Opinion
Case No. 18-cr-00281-RS-1
2020-05-08
UNITED STATES of America, Plaintiff, v. Michael Lawrence CONNELL, Defendant.
Ravi Teekay Narayan, United States Attorney's Office, San Francisco, CA, for Plaintiff. No appearance for Defendant.
Ravi Teekay Narayan, United States Attorney's Office, San Francisco, CA, for Plaintiff.
No appearance for Defendant.
ORDER GRANTING SENTENCE REDUCTION
RICHARD SEEBORG, United States District Judge
I. INTRODUCTION
Defendant Michael Lawrence Connell is currently in the custody of the Bureau of Prisons ("BOP") and incarcerated at the federal correctional institution ("FCI") in Lompoc, California. Connell moves for a reduction of his sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A). For the reasons set forth below, the motion is granted.
II. BACKGROUND
On April 23, 2019, Connell pled guilty to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). He was subsequently sentenced to 12 months and 1 day in prison, followed by 5 years of supervised release. He self-surrendered at FCI Lompoc on October 28, 2019. According to the BOP, Connell is scheduled to be transferred to a residential re-entry center on June 9, 2020 and finish his term of incarceration on September 3, 2020. FCI Lompoc is currently on lockdown, and inmates do not have access to telephone or e-mail communications. On April 17, 2020, Connell's counsel emailed the Warden at FCI Lompoc on his behalf requesting a petition for release or transfer to home confinement. The Warden has yet to respond.
III. LEGAL STANDARD
Under section 3582, a court may modify a defendant's sentence "after considering the factors set forth in § 3553(a) to the extent applicable" if it finds "extraordinary and compelling reasons warrant such a reduction" and "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A). The relevant Sentencing Commission policy statement sets forth several "extraordinary and compelling reasons." U.S. Sentencing Guidelines, § 1B1.13(1)(A) & cmt. 1. One of these reasons is where the defendant 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. § 1B1.13 cmt. 1(A)(ii). The Commission also requires the defendant not pose a danger to the safety of the community. Id. § 1B1.13(2).
IV. DISCUSSION
A. Administrative Exhaustion
Section 3582 reads, in relevant part:
[T]he 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....
Until 2018, section 3582 allowed compassionate release only upon a motion by the BOP. A defendant would petition the BOP to seek compassionate release on his or her behalf, and, if the BOP deemed the defendant's petition worthy, it would subsequently move the sentencing court for relief. Under this system, a few dozen defendants would be released each year. See Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm'n (2016) (statement of Michael E. Horowitz, Inspector General, Dep't of Justice) (from 2006–2011, average of 24 defendants released on BOP motion each year).
The First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018), expanded the availability of compassionate release by adding two additional avenues. Under a section entitled "Increasing the Use and Transparency of Compassionate Release," the Act eliminated the BOP's role as a gatekeeper for all compassionate release motions. It allowed direct motions from defendants where the defendant had petitioned the BOP to make a motion on its behalf and (a) the BOP had declined to do so, and the defendant had exhausted all administrative appeals or (b) 30 days had expired. The Act also preserved the BOP's authority to move a sentencing court for compassionate release on the defendant's behalf. However, the BOP does not and has never had the authority to grant compassionate release itself.
The parties agree Connell petitioned the BOP, via the Warden at FCI Lompoc, to bring a motion for his release on April 17, 2020. They similarly agree that if the BOP denies Connell's petition or has failed to respond by May 17, Connell will have recourse in the courts. The parties disagree as to whether section 3582's exhaustion provision is a jurisdictional requirement or a claim-processing rule, and if the latter, whether it is subject to exceptions. These questions have split courts in this district and across the country. Compare United States v. Fischman , No. 16-cr-00246, 2020 WL 2097615, at *3 (N.D. Cal. May 1, 2020), with United States v. Catledge , No. 12-cr-00678, 2020 WL 1899401, at *2 (N.D. Cal. Apr. 16, 2020). They are currently pending before the Ninth Circuit, which has set an expedited briefing schedule and will hear oral arguments on June 4. See United States v. Millage , No. 20-30086 (9th Cir. filed Apr. 15, 2020).
1. Whether the Exhaustion Provision is Jurisdictional
"[T]he word ‘jurisdictional’ is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)." Fort Bend Cty., Texas v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1848, 204 L.Ed.2d 116 (2019). By contrast, non-jurisdictional claim processing rules "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." Id. at 1849. Claim processing rules can be mandatory, in that they must be enforced—sometimes subject to exceptions—when properly raised, but they are not jurisdictional bars. Id.
