Opinion
Crim. 17-00276 LEK
04-26-2022
UNITED STATES OF AMERICA, Plaintiff, v. AMANDA BREMER, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR REDUCTION IN SENTENCE (COMPASSIONATE RELEASE) FILED 10/13/21 [DKT. NO. 40]
Leslie E. Kobayashi, United States District Judge
Defendant Amanda Bremer (“Bremer”) seeks reduction of her sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), for compassionate release from and to reduce her sentence of imprisonment to time served. See Defendant's Motion for Reduction in Sentence (Compassionate Release) (“Motion”), filed 10/13/21 (dkt. no. 40) at 1. She submits that she would have been safety valve eligible under the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, 132 Stat. 5194 (2018), and thus eligible for a sentence below the statutory minimum of imprisonment but for the First Step Act being signed into law the year after she was sentenced. She argues that her sentence is disproportionate relative to her guideline imprisonment range that would have applied if the Court was able to grant safety valve relief and to the sentence that she would have received without the constraint of the statutory minimum of 120 months imprisonment. [Memorandum in Support of Motion (“Mem. in Supp.”), filed 10/14/21 (dkt. no. 42), at 2-3.] Bremer also argues that she is overweight and at a greater risk for serious illness or death if she were to contract COVID-19. [Id. at 2021.]
The sentencing disparity justifies compassionate release. Therefore, the Motion is GRANTED, and Bremer's sentence is ORDERED to be reduced to 78 months of incarceration with five years of supervised release to follow her release from incarceration.
BACKGROUND
Bremer was indicted on April 26, 2017 and charged with one count of knowingly and intentionally attempting to possess with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. See Indictment filed 4/26/17 (dkt. no. 8). She entered a guilty plea on August 10, 2017, see Minutes - EP: Motion for Withdrawal of Not Guilty Plea and to Plead Anew, filed 8/10/17 (dkt. no. 27) (“8/10 Court Minutes”), and was sentenced on November 30, 2017 to 120 months imprisonment followed by five years of supervised release. See Judgment in a Criminal Case (“Judgment”), filed 12/1/17 (dkt. no. 36), at 2-3. Bremer is currently housed in Federal Bureau of Prisons (“BOP”) custody at Alderson Federal Prison Camp (“FPC Alderson”), a minimum-security federal prison camp in Alderson, West Virginia, and has a projected release date of October 25, 2025. Federal Bureau of Prisons, Find an inmate, https://www.bop.gov/inmateloc (last visited Apr. 25, 2022); Federal Bureau of Prisons, FPC Alderson, https://www.bop.gov/locations/institutions/ald (last visited Apr. 25, 2022). Bremer points out that she “had completed ten BOP programs prior to such programs were shut down due to the pandemic - some . . . even before she was sentenced.” [Mem. in Supp. at 28 (citing Motion, Exh. E (Program Certificates)).] In addition to these educational courses, she has a “solid release plan [to] ensure a safe and successful transition back to her community and enable her to raise her daughter while helping her mother . . . .” Id. at 32; see also Motion, Exh. F (Individualized Reentry Plan - Program Review (Inmate Copy), dated 3/27/19) at PageID #: 322-23.
Plaintiff United States of America (“the Government”) opposes the Motion. See Government's Opposition to Defendant's Motion to Reduce Sentence Under First Step Act (Compassionate Release) (“Mem. in Opp.”), filed 10/29/21 (dkt. no. 45). It submits that Bremer “has served approximately 54 months (approximately 52%, assuming [she] receive[d] ‘good time credit'), ” and that she has had “two disciplinary infractions for indecent exposure and being in an unauthorized area . . . for which she was punished with 30 days of loss of email and commissary.” [Id. at 4 (citing Mem. in Opp., Exh. A (Bremer's Inmate Discipline Data - Chronological Disciplinary Record).] It argues that Bremer “has the burden to show circumstances meeting the test for compassionate release, ” and that “compassionate release is ‘rare' and ‘extraordinary.'” [Id. at 12 (citations omitted).] The mere fact of the COVID-19 pandemic does not provide a basis for sentence reduction, it submits, and the Government emphasizes that “[a]n inmate who has not been offered a vaccine, who presents a [recognized medical condition that makes it more likely that the inmate may become severely ill from COVID-19] presents an ‘extraordinary and compelling reason' [for] compassionate release.” [Id. 14-15.] Bremer is vaccinated. As to the application of the safety valve provisions implemented by the First Step Act, the Government submits that, while the Ninth Circuit has not yet decided the issue, the rationale of the Third, Sixth, and Seventh Circuits are compelling in their conclusion that the First Step Act amendments do not constitute extraordinary and compelling reasons for sentence reduction, and emphasizes that Congress did not make the changes reflected in the First Step Act retroactive. [Id. at 15-16.]
