Opinion
No. 2:13-cr-00118 KJM
08-05-2020
UNITED STATES OF AMERICA, Plaintiff, v. IMAN DAILEY, Defendant.
ORDER
Defendant renews his motion for an order reducing his sentence to time served, under 18 U.S.C. § 3582(c). Defendant makes this motion in light of the increased risks to health that the coronavirus ("COVID-19") poses to incarcerated persons, and to him in particular. For the following reasons, the court GRANTS defendant's motion.
I. BACKGROUND
Iman Dailey is currently serving a sentence for violating supervised release, ECF No. 52; he was originally on supervised release because he pled guilty to violating 18 U.S.C. § 922(g)(1), being a felon in possession of a firearm, ECF No. 24. Defendant earned his felony status by incurring a previous conviction for possession of cocaine base for sale. Pre-Sentencing Investigation Report ¶ 18, ECF No. 20. His criminal history category at his original sentencing before this court was VI, and he accepted responsibility for his crime. Id. ¶¶ 15, 43. Consistent with a plea agreement offered under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the court originally sentenced Dailey to prison for sixty-three months, followed by thirty-six months of supervised release. ECF No. 18 (Plea Agreement); ECF No. 24 (Judgment). While on supervised release, defendant and his wife had an argument, resulting in defendant's wife's calling defendant's probation officer, who instructed defendant not to return home that day. Superseding Petition, ECF No. 34, at 3. Defendant disobeyed his probation officer, returned to his wife's house, and allegedly threatened her, causing her to call the local police, id.
Defendant was later arrested, and the court revoked defendant's supervised release for violating his supervised release by failing to follow the instructions of his probation officer, and commiting two other violations: association with prohibited persons and failure to submit monthly report forms as directed. Revocation, ECF No. 53, at 1. On March 2, 2020, the court sentenced defendant to nine months' imprisonment, with credit for time served, for this supervised release violation. Mins. for Revocation Hr'g, ECF No. 52.
Defendant is currently temporarily incarcerated at FCI Victorville - Medium II, but BOP has designated him to serve his sentence at FCI Herlong. Opp'n at 9. His projected release date is August 31, 2020, id., and he has served nearly ninety percent of his nine-month sentence.
On April 8, 2020, defendant filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), ECF No. 54, which the government opposed, ECF No. 55. The court denied the motion without prejudice, based on defendant's failure to exhaust administrative remedies. Order, ECF No. 57. Defendant has now renewed his motion for compassionate release. Mot., ECF No. 59. The government continues to oppose, Opp'n, ECF No. 61, and has supplemented its opposition with further information regarding CDC's guidelines with respect to COVID-19, Suppl., ECF No. 63; plaintiff has replied, Reply, ECF No. 64. The court SUBMITTED the matter without a hearing, and resolves it here.
II. LEGAL STANDARD
Defendant brings his motion for release under 18 U.S.C. § 3582(c)(1)(A)(i), which allows a court to modify a sentence under certain circumstances. Under the current version of the statute, a motion for modification may be made by either the Director of the Bureau of Prisons (BOP) or by a defendant "after the defendant has fully exhausted all administrative rights to appeal[.]" 18 U.S.C. § 3582(c)(1)(A).
In order to modify a sentence and grant compassionate release following exhaustion, as relevant here, a district court engages in a two-step process. First, it must consider the familiar 18 U.S.C. § 3553(a) factors applicable at the original sentencing, to the extent they remain applicable at the time a motion is brought. 18 U.S.C. § 3582(c)(1)(A). Second, the court must find that "extraordinary and compelling reasons warrant such a reduction." Id. 18 U.S.C. § 3582(c)(1)(A)(i). An alternative provision provides for consideration of a motion by a defendant who is 70 years or older, and is not applicable here. 18 U.S.C. § 3582(c)(1)(A)(ii).
The statute further requires "that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A). In resolving the instant motion, this court, as it has in other similar cases, considers the Sentencing Commission's policy statement denominated § 1B1.13 as guidance, without determining it is binding in this context. See United States v. Head, No. 2:08-CR-00093-KJM-2, 2020 WL 3180149, at *3 (E.D. Cal. June 15, 2020), amended by Order, ECF No. 1724. The court notes that, in addition to listing possible "extraordinary and compelling reasons," § 1B1.13 "imposes an additional consideration of whether the defendant is a danger to the safety of any other person or to the community." United States v. Numann, No. 3:16-CR-00025-TMB, 2020 WL 1977117, at *2 (D. Alaska Apr. 24, 2020) (citing U.S.S.G. § 1B1.13(2)).
