Summary
finding no extraordinary and compelling reason for release even though the defendant was obese and "at a greater risk of suffering from COVID-19"
Summary of this case from United States v. DardenOpinion
2:16-CR-00092-RDP-JEO
2020-09-11
UNITED STATES of America v. Patrice ANDERSON, Defendant.
US Probation, United States Probation Office, USM, United States Marshal, Acting US Attorney Robert Posey, Xavier O. Carter, Sr., US Attorney's Office, Birmingham, AL, for United States of America.
US Probation, United States Probation Office, USM, United States Marshal, Acting US Attorney Robert Posey, Xavier O. Carter, Sr., US Attorney's Office, Birmingham, AL, for United States of America.
ORDER
R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
This matter is before the court on Defendant Patrice Anderson's Emergency Motion for Compassion Release or Sentence Reduction. (Doc. # 121). For the reasons set forth below, Anderson's Motion is due to be denied.
On September 22, 2017, a jury found Anderson guilty of the following crimes: (1) violating 26 U.S.C. § 7206(2) by aiding or assisting in the preparation of false and fraudulent returns, statements, or other documents under Internal Revenue Laws, as charged in Counts One, Two, Three, Five, Six, Seven, Eight, Nine, Ten, Thirteen, Fourteen, and Fifteen; and (2) violating 26 U.S.C. § 7206(1) by filing a false tax-related document, as charged in Count Sixteen. (Doc. # 93). All of these charges stemmed from fraudulent tax returns filed by Anderson's tax preparation business, "Queen's Fast Tax." (Doc. # 6). On July 9, 2018, Anderson was sentenced to a total imprisonment term of sixty months and ordered to surrender to the Bureau of Prisons ("BOP") on October 3, 2018 for the commencement of her sentence. She is currently incarcerated at FCI Greenville, Illinois (Medium). Now, after serving less than two years of her sentence, Anderson requests the court to reduce her sentence to time served or home confinement. (Doc. # 121).
On the second to last page of her Motion, Anderson handwrote: "Request Attorney assistance to help with my motion." (Doc. # 121 at 5). To the extent this language could be construed as a motion requesting assistance of counsel, that motion is DENIED . The court does not find further briefing necessary to resolve the merits of Anderson's compassionate release request.
On March 11, 2020, the World Health Organization characterized COVID-19, also known as the novel coronavirus, as a pandemic. Two days later, on March 13, 2020, the President officially declared a national emergency due to the virus.
On June 23, 2020, Anderson filed this Emergency Motion Requesting Compassionate Release or Sentence Reduction. (Doc. # 121). Anderson asserts, as of the date of her Motion, that FCI Greenville (Medium) has had one inmate infected with COVID-19. (Id. ). Anderson has not been diagnosed with COVID-19. She does have anxiety, depression, and anemia. (Id. ). She is also overweight and has a body mass index of 40. (Id. ). She alleges her medical conditions place her at an increased risk with respect to the COVID-19 virus.
In her Motion, Anderson asks the court to reduce her sentence to time served or to order her placed on home confinement. (Id. ). If granted home confinement, she claims she would stay with her husband and children in Fayetteville, Georgia and seek work as a paralegal. (Doc. 121-1 at 17). The requested relief would result in her release from federal prison over four years before her scheduled release date. She cites 18 U.S.C. § 3582(c)(1)(A), sometimes referred to as the compassionate-release provision, in support of her request for release.
I. Legal Standard
Pursuant to 18 U.S.C. § 3582(b), a judgment of conviction that includes a sentence of imprisonment "constitutes a final judgment and may not be modified by a district court except in limited circumstances." Dillon v. United States , 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (internal quotations omitted). The exception in 18 U.S.C. § 3582(c)(1)(A) provides that when a defendant has exhausted his or her administrative remedies, the court may exercise discretion to reduce the term of imprisonment after considering the factors set forth in 18 U.S.C. § 3553(a) if (1) extraordinary and compelling reasons warrant such a reduction and (2) such a reduction is consistent with applicable policy statements. United States v. Smith , 8:17-CR-412-T-36AAS, 2020 WL 2512883, at *2 (M.D. Fla. May 15, 2020).
