Opinion
Criminal Case No. 17-cr-00081-PAB
2020-06-03
UNITED STATES of America, Plaintiff, v. 1. Andre Sinclair FULLER, Defendant.
Suneeta Hazra, U.S. Attorney's Office, Denver, CO, for Plaintiff.
Suneeta Hazra, U.S. Attorney's Office, Denver, CO, for Plaintiff.
ORDER
PHILIP A. BRIMMER, Chief United States District Judge
This matter is before the Court on defendant Andre Sinclair Fuller's Renewed Motion for Compassionate Release [Docket No. 41]. On May 13, 2020, the United States filed a response. Docket No. 43. Mr. Fuller replied on May 14, 2020. Docket No. 45.
I. BACKGROUND
On December 9, 2013, Mr. Fuller pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) in the United States District Court for the District of Wyoming. Docket No. 1-1 at 1; see also Docket No. 31 in United States v. Fuller , No. 2:13-cr-00224 (District of Wyoming). Mr. Fuller received a sentence of 41 months imprisonment followed by three years of supervised release. Docket No. 1-1 at 2-3. Supervised release began on March 6, 2017. Docket No. 6. at 1. On March 20, 2017, jurisdiction of the case was transferred to the District of Colorado. Docket No. 1. On December 27, 2019, the Court sentenced Mr. Fuller to eight months imprisonment after the Court found that he had violated the terms and conditions of supervised release. Docket No. 36 at 3. Mr. Fuller is currently incarcerated at FCI Florence in Florence, Colorado. Docket No. 39 at 1. His scheduled release date is September 18, 2020. Id.
On April 30, 2020, Mr. Fuller filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Docket No. 39. The Court denied Mr. Fuller's motion without prejudice upon finding that, because Mr. Fuller had failed to exhaust his administrative remedies under § 3582(c)(1)(A), the Court did not have jurisdiction to consider his motion. Docket No. 40 at 3, 7. Mr. Fuller has now filed a renewed motion for compassionate release. Docket No. 41. Mr. Fuller requests that he be released from prison to home confinement, probation, or supervised release due to health concerns related to the coronavirus (COVID-19) pandemic. Docket No. 39 at 1-3. Specifically, Mr. Fuller states that he is at an increased risk of complications from COVID-19 due to his hypertension. Id. at 3. In addition, Mr. Fuller says that he is currently "taking a powerful antibiotic for an infection, so his system is already under medical stress." Docket No. 41 at 1. He also states that he is disabled in that he has only one hand. Docket No. 45 at 5.
Because the renewed motion [Docket No. 41] simply renews Mr. Fuller's original motion [Docket No. 39], the Court considers the substantive arguments made in the original motion.
II. ANALYSIS
A. Administrative Exhaustion
"Under § 3582(c)(1)(A)(i)," known as the "compassionate release provision," "a district court may grant a sentence reduction if, after considering the 18 U.S.C. § 3553(a) sentencing factors, it finds that ‘extraordinary and compelling reasons warrant such a reduction’ and the ‘reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ " United States v. Saldana , 807 Fed.Appx. 816, 819 (10th Cir. Mar. 26, 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i) ). A district court may grant a sentence reduction upon motion of the defendant only "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." 18 U.S.C. § 3582(c)(1)(A)(i).
Mr. Fuller asserts that he has exhausted his administrative remedies because 30 days has passed since he requested that the warden effectuate his release. Docket No. 41 at 2. In its response, the government argues that Mr. Fuller has still failed to exhaust his administrative remedies. Docket No. 43 at 3. Specifically, the government asserts that, because Mr. Fuller did not expressly invoke § 3582 in his initial letter to the FCI Florence warden requesting his release, the initial letter did not start the 30-day clock for exhaustion of his administrative remedies under § 3582(c)(1)(A). Id. at 4. According to the government, Mr. Fuller first invoked § 3582 – and first requested a release under the First Step Act – when he filed a BP-9 form with the Bureau of Prisons ("BOP"), which was received by the Administrative Remedy Office on May 4, 2020. Id. at 3. Mr. Fuller replies that the April 6 letter operated as a request for relief pursuant to § 3582 on the basis that "FCI Florence treated counsel's April 6 letter as a request for compassionate release under § 3582" because the document in which the warden denied Mr. Fuller's request was titled "COVID-19 Compassionate Release/Direct Home Detention Review" and "specifically cites § 3582(c)(1)(A)." Docket No. 45 at 1-2. The Court need not address the parties’ exhaustion arguments because 30 days has elapsed since the receipt of Mr. Fuller's BP-9 form by the BOP. Thus, even pursuant to the government's position, see Docket No. 43 at 3-4, Mr. Fuller has exhausted his administrative remedies. Thus, the Court finds that Mr. Fuller's motion is ripe for resolution.
