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finding that the "30-day period should be measured from the date on which a prisoner submits his or her request to the BOP, not the date the request is received by the Warden," consistent with the "prisoner mailbox rule which provides that a pro se prisoner's legal submission is considered filed on the date it is delivered to prison authorities for mailing, rather than the date it is received by the Court"
Summary of this case from United States v. BakerOpinion
Case No. 11-CR-60025-MIDDLEBROOKS
2020-05-27
UNITED STATES of America, Plaintiff, v. James FEUCHT, Defendant.
Corey Steinberg, United States Attorney's Office, Fort Lauderdale, FL, for Plaintiff. Neison Max Marks, Federal Public Defender's Office, Fort Lauderdale, FL, for Defendant.
Corey Steinberg, United States Attorney's Office, Fort Lauderdale, FL, for Plaintiff.
Neison Max Marks, Federal Public Defender's Office, Fort Lauderdale, FL, for Defendant.
ORDER GRANTING COMPASSIONATE RELEASE
DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon a Motion for Compassionate Release filed by Defendant James Feucht on May 20, 2020. (DE 47). Plaintiff, the United States of America, responded on May 26, 2020. (DE 51). Defendant replied the same day. (DE 52). For the following reasons, Defendant's Motion is granted.
I. BACKGROUND
In this Motion, Defendant is seeking compassionate release due to his heightened risk of death or serious illness if he contracts the COVID-19 virus while incarcerated. Defendant is a 63-year-old man who suffers from Type 2 diabetes, hypothyroidism, hypertension, hyperlipidemia, obesity, and edema. (DE 28-1). He is currently serving a 151 month sentence in FCI-Jesup for distribution and possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). (DE 51 at 2). Defendant has already served over 112 months of his sentence. Per the Bureau of Prisons’ website, his projected release date is in approximately 18 months, on November 27, 2021. See BOP Inmate Locator , available at www.bop.gov/in-mateloc/ (Reg. # 96270-004).
Defendant is expected to only serve 130 months, taking into consideration his credit for good time. (DE 47 at 1).
Defendant argues that he should be granted compassionate release due to his substantial medical risk factors. Further, Defendant highlights that he has completed approximately 86% of his sentence, and probation has already approved his release plan. (DE 47 at 12). If released, he will live with his sister in Pennsauken, New Jersey, where he will be able to quarantine in her furnished basement. (DE 47 at 2). The Government argues that Defendant has failed to exhaust his administrative remedies, and, in the alternative, argues that Defendant has not met the criteria for compassionate release.
See Centers for Disease Control, People Who Are at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (listing diabetes, hypertension, and serious heart conditions, as COVID-19 risk factors).
II. LEGAL STANDARD
The compassionate release provision of 18 U.S.C. § 3582(c), as amended by the First Step Act of 2018, provides, in pertinent part, that "the court ... 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 ... if it finds that extraordinary and compelling reasons warrant such a reduction" and if "such reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]" 18 U.S.C. § 3582(c)(1)(A)(i) ; First Step Act of 2018, Pub. L. 115-391, § 603(b), 132 Stat. 5194, 5239. Before granting compassionate release, the Sentencing Commission directs courts to consider when a defendant poses "a danger to the safety of any other person or to the community." U.S.S.G. § 1B1.13.
III. DISCUSSION
A. Exhaustion of Administrative Remedies
The Government argues that compassionate release is not appropriate as Defendant has not exhausted administrative remedies. Defendant disagrees and states that he has exhausted administrative remedies.
The Parties agree that Defendant submitted his request for home confinement under the C.A.R.E.S. Act over 30 days ago on April 23, 2020. However, the Government states that, according to BOP records, the Warden of FCI-Jesup did not receive Defendant's request for release until May 19, 2020. The Government therefore argues that the 30-day period should run from May 19, 2020, while Defendant counters that April 23, 2020 should be the operative date.
The Parties do not specifically state the precise mechanism by which Defendant submitted his request. Defendant states that it was submitted to "his case manager, the case management coordinator, and the Warden." (DE 47 at 2). The Government states that "BOP received the defendant's ‘Inmate Request to Staff’ dated April 23, 2020." (DE 51 at 4).
I find that the 30-day period should be measured from the date on which a prisoner submits his or her request to the BOP, not the date the request is received by the Warden. In making this determination, I am guided by the "prisoner mailbox rule," which provides that a pro se prisoner's legal submission is considered filed on the date it is delivered to prison authorities for mailing," rather than the date it is received by the Court. Forde v. Miami Fed. Dept. of Corrections , 730 Fed. Appx. 794, 800 (11th Cir. 2018). The United States Supreme Court created this rule because "a prisoner necessarily loses control of his filing when he gives it to the prison authorities." Id. (citing Houston v. Lack , 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) ). The Eleventh Circuit later added that the rule is appropriate because "[p]ro se prisoners are unable to file personally in the clerk's office, they cannot utilize a private express carrier, and they cannot place a telephone call to ascertain whether a document mailed for filing arrived." Garvey v. Vaughn , 993 F.2d 776, 780 (11th Cir. 1993). Instead, the prisoner must "entrust his court filings to prison authorities over whom he has no control." Id.