Bremer informs the Court that she was fully vaccinated for COVID-19 as of May 26, 2021. See Defendant's Statement As to Vaccination Status, filed 10/18/21 (dkt. no. 44), at 1.
DISCUSSION
Generally, courts have limited power to modify terms of imprisonment after a defendant has been sentenced. Dillon v. United States, 560 U.S. 817, 819 (2010) (“A federal court generally ‘may not modify a term of imprisonment once it has been imposed.'” (quoting 18 U.S.C. § 3582(c)). As amended by the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i) authorizes an exception to the general rule and permits modification of a sentence:
(c) Modification of an imposed term of imprisonment.--The court may not modify a term of imprisonment once it has been imposed except that--
(1) in any case--
(A) 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--
(i) extraordinary and compelling reasons warrant such a reduction . . .
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
Thus, Bremer is required to demonstrate both exhaustion of administrative remedies and that “extraordinary and compelling reasons” exist to warrant sentence reduction.
I. Exhaustion
Section 3582(c)(1)(A) “imposes a mandatory claim processing rule that must be enforced when properly invoked.” United States v. Keller, 2 F.4th 1278, 1282 (9th Cir. 2021) (per curiam) (citations omitted). The Government agrees that Bremer has met the administrative exhaustion requirement. See Mem. in Opp. at 4.
II. Extraordinary and Compelling Reasons
A sentence reduction is only permitted where there are “extraordinary and compelling reasons, ” and if “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” § 3582(c)(1)(A)(i). The key term “extraordinary and compelling reasons” was not, however, defined:
Congress provided no statutory definition of “extraordinary and compelling reasons.” Instead, Congress stated that the Sentencing Commission, “in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” 28 U.S.C. § 994(t); see also id. § 994(a)(2)(C).United States v. Aruda, 993 F.3d 797, 800 (9th Cir. 2021). The Sentencing Commission does provide guidance in its policy statement as considerations for finding “extraordinary and compelling reasons” and sets forth certain circumstances that justify sentence reduction, including serious medical conditions, advanced age, certain family circumstances, and other reasons “[a]s determined by the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13, cmt. n.1. However, this statement has not been updated “since the First Step Act amended § 3582(c)(1)(A).” Aruda, 993 F.3d at 800. Thus, “[t]he Sentencing Commission's statements in U.S.S.G. § 1B1.13 may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.” Id. at 802 (citing United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020)).
A. Medical Risk of Severe Illness or Death
The COVID-19 pandemic has brutally held sway over the world for more than two years now. Medical knowledge about this virus has rapidly evolved but much still is not known about the full extent of its virulence and the long-term effects from infection. What is currently known at this time is that COVID-19 vaccinations significantly reduce hospitalizations and deaths, even with COVID-19 variant outbreaks in correctional and detention facilities. See, e.g., Centers for Disease Control and Prevention (“CDC”), Morbidity and Mortality Weekly Report, “Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison - Texas, July-August 2021, ” dated 9/24/21, https://www.cdc.gov/mmwr/volumes/ 70/wr/mm7038e3.htm (last visited Apr. 25, 2022). Likewise, the conditions of confinement in BOP facilities have been, as Bremer describes: “nothing less than punitive, counterproductive, and cruel” by “plac[ing] inmates on lockdown including to restrict inmate movement” and to “shut down [BOP programs].” [Mem. in Supp. at 24-25.] These conditions are compounded by, as Bremer notes, the failure of having BOP staff in FPC Alderwood fully vaccinated. [Id. at 25-26.] However, as articulated by the Government, in response to the unprecedented COVID-19 crisis, BOP has “made extensive changes to its operations, . . . in consultation with the Centers for Disease Control and the World Health Organization.” [Mem. in Opp. at 5.] Even where prison regulations impede an inmate's constitutional rights, these regulations will be upheld if the regulations are “reasonably related to legitimate penological interests.” Tuner v. Safley, 482 U.S. 78, 89 (1987). The COVID-19 measures are in response to the need to mitigate risk of contagion within BOP facilities and thus, while seemingly harsh, are rationally connected and reasonable.