"To ward off profligate use of the term ‘jurisdiction,’ [the Supreme Court has] adopted a ‘readily administrable bright line’ for determining whether to classify a statutory limitation as jurisdictional." Sebelius v. Auburn Reg'l Med. Ctr. , 568 U.S. 145, 153, 133 S.Ct. 817, 184 L.Ed.2d 627 (quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ). Specifically, "absent a clear statement" that a rule is jurisdictional, it should be treated as "non-jurisdictional in character." Id. The statute's "text, context, and relevant historical treatment" should be reviewed to determine whether such a clear statement exists. Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 168, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010). This clarity is required because the consequences of deeming a rule jurisdictional are "drastic." Kwai Fun Wong v. Beebe , 732 F.3d 1030, 1035 (9th Cir. 2013) (internal citation omitted), aff'd and remanded sub nom. United States v. Kwai Fun Wong , 575 U.S. 402, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015).
Neither the language, the context, nor the history of section 3582 clearly states that its exhaustion provision imposes a jurisdictional requirement. The text of the statute does not style exhaustion as a jurisdictional barrier. Compare Shaw v. Bank of Am. Corp. , 946 F.3d 533, 541 (9th Cir. 2019) (deeming provision which read "no court shall have jurisdiction over" to be jurisdictional), with Payne v. Peninsula Sch. Dist. , 653 F.3d 863, 867 (9th Cir. 2011), overruled on other grounds by Albino v. Baca , 747 F.3d 1162 (9th Cir. 2014) (deeming provision which stated administrative procedures "shall be exhausted" to be non-jurisdictional). Furthermore, the context and history of section 3582, discussed above, demonstrate the rule goes to the procedures that must be followed before seeking compassionate release, as opposed to the courts' authority to grant such relief. In particular, the First Step Act made less onerous the procedures that had to be followed to seek compassionate release by adding an avenue by which a defendant could directly petition a court, but did not alter the sentencing court's exclusive authority to grant compassionate release.
The positions taken by the government in recent weeks are also informative. In some cases, the government has chosen to waive its section 3582 exhaustion argument, thereby agreeing— albeit implicitly—that failure to exhaust does not deprive the courts of jurisdiction. See, e.g. , Government Brief, United States v. Jasper , No. 18-cr-00390, ECF No. 440 (S.D.N.Y. Apr. 4, 2020) ("Although the defendant has not exhausted her administrative remedies pursuant to 18 U.S.C. § 3582(c)(1)(A), based on the particular circumstances of the case, the Government has concluded that it is appropriate to waive the exhaustion requirement."). In other cases, the government has explicitly conceded the exhaustion provision is not jurisdictional. See, e.g. , United States v. Gentille , No. 19-cr-00590, 2020 WL 1814158, at *3 (S.D.N.Y. Apr. 9, 2020) ("The Court agrees with the Government that § 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional, but rather is a claims-processing rule that the Government can waive by failing to raise an exhaustion argument."). At the very least, "the government's apparent case-by-case approach to its position on the legal question of exhaustion results in arbitrary differences in the treatment of similarly-situated defendants," raising "serious concerns." United States v. Fischman , No. 16-cr-00246, 2020 WL 2097615, at *3 (N.D. Cal. May 1, 2020). "The government's interpretation of § 3582(c) should not change based on whether an inmate is incarcerated in New York or California." Id.
The section 3582 exhaustion provision bears marked similarities to the provision at issue in Fort Bend , 139 S. Ct. 1843. In that case, the Supreme Court considered a precondition in Title VII of the Civil Rights Act of 1964, which instructed a complainant to file a charge with the Equal Employment Opportunity Commission ("EEOC") before commencing suit. Id. at 1846. Title VII required "a charge...shall be filed" with the EEOC, which could then investigate the claim, facilitate informal resolution, and/or bring a civil action against the offending employer. Id. at 1846–47. The EEOC thus had an investigatory, as opposed to an adjudicatory, role. The Court found the precondition was not a jurisdictional requirement because it spoke to the complainant's procedural obligations, as opposed to the court's authority. Id. at 1850–51. See also id. at 1849–50 (collecting mandatory claim-processing rules). In Fort Bend , as here, the agency which the complainant is required to petition—that is, the EEOC or the BOP—has investigatory but not adjudicatory power over the claims. Furthermore, in both cases the complainant has a right to bring suit in the courts after a certain amount of time has expired since the administrative complaint was brought: 180 days in Fort Bend , 30 days here. Section 3582's exhaustion provision is thus not jurisdictional. 2. Whether the Exhaustion Provision is Subject to Equitable Exceptions
The government cites United States v. Buenrostro , 895 F.3d 1160 (9th Cir. 2018), and United States v. Davis , 825 F.3d 1014 (9th Cir. 2016) (en banc), for the proposition that the exhaustion provision at issue here must be jurisdictional, because these cases referred to an exhaustion provision in another subsection of section 3582 as jurisdictional. However, those cases did not call for the Ninth Circuit to distinguish between jurisdictional and claim-processing rules, because they focused instead on the threshold issue of whether the defendants substantively were eligible for sentence reductions.
