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holding that "exhaustion requirement does not bar the Court from considering this motion" when movant was not held in BOP custody and could not petition a BOP warden
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Case No.: 3:19-cr-03410-BTM
2020-05-15
UNITED STATES of America, Plaintiff, v. Ma Sonia ARREOLA-BRETADO, Defendant.
Alicia Phillip Williams, USAO, San Diego, CA, for Plaintiff. Lauren Williams, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
Alicia Phillip Williams, USAO, San Diego, CA, for Plaintiff.
Lauren Williams, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
AMENDED ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE AND DENYING AS MOOT MOTION TO EXPEDITE BRIEFING SCHEDULE
[ECF No. 41]
Barry Ted Moskowitz, United States District Judge
Ma Sonia Arreola-Bretado petitions the Court for compassionate release after testing positive for COVID-19. (ECF No. 41 ("Mot.").) Ms. Arreola-Bretado is serving an eighteen-month sentence for importation of methamphetamine. She pled guilty to this charge on October 10, 2019 and has been in federal custody since her August 9, 2019 arrest. She is presently serving her sentence at CoreCivic Otay Mesa Detention Facility ("Otay Mesa"). To date, Ms. Arreola-Bretado has served 281 days, which is approximately sixty percent of her sentence taking into account good time credit. She would be eligible for release to home or community confinement if she was not going to be deported. Since she is not a U.S. citizen, she will lose her visa and be removed to Mexico and be barred from ever reentering this country. Ms. Arreola-Bretado's motion for compassionate release is GRANTED for the reasons set forth below.
A district court may modify an existing term of imprisonment under the framework set forth in 18 U.S.C. § 3582(c). The court may do so upon motion of either the Bureau of Prisons ("BOP") on behalf of a federal inmate or the inmate herself. § 3582(c)(1)(A). This latter avenue — in which the inmate moves on her own accord — is a new addition to the statute, implemented by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Ms. Arreola-Bretado filed her own motion for compassionate release.
Under § 3582(c)(1)(A), a court may rule on a motion filed by the inmate after she "has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [her] 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." The U.S. Supreme Court and the Ninth Circuit have repeatedly instructed against requiring exhaustion where it would be futile, albeit under different statutes. See, e.g. , Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1855, 195 L.Ed.2d 117 (2016) ("An inmate ... must exhaust available remedies, but need not exhaust unavailable ones."); Singh v. Ashcroft , 362 F.3d 1164, 1169 (9th Cir. 2004) ("It is axiomatic that one need not exhaust administrative remedies that would be futile or impossible to exhaust."). This Court applies the logic of these cases to § 3582(c)(1)(A) and waives the exhaustion requirement where it would be futile.
Ms. Arreola-Bretado was committed to the custody of the BOP. But the Court since filing the recent order has been advised by the Clerk that she is not actually in BOP custody yet. She is presently held by the U.S. Marshals Service at Otay Mesa, which is a non-BOP facility. Otay Mesa is a private contract Immigration and Customs Enforcement ("ICE") facility run by the company CoreCivic. Otay Mesa thus does not have a BOP warden. Even so, Ms. Arreola-Bretado and her attorney attempted to pursue the administrative remedy process by requesting compassionate release from the CoreCivic warden at Otay Mesa. He instructed that Ms. Arreola-Bretado's attorney would "need to reach out to our Government Partner (USMS)" because "CoreCivic does not determine these things." (Mot., Exh. O.) The Marshals Service does have authority under § 3582(c) to make a motion for compassionate release on an inmate's behalf. The Government in its opposition does not specify the warden to whom the request for compassionate release should be made and does not seek denial due to a failure to exhaust.
Ms. Arreola-Bretado argues that attempting to exhaust her remedies would be futile, (Mot., 5:9–6:28), a position the Government has not contested, (ECF No. 43 ("Opp.")). This Court can envision no situation more futile than being required to petition to a BOP warden who does not exist. Ms. Arreola-Bretado has demonstrated a sufficient attempt at exhaustion and the unavailability of any further remedies to exhaust. See, e.g. , United States v. Jepsen , No. 3:19-CV-00073(VLB), 2020 WL 1640232, at *3 (D. Conn. Apr. 1, 2020) ; United States v. Gonzalez , No. 2:18-CR-0232-TOR-15, 2020 WL 1536155, at *1 (E.D. Wash. Mar. 31, 2020). Under these circumstances, the Court holds that the exhaustion requirement does not bar the Court from considering this motion.