The law requires a specific finding of “extraordinary and compelling reasons.” Bremer has received two doses of the COVID-19 vaccination. Although it is possible that her weight may pose a risk of serious illness or death should she contract a breakthrough case of COVID-19, and the low rate of vaccination among staff at FPC Alderwood may pose an increased risk of such a breakthrough case, according to the CDC, “COVID-19 vaccines available in the United States are effective at protecting people from getting seriously ill, being hospitalized, and even dying - especially people who are boosted.” See CDC, Stay Up to Date with Your COVID-19 Vaccines, updated Apr. 2, 2022, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html (last visited Apr. 25, 2022). It is unlikely that, if infected, Bremer will need to be hospitalized or die. The Court therefore cannot conclude that she demonstrates an extraordinary and compelling reason to grant compassionate release based on her medical condition, the conditions of incarceration and COVID-19 variants.
B. Sentencing Disparity
In 2017, Bremer plead guilty to one count of an attempted drug distribution charge involving 50 grams or more of methamphetamine. [8/10 Court Minutes.] Although Bremer's guideline imprisonment range was determined to be 97 to 121 months of imprisonment, she was not eligible for safety valve at the time of sentencing and, because the minimum of this guideline range was less than the statutory minimum for imprisonment of 120 months, her applicable guideline range was determined to be 120 to 121 months. [Amended Presentence Investigation Report (“PSR”), filed under seal 12/1/17 (dkt. no. 35), at ¶¶ 46, 83.] Consequently, she was sentenced to 120 months of imprisonment and five years of supervised release. See Judgment at 2-3. In sum, Bremer argues that her extraordinary and compelling circumstance justifying a sentence reduction is sentencing disparity; that is, if she had been sentenced after the First Step Act had been enacted, she would have qualified for safety valve and “she would not have been subject to the 120-month mandatory minimum, and her applicable guideline range would have been 97 to 121 months and with the readily accepted variance applied to safety valve eligible defendants, Ms. Bremer's guideline range would have been 78 to 97 months.” [Mem. in Supp. at 15.] The Court could have then imposed a sentence without regard to the mandatory minimum sentence.
Specifically, the First Step Act's expansion of the safety valve provision in § 3553(f) now provides:
(f) Limitation on applicability of statutory minimums in certain cases.--Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846), section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that--
(1) the defendant does not have--
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.18 U.S.C. § 3553(f)(1)-(5).
The Government does not dispute that, had Bremer been sentenced after the First Step Act's amendment of the safety valve requirements, she would have met that statute's requirements. It argues that she was not safety eligible at the time of sentencing and continues to be ineligible because this law did not expressly permit retroactive application. This is correct. Congress did not make the section 402 of the First Step Act retroactive. It clearly did not intend to provide expanded relief under § 3582(c) to all defendants already serving a mandatory minimum sentence of incarceration and who have newly qualifying criminal history scores. “[T]he axiom that ‘[r]etroactivity is not favored in the law,' and its interpretive corollary that ‘congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.'” Landgraf v. USI Film Prod., 511 U.S. 244, 264 (1994) (quoting Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988)).
The section provides: “APPLICABILITY.-The amendments made by this section [broadening the existing safety valve] shall apply only to a conviction entered on or after the date of enactment of this Act.” Section 402(b), Pub. L. No. 115-391, 132 Stat. 5194, 5221 (2018).
