Opinion
4:19-cr-3-CDL-MSH
11-16-2021
UNITED STATES OF AMERICA, v. TIFFANY GIST, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (ECF No. 56). For the reasons stated below, it is recommended that Defendant's motion be denied.
BACKGROUND
On July 23, 2019, Defendant pleaded guilty to one count of wire fraud and one count of aggravated identity theft. Plea Agreement 2-3, ECF No. 30. Before sentencing, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) (ECF No. 45). The USPO calculated a Guidelines sentencing range of 21 to 27 months for count one and a mandatory consecutive sentence of two years for count five. PSR ¶ 73, ECF No. 45. On March 25, 2020, Defendant was sentenced to 21 months' imprisonment with three years of supervised release on count one and 24 consecutive months' imprisonment with one year of concurrent supervised release on count five, for a total of 45 months' imprisonment and three years of supervised release. Judgment 2-3, ECF No. 52. Additionally, Defendant was ordered to pay $33,446.00 in restitution. Id. at 7-8.
The Court received Defendant's motion for compassionate release on January 22, 2021 (ECF No. 56). Defendant seeks compassionate release based on the risk posed by Covid-19 in light of her underlying medical conditions, including obesity, hypertension, and other medical conditions. Mot. for Compassionate Release 3, 10, ECF No. 56. She further contends that the prison where she is incarcerated fails to follow CDC guidelines in combatting Covid-19. Id. at 4-5. The Government responded to Defendant's request for compassionate release on August 27, 2021 (ECF No. 58). The Court received Defendant's reply on September 10, 2021 (ECF No. 59). Defendant's motion for compassionate release is ripe for review.
DISCUSSION
A district court “‘may not modify a term of imprisonment once it has been imposed except' under certain circumstances.” United States v. Harris, 989 F.3d 908, 909 (11th Cir. 2021) (quoting 18 U.S.C. § 3582(c)). One circumstance is the compassionate release exception provided in 18 U.S.C. § 3582(c)(1)(A). Id. at 909-10. Under that section, a prisoner may obtain compassionate release if, “after considering the factors set forth in [18 U.S.C. § 3553(a)], ” the district court finds that “extraordinary and compelling reasons warrant such reduction . . . and that such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). The Sentencing Commission's policy statement for compassionate release is found at U.S.S.G. § 1B1.13. Under that policy statement, a defendant must show that she “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2). Further, a defendant must show that “extraordinary and compelling reasons warrant the reduction.” U.S.S.G. § 1B1.13(1)(A). A defendant bears the burden of proving entitlement to compassionate release. See United States v. Mantack, 833 Fed.Appx. 819, 819-20 (11th Cir. 2021) (per curiam) (citing United States v. Green, 764 F.3d 1352, 1356 (11th Cir. 2014)).
In addition to extraordinary and compelling reasons warranting a reduction, compassionate release may also be granted to a defendant who is over 70 years old and has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c). 18 U.S.C. § 3582(c)(1)(A)(ii). This provision is inapplicable to Defendant.
Defendant fails to show extraordinary and compelling reasons warranting compassionate release. The Sentencing Commission policy statement provides four circumstances that constitute extraordinary and compelling reasons for a sentence reduction. U.S.S.G. § 1B1.13 cmt. n.1. The first is a qualifying medical condition. U.S.S.G. § 1B1.13 cmt. n.1(A). A medical condition qualifies if “[t]he defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory).” U.S.S.G. § 1B1.13 cmt. n.1(A)(i). A defendant need not show a “probability of death within a specific time period, ” and “[e]xamples include a metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.” Id. In the alternative, a defendant's medical condition qualifies if he or she 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.U.S.S.G. § 1B1.13 cmt. n.1(A)(ii).
The second and third circumstances qualifying as extraordinary and compelling reasons are the defendant's age and family circumstances. U.S.S.G. § 1B1.13 cmt. n.1(B), (C). Defendant is neither over the age of sixty-five, nor does she rely on family circumstances. Thus, these circumstances are inapplicable to her.
