there may be compelling and extraordinary reasons to modify the sentence under the COVID-19 circumstances.
CONCLUSION
The Court recognizes the seriousness of the COVID-19 pandemic and the risks that Mr. Ogundele faces based on his hypertension and diabetes in the current climate of surging coronavirus cases. Even if I find that his combination of hypertension, diabetes, age, and placement in a severely impacted prison by COVID-19 combine to demonstrate extraordinary and compelling reasons, I find that early release would be inconsistent with the sentencing factors in 18 U.S.C. § 3553(a). Therefore, Mr. Ogundele's motion for compassionate release is DENIED.
ORDER
For the reasons stated in this Memorandum Opinion and Order, it is this 20th day of April 2021, hereby ORDERED that Mr. Ogundele's Emergency Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (ECF No. 956) is DENIED.