Likewise it is clear that courts are not precluded from exercising discretion and considering lengthy sentences when determining whether compassionate release is appropriate. See, e.g., United States v. Rosas, Case No. 17cr3431-MMA-4, 2020 WL 7226438, at *4 (S.D. Cal. Dec. 8, 2020) (citing United States v. Cantu-Rivera, No. CR H-89-204, 2019 WL 2578272, at *2 (S.D. Tex. June 24, 2019); United States v. Urkevich, No. 8:03CR37, 2019 WL 6037391, at *2 (D. Neb. Nov. 14, 2019); United States v. Young, No. 2:00-CR-00002-1, 2020 WL 1047815, at *8 (M.D. Tenn. Mar. 4, 2020); United States v. Maumau, No. 2:08-CR-00758-TC-11, 2020 WL 806121, at *7 (D. Utah Feb. 18, 2020)); see also United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020) (“[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.”)). Moreover, “‘ ![c]ourts may consider individual defendants' circumstances and weigh whether a particular sentencing disparity is truly “extraordinary and compelling” on a case-by-case basis.'” United States v. Kanohokula, CR. NO. 11-00976 JMS (01), 2021 WL 5411211, at *4 (D. Hawai'i Nov. 18, 2021) (quoting United States v. Haynes, 2021 WL 406595, at *5 (C.D. Ill. Feb 5, 2021)). Retroactive application on a case-by-case basis also does not undermine Congress's legislative intent in enacting the First Step Act.
This Court concludes that Congress's refusal to make the First Step Act retroactive does not preclude it from considering whether a sentencing disparity in a particular case constitutes an extraordinary and compelling reason pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).
The Court turns next to determine whether a sentencing disparity exists in this case. First, it must examine whether Bremer qualifies under the First Step Act's expanded safety valve provision in § 3553(f). She does. Both parties agree that, if sentenced today, Bremer would be eligible under the current safety valve provision found in 18 U.S.C. § 3553(f). See Mem. in Supp. at 15; Mem. in Opp. at 15. Therefore, if sentenced today, Bremer's total offense level would be 29 with a criminal history category II.
Additionally, the Sentencing Guidelines provide that, “[i]f the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation on
Applicability of Statutory Minimum Sentences in Certain Cases), decrease by 2 levels.” U.S.S.G. § 2D1.1(b)(18). Subsection (a) of § 5C1.2 refers to language of 18 U.S.C. § 3553(f) that has since been amended by the First Step Act. “The 2016 Guidelines Manual, effective November 1, 2016, remained in effect through October 31, 2018 as there were no new amendments promulgated by the Commission.” United States Sentencing Commission, 2016 Guidelines Manual, https://www.ussc.gov/guidelines/2016-guidelines-manutal (last visited Apr. 26, 2022) (emphasis in original). No amendments have been implemented because, “since early 2019, the United States Sentencing Commission has been operating without the quorum of four voting members required by statute to promulgate amendments to the sentencing guidelines, policy statements, and commentary.” United States Sentencing Commission, 2021 Guidelines Manual Annotated, “A Message from the Acting Chair, ” https://www.ussc.gov/guidelines/2021-guidelines-manual-annotated (last visited Apr. 26, 2022).
This Court reasons that the United States Sentencing Commission, if it had the proper quorum, would have amended subsection (a) of § 5C1.2 to conform with First Step Act's amendment of 18 U.S.C. § 3553(f) and would have retained the directive of a two-level decrease in the offense level where a defendant meets the criteria of 18 U.S.C. § 3553(f). Therefore, if Bremer was sentenced today, she would be eligible under the current safety valve provision and thus would also be eligible for a two-level decrease from total offense level 29 to 27, and this would result in a Guideline range of 78 to 97 months of incarceration. Additionally, if the Court had been permitted to impose a sentence without the constraints of the statutory minimum term of imprisonment, it would have relied upon the strong mitigating factors it stated at the time of sentencing and the social factors reported in the PSR in fashioning a sentence that was sufficient but not greater than necessary to meet the goals of sentencing. See, e.g., Mem. in Supp. at 16; see also Motion, Exh. C (Transcript of 11/30/17 Sentencing) at 13, 17; PSR at ¶¶ 56, 71. If the Court had been able to sentence Bremer without regard to a mandatory minimum, Bremer would have merited a sentence at the low end of the guideline range; most likely at 78 months and not the harsh and lengthier sentence of 120 months required by the mandatory minimum. This results in a disparity of 42 months.