Although the prisoner mailbox rule concerns filings before the court, rather than requests to the Warden, I find that the rationale is appropriately applied in this situation. "Inmates are not typically handed the keys of the warden's office so they can place their applications for compassionate release on the warden's desk." U.S. v. Resnick , 2020 WL 1651508, at *6 (S.D.N.Y. Apr. 2, 2020). Instead, prisoners must rely on the prison authorities, whom they cannot control. Therefore, following the same logic as the prisoner mailbox rule, I find that the date that Defendant's request was conveyed to the BOP, April 23, 2020, should be the date from which the 30-day time period is measured. As more than 30-days have elapsed, I find that Defendant has exhausted his administrative remedies.
Nonetheless, I will briefly consider whether, to the extent that Defendant did not exhaust administrative remedies, the exhaustion requirement should be waived. Although § 3582(c)(1)(A) plainly imposes an administrative exhaustion requirement, the United States Supreme Court has held that, even in such circumstances, an exception exists where "the interests of the individual weigh heavily against requiring administrative exhaustion." See McCarthy v. Madigan , 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) ; see also Washington v. Barr , 925 F.3d 109, 118 (2d Cir. 2019) ("Even where exhaustion is seemingly mandated by statute ..., the requirement is not absolute."). One such exception exists where "requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion of a court action. Such prejudice may result, for example, from an unreasonable or indefinite timeframe for administrative action." McCarthy , 503 U.S. at 146–47, 112 S.Ct. 1081 (1992). COVID-19 is a highly contagious virus that can be spread even by asymptomatic carriers. The virus is "spread mainly from person-to-person ... [b]etween people who are in close contact with one another ... [t]hrough respiratory droplets produced when an infected person coughs or sneezes." See CDC, Coronavirus Disease 2019 (COVID-19), How It Spreads , March 4, 2020, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html.
I find that given this unprecedented virus, it would unduly prejudice the Defendant to require him to exhaust administrative remedies. Each day that Defendant spends in confinement, he is at a heightened risk of contracting the COVID-19 virus. Delaying a ruling on Defendant's motion until such time as the Bureau of Prisons can consider his circumstances and take action would be unreasonable and would expose Defendant to unnecessary risk. Accordingly, to the extent that Defendant has not exhausted administrative remedies, it is nonetheless appropriate to allow his to proceed with his Motion for Compassionate Release.
B. Compassionate Release Based on Defendant's Medical Conditions
As I am not procedurally foreclosed from granting compassionate release, I must now consider whether Defendant has displayed an extraordinary and compelling reason sufficient to justify release. Application Note 1 of Section 1B1.13 of the Sentencing Guidelines describes "extraordinary and compelling reasons" for release as including certain medical conditions, advanced age, certain family circumstances, or some "other" reason "[a]s determined by the Director of the Bureau of Prisons." I must also consider whether Defendant poses "a danger to the safety of any other person or to the community," such that compassionate release is not appropriate. U.S.S.G. § 1B1.13.
The Government agrees that "the defendant's serious medical condition (diabetes) presents an extraordinary and compelling reason that would allow compassionate release under the statute and guideline policy statement." (DE 51 at 5). However, in somewhat contradictory fashion, the Government argues that the Court should take into consideration that "there have been no COVID-19 infections at FCI-Jesup." Id.
First of all, there have been no confirmed cases of COVID-19 at FCI-Jesup. As Judge Levy in the Eastern District of Michigan recently noted, "[z]ero confirmed COVID-19 cases is not the same thing as zero COVID-19 cases." U.S. v. Amarrah , 17-20464, 2020 WL 2220008, at *6 (E.D. Mich. May 7, 2020) (discussing how, due to the lack of universal testing of inmates and staff, the number of reported cases may be far lower than the actual number of cases). Further, even if there are, in fact, presently no cases of COVID-19 in FCI-Jesup, this does not render it a safe environment for individuals with high risk-factors, such as Defendant. "Courts around the country have recognized that the risk of COVID-19 to people held in jails and prisons ‘is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.’ " See United States v. Williams , 2020 WL 1751545, at *2 (N.D. Fla. Apr. 1, 2020) ; United States v. Campagna , ––– F.Supp.3d ––––, 2020 WL 1489829, at *2 (S.D.N.Y. Mar. 27, 2020) ; Castillo v. Barr , 449 F.Supp.3d 915, 918–19 (C.D. Cal. Mar. 27, 2020) ; United States v. Kennedy , 449 F.Supp.3d 713, 715–18 (E.D. Mich. Mar. 27, 2020) ; United States v. Garlock , 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020). As demonstrated by the large number of prisons with COVID-19 outbreaks, the virus can enter and spread quickly within a prison population. See e.g. , COVID-19 in Correctional and Detention Facilities - United States, February–April 2020, Centers for Disease Control and Prevention (2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm?s_cid=mm6919e1_w (last visited May 27, 2020). Given this known risk, and given Defendant's heightened vulnerability, I find that Defendant's request for compassionate release is supported by extraordinary and compelling circumstances, regardless of the current status of COVID-19 cases in FCI-Jesup.