The fourth circumstance is “other reasons, ” which is where “[a]s determined by the Director of the [BOP], 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(D). “‘[O]ther reasons' are limited to those determined by the [BOP], not by the courts.” United States v. Lee, 857 Fed.Appx. 556. 558 (11th Cir. 2021) (per curiam) (citing United States v. Bryant, 996 F.3d 1243, 1246-49 (11th Cir. 2021)). Therefore, a district court lacks the authority to determine if a defendant's circumstances qualify as an “other reason” under U.S.S.G. § 1B1.13 cmt. n.1(D). Bryant, 996, F.3d at 1274-48, 1263. There is no evidence that the BOP has determined that Defendant presents an extraordinary and compelling reason for compassionate release. Therefore, the fourth circumstance does not apply to Defendant either.
As for the first circumstance, Defendant's medical records do not show a qualifying medical condition as defined by U.S.S.G. § 1B1.13 cmt. n.1(A). Defendant's medical records show that she suffers from obesity, anxiety, hypertension, cellulitis and abscess of the mouth, constipation, osteoarthritis in her hip, inflammation of the vagina and vulva, dysmenorrhea, irregular menstruation, a history of urinary tract infections (“UTIs”), and noninflammatory disorder of the vagina. Med. Rec. 60, ECF No. 61. There is no evidence, however, that any of these conditions are terminal as required by U.S.S.G. § 1B1.13 cmt. n.1(A)(i). Instead, and contrary to her assertion, the medical records show that Defendant has received consistent and appropriate treatment for her conditions while incarcerated. Mot. for Compassionate Release 8; Med. Rec. 1-170.
Defendant attempts to rely on medical records from a hospitalization prior to her incarceration, but such records do not demonstrate a terminal condition either. See Def.'s Attach. 1-4, ECF No. 56-1. These hospital records show that in January 2020, Defendant suffered from acute cystitis with hematuria, unspecified leiomyoma of the uterus, an ovarian cyst, bipolar disorder, anxiety, a history of UTIs, tubal ligation status, hypertension, and obesity. Id. Defendant was discharged upon improvement and instructed to return if her symptoms worsened. Id. at 5. She was also instructed to seek reevaluation with an OBGYN to determine if further treatment was necessary. Id. Thus, even if the Court relied on these records alone or in combination with the most recent medical records, Defendant has not shown any of her diagnosed conditions amount to a serious medical condition.
Further, even assuming that Defendant's medical conditions are “serious, ” that is only part of what Defendant must show. She must also demonstrate that these conditions “substantially diminish[]” her ability to provide self-care in the prison and from which she is not expected to recover. U.S.S.G. § 1B1.13 cmt. n.1(A)(ii). Defendant cannot do that for two reasons. First, the medical records indicate that when provided the opportunity to provide self-care within the prison, Defendant chose not to do so. According to Defendant's immunizations record, she initially refused the Pfizer Covid-19 vaccine on April 7, 2021. Med. Rec. 149. “Judges . . . around the country[] have ruled with consistency that an inmate's denial of a COVID-19 vaccination weighs against a finding of extraordinary and compelling circumstances.” United States v. Baeza-Vargas, No. CR-10-00448-010-PHX-JAT, --F.Supp.3d--, 2021 WL 1250349, at *3 (D. Ariz. Apr. 5, 2021). Second, Defendant received the first dose of the Moderna vaccine on October 7, 2021. Med. Rec. 149. “Although no federal court of appeal appears to have considered the question, district courts across the country . . . have held almost uniformly that a defendant's vaccination undercuts any claims of ‘extraordinary and compelling reasons' based on a high risk of infection.” United States v. Smith, Nos. 2:98:cr-0009-KJM-CKD, 2:96-cr-00450-KJM, 2021 WL 1890770, at *3 (E.D. Cal. May 11, 2021). Defendant offers no specific evidence that her medical condition places her at “an elevated personal risk despite vaccination.” Id. at 5 (adopting “the rebuttable presumption that appears to be the emerging majority rule among federal district courts” that a vaccinated inmate cannot show an extraordinary and compelling reason for compassionate release based on the risk posed by Covid-19).