Although the exhaustion provision does not divest the courts of jurisdiction, it is a separate question whether, in general or in the particular circumstances presented, the provision is subject to equitable exceptions. There is no per se rule that statutory exhaustion provisions are not subject to exceptions. In fact, the Supreme Court has "reserved whether mandatory claim-processing rules may be subject to equitable exceptions." Hamer v. Neighborhood Housing Servs. of Chicago , ––– U.S. ––––, 138 S. Ct. 13, 18, n.3, 199 L.Ed.2d 249 (2017). The Ninth Circuit has concluded "statutorily created exhaustion requirements...may be defeated by compelling reasons for failure to exhaust." Maronyan v. Toyota Motor Sales, U.S.A., Inc. , 658 F.3d 1038, 1040 (9th Cir. 2011). See also Forester v. Chertoff , 500 F.3d 920, 929 (9th Cir. 2007) (finding 30-day waiting requirement in the Age Discrimination in Employment Act to be non-jurisdictional and subject to equitable exceptions). Furthermore, the Supreme Court has held other seemingly mandatory statutory rules about when a claim can be brought are subject to equitable exceptions. See, e.g. Holland v. Florida , 560 U.S. 631, 645–46, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010).
In determining whether a rule is subject to equitable exceptions, congressional intent is "paramount." McCarthy v. Madigan , 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). See also Ross v. Blake , 578 U.S. 632, 136 S. Ct. 1850, 1856–58, 195 L.Ed.2d 117 (2016) (examining text and history of Prison Litigation Reform Act to determine whether exhaustion requirement was subject to exceptions). In the present case, the text of section 3582 does not say explicitly whether the exhaustion provision is subject to exceptions. However, the provision differs from typical exhaustion requirements in at least one important way: it imposes an option, not a rule. See United States v. Haney , No. 19-cr-00541, 454 F.Supp.3d 316, 321(S.D.N.Y. Apr. 13, 2020) ("[The provision] requires the defendant either to exhaust administrative remedies or simply to wait 30 days after serving his petition on the warden of his facility before filing a motion in court." (emphasis in original)). The option makes sense because the BOP, like the EEOC in Fort Bend , 139 S. Ct. 1843, investigates but does not adjudge administrative requests: the agencies are more akin to parties appearing before the courts than adjudicative bodies subject to review, and thus the courts are not required to defer to the agencies' determinations.
The court in Haney explained that understanding the section 3582 exhaustion provision as an option, as opposed to a rule, was "crucial to understanding" congressional intent, because it demonstrated Congress was not legislating with an eye toward agency autonomy. Haney , 454 F.Supp.3d at 320–21. Instead, the option was Congress's attempt at providing defendants with meaningful relief:
[A]nyone familiar with the multiple demands that the BOP has faced for many years in this era of mass incarceration can reasonably infer that Congress recognized that there would be many cases where the BOP either could not act within 30 days on such a request or, even if it did act, its review would be superficial. Congress was determined
not to let such exigencies interfere with the right of a defendant to be heard in court on his motion for compassionate release, and hence only limited him to 30 days before he could come to court in the ordinary course. Thus, the reduction of the wait period to a mere 30 days also unquestionably reflects...congressional intent for the defendant to have the right to a meaningful and prompt judicial determination of whether he should be released.
Id. (internal citation and quotations omitted).
Indeed, the legislative history of the First Step Act, discussed above, evinces Congress's intent to expand, not restrict, access to compassionate release. In 2018, Congress added an avenue by which defendants could directly petition the courts for relief. That is, Congress intended the 30-day exhaustion period to be an "accelerant," not a barrier, to judicial review. United States v. Russo , No. 16-cr-00441, 2020 WL 1862294, at *1 (S.D.N.Y. Apr. 14, 2020). At the time the First Step Act was passed, 30 days may have seemed an exceptionally quick turnaround given the pace at which BOP was processing petitions. In the current global pandemic, however, 30 days becomes futile, if not fatal. In this context, congressional intent in reforming compassionate release to make it more available is honored, not thwarted, by maintaining exceptions to the exhaustion provision. Thus, the section 3582 exhaustion provision is subject to equitable exceptions when congressional intent is advanced.
