Opinion
Case Nos. 09-CR-332-11
2020-05-15
UNITED STATES of America, Plaintiff, v. Robert CARDENA, Defendant
AUSA, Andrianna Deanne Kastanek, Albert Berry, III, Steven Andrew Block, Terra Reynolds, United States Attorney's Office, Chicago, IL, Tiffany Jacqueline McCormick, United States Attorney's Office, Indianapolis, IN, Pretrial Services, Probation Department, for Plaintiff.
AUSA, Andrianna Deanne Kastanek, Albert Berry, III, Steven Andrew Block, Terra Reynolds, United States Attorney's Office, Chicago, IL, Tiffany Jacqueline McCormick, United States Attorney's Office, Indianapolis, IN, Pretrial Services, Probation Department, for Plaintiff.
ORDER
Joan B. Gottschall, United States District Judge
Robert Cardena ("Cardena"), a 41-year-old man, has served more than 90% of his 10-year mandatory minimum sentence for drug trafficking related offenses. Cardena moves under 18 U.S.C. § 3582(c)(1)(A)(i) for what is commonly called compassionate release. The compassionate release statute permits a sentence modification in "extraordinary and compelling circumstances." 18 U.S.C. § 3582(c)(1)(A). Cardena has been diagnosed with hypertension and Type II diabetes. Both conditions are risk factors if he contracts COVID-19. The COVID-19 pandemic, combined with Cardena's risk factors, and taken together with his current placement in a residential reentry center (RRC) where he is in close contact with other inmates circulating in the wider community and very close to the end of his sentence, constitute extraordinary and compelling circumstances that the court did not and could not have foreseen at sentencing. For the following reasons, the court grants the motion.
Background
The 13-count Third Superseding Indictment charged 11 defendants in a wide-ranging drug-trafficking operation. See generally Third Superseding Indictment, ECF No. 274. Cardena was named in two counts. At the trial in 2012, the jury convicted Cardena on Count 4 and Count 13, which charged him with a racketeering conspiracy. See Jury Verdict, ECF No. 813. Count 4 alleged that Cardena possessed cocaine with intent to distribute on or about September 1, 2006. Presentence Investigation Report ("PSR"), ECF No. 991 at 1.
This court sentenced Cardena below the advisory range recommended by the U.S. Sentencing Guidelines to serve the statutory mandatory minimum of 10 years. See 21 U.S.C. § 841(b)(1)(A). According to Cardena's PSR, adopted by this court, the prosecutor stated that Cardena was a "minor participant" in the instant offense and "was paid considerably less" than the codefendants. PSR at 6. Cardena has one criminal history point, placing him in the lowest level criminal history category of I. PSR at 12. At sentencing, the court explained that it was imposing a 10-year sentence because Cardena's involvement in the offense was limited and seemed to have ended in 2006. "[H]e was not making his money in his life with this enterprise before or after that limited involvement that we know about." Sentencing Tr. at 30, ECF No. 1221. "[I]n terms of community support, and employment support, and family support, Mr. Cardena has more going for him than most people we see in this case ...." Id. at 31.
Cardena has served more than nine years of his sentence. To the court's knowledge, he has one minor reported disciplinary issue while in prison.
The Federal Bureau of Prisons' inmate locator website reports Cardena's projected release date as April 20, 2021.
Without the assistance of a lawyer, Cardena filed a handwritten emergency letter motion dated April 12, 2020, asking the court either to grant him compassionate release, under 18 U.S.C. § 3582(c)(1), or to release him to home confinement under § 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020). Cardena was incarcerated at the federal prison in Milan, Michigan ("FCI-Milan") at the time. Given the emergency nature of the relief requested and the issues raised by the motion, the court appointed a lawyer for Cardena and set a response deadline. ECF No. 1862. The government filed its response on May 5, 2020. ECF No. 1864.
