Opinion
18 Civ. 769 (GBD)
06-01-2020
Mark MAZER, Petitioner, v. UNITED STATES of America, Respondent.
David I. Schoen, David I. Schoen, Attorney At Law, Montgomery, AL, for Petitioner. Dominic A. Gentile, United States Attorney's Office, New York, NY, for Respondent.
David I. Schoen, David I. Schoen, Attorney At Law, Montgomery, AL, for Petitioner.
Dominic A. Gentile, United States Attorney's Office, New York, NY, for Respondent.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, United States District Judge:
Petitioner Mark Mazer moves for "compassionate release on medical grounds," pursuant to 18 U.S.C. § 3582(c)(1)(A). (See Emergency Letter Mot. for Leave to File Emergency Mot. For Compassionate Release ("Def. Letter"), ECF No. 74.) The Government opposes that motion. (See Letter dated Apr. 17, 2020 ("Govt Letter"), ECF No. 76.) Petitioner is suffering from Stage IV Nodular Lymphocyte-Predominant Hodgkin's Lymphoma (NLPHL) and argues that his "medical condition, coupled with the extraordinarily high risk his condition and the treatment for his condition raise for him with respect to his exposure to the COVID-19 virus in his institutional setting" warrant release to home confinement. (Def. Letter at 4.) Petitioner's motion is DENIED without prejudice.
I. BACKGROUND
Petitioner, along with his co-defendants, orchestrated a "massive kickback and fraud scheme of epic proportion" against New York City, defrauding taxpayers of millions of dollars in connection with a City initiative to develop a more accurate timekeeping system for City employees. (April 28, 2014 Sentencing Tr. at 74:20-22.) Petitioner, as the leader of the scheme, corruptly steered business on the project to consultants and subcontractors in exchange for tens of millions of dollars in kickbacks. (See Memorandum Decision and Order, No. 11 Crim. 121 (GBD), ECF No. 352, at 3-5). After trial, Petitioner was convicted of conspiracy to commit wire fraud, wire fraud, conspiracy to commit federal programs bribery, receiving bribes, conspiracy to violate the Travel Act, and conspiracy to commit money laundering. (J. in a Criminal Case, No. 11 Crim. 121 (GBD), ECF No. 366.) This Court sentenced Petitioner, and each of his two co-defendants at trial, to an aggregate term of 20 years’ imprisonment for their involvement in "the largest city corruption scandal in decades." (Id. ; April 28, 2014 Sentencing Tr. at 74:22-23.)
Petitioner has served just over a third of his sentence. He is currently housed at Federal Medical Center, Butner, North Carolina ("FMC Burner") where he is receiving treatment for his Stage IV cancer. Petitioner was diagnosed with NLPHL in January 2020 and placed on a chemotherapy regimen that is ongoing. (See Def. Letter at 2; Govt Letter, Ex. B at 5, 118.) As a collateral consequence of chemotherapy, Petitioner has experienced a drop in his white blood cell count that has left him immuno-compromised. (Def. Letter at 3.) Petitioner's recent records indicate that his white blood cell count fluctuates between low and normal ranges (see e.g. , Govt Letter, Ex. B at 41, 44, 213, 216, 222, 225), and the medical staff at FMC Butner is attempting to manage Petitioner's white blood cell count through medication. (See e.g. , Govt Letter, Ex. B at 4, 8, 11, 85, 87, 99, 112.) Additionally, excess fluid collecting in Petitioner's lung must be drained on a daily basis. (Def. Letter at 2.) Petitioner also previously tested positive for Hepatitis B. (Id. )
II. LEGAL STANDARDS
As amended by the First Step Act, 18 U.S.C. § 3582(c)(1)(A) allows a court to reduce a term of imprisonment (and 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) if, after assessing the factors set forth in Section 3553(a), it finds that "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A). However, a court may do so only "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." Id. Further, any such reduction must also be "consistent with applicable policy statements issued by the Sentencing Commission." Id. Specifically, the Application Notes to United States Sentencing Guidelines ("U.S.S.G") § 1B1.13 outline three sets of circumstances that qualify as "extraordinary and compelling reasons," which broadly relate to a defendant's medical condition, age and family circumstances. U.S.S.G. § 1B1.13, Appl. Note 1(A)-(C). A medical condition qualifies as an extraordinary and compelling reason where the defendant has demonstrated that he (1) "is suffering from a terminal illness (i.e. , a serious and advanced illness with an end of life trajectory)" or (2) is "suffering from a serious physical or medical condition," is "suffering from a serious functional or cognitive impairment," or is "experiencing deteriorating physical or mental health because of the aging process" that "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, Appl. Note 1(A). The Application Notes also provide a catch-all condition for "an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)." Id. § 1B1.13, Appl. Note 1(D). Additionally, the defendant must not be "a danger to the safety of any other person or to the community." Id. § 1B1.13(2).