The Supreme Court has set up a balancing framework for determining whether exhaustion is subject to equitable exceptions. "[A]dministrative remedies need not be pursued if the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." McCarthy , 503 U.S. at 146, 112 S.Ct. 1081 (alteration in original). "[The Supreme] Court's precedents have recognized at least three broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion." Id. First, where a party could "suffer irreparable harm if unable to secure immediate judicial consideration," exhaustion may be excused. Id. at 146–47, 112 S.Ct. 1081. Second, exhaustion is not required where the administrative agency is not empowered "to grant effective relief." Id. at 147, 112 S.Ct. 1081. Third, "an administrative remedy may be inadequate where the administrative body is shown to be biased or has otherwise predetermined the issue before it." Id. at 148, 112 S.Ct. 1081.
All three exceptions are present here. First, given the speed at which COVID-19 is spreading within correctional institutions, each day of delay puts defendants at higher risk of irreparable harm. This is especially true for defendants such as Connell, whose health puts him at an increased risk of becoming severely ill or even dying from COVID-19, as discussed below. Second, the BOP is not enabled to grant effective relief. As discussed above, section 3582 only gives the BOP investigatory power; even if the agency were to determine Connell's petition meritorious, it would still have to refer it to the sentencing court to grant relief. While the BOP has other tools at its disposal, those tools do not apply to Connell. In particular, the BOP has been transferring some other defendants to home confinement, but Connell is not eligible for relief under this program as a sex offender. Third, the BOP seems to have "predetermined" the compassionate release issue by its failure to respond to the petitions before it. For example, in the span of 15 days in early April, the BOP had received 550 compassionate release requests from inmates in one federal prison. See Declaration of Kristy Cole, Wilson v. Williams , No. 20-cv-00794 (N.D. Ohio Apr. 17, 2020), ECF No. 10-2, at 3. It had responded to 7. Id. All 7 were denied. Id. Furthermore, a recent canvas of all federal and community public defender offices nationwide found not "a single BOP-initiated motion for compassionate release (that was not already finalized pre-COVID) has been made during the current crisis." See Brief of Amici Curiae, Millage , No. 20-30086, 2020 WL 2107054 (9th Cir. Apr. 21, 2020). The BOP is overwhelmed by the unique challenges COVID-19 presents within correctional institutions and may simply not have the capacity to process compassionate release requests at the moment. See Memorandum from D. Patrick, Grievance Coordinator, Taft Correctional Institution to Camp Inmate Population (Apr. 6, 2020), https://www.fd.org/sites/default/files/2020.04.06-_taft_memo.pdf ("Due to the number of Requests to Staff received, individual responses will not be provided, nor will any future requests regarding this same matter be addressed."). The extraordinary and unprecedented circumstances faced by prisons in light of the COVID-19 pandemic have rendered administrative exhaustion futile.
The BOP has the authority to determine where a person is incarcerated, including, in some cases, allowing home confinement. The sentencing court, by contrast, has the authority to modify the length of an individual's carceral sentence and to impose home confinement as a condition of supervised release. While the practical consequences of these two methods may be equivalent, the technical mechanisms differ.
A growing chorus of courts around this country has found section 3582's exhaustion provision is not a jurisdictional bar, but rather a claim-processing rule subject to exceptions which can and should be made under present circumstances. See, e.g. , Fischman , 2020 WL 2097615 (N.D. Cal. May 1, 2020) ; United States v. Guzman Soto , No. 18-cr-10086, 613 F.Supp.3d 538 (D. Mass. Apr. 17, 2020) ; United States v. Coles , No. 18-cr-20254, 2020 WL 1899562 (E.D. Mich. Apr. 17, 2020) ; Russo , 2020 WL 1862294 (S.D.N.Y. Apr. 14, 2020) ; Haney , 454 F.Supp.3d 316 (S.D.N.Y. Apr. 13, 2020). The issue has developed so rapidly that at least one court has already reversed itself on the issue. See United States v. Scparta , No. 18-cv-00578, 567 F.Supp.3d 416 (S.D.N.Y. Apr. 20, 2020). Here, an additional voice joins that chorus and finds an exception to section 3582's claim-processing exhaustion provision can, and should in the present circumstances, be recognized as the particular facts in this case dictate.
B. Extraordinary and Compelling Reasons
The government concedes Connell has presented extraordinary and compelling reasons warranting his release.
