Opinion
CR-17-00841-PHX-DGC
11-08-2022
United States of America, Plaintiff, v. Jonathan Frank Davis, Defendant.
ORDER
DAVID G. CAMPBELL, SENIOR, DISTRICT JUDGE
Defendant Jonathan Davis is an inmate with the Federal Bureau of Prisons (“BOP”). He has filed a motion for transfer to home confinement or compassionate release and a motion for return of property (two cell phones). Docs. 200, 201. The government has filed a response to each motion. Docs. 203, 204. Defendant has filed no reply. For reasons stated below, the Court will deny the motions.
I. Background.
Defendant was charged with crimes relating to his recruitment of several females to engage in prostitution in California, Nevada, and Arizona. See Docs. 1, 63, 130. In February 2018, Defendant pled guilty to transporting individuals to engage in prostitution in violation of 18 U.S.C. § 2421(a). Docs. 130, 144, 145. He was sentenced to 6.5 years in prison and 5 years of supervised release in June 2018. Docs. 154, 155.
Defendant challenged the voluntariness of his guilty plea and certain supervised release conditions on appeal. Doc. 158. The Ninth Circuit dismissed based on the valid appeal waiver in Defendant's plea agreement. Doc. 192; United States v. Davis, 785 Fed.Appx. 374 (9th Cir. 2019), cert. denied, 141 S.Ct. 178 (2020). The Court denied Defendant's motion to vacate his sentence under the federal habeas statute, 28 U.S.C. § 2255. See Davis v. United States, No. CV-20-01717-PHX-DGC (ESW), 2022 WL 3155108, at *1 (D. Ariz. Aug. 8, 2022).
Defendant is confined at the federal correctional institution in Herlong, California. Doc. 200 at 4; Federal BOP, Find an Inmate, https://www.bop.gov/mobile/findinmate/ byname.jsp#inmateresults (last visited Nov. 4, 2022). His earliest projected release date is September 1, 2024. Id.
II. Defendant's Motion for Home Confinement or Compassionate Release.
Defendant seeks (1) a transfer to home confinement pursuant to 18 U.S.C. § 3624(c), the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, and memoranda issued by former Attorney General William Barr, or (2) compassionate release under 18 U.S.C. § 3582(c). Doc. 200. The government argues that the Court is without jurisdiction to order a transfer to home conferment and that Defendant has shown no extraordinary and compelling reason to grant compassionate release. Doc. 203 at 1. The Court agrees with the government.
A. Home Confinement.
The BOP has “the statutory authority to choose the locations where prisoners serve their sentence.” United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011) (citing 18 U.S.C. § 3621(b)). Under § 3624(c), the BOP may place a prisoner serving the final months of his sentence in “home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” 18 U.S.C. § 3624(c)(2).
On March 26, 2020, Attorney General Barr issued a memorandum directing the BOP to prioritize the use of “various statutory authorities to grant home confinement for prisoners seeking transfer in connection with the COVID-19 pandemic.” Attorney Gen. Memo. to BOP, Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic, at 1 (Mar. 26, 2020), available at https://www.justice.gov/file/ 1262731/download (last visited Nov. 4, 2022). The next day, Congress enacted the CARES Act, which allows the BOP to lengthen the maximum amount of time for which the BOP is authorized to place a prisoner in home confinement under § 3624(c)(2) if “the Attorney General finds that emergency conditions will materially affect the functioning of the [BOP].” Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 515-17 (Mar. 27, 2020). In an April 3, 2020 memorandum, Attorney General Barr found that the COVID-19 pandemic was materially affecting the functioning of the BOP and directed the BOP to “expand the cohort of inmates who can be considered for home release . . . to the most vulnerable inmates at the most affected facilities.” Attorney Gen. Memo. to BOP, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 , at 1-2 (Apr. 3, 2020), available at https://www.justice.gov/file/1266661/download (last visited Nov. 4, 2022). The Attorney General also made clear, however, that because the BOP “cannot simply release prison populations en masse onto the streets[,]” the BOP should “continue making the careful, individualized determinations BOP makes in the typical case.” Id. at 2-3; see also United States v. Tufele, No. 17-CR-00157-DKW-6, 2020 WL 5223775, at *8 (D. Haw. Sept. 1, 2020) (discussing home confinement under § 3624(c), the CARES Act, and the Attorney General's memos).