The Government also argues that compassionate release should be denied due to the serious nature of Defendant's offense and his ability to reoffend once released. I agree, of course, that distribution and possession of child pornography is a serious offense. I also acknowledge that Defendant will be more easily able to reoffend once released than he would be if he remained incarcerated for his full sentence. However, Defendant has already served over 112 months, which constitutes approximately 86% of his sentence. As Defendant puts it, "[b]eing incarcerated for 112 months is not a slap on the wrist." (DE 47 at 5). Further, Defendant will be monitored by probation officers, which will lessen the likelihood that he will reoffend. Therefore, notwithstanding the seriousness of Defendant's offense, I find that the factors set forth in 18 U.S.C. § 3553(a) weigh in favor of his release.
As a final note, the Government has requested that if the Court grants Defendant's Motion for Compassionate Release "there be a 14-day quarantine period and medical clearance prior to the defendant's release in order to minimize the possibility of any spread of COVID-19 from the defendant to the public." (DE 51 at 8). I agree that this condition will help to protect the public from infection. However, I understand that it may not be possible to effectuate a 14-day quarantine within FCI-Jesup. Therefore, I will impose this condition if possible, but will allow the BOP to waive this requirement if necessary.
IV. CONCLUSION
Based upon the foregoing, and after careful consideration of the Parties’ written submissions, the record, and applicable law, it is hereby ORDERED and ADJUDGED that:
1. Defendant James Feucht's Motion for Compassionate Release (DE 47) is GRANTED .
2. Defendant's sentence of imprisonment is hereby reduced to time served, effective June 12, 2020. From the date of this Order until June 12, 2020, the Bureau of Prisons should facilitate a quarantine of Defendant within FCI-Jesup, wherein Defendant does not come into contact with other individuals for 14 days. At the conclusion of 14 days, Defendant should be released, contingent upon medical clearance. If, however, FCI-Jesup does not have the capacity to facilitate this quarantine in accordance with CDC guidelines, then Defendant should be released immediately. Defendant should not be moved to another correctional facility. In the event Defendant is released from FCI-Jesup without quarantining, Defendant is directed to self-quarantine the first 14 days of his home confinement period.
3. Upon release from imprisonment, Defendant shall comply with all standard conditions of supervised release with the following additional special condition:
To the extent that Defendant is not medically cleared, BOP should notify counsel for the Government, and the Government should file a status report.
Home Detention with Electronic Monitoring - The defendant shall participate in the Home Detention Electronic Monitoring Program for a period of EIGHTEEN (18) MONTHS . During this time, the defendant shall remain at his place of residence except for employment, religious observances, medical appointments and other activities approved in advance and provide the U.S. Probation Officer with requested documentation. The defendant shall maintain a telephone at his place of residence without ‘call forwarding’, ‘call waiting’, a modem, ‘caller ID’, or ‘call back/call block’ services for the above period. The defendant shall wear an electronic monitoring device and follow the electronic monitoring procedures as instructed by the U.S. Probation Officer. The defendant shall pay for the electronic monitoring equipment at the prevailing rate or in accordance with ability to pay.
All previous conditions imposed in the judgment and commitment order remain in full force and effect. (DE 31).
4. Defendant must contact the United States Probation Office within 72 hours of his release.
Defendant's Motion contains contradictory requests for 16 and 18 months of home confinement. DE 47 at 1 (stating that Defendant seeks to "convert the remainder of his term—about 18 months—to home detention"); DE 47 at 2 (requesting that the court "place him on home detention for 16 months"). As Defendant's projected release date is November 27, 2021, See BOP Inmate Locator , available at www.bop.gov/in-mateloc/ (Reg. # 96270-004), and as that date is 18 months away, I find that home confinement for 18 months is most appropriate. To the extent that this is not what Defendant requests, his Motion should be considered granted in part.