FCI Lompoc, where Connell is housed, is "among the worst coronavirus hotspots in the nation." United States v. Robinson , No. 18-cr-00597, 613 F.Supp.3d 1187, 1188 (N.D. Cal. Apr. 27, 2020). As of today, 599 inmates and staff have tested positive. See https://www.bop.gov/coronavirus/. There has already been one inmate death. See Richard Winton, Coronavirus Outbreak at Lompoc Prison is the Worst in the Nation , L.A. Times (Apr. 16, 2020), https://www.latimes.com/california/story/2020-04-16/coronavirus-outbreak-at-lompoc-federal-prison-is-worst-in-nation-with-69-inmates-25-staff-infected. The situation has gotten so dire that the BOP has begun testing the entire inmate population. See COVID-19 Universal Testing at FCI Lompoc, ECF No. 48-1. "The situation at Lompoc has drawn national media attention, and California's two United States Senators have repeatedly called on the BOP to take additional emergency measures to slow the spread of the virus at the facility." Robinson , 613 F.Supp.3d at 1189 (citing Ashton McIntyre, Nearly 100 cases of coronavirus reported at Lompoc Prison, prison officials seek more help , KSBY News (Apr. 21, 2020), https://www.ksby.com/news/coronavirus/nearly-100-cases-of-coronavirus-reported-at-lompoc-prison-prison-officials-seek-more-help).
Moreover, Connell's age and underlying health conditions render him particularly vulnerable to COVID-19. He is 69 years old and suffers from hypertension, high cholesterol, and pre-diabetes, among other ailments. Individuals over 65 years old, as well as those who suffer from any of these conditions, are now known to have a higher risk of becoming infected with, being hospitalized due to, and even dying from COVID-19. CDC, Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. The first large-scale study of its kind in the United States found "[o]lder persons, men, and those with pre-existing hypertension and/or diabetes" were the most prevalent among hospitalized COVID-19 patients. See S. Richardson et al., Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized with COVID-19 in the New York City Area , Journal of American Medicine (Apr. 22, 2020), https://jamanetwork.com/journals/jama/fullarticle/2765184. In short, the critical situation at Lompoc, combined with Connell's compromised health generally, constitute "extraordinary and compelling reasons" justifying his immediate release.
The section 3553(a) sentencing factors also support Connell's release. Indeed, one such factor is "the need for the sentence imposed...to provide the defendant with...medical care...in the most effective manner." 18 U.S.C. § 3553(a)(2)(D). Connell is unlikely to be able to get the medical care he needs at Lompoc in the midst of the pandemic. See Lisa Freeland et al., We'll See Many More Covid-19 Deaths in Prisons if Barr and Congress Don't Act Now , Wash. Post (Apr. 6, 2020), https://www.washingtonpost.com/opinions/2020/04/06/covid-19s-threat-prisons-argues-releasing-at-risk-offenders/ (discussing "wholly inadequate medical care" in federal prisons). Adequately caring for someone with underlying health conditions like Connell's entails reducing that individual's risk of exposure to COVID-19; keeping Connell at Lompoc is not the "most effective manner" of mitigating that risk.
Lastly, although he pled guilty to serious crime, Connell is a non-violent offender whose early release will not endanger the community. See U.S. Sentencing Guidelines, § 1B1.13(2). This was his first offense. He was released for 20 months pre-trial without any infractions, and he is proposing to be released into the same home, living with the same individuals, as he was living pre-trial. Of consequence here is the further fact that Connell is scheduled to be released within weeks, not months. The length of the sentence remaining is an additional factor to consider in any compassionate release analysis.
Congress has entrusted the courts with imposing sentences "sufficient but not greater than necessary." 18 U.S.C. § 3553(a). Given the extraordinary circumstances of Connell's case, there is a real possibility that, were he to stay at Lompoc to complete the final month of his sentence, his health could be severely impacted. This outcome would so greatly exceed just punishment for his offense that the risk cannot be tolerated. His immediate release in these exceptional circumstances will in no way undermine the sentencing objectives espoused in 18 U.S.C. § 3553(b).
V. CONCLUSION
For the reasons set forth above, the motion for immediate release is granted, and the BOP is directed to release Connell immediately. His sentence of imprisonment is modified to time served. The remaining portion of the original term of imprisonment (as calculated by the BOP), shall be served as supervised release with the special condition that he shall be subject to home confinement at the address listed in his PSR during this period. Connell shall then complete the five-year term of supervised release imposed in the original sentence. Upon his release and during his term of home confinement, Connell will satisfy the 14-day self-quarantine requirement. The government shall serve a copy of this order on the Warden at Lompoc Prison forthwith.
Connell's motion notes he will be able to self-isolate within his residence.