The government contended first that the motion was moot because on April 22, 2020, the Federal Bureau of Prisons ("BOP") transferred Cardena from FCI-Milan to a Residential Reentry Center, also commonly called a halfway house, in Janesville, Wisconsin ("the Janesville RRC"). ECF No. 1864 at 3. The government also contended that Cardena did not exhaust his administrative remedies before filing his motion for compassionate release. See 18 U.S.C. § 3582(c)(1)(A) (West 2020). By order dated May 6, 2020, this court rejected the government's mootness argument. ECF No. 1867 at 2–3. The government, the court explained, read Mr. Cardena's letter motion too narrowly as requesting a transfer from FCI-Milan. Id. at 2. The May 6, 2020, order also "identifie[d] three issues that [had] not been fully briefed in an effort to expedite an emergency matter" and provided a further opportunity for both sides to supplement the record. See id. at 2-3.
Cardena no longer seeks a recommendation for placement in home confinement. The government indicated in its response filed May 5, 2020, that the BOP denied Cardena's request under the CARES Act, supra , for transfer to home confinement, raising the possibility that Cardena's letter motion could have been construed as a challenge to that decision. Id. at 3. But in his response filed by his appointed lawyer on May 10, 2020, Cardena clarifies that he is seeking compassionate release. He does not challenge the BOP's decision on his request for home confinement. See ECF No. 1874 at 2.
Exhaustion of Administrative Remedies
Prior to the First Step Act of 2018 ("First Step Act"), Pub L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018), only the BOP could file a motion for compassionate release. See 18 U.S.C. § 3582(c)(1)(A) (2016) ; DeLuca v. Lariva , 586 F. App'x 239, 240–41 (7th Cir. 2014) ; United States v. Hodges , 2010 WL 1997887, at *2 (S.D. Ill. May 18, 2010). After the First Step Act, the defendant may also bring a motion for compassionate release "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." 18 U.S.C. § 3582(c)(1)(A) (West 2020).
The government represented in its response filed May 5, 2020, that it had received no request for compassionate release from Cardena. ECF No. 1864 at 10. In its supplemental response filed May 8, 2020, the government states that, "[W]hile Cardena previously submitted a request to BOP officials for placement in home confinement (a request that BOP later denied), he did not submit to BOP officials an administrative request for a reduction of sentence or compassionate release—either ...." ECF No. 1871 at 1. These representations prompted the court to set a deadline for the government to file a copy of Cardena's written request for transfer to home confinement. See ECF No. 1878. However, the government has not filed a written request. In a statement filed May 12, 2020, the government represents that at some point after Cardena was transferred to the Janesville RRC, he asked a prison official about release to home confinement, but he did not mention compassionate release. Gov't Stmt. 2, ECF No. 1879. Cardena's appointed lawyer has since filed an administrative request for compassionate release, according to the government. Id. at 3. The record shows neither when the request was filed nor its present status. See id.
The government concedes that, based on the reasoning of United States v. Taylor , 778 F.3d 667, 671 (7th Cir. 2015), the Seventh Circuit would likely hold that § 3582(c)(1)(A)'s statutory exhaustion requirement is not jurisdictional but is rather a claims-processing rule. See ECF No. 1864 at 10; see also United States v. Nazer , 2020 WL 2197840, at *4 (N.D. Ill. May 6, 2020) ("Every district court within this Circuit that has addressed the issue has found Taylor 's rationale equally applicable to § 3582(c)(1)(A)'s exhaustion requirement and concluded that it is not jurisdictional." (collecting cases)). District courts have divided over whether the statutory exhaustion requirement may be waived. See id. ; United States v. Witter , 2020 WL 1974200, at *5 (W.D. Wis. Apr. 24, 2020) (collecting cases and discussing split). After surveying the authorities in this rapidly developing area of law, this court agrees with and adopts the reasoning of cases holding that the statutory exhaustion requirement of § 3582(c)(1)(A), and the 30-day waiting period, may be waived in certain circumstances. See id. at *6–7.
The government reserves the right to argue later that the requirement is jurisdictional.