A district court may reduce a previously imposed sentence and grant compassionate release if "extraordinary and compelling reasons warrant such a reduction." § 3582(c)(1)(A)(ii). Congress delegated to the U.S. Sentencing Commission the authority to decide what these "extraordinary and compelling reasons" would be. 28 U.S.C. § 994(t). The most recent version of the Sentencing Commission's Guidelines Manual is dated November 1, 2018. U.S. S. G., Ch. ONE, Pt. A, Ch. 1, Pt. A, 18 U.S.C.A. But the First Step Act, a major criminal justice reform package, was enacted on December 21, 2018. Pub. L. 115-391. The most recent guidelines thus do not address significant changes to this area of law. See U.S. S. G. § 1B1.13 cmt. n. 1(A)–(D).
This Court adopts the position shared by other district courts that, "the Commission lacks an applicable policy statement regarding when a judge can grant compassionate release" because it "never harmonized its policy statement with the [First Step Act]." United States v. Brown , 411 F. Supp. 3d 446, 449 (S.D. Iowa Oct. 8, 2019) ; see also, e.g. , United States v. Defendant(s) , 2020 WL 1864906, at *5 (C.D. Cal. Apr. 13, 2020) ; United States v. Redd , 444 F.Supp.3d 717, 724 (E.D. Va. Mar. 16, 2020) (reasoning that U.S. S. G. § 1B1.13 "by its terms applies only to motions for compassionate release filed by the BOP Director, not motions filed by defendants"); United States v. Rodriguez , 424 F. Supp. 3d 674, 681–82 (N.D. Cal. Nov. 25, 2019) ; United States v. Cantu , 423 F. Supp. 3d 345, 351 (S.D. Tex. June 17, 2019). These courts have interpreted Congress's intent in passing the First Step Act, and specifically the amendment to § 3582(c)(1)(A), to have been to "increase the use of compassionate release" by entrusting the district courts with the discretion entrusted to the BOP Director. Brown , 411 F. Supp. 3d at 451. Indeed, if inmates are now permitted to move for compassionate release even when the BOP disagrees, then it follows that Congress wanted "to allow district judges to consider the vast variety of circumstances that may constitute ‘extraordinary and compelling.’ " Id. With this legislative intent in mind and without current guidelines from the Sentencing Commission, the Court views the 2018 Guidelines as persuasive but not binding.
With respect to motions made by the Director of the BOP under § 3582(c)(1)(A), the 2018 Guidelines permit the courts to grant these motions "if, after considering the factors set forth in 18 U.S.C. § 3553(a), ... the court determines that (1) (A) extraordinary and compelling reasons warrant the reduction; ... (2) the defendant is not a danger to the safety of any other person or to the community, ...; and (3) the reduction is consistent with this policy statement." U.S. S. G. § 1B1.13. Though Ms. Arreola-Bretado brought this motion on her own behalf, the Court will analyze it under this framework.
The Court has considered the § 3553(a) sentencing factors and finds that the reduced sentence set forth below is consistent with them. Ms. Arreola-Bretado is a nonviolent offender and none of the remaining factors counsel against granting her compassionate release. She has no prior record, she was the victim of substantial domestic violence, and the offense was truly aberrant for her otherwise law abiding life.
Ms. Arreola-Bretado petitions the Court for compassionate release following a positive COVID-19 test result, the seriousness of which is exacerbated given the confluence of medical conditions she suffers from: paroxysmal atrial fibrillation, cardiac murmur, an enlarged liver, and Graves Disease, to name a few. (Mot., 18:1–8, Exh. H.) Of particular concern are the first two on this list, which, as cardiovascular conditions, have been correlated with increased hospitalization and mortality among those with COVID-19. (Mot., Exhs. A–B.) Given Ms. Arreola-Bretado's multiple underlying medical conditions and the available medical research on this novel virus, the Court agrees that Ms. Arreola-Bretado is at a heightened risk of grave COVID-19 complications. See United States v. Andre Williams , No. 3:04cr95/MCR, 2020 WL 1751545, at *3 (N.D. Fl. Apr. 1, 2020).