Second, the Court considers whether the disparity is significant. The disparity between the statutory minimum period of incarceration of 120 months and a Guideline range sentence of 78 months is significant. The question then becomes when is a sentencing disparity sufficient to justify sentence reduction? Courts have remarked that “the enormous disparity between that sentence and the sentence a defendant would receive today, can constitute an ‘extraordinary and compelling' reason for relief . . . .” United States v. McCoy, 981 F.3d 271, 285 (4th Cir. 2020) (citations omitted). While most of these cases involve sentences imposed that are decades longer than what Congress now believes are appropriate penalties, the fact remains the policy reasons underlying the First Step Act recognize that sentencing disparities are “primarily the result of Congress' conclusion that [these] sentences . . . are unfair and unnecessary, . . . as well as a legislative declaration of what level of punishment is adequate.” United States v. Redd, 444 F.Supp.3d 717, 723 (E.D. Va. 2020) (footnote omitted). While enormity of disparity is shocking and thus extraordinary in and of itself, nowhere is it required that the disparity between the sentence imposed and the sentence that could have been imposed must exceed a certain number of years. Rather, this Court concludes that the policy considerations against unfair and unnecessary sentences that go beyond the reason of “just punishment” are foremost in determining whether a disparity rises to the level of being an extraordinary and compelling reason justifying sentence reduction.
Notwithstanding the notion that any additional time spent incapacitated by incarceration is subjectively significant to the imprisoned, Bremer has a child who was two years old at the time Bremer was sentenced to 120 months of imprisonment. [PSR at ¶ 58.] Her child is now about seven years old, and Bremer mother has been incarcerated for most of her childhood. Forty-two months, the difference between the sentence that Bremer received and the one that Congress has now deemed appropriate, is an enormous amount of time in the lives of a parent and child who are forced to live without one another.
The definition of disparity is “a noticeable and unusually significant difference or dissimilarity.” Merriam-Webster, “disparity, ” www.merriam-webster.com/distionary/disparity (last visited Apr. 26, 2022). The 42-month difference between the sentence imposed and the sentence she would receive today is noticeably and unusually significant. It is a difference of almost four years imprisonment. When taking this disparity into account along with the First Step Act's legislative declaration of adequate punishment, the Court concludes that the sentencing disparity is significant to rises to the level of an extraordinary and compelling reason to warrant sentence reduction.
C. Section 3553(a) Factors
Bremer's reduction of sentence is consistent with 18 U.S.C. § 3553(a). This statute informs courts to consider, among other things, the nature and circumstances of a defendant's offense and her history and characteristics, to provide just punishment, and to avoid unwarranted sentencing disparities. Bremer was convicted of attempting to distribute fifty grams of more of methamphetamine. Her role in the offense was that she received at least four parcels at her post office box that she knew contained methamphetamine. See PSR at ¶¶ 6-8. Nothing indicates that she was a source of supply, had any control over the amounts mailed to her, or sold methamphetamine. At most, she was low-level distributor of methamphetamine.
Similarly situated defendants who were sentenced after the First Step Act was enacted have been sentenced by this Court for terms of incarceration far lower than 120 months. If the Court had been able to sentence Bremer without regard to a mandatory minimum, Bremer would have merited a sentence at the low end of the guideline range; most likely at 78 months and not the harsh and lengthier sentence of 120 months required by the mandatory minimum.
D. Risk to the Community
Lastly, the Court must consider whether Bremer's release will present an excessive risk to the community. 18 U.S.C. § 3553(a)(2)(B), (C); U.S.S.G. § 1B1.13(2). While in prison, Bremer has sought education and training; [Mem. in Supp. at 28 (citing Motion, Exh. E (Program Certificates));] has developed a release plan for her transition back into her community; [id. at 32;] and has only two non-violent infractions during her incarceration, [Mem. in Opp. at 4]. Nothing in Bremer's background and criminal history indicates that she is a danger to the safety of any other person or the community; she does not have a history of violence or mental illness, and her offense did not involve the use of violence nor weapons. More importantly, her term of incarceration will be followed by a five-year term of supervise release, consistent with her original sentence, to assist her in reentering our community and to provide her with support and supervision consistent with goals of rehabilitation and deterrence.
CONCLUSION
For the foregoing reasons, Defendant's Motion for Reduction in Sentence (Compassionate Release), [filed 10/13/21 (dkt. no. 40), ] is GRANTED and her sentence is REDUCED to 78 months of incarceration with 5 years of supervised release to follow her release from incarceration.
IT IS SO ORDERED.