However, before considering waiver, the court inquires whether the government has carried its burden of proof regarding exhaustion. Ordinarily, "Exhaustion is an affirmative defense, and the burden of proof is on the defendants." Dole v. Chandler , 438 F.3d 804, 809 (7th Cir. 2006) (citing Dale v. Lappin , 376 F.3d 652, 655 (7th Cir. 2004) ) (construing exhaustion requirement of Prison Litigation Reform Act). From the government's representations, the court knows that Cardena's appointed lawyer filed an administrative request for compassionate release sometime after he was appointed. See Gov't Stmt. 2. However, the government has told the court nothing about whether the request has been decided. See id. It is unlikely that the BOP has rendered a final decision, yet the court cannot assume that facts exist which the government has the burden to prove. See Dole , 438 F.3d at 813 ; see also Kaba v. Stepp , 458 F.3d 678, 681 (7th Cir. 2006) (emphasizing that "it is important" to keep the burden of proof on exhaustion in mind).
Even if the government had carried its burden of proof, the court would waive the exhaustion requirement here. Courts have found that the text of § 3582(c)(1)(A) and the legislative history of the First Step Act demonstrate that in limited circumstances the 30-day waiting period can be waived if it "could not serve the congressional objective of ensuring prisoners receive a meaningful and prompt opportunity for a judicial determination on the motion." Witter , 2020 WL 1974200, at *6. In the case of the COVID-19 outbreak, where the risks to prisoners accrue on a daily basis, the purpose of the statute is served by waiving the 30-waiting period. Id. The government cites no controlling authority to the contrary.
Merits
Before the passage of the First Step Act and the outbreak of the COVID-19 global pandemic, the United States Sentencing Commission promulgated a policy statement providing a non-exhaustive list of extraordinary and compelling circumstances and specific criteria for each. See U.S.S.G. § 1B1.13. The specific circumstances broadly cover compassionate released based on the defendant's medical condition, age, and family circumstances. See U.S.S.G. § 1B1.13 cmt. n.1(A)–(C). The list also includes a catch-all provision: "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). Id. cmt. n.1(d). "[N]early all district courts hold that—since the [Fair Sentencing Act]’s passage— section 1B1.13 is not binding but is, rather, helpful guidance." United States v. Almontes , 2020 WL 1812713, at *3 (D. Conn. Apr. 9, 2020) (collecting cases). This court now joins "the vast majority" of district courts to conclude that while the criteria in § 1B1.13 provides useful guideposts, the court may look beyond the defendant's medical condition, age, and family circumstances, as delineated in the Sentencing Commission's guidance, to construe what constitutes extraordinary and compelling circumstances. Id. Here, Cardena's diagnosed medical conditions combined with the real threat of exposure to COVID-19 and the fact that he is close to the end of his sentence create extraordinary and compelling circumstances. Cardena's prison medical records confirm that he has been diagnosed with hypertension and Type II diabetes. E.g. , ECF No. 1877-1 at 1, 20 (filed under seal). Both conditions appear on the list of CDC risk factors for people who test positive for COVID-19. Cardena was housed in FCI-Milan when he filed his motion. As of April 19, 2020, three days before his transfer to the RRC in Janesville, FCI-Milan had more than 40 confirmed COVID-19 cases among prisoners and staff. Suppl. Resp. 2; see also COVID-19 , Federal Bureau of Prisons, (last visited May 14, 2020), https://www.bop.gov/coronavirus/index.jsp (as of May 14, 2020, 9 inmates and 11 staff were currently infected at FCI-Milan). The government represents that the RRC in Janesville, Wisconsin, has had no confirmed COVID-19 cases. ECF No. 1871 at 4. However, per CDC guidance, the BOP tests only individuals who exhibit possible COVID-19 symptoms. Two prisoners and two staff members at the RRC in Janesville have been tested; none has tested positive. Id.