Congress gave the BOP exclusive discretionary authority to place prisoners in home confinement under § 3624(c) and the CARES Act. Indeed, “[w]hile the CARES Act expanded the BOP's power to place a prisoner in home confinement, it ‘reserved the determination of ‘suitable candidates' for home confinement to the [BOP]' and ‘carved out no role for the courts in making such determinations.'” Rand v. Carvajal, No. 2:21-cv-00720-AB (AFM), 2021 WL 3411198, at *2 (C.D. Cal. May 12, 2021) (citations omitted). The Court lacks jurisdiction to place Defendant in home confinement. See id.; Ceballos, 671 F.3d at 855 (“While a district court judge has wide discretion in determining the length and type of sentence, the court has no jurisdiction to select the place where the sentence will be served. Authority to determine place of confinement resides in the executive branch of government and is delegated to the [BOP].”) (citations omitted); Macias v. Bradley, No. CV 20-7114-RGK (PLA), 2020 WL 6681250, at *2 (C.D. Cal. Nov. 10, 2020) (“While a district court ‘has wide discretion in determining the length and type of sentence, . . . the court has no jurisdiction to select the place where the sentence will be served.' Accordingly, the Court lacks jurisdiction to grant petitioner's request for home confinement.”) (quoting United States v. Dragna, 746 F.2d 457, 458 (9th Cir. 1984)); Crum v. Blanckensee, 2020 WL 3057799, at *3 (C.D. Cal. June 8, 2020) (same); United States v. Herrera, No. CR 02-531-RSWL-1, 2022 WL 1488033, at *3 (C.D. Cal. May 9, 2022) (same) (citing Ceballos and Rand); United States v. Carlucci, No. CR 10-00464-01-KHV, 2020 WL 2527013, at *3 (D. Ariz. May 18, 2020), aff'd, 848 Fed.Appx. 339 (9th Cir. 2021) (same).
To the extent Defendant asks the Court to direct the BOP to “consider, recommend, and determine that [Defendant] is eligible for transfer to home confinement” (Doc. 200 at 6), the request is denied. Defendant sought transfer to home confinement in May 2020. Doc. 200-1 at 2. The warden at FCI Herlong denied the request because Defendant was only 40 years old with no serious medical condition and a medium-security level inmate with a high-risk pattern score. Id. at 2-3. The warden explained that to be considered for home confinement, a prisoner must reside at a minimum-security facility and have a minimum-risk pattern score. Id. at 3. The warden also noted that Defendant provided no evidence of a health risk or serious medical condition that would warrant compassionate release. Id.
Defendant had the right to appeal the warden's decision through the administrative remedy process (see id.), but the record does not indicate whether he attempted to do so.
Because Defendant has not “show[n] that the BOP did not exercise its discretion when individually considering, and denying, his request for home confinement[,]” the Court “will not direct the BOP to reconsider his request[.]” Robertson v. Warden, No. 1:20-CV-2117, 2021 WL 916253, at *7 (M.D. Pa. Mar. 10, 2021); see Tufele, 2020 WL 5223775, at *8 (declining to recommend to the BOP where the defendant's sentence should be served because the defendant failed to provide sufficient reasons for compassionate release or home confinement).