II. Analysis
Anderson argues that the spread of COVID-19 in her Illinois prison, in combination with her ailments, presents an extraordinary and compelling reason to reduce her sentence to home confinement. (Doc. # 121).
Her compassionate-release motion arises under 18 U.S.C. § 3582(c)(1)(A)(i), which states in pertinent part:
Compassionate release motions can also arise under 18 U.S.C. § 3582(c)(1)(A)(ii), which permits relief to be granted if "the defendant is at least 70 years of age [and] has served as least 30 years in prison." Anderson does not claim she is over 70 years of age and she has not served at least 30 years in prison, so the court will construe her motion as only asserting a claim under 18 U.S.C. § 3582(c)(1)(A)(i).
The court may not modify a term of imprisonment once it has been imposed except that ... the court, 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, may reduce the term of imprisonment (and may 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), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
A. Administrative Exhaustion Requirement
After reviewing the applicable law and facts presented here, the court finds that Anderson has satisfied the compassionate release statute's 30-day administrative exhaustion requirement. Anderson submitted her request for compassionate release to the Warden of her facility on April 4, 2020 (Doc. 121-1 at 1), and she has not yet received a response. Because more than 30 days have passed between that filing and the filing of this Motion, Anderson has satisfied the compassionate release statute's 30-day administrative exhaustion requirement.
B. Extraordinary and Compelling Reasons and § 3553(a) Factors
Although Anderson has demonstrated that she satisfied the statute's administrative exhaustion requirement, the question still remains whether, "considering the factors set forth in [§] 3553(a)," "extraordinary and compelling reasons warrant" a reduction in her sentence, "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A)(i).
United States Sentencing Guideline § 1B1.13 is the applicable policy statement related to compassionate release. That section -- which was adopted before Congress authorized defendants to seek relief under § 3582(c) on their own behalves -- essentially reiterates the requirements of § 3582(c)(1)(A), with the additional requirement that a defendant "not be a danger to the safety of any other person or to the community." U.S.S.G. § 1B1.13(2). The application notes to § 1B1.13 provide examples of extraordinary and compelling reasons to grant a compassionate release. Application Note 1 states:
Provided the defendant [is not a danger to the safety of any other person or to the community], extraordinary and compelling reasons exist under any of the circumstances set forth below: (A) Medical Condition of the Defendant -- (i) The defendant is suffering from a terminal illness[.] (ii) The defendant is [suffering from a health condition] 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. (B) Age of the Defendant -- The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less. (C) Family Circumstances
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(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.
(D) Other reasons -- As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
U.S.S.G. § 1B1.13, Application Note 1. As noted above, the basis for compassionate release must be "consistent with" this policy statement. 18 U.S.C. § 3582(c)(1)(A)(i).
Anderson asserts that because of her depression, anxiety, anemia, and obesity, she falls under one of two provisions in U.S.S.G. § 1B1.13, Application Note 1 -- the "failure of care" provision or the "catch-all" provision. (Doc. 121). But, Anderson fails to demonstrate the requisite extraordinary and compelling reasons required to reduce her sentence under either provision.
The "failure of care" provision in Application Note 1(A)(ii) applies only to conditions from which an inmate "is not expected to recover." Anderson has provided no evidence that, in a facility with only one active COVID-19 case, her medical condition is so serious that she "is not expected to recover." U.S.S.G. § 1B1.13, Application Note 1(A)(ii). Anderson has not been diagnosed with COVID-19, and she does not claim that she is receiving substandard medical care. On the contrary, the record indicates that Anderson is currently receiving treatment for her depression and anxiety. (Doc. # 121 at 10). As such, Anderson has failed to show that this court should grant her release under the "failure of care" provision.
The record is silent as to whether Anderson is currently taking medication for her anemia.