See Coronavirus Disease 2019: People Who Are At Higher Risk , Centers for Disease Control and Prevention (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
Yet, many individuals who contract COVID-19 do not show obvious symptoms. And the crowded conditions in halfway houses make an outbreak from even a small number of cases more likely than in the general population because staff and residents often circulate through the facility. In its order dated May 6, 2020, the court noted numerous press reports documenting the risks posed by conditions in prisons, and in halfway houses in particular. ECF No. 1867 at 3. The government points to no contrary evidence. See ECF No. 1871 at 4. Indeed, the government tells the court that of the 46 prisoners at the Janesville RRC, 22 "are currently working." Id. Assuming that some prisoners are working outside the facility (as would be consistent with the goals of an RRC), they provide an additional daily vector for the novel corona virus's entry into the RRC. Considering all of this, this court finds that extraordinary and compelling circumstances exist here. See United States v. Early , 2020 WL 2112371, at *2 (N.D. Ill. May 3, 2020).
See Morbidity and Mortality Weekly Report , Centers for Disease Control and Prevention, (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e1.htm.
See, e.g. , Lauren Gill, Halfway House Resident Describe ‘A Scary Situation’ as Coronavirus Sweeps the U.S. , The Appeal, (Mar. 31, 2020), https://theappeal.org/halfway-house-residents-describe-a-scary-situation-as-coronavirus-sweeps-the-u-s/
A finding of extraordinary and compelling circumstances does not automatically result in release. This court must weigh the same factors it considered when it sentenced Cardena. 18 U.S.C. § 3582(c)(1)(A) (West 2020) (cross-referencing § 3553(a)).
The court begins with the need to protect the public. As reflected in his criminal history, Cardena has little in the way of a criminal record. And even the prosecution characterized his role in the offense that led to his 10-year sentence as "minor." PSR at 6. Cardena's lengthy sentence resulted from the large quantity of drugs he attempted to steal, all at the behest of friends and co-defendants who organized the attempted theft from a rival criminal element. See id. at 6–7. The BOP's early transfer of Cardena to a RRC further suggests strongly that it concurs that Cardena has reached the point at which facilitating his transition to the community is warranted. As the BOP website states, the "RRCs provide a safe, structured, supervised environment, as well as employment counseling, job placement, financial management assistance, and other programs and services. RRCs help inmates gradually rebuild their ties to the community and facilitate supervising ex-offenders' activities during this readjustment phase." Completing the Transition , Federal Bureau of Prisons, (last visited May 14, 2020), https://www.bop.gov/about/facilities/residential_reentry_management_centers.jsp. Additionally, Cardena tells the court that he has taken numerous courses in prison to prepare himself for transition to the world. See ECF No. 1874 at 11. Thus, from all the court can tell from this record, Cardena has rehabilitated himself and is prepared to return to society. See United States v. Reyes , 2020 WL 1663129, at *3 (N.D. Ill. Apr. 3, 2020) (explaining that although rehabilitation alone cannot be an extraordinary and compelling circumstance, "[T]he Court is entitled to consider rehabilitation and give it appropriate analytical weight"); see also Early , 2020 WL 2112371, at *4.
The court recognizes that releasing Cardena from his halfway house deprives him of transition services and support. However, Cardena represents that he has a solid reentry plan. See Suppl. Resp. 11, ECF No. 1871. His mother, who lives in a Chicago suburb, is prepared to allow him to live at her home and separately quarantine in a room with access to a separate bathroom. Id. Cardena also has a promise of employment. He will work as a maintenance worker, at an apartment building, with the same company for which he worked while on bond in this case. Id. Due to its distance from the Chicago area, continued custody in the Janesville halfway house would not be likely to further facilitate his transition to this job because he is too far from the Chicago area. Accordingly, the court can see no further benefit in subjecting him to the risks of exposure to COVID-19 by continuing to house him at the Janesville RRC. He will continue to be under a court-ordered term of supervised release.
Conclusion
For the reasons stated, defendant Robert Cardena's emergency letter motion for compassionate release, as supplemented, is granted. Mr. Cardena's custodial sentence is modified to time served. An amended judgment shall issue immediately.
The court requests that the probation officer to whom Mr. Cardena's case is assigned in Chicago requests his consent to some limited period of home confinement upon his return to Chicago to facilitate his reentry plan. If he refuses to consent, the probation office is invited to request the court's guidance.