Opinion
4:18-CR-00043
2020-06-05
UNITED STATES of America, Plaintiff, v. Brian L. PITTMAN, Defendant.
Kevin E. VanderSchel, Virginia M. Bruner, United States Attorney's Office, Des Moines, IA, for Plaintiff.
Kevin E. VanderSchel, Virginia M. Bruner, United States Attorney's Office, Des Moines, IA, for Plaintiff.
ORDER DENYING COMPASSIONATE RELEASE
ROBERT W. PRATT, Judge
Before the Court is Defendant Brian L. Pittman's pro se Motion for Compassionate Release filed on May 11, 2020. ECF No. 114. Per the Southern District of Iowa's Administrative Order (AO) No. 20-AO-9-P, the Federal Public Defender's Office (FPD) entered an appearance, who filed a sealed supplemental brief in support of release on May 22. ECF Nos. 115–16. The Government filed its resistance on May 28. ECF No. 117. The FPD replied on May 29. ECF No. 118. The matter is fully submitted.
I. BACKGROUND
Defendant used his position as a general contractor on government subsidized low-income housing projects to defraud the United States Department of Agriculture and a private mortgage company. ECF No. 75 ¶¶ 14–17. He assisted his codefendant, Jeffrey Voorhees, in using a pass-through company to inflate construction costs. Id. ¶ 17. In return, Voorhees obtained approximately $359,000 in artificially inflated loan proceeds, and Pittman obtained Voorhees's business as he started his own company and continued the scheme. Id. ¶¶ 15, 17.
Defendant pleaded guilty to wire fraud affecting a financial institution under 18 U.S.C. § 1343. The Court sentenced him to imprisonment of one year and one day, varying downward from the Federal Sentencing Guidelines range of twenty-seven to thirty-three months. Defendant is now forty-two years old and incarcerated at FPC Duluth, a small, minimum-security prison camp. Defendant self-surrendered to the Federal Bureau of Prisons (BOP) on September 25, 2019. ECF No. 112. He is scheduled to be moved to home confinement on June 29, 2020, and released from BOP on August 1. ECF No. 116 at 2.
Less than a year later, the virus known as COVID-19 has killed more than 106,000 Americans and infected more than 1.8 million in a few months. Mortality Analysis , Johns Hopkins U. & Med. (June 3, 2020, 8:15 AM), https://coronavirus.jhu.edu/data/mortality. "At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others." S. Bay United Pentecostal Church v. Newsom , No. 19A1044, ––– U.S. ––––, ––––, 140 S.Ct. 1613, 207 L.Ed.2d 154, 2020 WL 2813056, at *1 (U.S. May 29, 2020) (Roberts, C.J., concurring).
At least 1904 prisoners and 175 BOP staff have "open" and "confirmed" cases of the virus. COVID-19 Cases , Fed. Bureau Prisons (June 3, 2020), https://www.bop.gov/coronavirus/. At least seventy-one inmates have died. Id. There are no "open" and "confirmed" cases at FPC Duluth. See id.
Defendant sought compassionate release from BOP under 18 U.S.C. § 3582(c)(1)(A)(i) in a request received April 29, 2020. ECF No. 117-1. He cited the following as extraordinary and compelling reasons for release: (1) he is especially vulnerable as a former smoker living in unsanitary conditions; (2) he is at a minimum-security facility; (3) he has had no incident reports; (4) his assessment score under a BOP risk assessment tool is minimum; (5) he has a reentry plan; and (6) he is a nonviolent offender. Id.
Defendant's medical records meanwhile suggest he is a healthy, forty-two-year-old male. See ECF No. 117-2 at 1 ("Labs overall look great."). Although the Presentence Investigation Report stated he has hyperlipidemia, or high cholesterol, ECF No. 75 ¶ 85, prison medical records do not mention it, ECF No. 117-2 at 1. Prison medical records also list his ten-year cardiac risk at 1.8%. ECF No. 117-2 at 6.
II. ANALYSIS
The First Step Act of 2018 amended numerous provisions of the U.S. Code to promote rehabilitation of prisoners and unwind decades of mass incarceration. See Pub. L. No. 115-391, 132 Stat. 5194 ; Cong. Research Serv., R45558, The First Step Act of 2018: An Overview 1 (2019). Congress designed the provision at issue here, § 3582(c)(1)(A), for "Increasing the Use and Transparency of Compassionate Release." § 603(b), 132 Stat. at 5239. Under the old regime, defendants seeking compassionate release first had to petition the BOP Director, who could then make a motion, at his or her discretion, to the district court. See U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.4 (U.S. Sentencing Comm'n 2018) [hereinafter U.S.S.G.]. Now, § 3582(c)(1)(A) allows defendants to petition district courts directly for compassionate release. § 603(b), 132 Stat. at 5239.