The Government argues that Ms. Arreola-Bretado "has failed to show that her treatment in custody is insufficient such that it warrants early release." (Opp., 2:20–21.) The Court disagrees. Ms. Arreola-Bretado's declaration describes a number of conditions at Otay Mesa that demonstrate she would have a higher level of medical care outside of the facility. One notable example is the medical clinic's inability to keep track of Ms. Arreola-Bretado's first COVID-19 test, necessitating a second test and ultimately delaying treatment. (Mot., Exh. N, ¶¶ 8–10.) Notwithstanding actions to try to deal with the large number of COVID-19 cases at Otay Mesa, the conditions there are not sufficient to care for Ms. Arreola-Bretado. See Samy v. United States , No. 16-20610-1, 2020 WL 1888842, at *1 (E.D. Mich. Apr. 16, 2020) (explaining that "the prison environment only exacerbates [the inmate's] ailments" and granting compassionate release). She has demonstrated extraordinary and compelling reasons to be granted compassionate release.
The Court must consider whether releasing an inmate would be a danger to others and/or the community based on the factors set forth in 18 U.S.C. § 3142(g). U.S. S. G. § 1B1.13(2). These factors include the nature of the underlying offense and the history and characteristics of the person. § 3142(g). Importation of methamphetamine is a nonviolent crime. Ms. Arreola-Bretado had no other criminal history prior to this offense. (Mot., Exh. K.) The offense was totally out of character for her. She is not a danger to others.
The Government argues that Ms. Arreola-Bretado is dangerous for the sole reason that she is COVID-19-positive. (Opp., 9–10.) But with appropriate medical care, she will not be a harm to others. Returning home to her family to quarantine is safer for the community than is keeping Ms. Arreola-Bretado confined at Otay Mesa where she will likely be a risk to other inmates and staff who have not yet contracted COVID-19. Cf. , e.g. , United States v. Harper , 7:18-cr-00025, 2020 WL 2046381, at *3 (W.D. Va. Apr. 28, 2020) (viewing favorably an inmate's plan to quarantine with family or loved ones upon release). Furthermore, § 3142(g) has not before, and should not now, be read to bar the release of any individual with a communicable disease.
As described above, the Sentencing Commission has no current policy statement incorporating the criminal justice reform of the First Step Act. For the reasons set forth above, congressional intent — specifically with respect to § 3582(c)(1)(A) — supports providing federal courts discretion to determine whether § 3582(c) movants have established extraordinary and compelling reasons justify compassionate release.
Additionally, the 2018 Guidelines articulate four distinct criteria that establish extraordinary and compelling reasons to grant a § 3582(c) motion. U.S. S. G. § 1B1.13 cmt. n. 1. The extraordinary and compelling reasons found above are consistent with the policy underlying two of these criteria.
First, Ms. Arreola-Bretado's COVID-19 diagnosis relates to criterion 1: the "Medical Condition of the Defendant." Id. at cmt. n. 1(A). An inmate has extraordinary and compelling reasons for compassionate release under this category if she is "suffering from a serious physical or medical 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." Id. at cmt. n.1(A)(ii). This language has been interpreted to support releasing inmates during the COVID-19 pandemic. See, e.g. , United States v. Minor , No. 18-cr-80152 (S.D. Fl. Apr. 17, 2020); United States v. Campagna , No. 16 CR 78-01 (LGS), 2020 WL 1489829, at *3 (S.D.N.Y. Mar. 27, 2020). Designating the particular medical threat posed by COVID-19 and multiple cardiovascular conditions as extraordinary and compelling is consistent with a policy in favor of releasing inmates with serious medical conditions.
Second, criterion 4 is a catchall category, giving the BOP Director freedom to determine what is extraordinary and compelling on a case-by-case basis. U.S. S. G. § 1B1.13 cmt. n. 1(D). As discussed above, congressional intent supports extending this catchall category to federal judges reviewing motions filed by the inmates themselves. The Court is guided by the 2018 Guidelines and seeks to uphold the Guidelines' commitment to medical safety in this Order.
For the foregoing reasons, Ms. Arreola-Bretado's motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) is GRANTED . Her period of incarceration is reduced to time served (281 days). She shall be released from the custody of the U.S. Marshals Service and/or the Bureau of Prisons on this judgment. The motion to expedite the briefing schedule is DENIED as moot.