III. PETITIONER HAS SATISFIED THE PROCEDURAL REQUIREMENTS OF 18 U.S.C. § 3582(c)(1)(A)
As an initial matter, Petitioner has satisfied the procedural requirements for his motion for compassionate release under Section 3582(c)(1)(A). Absent a motion from the Bureau of Prisons, a defendant may file such a motion either after: (1) "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 (2) "the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier[.]" 18 U.S.C. § 3582(c)(1)(A). Here, Petitioner submitted a request to the warden at FMC Butner on March 6, 2020. (See Def. Letter, Ex. 3.) After waiting 30 days, on April 7, 2020, Petitioner filed the instant motion with this Court. Petitioner's actions satisfy the procedural requirements of the statute.
Petitioner and the Government dedicate large portions of their submissions to the issue of whether Petitioner has met such requirements under Section 3582(c)(1)(A). The focal point of the dispute is the warden's denial of Petitioner's request for compassionate release. (Govt Letter, Ex. A). Specifically, the parties do not agree on the date this denial was transmitted to Petitioner, and the Government contends that this date is relevant to whether Petitioner's motion is properly before this Court. According to the Government, if the warden denies a compassionate release request within 30 days, the defendant must appeal that decision before seeking judicial relief. (See Govt Letter at 4-5.) The text of the statute plainly contradicts this interpretation. Instead, Section 3582(c)(1)(A) requires "the defendant either to exhaust administrative remedies or simply to wait 30 days after serving his petition on the warden of his facility before filing a motion in court." United States v. Haney , No. 19 Crim. 541 (JSR), 454 F.Supp.3d 316, 321, (S.D.N.Y. Apr. 13, 2020) (emphasis in original). Petitioner waited 30 days after his request to the warden before seeking relief with this Court. This Court may therefore consider his motion. IV. PETITIONER HAS NOT ESTABLISHED AN EXTRAORDINARY AND COMPELLING REASON FOR HIS RELEASE
Petitioner argues that his medical conditions, considered in the context of the COVID-19 pandemic, constitute "extraordinary and compelling reasons" for release, as defined under Application Note 1(A) or 1(D) of U.S.S.G § 1B1.13. Petitioner bears the burden of proving that "extraordinary and compelling reasons" exist to justify release. See United States v. Butler , 970 F.2d 1017, 1026 (2d Cir. 1992) ("If the defendant seeks decreased punishment, he or she has the burden of showing that the circumstances warrant that decrease"). Petitioner fails to meet this burden.
A. Petitioner Has Not Demonstrated That He Has A Terminal Illness Or A Serious Physical Or Medical Condition From Which He Is Not Expected To Recover.