A. Exhaustion
The First Step Act's gate-keeping provision created two ways for a defendant to bring a compassionate release motion to a district court. The defendant may file a motion once he "has fully exhausted all administrative rights to appeal a failure of the [BOP] 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. " § 3582(c)(1)(A) (emphasis added). With this second path, the statute's plain text states only that thirty days must past after the BOP receives the defendant's compassionate release request. No more. United States v. York , No. 3:11-CR-76, 2019 WL 3241166, at *5 (E.D. Tenn. July 18, 2019). Thus, while § 3582(c)(1)(a)'s gate-keeping provision often is described as an "exhaustion" requirement, it is not "an exhaustion requirement in the traditional sense ... as it allows a defendant to come to court before the agency has rendered a final decision." United States v. Haney , No. 19-CR-541 (JSR), 454 F.Supp.3d 316, 321 (S.D.N.Y. Apr. 13, 2020) (Rakoff, J.).
"Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise...." Reiter v. Sonotone Corp. , 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979). And as in Reiter , "here it does not." Id. ; see also Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 136 S. Ct. 2117, 2130, 195 L.Ed.2d 382 (2016) (Thomas, J., dissenting). This is so because the phrase "whichever is earlier" makes clear that full exhaustion and "the lapse of 30 days" constitute two distinct paths to federal court. § 3582(c)(1)(A) (emphasis added).
As of May 29, Defendant satisfied the statute's gate-keeping provision because thirty days had passed since the Warden received his compassionate release request. See ECF No. 117-1; ECF No. 118 at 1. The Court may thus address the merits. See § 3582(c)(1)(a).
The Government's response, filed May 28, noted thirty days had not yet passed since the Warden received Defendant's request. ECF No. 117 at 4. As the FPD notes, that no longer was the case as of May 29. ECF No. 118 at 1–2.
B. Extraordinary and Compelling Reasons
Compassionate release provides a path for defendants with "extraordinary and compelling reasons" to leave prison early. § 3582(c)(1)(A)(i). Such a sentence reduction must comply with the 18 U.S.C. § 3553(a) factors and "applicable policy statements issued by the Sentencing Commission." § 3582(c)(1)(A).
1. Definitions
Congress never defined what constitutes "extraordinary and compelling." See 28 U.S.C. § 994(t). Instead, the statute directed the Commission to promulgate "the criteria to be applied and a list of specific" extraordinary and compelling examples. Id. Before the First Step Act, the Commission provided just three, none of which apply here.
First, the defendant's medical condition is such that he suffers from a "terminal illness" or the condition "substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." U.S.S.G. § 1B1.13 cmt. n.1.
Second, "[t]he defendant (i) is at least [sixty-five] years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least [ten] years or [seventy-five] percent of his or her term of imprisonment, whichever is less." Id.
Third, the defendant's family circumstances include either "(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children" or "(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner." Id.
The Commission also provided a catch-all provision that allows the BOP Director to determine "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with" the Commission's three examples. U.S.S.G. § 1B1.13 cmt. n.1(D). That still begs the question: what is extraordinary and compelling?
Congress and the Commission gave two guideposts. Extraordinary and compelling reasons "need not have been unforeseen at the time of sentencing." Id. § 1B1.13 cmt. n.2. For example, just because a judge believes a defendant will dramatically improve himself while incarcerated, that does not mean she cannot deem such improvement extraordinary and compelling. And although "rehabilitation ... is not, by itself , an extraordinary and compelling reason," its mention by the Commission and Congress indicate rehabilitation may be considered with other factors. See id. § 1B1.13 cmt. n.3 (emphasis added); § 994(t) ("Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.").
Courts otherwise are left to themselves because the Commission, for whatever reason, never updated its policy statement, as statutorily required, for the First Step Act. Rather, the outdated policy statement still assumes compassionate release "may be granted only upon motion by the Director of the Bureau of Prisons." U.S.S.G. § 1B1.13 cmt. n.4 (emphasis added). That is no longer the law. This left district courts in a conundrum. On the one hand, Congress unequivocally said it wishes to "[i]ncreas[e] the [u]se ... of [c]ompassionate [r]elease" by allowing district courts to grant petitions "consistent with applicable policy statements" from the Commission. § 3582(c)(1)(A) (emphasis added). On the other hand, the Commission has not made the policy statement for the old regime applicable to the new one.