B. Compassionate Release.
“District courts can modify prison sentences only in limited circumstances set out by federal statute.” United States v. King, 24 F.4th 1226, 1228 (9th Cir. 2022) (citing Dillon v. United States, 560 U.S. 817, 824 (2010)). Section 3582(c), as amended by the First Step Act of 2018 (“FSA”), “allows certain inmates to seek a form of sentence modification called compassionate release by filing motions to that effect with the district court.” Id.; see FSA, Pub. L. No. 115-391, § 603, 132 Stat. 5194 (Dec. 21, 2018). “Under § 3582(c)(1), courts have the authority to reduce a sentence upon the motion of an inmate if three conditions are met: (1) the inmate has either exhausted his administrative appeal rights of the [BOP's] failure to bring such a motion on the inmate['s] behalf or has waited until 30 days after the applicable warden has received such a request; (2) the inmate has established ‘extraordinary and compelling reasons' for the requested sentence reduction; and (3) the reduction is consistent with ‘applicable policy statements' issued by the United States Sentencing Commission.” United States v. Burnett, No. CR17-0029JLR, 2022 WL 2440079, at *2 (W.D. Wash. July 2, 2022). Section 3582(c)(1)(A) “also instructs the court to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) when deciding whether a reduction in sentence is appropriate.” Burnett, 2022 WL 2440079, at *2.
There is no Sentencing Commission policy statement specifically applicable to § 3582(c)(1)(A) motions filed by defendants. The policy statements that apply to such motions filed by the BOP “may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.” United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). The relevant policy statement provides that a defendant may be eligible for compassionate release if “extraordinary and compelling reasons warrant the reduction”; the “defendant is not a danger to the safety of any other person or to the community”; and the “reduction is consistent with this policy statement.” U.S.S.G. § 1B1.13; see also id. cmt. n.1 (outlining four categories of circumstances that may constitute “extraordinary and compelling reasons” for compassionate release - serious medical conditions, advanced age, family circumstances, and a catch-all “other reasons”).
The burden rests with Defendant “to provide proof that [he] has met the exhaustion criteria set forth in § 3582(c)(1)(A) and to establish that ‘extraordinary and compelling reasons exist' to warrant [his] release.” United States v. Packard, No. 19CR3886-H, 2021 WL 4751173, at *2 (S.D. Cal. Oct. 12, 2021). Although Defendant has exhausted his administrative remedies (see Doc. 203 at 7), he fails to establish “extraordinary and compelling reasons” warranting compassionate release under § 3582(c). Indeed, while Defendant mentions § 3582(c) in passing, he identifies no serious medical condition or other extraordinary and compelling reason for early release. See Doc. 200 at 4 (noting only that “the sentences of federal prisoners may be court-modified under 18 U.S.C § 3582(c)”). As the government explains, Defendant is 42 years old and does not have a serious medical condition that substantially diminishes his ability to provide self-care at FCI Herlong. Doc. 203 at 9 (citing U.S.S.G. 1B1.13, n.1).
Additionally, Defendant has contracted and recovered from COVID-19. See Id. at 12. While reinfections do occur, the Centers for Disease Control and Prevention (“CDC”) has found that “[a]fter recovering from COVID-19, most individuals will have some protection from repeat infections.” CDC, Reinfections and COVID-19 , https://www. cdc.gov/coronavirus/2019-ncov/your-health/reinfection.html (last visited Nov. 4, 2022). Courts in this circuit “have held that ‘the risk of a second infection does not constitute sufficiently compelling grounds to justify compassionate release.'” United States v. Nash, No. CR-03-00059-PHX-JAT, 2021 WL 1969729, at *2 (D. Ariz. May 6, 2021) (quoting United States v. Risley, No. 1:12-CR-0363 AWI, 2020 WL 4748513, at *6 (E.D. Cal. Aug. 17, 2020)); see United States v. Purry, No. 2:14-cr-00332-JAD-VCF-1, 2020 WL 5909793, at *2 (D. Nev. Oct. 6, 2020) (denying compassionate release where the defendant failed to show that he would be “more susceptible to the virus a second time”). The Court finds that the chance of a COVID-19 reinfection “simply does not meet the bar for an extraordinary and compelling reason warranting release.” United States v. Ieremia, No. 16-CR-00744-DKW-1, 2021 WL 67313, at *4 (D. Haw. Jan. 7, 2021); see United States v. Logan, 2020 WL 3960999, at *2 (W.D. N.C. July 13, 2020) (“Defendant cannot meet his burden of establishing that his risk of contracting COVID-19 is an extraordinary and compelling reason for a sentence reduction when he has already contracted - and beaten -the virus.”).