Petitioner argues that his Stage IV NLPHL is a terminal illness as contemplated by Application Note 1(A)(1). The Application Note defines terminal illness as "a serious and advanced illness with an end of life trajectory," though a "specific prognosis of life expectancy ... is not required." U.S.S.G. § 1B1.13, Appl. Note 1(A). Petitioner's medical records do not indicate that his cancer has an end of life trajectory. On the contrary, the warden's denial of his request for compassionate release makes clear that medical staff determined his cancer is not terminal because it "may be cured." (Govt Letter, Ex. A). However, this assessment may change, since, as both parties acknowledge, an official evaluation of the progression of Petitioner's cancer will be made after Petitioner has completed his chemotherapy regimen. (See Def Letter at 2; Govt Letter at 6.) For now, Petitioner has not demonstrated that he has a terminal illness. For the same reasons, Petitioner has also not proven that "extraordinary and compelling reasons" exist as contemplated by Application Note 1(A)(ii) (i.e., "suffering from a serious physical or medical condition ... from which he is not expected to recover). U.S.S.G. § 1B1.13, Appl. Note 1(A).
B. Petitioner Has Not Established An Extraordinary And Compelling Reason Justifying Compassionate Release Under The Catch-Ail Provision.
Petitioner also contends that his "exceedingly heightened vulnerability to the most serious consequences possible from exposure to the COVID-19 virus" is an extraordinary and compelling reason under Application Note 1(D). That Note provides a catch-all condition for "an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)." (Def Letter at 1; U.S.S.G. § 1B1.13, Appl. Note 1(D).) Petitioner's condition appears serious and he may be at high risk of developing a severe illness if he contracts COVID-19. The CDC has identified people who are immunocompromised, including individuals receiving cancer treatment, as a high-risk group. See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19) – People Who Are at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited June 1, 2020). Petitioner is likely immunocompromised. Both parties agree that a reduced white blood cell count is a collateral and expected consequence of chemotherapy. (See Def. Letter at 3; Govt Letter at 6.)
However, Petitioner's status as an individual at high risk for severe illness from COVID-19, alone, does not constitute an extraordinary and compelling reason for his release to home confinement, especially considering where he is incarcerated. Petitioner is not at a typical detention facility. Rather, he is in a hospital setting with access to 24-hour medical care, and is receiving medication to address his compromised immune system. (See supra I; Govt Letter at 8.) There is also no evidence of widespread transmission of COVID-19 at FMC Butner. As of today, there are 907 inmates at FMC Butner with four confirmed active cases of COVID-19. See FMC Butner BOP Website, https://www.bop.gov/locations/institutions/buh/) (last visited June 1, 2020); COVID-19 Cases BOP Website, https://www.bop.gov/coronavirus/) (last visited June 1, 2020). Petitioner argues that his presence in any BOP institution places him at unreasonable risk, because such facilities are ill-equipped to deal with the pandemic and inmates are unable to socially distance. (See Def. Letter at 7-9.) He also claims that neither he nor anyone around him has been tested for COVID-19, cells are not being cleaned, and "medical services are getting worse and worse." (See Letter dated Apr. 24, 2020, ECF No. 77, at 12.) However, such generalized allegations are not persuasive. Moreover, though not immune to criticism, the BOP has implemented a coordinated response to mitigate the spread of COVID-19 in prisons. (Govt Letter at 8.)
Additionally, two staff members are infected with COVID-19.
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Moreover, granting Petitioner's motion would be inconsistent with the 3553(a) sentencing factors. Petitioner has yet to serve the majority of his term of incarceration for an overwhelmingly serious offense. As this Court noted at sentencing, Petitioner and his co-defendants orchestrated "the largest city corruption scandal in decades ... unparalleled in its amounts, duration and sophistication." (Sentencing Tr. at 74:22-24.) This Court imposed a sentence commensurate with the extensive and deliberate deception of the scheme, along with Petitioner's lack of remorse or acceptance of responsibility. (See id. at 74-76.) Though Petitioner urges that the need to provide medical care is the most compelling factor in the 3553(a) analysis, such a need, in light of Petitioner's current access to care, is heavily outweighed by the need for Petitioner's sentence to provide just punishment and adequate deterrence.
Petitioner's motion for a reduction of sentence, (ECF No. 74), is DENIED without prejudice to renew after Petitioner completes chemotherapy and his medical providers further evaluate his condition.
SO ORDERED.