While Mr. Fuller's BP-9 form was dated April 29, 2020, it was first marked "received" on May 4, 2020. Docket No. 43-2 at 4. Under § 3582(c)(1), the exhaustion period ends "30 days from the receipt of [a First Step Act release] request by the warden of the defendant's facility." 18 U.S.C. § 3582(c)(1) (emphasis added).
B. Extraordinary and Compelling Circumstances
As set forth above, a Court may order an inmate's release if the court 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). The Sentencing Commission has identified four categories of "extraordinary and compelling" reasons that may warrant a sentence reduction:
(A) Medical Condition of the Defendant.–
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is–
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process,
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.
(B) Age of the Defendant.– The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.–
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons.– As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
U.S.S.G. § 1B1.13, cmt. n.1. In his original motion, Mr. Fuller does not argue that he is entitled to release under a specific subsection; rather, he asserts that "[t]he COVID-19 situation, in conjunction with [his] health issues and lack of violent criminal history, constitute ‘extraordinary and compelling reasons’ to grant him relief." Docket No. 39 at 4. In his reply, he appears to argue that he is eligible for release under subsection D, which "allows for a finding of an ‘extraordinary and compelling reason’ beyond the examples given in Subsection A." Docket No. 45 at 4. The Court construes this as a concession that Mr. Fuller does not fit the criteria set out in subsection A, and construes the motion for compassionate release as arising under subsection D.
Mr. Fuller argues that U.S.S.G. § 1B1.13 is not binding on the Court in light of the First Step Act. Docket No. 45 at 3. The Court disagrees. "The First Step Act did not change the substantive standards governing compassionate release. A proposed sentence reduction still must be supported by: (1) extraordinary and compelling reasons; (2) applicable policy statements issued by the Sentencing Commission ; and (3) the factors set forth in 18 U.S.C. § 3553(a)." United States v. Edington , No. 19-cr-00174-REB-1, 2020 WL 2744140, at *2 (D. Colo. May 27, 2020) (quotation and alteration marks omitted) (emphasis added). "If the policy statement needs tweaking in light of [the First Step Act], that tweaking must be accomplished by the [Sentencing] Commission, not by the courts." United States v. Lynn , 2019 WL 3805349, at *4 (S.D. Ala. Aug. 12, 2019).
Mr. Fuller does not argue that he is entitled to release under subsections B or C. See Docket No. 39; Docket No. 45.
Subsection D allows for release pursuant to extraordinary or compelling reasons, other than those set out in subsections (A)-(C), "[a]s determined by the Director of the Bureau of Prisons." U.S.S.G. § 1B1.13, cmt. n.1(D). "[T]he BOP has issued Program Statement 5050.50 (2019), which lists factors which the BOP uses in determining whether extraordinary and compelling reasons exist for compassionate release." United States v. Turns , 2020 WL 2519710, at *3 (S.D. Ohio May 18, 2020). "BOP Program Statement 5050.50 identifies several nonexclusive factors to determine whether ‘other’ extraordinary and compelling reasons exist: the defendant's criminal and personal history, nature of his offense, disciplinary infractions, length of sentence and amount of time served, current age and age at the time of offense and sentencing, release plans, and ‘[w]hether release would minimize the severity of the offense.’ " Saldana , 807 Fed.Appx. 816, 819 (quoting BOP Program Statement 5050.50 at 12 (2019)).
Mr. Fuller does not argue that these subsection D factors weigh in favor of compassionate release, but instead argues that his health issues, combined with the COVID-19 pandemic, constitute extraordinary and compelling reasons for his compassionate release. See Docket No. 39; Docket No. 45. However, because the list of factors set out in Program Statement 5050.50 is nonexclusive, Saldana , 807 Fed.Appx. 816, 819, the Court will consider whether Mr. Fuller has met his burden "to prove that [his] medical conditions create extraordinary and compelling reasons warranting a sentence reduction." Edington , 2020 WL 2744140, at *4.
