BETH BLOOM UNITED STATES DISTRICT JUDGE

ORDER

THIS CAUSE is before the Court upon Defendant Salvatore Colonna's ("Defendant") Emergency Motion for Compassionate Release due to COVID-19, ECF No. [73] ("Motion"), filed on May 20, 2020. The Government filed its Response, ECF No. [75] ("Response"), on May 26, 2020. The Court has carefully reviewed the Motion, all opposing and supporting submissions, the record in this case the applicable law, and is otherwise fully advised. For the reasons discussed below, Defendant's Motion is denied.

I. BACKGROUND

On August 31, 2018, Defendant pled guilty to one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. ECF No. [59]. Defendant was sentenced to a term of imprisonment of 78 months, followed by three years of supervised release, on November 30, 2018. ECF No. [71]. Currently, Defendant is housed at the Miami Federal Correctional Institution ("Miami FCI") in Miami, Florida, and he is scheduled to be released from custody in June 2024. On May 20, 2020, Defendant filed the instant Motion requesting to be placed on home confinement pursuant to 18 U.S.C. § 3582(c)(1)(A) and the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), Pub. L. No. 116-136, 134 Stat. 281 (2020), due to the ongoing COVID-19 pandemic because his age and health conditions — namely, osteoarthritis, GERD, and his limited mobility due to his need for a hip replacement — put him at an increased risk of contracting the virus. ECF No. [73] at 1-2. As such, Defendant requests that his sentence be modified to time served, or that this Court recommend to the Bureau of Prisons ("BOP") that Defendant be immediately placed in home confinement. Id. The Government opposes Defendant's request for placement in home confinement, and also notes that, on May 22, 2020, the BOP communicated its intent to conduct an expedited review of Defendant's case and his eligibility for release. See ECF No. [75].

SARS-CoV-2, the novel coronavirus, and COVID-19, the disease it causes, have spread throughout the world and are impacting every person's life. The United States is currently reporting more confirmed cases of COVID-19 and deaths as a result than any other country, with more than 1,760,000 confirmed cases and over 103,000 reported deaths as of May 31, 2020. The COVID-19 pandemic poses a serious danger to society at large, and especially to at-risk inmates. In addition, COVID-19 poses a higher risk to incarcerated individuals who are unable to practice health precautions available to the general public, such as social distancing.

As a result of this dynamic, unpredictable, and unprecedented situation, Attorney General William Barr has urged the BOP to move vulnerable inmates out of institutions and to home confinement, where appropriate. See Mem. from Attorney Gen. William Barr for Dir. of Bureau of Prisons re: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020), https://www.justice.gov/file/1266661/download ("Memorandum"). The Memorandum identifies several facilities that have been particularly affected and which should be given priority in the BOP's consideration of implementing home confinement, including FCI Oakdale, FCI Danbury, and FCI Elkton. Id. at 1. In addition, the Attorney General makes an express finding that extant emergency conditions are materially affecting the functioning of the BOP, and directs that the BOP immediately maximize appropriate transfers to home confinement of all appropriate inmates at the specifically named facilities, and other similarly situated facilities where COVID-19 is materially affecting operations. Id. The Memorandum further directs the BOP to review all inmates who have COVID-19 risk factors as established by the Centers for Disease Control and Prevention ("CDC") to determine suitability for home confinement, while emphasizing the importance of protecting the public from individuals who may pose a danger to society, and recognizing the need to prevent over-burdening law enforcement with "the indiscriminate release of thousands of prisoners onto the streets without any verification that those prisoners will follow the laws when they are released . . . and that they will not return to their old ways as soon as they walk through the prison gates." Id. at 2-3. The Memorandum also stresses the need for careful individualized determinations regarding the propriety of releasing any given inmate, and does not encourage indiscriminate release. Id. at 3.

II. DISCUSSION

"Generally, a court 'may not modify a term of imprisonment once it has been imposed.'" United States v. Pubien, No. 19-12078, 2020 WL 897402, at *2 (11th Cir. Feb. 25, 2020) (quoting 18 U.S.C. § 3582(c)).

"The authority of a district court to modify an imprisonment sentence is narrowly limited by statute." [United States v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010)]. Section 3582(c) of Title 18 provides that the district court may not modify a defendant's imprisonment sentence except: (1) if the Bureau of Prisons files a motion and extraordinary or compelling circumstances warrant modification or if the defendant is at least 70 years old and has served 30 years in prison; (2) if the modification is expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) if the defendant's original sentencing range has subsequently been lowered as a result of an amendment to the Guidelines by the Sentencing Commission. 18 U.S.C. § 3582(c).

In his Motion, Defendant requests that his term modify his sentence to time served under the compassionate release provision. Section 3582(c)(1)(A) provides:

(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) [18 U.S.C. § 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 . . . .

Under the relevant Sentencing Guidelines policy statement, the Court "may reduce a term of imprisonment . . . if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent they are applicable, the court determines that . . . extraordinary and compelling reasons warrant a reduction." U.S. Sentencing Guidelines Manual § 1B1.13 (U.S. Sentencing Comm'n 2018). The Sentencing Guidelines add that the Court should reduce a sentence only if the "defendant is not a danger to the safety of any other person or to the community." Id.