What is more, Defendant is now vaccinated against COVID-19 (see Doc. 203 at 12-13), which significantly mitigates his risk of becoming severely ill from the virus.
“Many courts have found that a vaccinated prisoner's risk of contracting COVID-19 does not rise to the level of an extraordinary and compelling reason, even in the presence of underlying health conditions.” United States v. Hayes, No. 4:17-CR-00289-DCN, 2021 WL 2533517, at *3 (D. Idaho June 21, 2021) (citations omitted); see also Nash, 2021 WL 1969729, at *1; United States v. Ballenger, No. CR16-5535 BHS, 2021 WL 308814, at *5 (W.D. Wash. Jan. 29, 2021); United States v. Lipsey, No. CR-07-0120800-1-PHX-GMS, 2022 WL 180725, at *2 (D. Ariz. Jan. 20, 2022).
To the extent Defendant seeks compassionate release under § 3582(c), the request will be denied.
Because Defendant has not established the requisite extraordinary and compelling reasons, the Court need not decide whether the factors set forth in § 3553(a) support compassionate release or whether Defendant still poses a danger to the community. See United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (“[A]lthough a district court must perform the sequential inquiry before it grants compassionate release, a district court that properly denies compassionate release need not evaluate each step.”) (emphasis in original); United States v. Swanson, 857 Fed.Appx. 411, 412 (9th Cir. 2021) (“[A] district court may deny a compassionate release motion on the sole ground that the defendant did not show an ‘extraordinary and compelling' reason for release[.]”).
III. Defendant's Motion for Return of Property.
Defendant seeks the return of two cell phones that were initially seized by the Inglewood Police Department. Doc. 201 at 1. Defendant asserts that he needs the phones to pursue habeas relief from a state court conviction in California. Id.
The government states that the Los Angeles County District Attorney's Office has requested that the phones be returned to it because they are evidence in the case where Defendant plans to pursue habeas relief. Doc. 204 at 2. The government further states that after discussions with the Los Angeles prosecutor, the Inglewood Police Department, and the FBI, the FBI plans to return the phones to the Inglewood Police Department, which will maintain custody of them as evidence while Defendant pursues habeas relief. Id.
If Defendant's pursuit of habeas relief were to result in a new trial, the phones would be needed for evidence. As a result, law enforcement has a legitimate reason for retaining them. See Doc. 198 at 1 (denying Defendant's initial motion for the return of the phones given his pending motion to vacate his sentence under § 2255); United States v. Martinson, 809 F.2d 1364, 1370 (9th Cir. 1987) (explaining that a district court has the duty to return contested property “once the government's need for it has ended”) (citations omitted).
What is more, the phones were forensically imaged and a copy of the images was provided to Defendant's counsel in this case. Doc. 198 at 1 (citing Doc. 194). Defendant's counsel states that she will search her files and ascertain whether there are duplicates of the images in question and, if so, she will provide them again to Defendant's mother. Doc. 202 at 2. The Court will also require the government to provide an additional copy of the images to Defendant's counsel to ensure that Defendant has the images for purposes of habeas relief. See Doc. 203 at 3 n.1.
IT IS ORDERED:
1. Defendant's motion for transfer to home confinement or compassionate release (Doc. 200) is denied. 2. Defendant's motion for return of property (Doc. 201) is denied. 3. The government shall provide a copy of the forensic images of the two cell phones to defense counsel by November 23, 2022.