Opinion
6:19-CR-06035 EAW
08-24-2020
UNITED STATES of America, v. Joseph DELISIO, Defendant.
Cassie M. Kocher, U.S. Attorney's Office, Rochester, NY, for United States of America.
Cassie M. Kocher, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court is a pro se motion filed by defendant Joseph Delisio (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 66). For the reasons set forth below, Defendant's motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2019, Defendant appeared before the undersigned, waived indictment, and pleaded guilty to a two-count information charging violations of 21 U.S.C. § 841 (possession of heroin with intent to distribute) and 18 U.S.C. § 922(g)(1) (felon in possession of firearm and ammunition). (Dkt. 46; Dkt. 47; Dkt. 48; Dkt. 50). On September 18, 2019, the Court sentenced Defendant to 100 months in prison to be followed by six-years supervised release. (Dkt. 61; Dkt. 64).
Defendant, who is 48 years old (Dkt. 55 at 3), is currently housed at Federal Correctional Institution Loretto ("FCI Loretto") in Loretto, Pennsylvania, and his projected release date is May 17, 2025, see Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Aug. 24, 2020). On August 6, 2020, Defendant filed a pro se motion for compassionate release. (Dkt. 66). Defendant contends that his preexisting medical conditions combined with the COVID-19 pandemic create extraordinary and compelling reasons to justify a reduction in his sentence. (Id. at 4). Defendant contends that he is at an increased risk of serious illness from COVID-19 due to mild asthma, hepatitis C, chronic arthritis, "PTSD (depression)" and "past lung damage from chemical pneumonia with scar tissue and collapse of ... right lung." (Dkt. 66 at 1).
Some of these medical issues were identified in the Presentence Investigation Report, but not the asthma or the past lung damage from "chemical pneumonia." (Dkt. 55 at ¶ 120).
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According to a Bureau of Prisons ("BOP") website, FCI Loretto has 4 inmates and 7 staff currently testing positive for COVID-19, with 56 inmates and 1 staff member who have recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Aug. 24, 2020). A total of 848 tests have been administered to inmates at the facility. Id. No inmates or staff at the facility have died from the virus. Id.
The Government opposes Defendant's motion on the grounds that he has failed to establish extraordinary and compelling circumstances and that the factors set forth at 18 U.S.C. § 3553(a) do not support the reduction. (Dkt. 68). The United States Probation Office ("USPO") has also submitted a memorandum to the Court dated August 18, 2020, opining that compassionate release is not warranted here. (Dkt. 69).
III. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... 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) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.
The Government does not oppose Defendant's application on exhaustion grounds, as he has filed a request with the Warden at FCI Loretto for release and more than 30 days have elapsed since the Warden's receipt of that request (which was denied). (Dkt. 68 at 2-3); see also United States v. Wen , 454 F. Supp. 3d 187, 192–94, No. 6:17-CR-06173 EAW (W.D.N.Y. Apr. 13, 2020) (as a claim-processing rule, § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional and thus subject to the doctrines of waiver and equitable estoppel). Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.
However, the Court agrees with the Government that Defendant has failed to establish extraordinary and compelling reasons justifying the grant of his motion, and furthermore, the § 3553(a) factors counsel against granting Defendant's motion. It is not clear whether Defendant's medical conditions present a heightened risk for serious illness from COVID-19, see Coronavirus Disease 2019 (COVID-19): People with Certain Medical Conditions , Ctrs. for Disease Control & Prevention (Aug. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html, but the Court will assume that is the case for purposes of this motion. The record before the Court suggests that FCI Loretto is adequately addressing Defendant's medical conditions and the COVID-19 pandemic. Indeed, unlike some other BOP facilities, FCI Loretto has conducted extensive testing, and the number of inmates and staff currently suffering from the virus is small, with no inmate or staff deaths recorded.
Moreover, given Defendant's criminal history and the dangerous nature of his underlying offenses of conviction, the Court agrees with the Government that consideration of the factors set forth at 18 U.S.C. § 3553(a) counsel against granting Defendant's requested relief. See United States v. Ebbers , 432 F. Supp. 3d 421, 430-31 (S.D.N.Y. 2020) ("The Court thus finds that, in considering the section 3553(a) factors, it should assess whether those factors outweigh the ‘extraordinary and compelling reasons’ warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence.").
In sum, the Court appreciates that Defendant is concerned about the pandemic and being housed in a correctional facility with certain medical conditions that place him at an increased risk for serious illness from COVID-19. Moreover, the Court recognizes that prison settings can present challenges in thwarting the spread of this virus. However, on the record before the Court, a reduction of Defendant's prison sentence is not warranted.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 66) is denied.
SO ORDERED.