"The existence of the COVID-19 pandemic no doubt can be described as ‘extraordinary’ insofar as it is ‘[b]eyond what is usual, customary, regular, or common.’ " Id. at *3 (quoting United States v. Rodriguez , 451 F.Supp.3d 392, 401, (E.D. Pa. April 1, 2020) ). "However, because the apposite test is stated in the conjunctive, the dangers presented by the pandemic – which impact us all, worldwide – also must be ‘compelling’ in [the movant's] particular circumstances." Id. ; see also United States v. Bolze , 460 F.Supp.3d 697, 707–09, (E.D. Tenn. May 13, 2020) ("[T]he COVID-19 pandemic cannot present an extraordinary and compelling reason alone because the policy statement directs courts to consider individual reasons for compassionate release, not general threats to the prison population.").
Mr. Fuller represents that he suffers from hypertension, for which he takes Lisinopril, and states that there is research suggesting that individuals with hypertension "are at increased risk for COVID-19 infection." Docket No. 39 at 3. He also states that he "is now also taking a powerful antibiotic for an infection, so his system is already under medical stress," Docket No. 41 at 1, and that he only has one hand. Docket No. 45 at 5. The Centers for Disease Control and Prevention ("CDC") has indicated that individuals with "serious" heart conditions, including "heart failure, coronary artery disease, congenital heart disease, cardiomyopathies, and pulmonary hypertension," are at higher risk of developing severe illness from COVID-19. See Centers for Disease Control and Prevention, Groups at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html#serious-heart-conditions (last accessed June 3, 2020).
Mr. Fuller also asserts that some studies have shown that hypertension medication may place individuals at a higher risk of COVID-19 complications. Docket No. 45 at 5. As Mr. Fuller acknowledges, these studies have been "counteracted by the most recent research." Id. ; see also Edington , 2020 WL 2744140, at *4 n.8 ("[D]espite some initial concern, it now appears that blood pressure medications do not increase the risk of developing severe illness with COVID-19.") (citing medical sources).
Pulmonary hypertension and hypertension are two different inflictions. See Pulmonary Hypertension Association, About Pulmonary Hypertension , https://phassociation.org/patients/aboutph/ (last accessed June 3, 2020) ("The term [pulmonary hypertension ] means high blood pressure in the lungs. In ‘regular’ hypertension (also known as high blood pressure or "systemic hypertension ["] ) the pressure in the arteries throughout the body is higher than it should be.... In [pulmonary hypertension ], the blood vessels specifically in the lungs are affected."). While the CDC indicates that pulmonary hypertension is an elevated COVID-19 risk factor, the CDC states that, as of May 12, 2020, "it is unclear at this time if hypertension is an independent risk factor for severe illness from COVID-19." See Centers for Disease Control and Prevention, Clinical Questions About COVID-19: Questions and Answers (Updated May 12, 2020) , https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Patients-with-Hypertension (last accessed June 3, 2020). In addition, as of that date, the CDC stated that "people whose only underlying medical condition is hypertension are not considered to be at higher risk for severe illness from COVID-19." Id. Mr. Fuller does not indicate that he has pulmonary hypertension. See Docket No. 39; Docket No. 45.