III. DISCUSSION
A. Exhaustion
As the court noted in its previous order, defendant must meet the exhaustion requirements of § 3582 before the court can consider motion for compassionate release. See Order, ECF No. 57. The government argues that defendant's request for compassionate release, sent to the Warden at FCI Herlong on May 8, 2020, see Mot., Ex. A (Inmate Request), ECF No. 59-1, does not trigger the statutory exhaustion period, because defendant is currently housed at FCI Victorville - Medium II. Opp'n at 15. However, when defendant submitted the request, he was housed at Sacramento County Jail, not FCI Victorville, and, according to the government's opposition to defendant's original motion for compassionate release, defendant was, and is, designated for FCI Herlong. See ECF No. 55 at 8. It does not appear defendant had any reason to know he would be transferred to FCI Victorville temporarily, and the government points to no authority suggesting an unexpected transfer should nullify defendant's reasonable exhaustion efforts. Accordingly, defendant's request made to the Warden of FCI Herlong was sufficient to trigger the thirty-day exhaustion period, which has now expired, in the absence of any reply. Defendant's motion is properly before the court.
B. Extraordinary and Compelling Reasons
The government concedes that Dailey's alleged mild chronic kidney disease is likely an "extraordinary and compelling reason" for early release "as that term is defined in U.S.S.G. § 1B1.13," based on the CDC's updated guidelines regarding kidney disease and COVID-19. Suppl. at 2. However, the government challenges whether defendant has sufficiently established that he actually has mild chronic kidney disease, arguing that "actual evidence" of Dailey's condition "is extremely limited." Id. The government has provided defendant's medical records from BOP under seal. The records list "Chronic kidney disease, stage 2 (mild)" under defendant's "Current" health problems, diagnosed in 2016. The government does not challenge the authenticity of the records; as noted, it is the government, not defendant, who produced them to the court. See Opp'n, Ex. 3 (sealed). The court finds this record, without any evidence to the contrary, is sufficient to establish defendant's medical condition of chronic mild kidney disease. Cf. United States v. Fuller, No. CR17-0324JLR, 2020 WL 2557337, at *2, 4 (W.D. Wash. May 20, 2020) (finding insufficient evidence of medical condition given no documentary evidence to confirm diagnosis of asthma, other than defendant's declaration, where BOP medical records did not mention condition). Extraordinary and compelling reasons exist for defendant's compassionate release.
Citing Ctrs. for Disease Control & Prevention, People of Any Age with Underlying Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#chronic-kidney-disease (last updated July 30, 2020) ("Having chronic kidney disease of any stage increases your risk for severe illness from COVID-19.").
The government requests the court file defendant's medical records under seal. See Not. of Req. to Seal, ECF No. 62. Because the court grants the request to seal below, it refers to the documents as being filed under seal.
C. Sentencing Guidelines
The Sentencing Guidelines instruct that "the court should consider the sentencing factors set forth in 18 U.S.C. § 3553(a) when deciding a motion for compassionate release, and that the Court should not grant a sentence reduction if the defendant poses a risk of danger to the community, as defined in the Bail Reform Act." United States v. Gonzalez, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155, at *2 (E.D. Wash. Mar. 31, 2020) (citing U.S.S.G. § 1B1.13); see also 18 U.S.C. § 3582(c)(1)(A).
1. Section 3553 Factors
The court has reviewed all the factors to be considered in imposing a sentence, 18 U.S.C. § 3553(a), including (1) the nature and circumstances of the offense and the history and characteristics of the defendant; and (2) the need for the sentence imposed, and finds they support granting defendant's motion. Defendant's criminal history weighs against granting his motion, see Opp'n at 21, but the offense underlying his current sentence was non-violent. While the court acknowledges that domestic incidents often do not give rise to prosecution if the complainant decides not to press charges, here in fact no charges were brought against defendant as a result of the incident that led to his latest arrest. Id. Defendant makes the unrebutted representation that he and his wife are on good terms now, and she supports his return. Mot. at 8. Defendant and defense counsel both made the same representation on the record at the disposition hearing on March 2, 2020, with defense counsel indicating defendant's wife has attended one court proceeding and wanted to attend the March 2 hearing but had child care responsibilities. The court also gives some weight to defendant's representation that his sentence thus far has been served in "extremely difficult conditions," given the current pandemic and resulting lockdowns, supporting a conclusion that defendant has been meaningfully punished for his violations. See id. at 9 (reporting defendant's five-month-long lockdown at Sacramento County Jail and required quarantine at Nevada Southern Detention Facility).