Accordingly,

Section 3582 sets out the order in which this Court should analyze a criminal defendant's entitlement to a sentencing reduction. First, when the defendant brings the motion himself, the Court must ascertain whether he "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 [whether there has been a] 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). Second, the Court should "consider[] the factors set forth in section 3553(a) to the extent that they are applicable." Id. Third, the Court should turn to the "extraordinary and compelling reasons" test, as outlined in U.S.S.G. § 1B1.13 cmt. n.1. And fourth, the Court should determine whether the defendant poses a "danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)." Id.

Defendant's Motion requests a sentence modification to time served based on his advanced age—Defendant is 71 years old—and his underlying medical conditions, which he contends place him within the most at-risk demographic for contracting severe and potentially fatal cases of COVID-19. The Government opposes Defendant's Motion, arguing that Defendant's failure to exhaust his administrative remedies and the absence of any extraordinary or compelling circumstances compel the denial of his request.

As an initial matter, the parties disagree as to whether Defendant has exhausted his administrative remedies with the BOP in this case. Defendant alleges that he began submitting requests for release to the BOP on April 4, 2020. ECF No. [73] at 2. The Government maintains that Defendant's request to BOP to be placed on home confinement was not submitted until April 23, 2020, and that the Defendant has not submitted a request for compassionate release to the BOP to date. ECF No. [75] at 3; see also ECF No. [75-1] (Defendant's inmate request). However, assuming for present purposes that Defendant has satisfied the initial exhaustion requirement based on his April 23, 2020, request to the BOP, he has nevertheless failed to demonstrate that the applicable § 3553(a) factors weigh in favor of a sentence modification or that extraordinary and compelling circumstances exist.

The applicable § 3553(a) factors include, among others: "(1) the nature and circumstances of the offense and the history and characteristics of the defendant," as well as "(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; (B) to afford adequate deterrence to criminal conduct; [and] (C) to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a). As the Government currently points out, Defendant seemingly presents a low risk of recidivism, given his lack of prior offenses or disciplinary history. Nevertheless, at the time of sentencing, this Court concluded that a term of imprisonment of seventy-eight months was appropriate in this case, in light of all of the relevant § 3553(a) considerations. To date, Defendant has served less than 25% of that sentence. Moreover, aside from his stated medical conditions, which existed and were considered at the time of sentencing, see ECF No. [59] at 13-14 (pre-sentence investigation report detailing Defendant's medical conditions), Defendant has not provided any additional bases to persuade the Court that the sentence imposed should be modified based on the factors in § 3553(a). See United States v. Post, No. 15-CR-80055, 2020 WL 2062185, at *2 (S.D. Fla. Apr. 29, 2020) (noting "that much of the information that [the defendant] provide[d] in his Motion was before the Court at the time of his sentencing," and the Court imposed an appropriate sentence considering this information); United States v. Zamor, No. 17-20353-CR, 2020 WL 2062346, at *2 (S.D. Fla. Apr. 29, 2020) ("Crucially, [the defendant] has completed less than 40% of this sentence, and the applicable 18 U.S.C. § 3553(a) factors . . . do not warrant [his] release after serving less than half of his sentence."); United States v. Rodriguez-Orejuela, No. 03-CR-20774, 2020 WL 2050434, at *7 (S.D. Fla. Apr. 28, 2020) (noting that, in weighing the sentencing factors, "the Court's analysis is virtually unchanged from thirteen years ago."). As such, the Court concludes that a modification of Defendant's sentence is unwarranted at this time.

Additionally, with regard to the "extraordinary and compelling reasons" test, Defendant is seventy-one years old and, as he explains in his Motion, he suffers from osteoarthritis, GERD, and a hip issue. CDC guidance indicates that individuals with the following health conditions are at a higher risk of contracting severe illness due to COVID-19: people with moderate to severe asthma, people with chronic lung disease, people with diabetes, people with serious heart conditions, people with chronic kidney disease, people with severe obesity, people with chronic liver disease, people who are immunocompromised, people over the age of sixty five, and people who live in a nursing home or long-term care facility. The Court is sympathetic to Defendant's medical conditions and his concerns regarding COVID-19 outbreaks in prison facilities, and notes that his age is a risk factor designated in the CDC's guidance. However, to date, no FCI Miami inmates have tested positive for COVID-19. Likewise, the Defendant does not allege that his health conditions are significantly deteriorating, and "the BOP Director has not found COVID-19 alone to be a basis for compassionate release." United States v. Harris, No. 2:12-cr-140-FtM-29DNF, 2020 WL 1969951, at *2 (M.D. Fla. Apr. 24, 2020) (citing United States v. Eberhart, No. 13-cr-313-PJH-1, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020) ("General concerns about possible exposure to COVID-19 do not meet the criteria for extraordinary and compelling reasons for a reduction in sentence set forth in the Sentencing Commission's policy statement on compassionate release, U.S.S.G. § 1B1.13.")); see also United States v. Kelly, No. 2:03-cr-126-FtM-29, 2020 WL 2039726, at *1 (M.D. Fla. Apr. 28, 2020) (The "defendant does not allege any extraordinary or compelling circumstances to support compassionate release."). Because Defendant cannot show that extraordinary and compelling reasons exist to justify his requested sentence modification, the Motion is denied.

III. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendant's Motion, ECF No. [73], is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, on June 1, 2020.

/s/ _________

BETH BLOOM

UNITED STATES DISTRICT JUDGE Copies to: Counsel of Record Salvatore Colonna
17031-104
Miami FCI
Federal Correctional Institution
Inmate Mail/Parcels
Post Office Box 779800
Miami, FL 33177