While Mr. Fuller references his presentence report documenting his hypertension diagnosis, see Docket No. 39 at 3; see also Docket No. 3 at 16 (the presentence report stating that "[i]n 2007, [Mr. Fuller] was diagnosed with high blood pressure, and he is prescribed Lisinopril and takes a water pill to address his high blood pressure."), he has provided little information about his hypertension, such as medical records demonstrating its severity or information concerning whether his hypertension is controlled by the Lisinopril. Without this information demonstrating the severity of Mr. Fuller's condition or indicating the critical nature of release, the Court cannot conclude that extraordinary and compelling circumstances warrant release. See United States v. Koons , 455 F. Supp. 3d 285, 291–92, (W.D. La. Apr. 21, 2020) (finding the inmate had failed to demonstrate extraordinary and compelling reasons for release where he had not "alleged that his hypertension and high cholesterol ha[d] caused his medical condition to deteriorate, that these conditions ha[d] worsened in prison, or that these conditions [were] not adequately controlled by medication" and there was "no medical documentation – from within the BOP or otherwise – to shed light on [the inmate's] current medical condition"); United States v. Melgarejo , 2020 WL 2395982, at *4 (C.D. Ill. May 12, 2020) ("Here, Defendant has not met his burden to establish that extraordinary and compelling reasons justify his release from prison. Although hypertension is a risk factor for COVID-19 complications, Defendant does not allege that his condition is particularly severe or not controlled with medication."); United States v. Delgado , 2020 WL 2542624, at *3 (N.D. Tex. May 19, 2020) (finding that inmate had not established grounds for compassionate release where the inmate had "failed ... to provide the Court any medical records (particularly recent ones) to establish how immunocompromised he may now be").
Counsel indicates that she has requested updated medical records from BOP, but has not yet received them. Docket No. 45 at 5.
In addition, Mr. Fuller indicates that he is currently taking an antibiotic and has only one hand. Docket No. 41 at 1; Docket No. 45 at 5. However, Mr. Fuller does not cite any authority or research establishing that these factors would put him at a greater risk of contracting COVID-19 or suffering complications therefrom, and the CDC has not indicated that these are enhanced COVID-19 risk factors. See Centers for Disease Control and Prevention, Groups at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last accessed June 3, 2020). The Court finds that Mr. Fuller has not met his burden of demonstrating that these medical conditions constitute extraordinary and compelling reasons for compassionate release.
Mr. Fuller argues that he "is not seeking to be released solely because he has high blood pressure, but because that in conjunction with COVID-19 places him at a higher risk for serious illness and death." Docket No. 45 at 5. However, courts have routinely determined that, even when considered in light of the COVID-19 pandemic, an inmate must demonstrate that his or her individual circumstances constitute extraordinary and compelling reasons for compassionate release. "[T]he Court must consider every prisoner individually and should be cautious about making blanket pronouncements that categories of prisoners ... warrant compassionate release, even given the unique circumstances of the COVID-19 pandemic." Delgado , 2020 WL 2542624, at *3. Thus, the fact that Mr. Fuller suffers from hypertension, even combined with the fact that COVID-19 exists in society, is insufficient absent a finding that Mr. Fuller's individual circumstances warrant release.
For example, in United States v. Catanzarite , 2020 WL 2786927 (D.N.J. May 29, 2020), the court analyzed compassionate release cases involving "defendants who suffer from hypertension and/or obesity" and found that, even where the courts reached different conclusions as to whether to order compassionate release, "the court looked beyond the medical conditions" of the inmate – in these cases, the conditions at the inmate's facility – "to determine whether release was appropriate". Id. at *5. Here, there is no indication that the conditions at FCI Florence, coupled with Mr. Fuller's hypertension, necessitate release. Mr. Fuller does not allege that there are any positive COVID-19 cases at FCI Florence. See Docket No. 39; Docket No. 41; Docket No. 45. The BOP website, which reports all confirmed cases of COVID-19 in federal facilities, lists no positive COVID-19 cases at FCI Florence among inmates or staff. See Federal Bureau of Prisons, COVID-19 Cases , https://www.bop.gov/coronavirus/ (last accessed June 3, 2020). Thus, the Court cannot conclude that Mr. Fuller's hypertension, even considered in the context of COVID-19, constitutes extraordinary and compelling circumstances to warrant release. See Catanzarite , 2020 WL 2786927, at *5 (denying compassionate release of inmate with hypertension and obesity and noting there are no current cases at inmate's facility); United States v. Kupa , 2020 WL 2402856, at *1 (E.D.N.Y. May 12, 2020) (same); United States v. Alexander , 2020 WL 2507778, at *4 (D.N.J. May 15, 2020) (denying compassionate release of inmate with hypertension and obesity and noting that only two inmates at facility had contracted COVID-19 and that both had recovered).
The Court finds that Mr. Fuller has not met his burden of demonstrating the extraordinary and compelling circumstances required to grant his motion for compassionate release. For these reasons, it is
ORDERED that defendant Andre Sinclair Fuller's Renewed Motion for Compassionate Release [Docket No. 41] is DENIED .