Opinion
Case No. 12-cr-30106-SMY
10-01-2020
UNITED STATES OF AMERICA, Plaintiff, v. MARIO PIGEE, Defendant.
***FILED UNDER SEAL***
SEALED ORDER YANDLE, District Judge
Defendant Mario Pigee was sentenced on October 26, 2012 to 151 months imprisonment on one count of distribution of cocaine base (Doc. 43). He is currently housed at the FCI-Milan and his projected release date is January 11, 2023. Now pending before the Court is Pigee's Motion for Compassionate Release pursuant to the First Step Act of 2018 in which he seeks release due to the COVID-19 global pandemic (Doc. 50). The Government has responded in opposition (Doc. 54). For the following reasons, the Motion is DENIED.
Background
COVID-19 is a contagious virus spreading across the United States and the world. Individuals with serious underlying medical conditions, such as serious heart conditions and chronic lung disease, and those who are 65 years of age and older carry a heightened risk of illness from the virus. People Who Are at Higher Risk for Severe Illness, CENTERS FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited June 17, 2020). A total of 93 inmates and 55 staff members have tested positive at FCI-Milan since the beginning of the pandemic. As of September 2020, three inmates have died and 90 have recovered. See https://www.bop.gov/coronavirus/index.jsp (last visited September 2, 2020). Currently there are no positive inmate cases and only one positive staff case. Id. FCI-Milan has a total current inmate population of 1,320. See https://www.bop.gov/locations/institutions/mil/ (last visited September 4, 2020).
Pigee asserts that he suffers from hypertension and is pre-diabetic and consequently, is at an increased risk for more severe complications from COVID-19 were he to contract the illness. According to his medical records, Pigee presented to the health services unit at FCI-Milan with COVID-19 symptoms on March 30, 2020 and was moved into quarantine for observation and treatment of his symptoms. He was approved for release from quarantine on April 6, 2020 after having been asymptomatic and fever free for 5 days.
Discussion
Section 603 (b)(1) of the First Step Act permits the Court to reduce a term of imprisonment upon motion of either the Director of the Bureau of Prisons ("BOP") or a defendant for "extraordinary or compelling reasons" so long as the reduction is "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A)(i). A defendant seeking compassionate release must first request that the BOP file a motion seeking the same. Id. If the BOP declines to file a motion, the defendant may file a motion on his own behalf, provided he has either exhausted administrative remedies or 30 days have elapsed since the warden at his institution received such a request, whichever is earliest. Id.
The Government makes no argument that Pigee has failed to exhaust his administrative remedies.
The Government first contends the Court cannot grant Pigee's request for compassionate release under the statutory scheme of the First Step Act. Specifically, the Government argues that in determining whether extraordinary and compelling circumstances exist for granting compassionate release, the Court is statutorily required to apply the policy statements articulated in U.S.S.G. § 1B1.13 and its commentary as written, without modification. The Court disagrees and summarily rejects the Government's argument on this point.
18 U.S.C. § 3582(c)(1)(A) requires that any sentence reduction be "consistent" with any "applicable" policy statements issued by the United States Sentencing Commission. But as correctly noted in United States v. Beck, 425 F.Supp.3d 573 (M.D.N.C. 2019):
There is no policy statement applicable to motions for compassionate release filed by defendants under the First Step Act. By its terms, the old policy statement applies to motions for compassionate release filed by the BOP Director and makes no mention of motions filed by defendants...While the old policy statement provides helpful guidance, it does not constrain the Court's independent assessment of whether "extraordinary and compelling reasons" warrant a sentence reduction under § 3582(c)(1)(A)(i) ...Thus, courts may, on motions by defendants, consider whether a sentence reduction is warranted for extraordinary and compelling reasons other than those specifically identified in the application notes to the old policy statement.Beck at 579-580 (emphasis added). As such, U.S.S.G. § 1B1.13 does not constrain this Court's consideration of whether extraordinary and compelling reasons warrant Pigee's release.
Next, the Government asserts that Pigee's request for compassionate release is barred by his written plea agreement which provides in relevant part:
[I]n exchange for the recommendations and concessions made by the United States in this plea agreement, the Defendant knowingly and voluntarily waives his right to contest any aspect of his conviction and sentence that could be contested under Title 18 or Title 28, or under any other provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater), the Defendant reserves the right to appeal the reasonableness of the sentence (Doc. 26, p. 8).Relying on United States v. Soto-Ozuna, 2017 WL 1100604, 68 F. App'x 527, 528 (7th Cir. 2017), the Government argues that based on this language, Wilson waived his right to seek a sentence reduction through compassionate release.
In Soto-Ozuna, the defendant pled guilty to conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. Id. He signed a plea agreement in which he waived his right to appeal or otherwise contest his conviction or sentence, or to " seek to modify his sentence or the matter in which it was determined in any type of proceeding ." Id. (emphasis added). The defendant later moved for a sentence reduction, which was denied by the district court. On appeal, the Seventh Circuit noted that it has refused to extend broad appellate waivers in plea agreements to § 3582(c)(2) motions where the plea agreement stated only that the defendant waived his right to "appeal [his] sentence" or to "contest [his] sentence or the manner that it was determined in any post-conviction proceeding" or "collateral attack." Id, citing United States v. Woods, 581 F.3d 531, 533, 536 (7th Cir. 2009) overruled on other grounds by United States v. Taylor, 778 F.3d 667, 669 (7th Cir. 2015); United States v. Monroe, 580 F.3d 552, 555-56, 559 (7th Cir. 2009). However, the court found that Soto-Ozuna knowingly and voluntarily entered into the plea agreement, that the terms of his waiver were express and unambiguous, and concluded that the language in the agreement barring him from seeking to "modify his sentence or the manner in which it was determined in any type of proceeding" means exactly what it states; Soto-Ozuna had waived his right to file a motion to modify his sentence. Id.
The Government maintains that Pigee's plea agreement contains a similar waiver and agreement not to seek to modify his sentence in any type of proceeding. But that is not the case. Pigee's waiver is in line with the broad waivers the Seventh Circuit has declined to apply to § 3582(c)(2) motions - Pigee only waived "his right to contest any aspect of his conviction and sentence that could be contested under Title 18 or Title 28..." That is not equivalent to expressly waiving his right to seek a modification of or reduction in his sentence. The Court will therefore consider his motion on the merits.
The Court finds no compelling reasons for granting Pigee compassionate release. While 93 inmates and 55 staff members have tested positive at FCI-Milan since the beginning of the pandemic and 3 inmates have died, there are currently no inmate cases in a population of 1,320 and 1 positive staff case, so the risk of contracting the virus at this point is relatively low. And, although Pigee is at risk due to hypertension, the condition appears stable and it appears that he has recovered from the virus without severe consequences.
Because the Court finds no compelling circumstance, a detailed analysis of the Section 3553(a) factors is unnecessary. That said, the Court finds that Pigee's criminal history, including a history of violence and his "high risk" PATTERN score weigh against release.
For the foregoing reasons, Defendant's Motion for Compassionate Release (Doc. 50) is DENIED.
IT IS SO ORDERED.
DATED: October 1, 2020
/s/
STACI M. YANDLE
United States District Judge