Nor does the "catch-all" provision provide Anderson with a pathway to relief. The Center for Disease Control ("CDC") has not identified anxiety, depression, or anemia as increasing a patient's risk of suffering from COVID-19 or associated complications. See CDC, Coronavirus Disease 2019: 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 September 10, 2020). Nor does Anderson argue why these diseases would increase her risk of suffering from COVID-19 or associated complications. Anderson's obesity is a slightly different matter. Anderson claims she has a body mass index of 40. (Doc. # 121 at 1). The CDC has indicated that having a body mass index of over 30 places a person at increased risk of severe illness from COVID-19. See CDC, Coronavirus Disease 2019: People Who Are at Higher Risk for Severe Illness. But, even if Anderson's obesity places her at a greater risk of suffering from COVID-19, she has failed to show that amounts to an "extraordinary and compelling reason" for her release. U.S.S.G. § 1B1.13, Application Note 1. As of the time of her Motion, there had been only one positive COVID-19 test reported at FCI Greenville (Medium). Because FCI Greenville (Medium) has such a low rate of COVID-19 cases, it may be safer for Anderson to remain incarcerated than to be released. Therefore, Anderson has not shown an extraordinary and compelling reason for her release under the "catch-all" provision.
The language of the "catch-all" provision also requires a "determination by the Director of the Bureau of Prisons [that] there exists in the defendant's case an extraordinary and compelling reason" for release. U.S.S.G. § 1B1.13, Application Note 1. Although the Eleventh Circuit has not yet determined whether such a determination is necessary to award relief under the "catch-all" provision, some courts have rejected arguments under the "catch-all" provision if those arguments are not supported by a determination from the Director of the Bureau of Prisons. See, e.g., United States v. Mollica , 2020 WL 1914956, at *4 (N.D. Ala. Apr. 20, 2020). However, this court need not reach this issue because Anderson's argument fails on the merits.
But, even if extraordinary and compelling reasons existed, guideline § 1B1.13 and the § 3553(a) factors weigh against compassionate release. Under § 3553(a), this court must consider, among other things: (1) "the nature and circumstances of the offense and the history and characteristics of the defendant;" and (2) "the need for the sentence imposed—(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and (B) to afford adequate deterrence to criminal conduct." And, under § 1B1.13(2) -- which § 3582(c) incorporates -- this court may only reduce a sentence when "[t]he defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)."
The severity of Anderson's wrongdoing counsels against compassionate release under both the guidelines ( § 1B1.13 ) and the statute § 3553(a). Anderson was convicted of eleven (11) felony counts for filing false tax returns through her tax preparation business and of one (1) felony count for filing a false tax return in her own name. (Doc. # 93). This type of crime is not harmless; tax evasion prevents the Internal Revenue Service ("IRS") from collecting over $400 billion per year. See IRS Pub. No. 1415, Federal Tax Compliance Research: Tax Gap Estimates for Tax Years 2008-2010 (May 2016). After considering the seriousness of Anderson's criminal conduct, the court finds that releasing Anderson early would fail to reflect the seriousness of her offenses, to promote respect for the law, to provide just punishment for her past behaviors, or to adequately deter criminal conduct in the future. Furthermore, Anderson has indicated that she wishes to pursue a career as a paralegal upon release. (See Doc. # 121-1 at 17). Although Anderson's aspirations are commendable, pursuing a career as a paralegal may give Anderson the opportunity to falsify forms or defraud others. Therefore, the court cannot say that releasing her early would not pose "a danger to the safety of ... other person[s] or to the community," in violation of § 1B1.13(2).
Finally, Anderson has served fewer than two years of her five-year sentence. In contrast to many of the cases in which courts have granted compassionate release during the COVID-19 pandemic, Anderson has served only a fraction of her sentence to date. See, e.g., United States v. Oreste , 2020 WL 4343774, at *1 (S.D. Fla. Apr. 6, 2020) (granting compassionate release to petitioner who served the majority of his sentence); United States v. Rodriguez , 451 F.Supp.3d 392, 394 (E.D. Pa. Apr. 1, 2020) (granting compassionate release to prisoner who was in "year seventeen of a twenty-year, mandatory-minimum sentence" and was "one year away from becoming eligible for home confinement"). To reduce Anderson's sentence as requested would diminish her transgressions and undermine the goals of the original sentence, among them, the need to dispense adequate punishment.
III. Conclusion
For the foregoing reasons, Anderson's Emergency Motion for Compassion Release or Sentence Reduction (Doc. # 121) is DENIED .
DONE and ORDERED this September 11, 2020.