The court has reviewed a rough transcript of the hearing to refresh its recollection of these representations.
Accordingly, the court finds the § 3553 sentencing factors, on balance, support granting defendant's motion.
2. Danger to the Community
The government argues the court should deny defendant's motion because he is a danger to the community, based primarily on (1) the dispute with defendant's wife leading to his arrest, in which he acted in a threatening manner causing her to fear for her safety, and (2) his criminal history. Opp'n at 19-23. Defendant's most recent actions towards his wife, though not necessarily physically violent, are concerning, and there is a suggestion in the record that defendant may have been violent towards his wife in the past. See Superseding Petition at 4 (probation officer alleging defendant has committed "at least one known instance of domestic violence" and alleging defendant's wife told probation officer that defendant "had hit her in the past"). At the same time, defendant's criminal history does not include any convictions for domestic violence. Presentencing Report (PSR), ECF No. 20, at 7-10 (criminal history). Defendant represented in his request to BOP, as he does here, that, if transferred to home confinement, he would live with his wife. Inmate Request at 2. As noted above, nothing in the record rebuts defendant's representation that he and his wife currently are on good terms. See Mot. at 8. At hearing, defendant said he and his wife plan to participate in marriage counseling.
As for his criminal history, the government argues defendant's "history and characteristics demonstrate that he is dangerous because he has a propensity for guns, illegal narcotics, and violent gangs." Opp'n at 21. While defendant's criminal history is extensive, it is primarily drug-related and is non-violent in nature. See PSR at 7-10 (describing criminal history, including possession of illegal firearm); United States v. Twine, 344 F.3d 987, 988 (9th Cir. 2003) (felon in possession of a firearm not a crime of violence that raises a presumption of danger to the community).
While it is a close call, the court determines defendant does not pose a danger to the community such that his motion for compassionate release should be denied. See United States v. Fowler, No. 17-CR-00412-VC-1, 2020 WL 3034714, at *1 (N.D. Cal. June 6, 2020) (defendant convicted of distributing and conspiring to distribute methamphetamine had never committed violent crime, was "not a danger to the community"); cf. United States v. Millage, No. 3:13-CR-234-SI, 2020 WL 2857165, at *5 (D. Or. June 2, 2020) (defendant not danger to community despite 7-year-old conviction for domestic violence), appeal dismissed, No. 20-30086, 2020 WL 3468033 (9th Cir. June 25, 2020); but see United States v. McGreggor, No. 218CR244JCMDJA, 2020 WL 2308081, at *3-4 (D. Nev. May 8, 2020) (finding defendant presented danger to community even though criminal history was stale and most recent conviction was technically non-violent, in part because instant offense involved conspiracy to sell fentanyl, a potentially fatal drug, while armed with stolen firearm and possessing second stolen firearm, unlike defendant here).
IV. CONCLUSION
Defendant has established sufficiently that "extraordinary and compelling" reasons exist for compassionate release, the § 3553 sentencing factors weigh in favor of granting his motion, and he is not likely to pose a danger to the community. For these reasons, defendant's motion for compassionate release is GRANTED as follows:
The court modifies defendant's sentence of incarceration to time served.
The court assumes defendant's release will be subject to BOP's COVID-19 protective measures currently in effect, including, for example, any reasonable pre-release quarantine requirements.
Additionally, the government's request to seal Exhibit 3 to its opposition is GRANTED, as the document contains sensitive medical records in which defendant has a compelling privacy interest. See Not. of Req. to Seal; see also Johnsen v. Tambe, No. 19-141-TSZ-MLP, 2019 WL 4014256, at *2 (W.D. Wash. Aug. 26, 2019) (finding plaintiff's "privacy interest in his own medical records to be a sufficiently compelling reason to seal the medical records themselves"). The Clerk is hereby directed to file Exhibit 3 to the government's opposition on the docket, under seal. /////
This order resolves ECF Nos. 59 and 62.
IT IS SO ORDERED. DATED: August 5, 2020.
/s/_________
CHIEF UNITED STATES DISTRICT JUDGE