The Commission cannot amend its guidelines until it again has four voting commissioners. United States v. Cantu , 423 F.Supp.3d 345, 348 n.1 (S.D. Tex. 2019) (quoting United States v. Handerhan , No. 1:10-CR-00298, 2019 WL 1437903, at *1 n.4 (M.D. Pa. Apr. 1, 2019) ). The Commission still has only two voting members. About the Commissioners , U.S. Sentencing Comm'n, https://www.ussc.gov/commissioners (last visited June 2, 2020).
Many courts, including this one, have concluded this means the Commission lacks an applicable policy statement regarding when a court can grant compassionate release. United States v. Stephenson , No. 3:05-CR-00511, 461 F.Supp.3d 864, 869–70 (S.D. Iowa May 21, 2020) ; United States v. Haynes , No. 93 CR 1043 (RJD), 456 F.Supp.3d 496, 511–13 (E.D.N.Y. Apr. 22, 2020) (citing thirteen such cases). In the absence of an applicable policy statement, these courts conclude "the Court can determine whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)–(C) warrant granting relief." Cantu , 423 F.Supp.3d at 352 ; see also United States v. Fox , No. 2:14-CR-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019) (treating "the previous BOP discretion to identify other extraordinary and compelling reasons as assigned now to the courts"). The result is that the district court can consider anything—or at least anything the BOP could have considered—when assessing a defendant's motion.
Indeed, the Court's reading "appears to be the majority position." United States v. Scott , No. 17-CR-156, 461 F.Supp.3d 851, 861–62 (E.D. Wis. May 15, 2020).
To be sure, some courts and the Government still maintain that the First Step Act merely allows courts to grant a motion for compassionate release if the BOP Director would have done the same under the Sentencing Guidelines and the BOP Program Statement written for the old law. These courts conclude judges may not stray beyond the specific instances listed in § 1B1.13 cmt. n.1(A)–(C). E.g., United States v. Lynn , No. CR 89-0072-WS, 2019 WL 3805349, at *4 (S.D. Ala. Aug. 13, 2019). They reason that the Sentencing Commission reserved § 1B1.13 cmt. n.1's residual provision for the BOP Director and only the BOP director. Id.
This Court remains unpersuaded. E.g. , United States v. Stephenson , No. 3:05-CR-00511, 461 F.Supp.3d 864, 869–70 (S.D. Iowa May 21, 2020). The Court's reading does not—and has not—allowed judges to release any prisoner. This is so because courts recognize and respect the intricate sentence-adjustment scheme Congress has created. Courts also know they must still act in harmony with any sentencing policy guidelines that remain applicable and the § 3553(a) factors. § 3582(c)(1)(A). But if the First Step Act is to increase the use of compassionate release, the most natural reading of § 3582(c) is that the district court assumes the same discretion as the BOP Director when it considers a compassionate release motion properly before it. Unqualified "deference to the BOP no longer makes sense now that the First Step Act has reduced the BOP's role." Fox , 2019 WL 3046086, at *3.
2. Defendant's Extraordinary and Compelling Reasons
a. COVID-19
The number of courts agreeing the COVID-19 pandemic constitutes an extraordinary and compelling reason for release grows by the day. E.g. , United States v. Moore , No. 3:16-CR-00171-JO, 2020 WL 2572529 (D. Ore. May 21, 2020) ; United States v. Galloway , No. RDB-10-0775, 2020 WL 2571172 (E.D. Mich. May 21, 2020) ; United States v. Parker , No. 2:98-cr-00749, 2020 WL 2572525 (C.D. Cal. May 21, 2020) ; United States v. Schneider , No. 14-CR-30036, 2020 WL 2556354, at *1 (C.D. Ill. May 20, 2020) ; United States v. Hill , No. 3:19-cr-00038 (JAM), 2020 WL 2542725 (D. Conn. May 19, 2020) ; United States v. Bright , No. 2:15CR00015-005, 2020 WL 2537508 (W.D. Va. May 19, 2020) ; United States v. Bischoff , No. 17-cr-196-JD, 460 F.Supp.3d 122 (D.N.H. May 18, 2020) ; United States v. Cotinola , No. 13-CR-03890-MV, 2020 WL 2526717, at *3 (D.N.M. May 18, 2020) ; United States v. Rountree , No. 1:12-CR-0308 (LEK), 460 F.Supp.3d 224 (N.D.N.Y. May 18, 2020) ; United States v. Johnson , No. 15-cr-125 (KBJ), 2020 WL 2515856 (D.D.C. May 16, 2020) ; United States v. Bess , No. 16-CR-156, 455 F.Supp.3d 53, 64–66 (W.D.N.Y. Apr. 22, 2020) ; United States v. Smith , No. 12 CR. 133 (JFK), 454 F.Supp.3d 310, 314–15 (S.D.N.Y. Apr. 13, 2020) ; United States v. Hernandez , No. 18 CR. 834-04 (PAE), 451 F.Supp.3d 301, 303–05 (S.D.N.Y. Apr. 2, 2020) ; United States v. Rodriguez , 451 F.Supp.3d 392, 393–94 (E.D.Pa. April 1, 2020) ; United States v. Jepsen , No. 3:19-CV-00073(VLB), 451 F.Supp.3d 242, 246–48 (D. Conn. Apr. 1, 2020) ; United States v. Campagna , No. 16 CR. 78-01 (LGS), ––– F.Supp.3d ––––, ––––, 2020 WL 1489829, at *1 (S.D.N.Y. Mar. 27, 2020). This especially can be so when a defendant has little time left in his sentence, since much of the penological purpose has been accomplished. United States v. Perez , No. 17 CR. 513-3 (AT), 451 F.Supp.3d 288, 293–94 (S.D.N.Y. Apr. 1, 2020).
The Government notes there indeed are far fewer COVID-19 cases among federal prisoners than Americans at large. ECF No. 117 at 12. There also are far fewer Americans inside federal prisons than outside of them. Accounting for that discrepancy, the former category is much more likely to have had a confirmed case of the virus. As other courts have noted, the fact a prison has no confirmed open cases today does not provide much assurance in the current environment. See Moore , 2020 WL 2572529, at *2 ("Some BOP facilities have seen [outbreaks] grow into hundreds of confirmed cases in a matter of weeks."). Thus, the risks of COVID-19 cut in favor of extraordinary and compelling reasons supporting compassionate release.
There are at least 1904 "open" cases, 3631 recovered cases, and 71 deaths among 148,050 federal prisoners in BOP and community facilities, representing 3.79% of the BOP population. COVID-19 Cases , Fed. Bureau Prisons (June 3, 2020), https://www.bop.gov/coronavirus/. There have been at least 1,831,821 confirmed cases among roughly 329,731,335 Americans, representing 0.56% of the population. Compare Mortality Analysis , Johns Hopkins U. & Med. (June 3, 2020, 8:15 AM), https://coronavirus.jhu.edu/data/mortality, with U.S. and World Population Clock , U.S. Census Bureau, https://www.census.gov/popclock/ (last visited June 3, 2020).
b. Other Reasons
As the Court has repeatedly noted, COVID-19 does not mean every federal inmate now has reasons for release that are sufficiently extraordinary and compelling. E.g. , Stephenson , 461 F.Supp.3d at 872 n.6. Defendant, thus, must present something more. Here, the additional reasons for release Defendant listed in his BOP petition and supplemental briefing are insufficient.
Defendant does not appear to have any specific risk factors related to COVID-19. Assuming Defendant has high cholesterol, he provides no evidence that this increases the likelihood of COVID-19 complications, and the Court is unaware of any. The Court also applauds the fact Defendant is a nonviolent offender, has no incident reports, has a release plan, is considered "low-risk," and is at a minimum-security facility. ECF No. 117-1. But none of these attributes are particularly unique for a white-collar offender. ECF No. 117-1. Although these facts may support release under the § 3553(a) factors, that is a distinct inquiry from the extraordinary-and-compelling analysis. See § 3582(c)(1)(A).
High cholesterol creates a risk of heart problems generally, but Defendant's 1.8% ten-year cardiac risk assessment suggests that is unlikely here. See ECF No. 117-2 at 6.
The Court realizes it previously has concluded a Defendant's model behavior in prison or the nearness of a release date cut in favor of compassionate release. Stephenson , 461 F.Supp.3d at 873–74 ; United States v. Brown , No. 4:05-CR-00227-1, 457 F.Supp.3d 691, 700–01 (S.D. Iowa Apr. 29, 2020), appeal docketed , No. 20-2053 (8th Cir. May 27, 2020). The difference is that those records provided objective evidence of remarkable rehabilitation during long sentences, especially when compared to the defendants' offense conduct. Good behavior is less probative of rehabilitation when one has pleaded guilty to wire fraud affecting a financial institution and spent less than a year at a small, minimum-security prison camp. Thus, the Court is unable to find support for release other than COVID-19. As the Court has noted before, that is insufficient to establish the requisite extraordinary and compelling reasons under § 3582(c)(1)(A)(i).
III. CONCLUSION
For the reasons stated herein, Defendant's pro se Motion for Compassionate Release (ECF No. 125) is DENIED.
IT IS SO ORDERED.