The Government concedes that the CDC has identified some conditions as potential risk factors for a severe outcome from Covid-19, but it does not concede that these conditions alone amount to extraordinary and compelling reasons justifying release. Gov.'s Resp. to Mot. for Compassionate Release 10. Moreover, “a person's medical condition is not automatically extraordinary and compelling because it appears on CDC's list of underlying medical conditions that increase the risk for a severe COVID-19 outcome.” United States v. Moore, No. 14-315-06, 2020 WL 7264597, at *3 (E.D. Pa. Dec. 10, 2020). Instead, “the CDC guidance on the risks of COVID-19 must be viewed in light of the medical history and circumstances of the individual moving for compassionate release.” Id.
Moreover, compassionate release is inappropriate after considering the factors set forth in 18 U.S.C. § 3553(a). These factors include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.United States v. Macli, 842 Fed.Appx. 549, 552 n.1 (11th Cir. 2021) (per curiam) (citing 18 U.S.C. § 3553(a)).
The first three factors, as well as the tenth, listed above-which are codified at 18 U.S.C. § 3553(a)(1), (2)(A), (2)(B), and (7)-weigh heavily against Defendant. In the course of the scheme underlying her conviction, Defendant filed 126 fraudulent tax returns. PSR ¶ 12. Though the individuals identified in these returns did not suffer any actual monetary losses, this does not mean Defendant's actions were a victimless crime. Rather, these fraudulent returns “resulted in a loss, or an attempted loss, to the IRS of approximately $216,684.” Id. ¶ 15. Defendant avers she “has worked to better herself” while incarcerated and “has fully accepted responsibility for her crimes[, ]” but these factors are insufficient to offset the countervailing considerations. Pl.'s Reply 8, ECF No. 59. For example, though they did not impact her offense level computation, Defendant has prior convictions for deposit account fraud, theft by deception, theft by taking, possession of a forged instrument, negotiating a worthless instrument, and forgery. PSR ¶¶ 38, 39, 40, 41, 42, 43, 44, 45, 50. Defendant has served less than half of her sentence and made only three restitution payments in the amounts of $25 each. Pl.'s Ex. 1, ECF No. 59-5.
Although Defendant states her plans to eventually return to work if released, thus leading the Court to presume she will continue to pay restitution, she states she will only do so after receiving hip replacement and cyst and leiomyoma removal surgeries, along with rehabilitation, therapy, and mental health treatment. Mot. for Compassionate Release 9. In this regard, the Court has also considered the need to provide Defendant “with needed . . . medical care . . . in the most effective manner.” 18 U.S.C. § 3553(a)(2)(D). There is no evidence that the surgeries Defendant lists are medically necessary, or that any doctor ordered Defendant to undergo such treatment. Moreover, while she claims to have been refused medical treatment while incarcerated, the medical records contradict this assertion, as do Defendant's own admissions that she has received medication to treat her hypertension and recurring UTIs while incarcerated, undergone a tuberculosis test, and discussed treatment options for her leiomyoma of the uterus with a physician's assistant (“P.A.”) at FCI Aliceville. Mot. for Compassionate Release 8; Def.'s Reply 7. Thus, Defendant is receiving appropriate medical care in prison.
Defendant claims that P.A. Williamson at FCI Aliceville instructed Defendant to have the leiomyoma in her uterus removed to stop the recurring UTIs, however the Court cannot find any record of such recommendation. Def.'s Reply 7; see generally Med. Rec. 1-170.
As for the risk of infection posed by Covid-19, the BOP has implemented its COVID-19 Vaccine Guidance and has begun administering vaccines to inmates housed in its facilities. Fed. BOP Clinical Guidance, COVID-19 Vaccine Guidance (Oct. 13, 2021, v.14.1), available at https://www.bop.gov/resources/pdfs/covid19vaccineguidancev140 2021.pdf (last visited Nov. 15, 2021). The availability of the vaccine should greatly minimize Defendant's possible future exposure to the Covid-19 virus. Defendant has received her first dose of the vaccine. Def.'s Reply 6. Further, the BOP has implemented procedures to mitigate the risk of infection. Federal BOP, BOP Modified Operations, https://www.bop.gov/coronavirus/covid19status.jsp (updated Nov. 25, 2020). As of November 15, 2021, there were zero Covid-19 positive inmates at FCI Aliceville, where Defendant is housed. Fed. BOP, https://www.bop.gov/coronavirus (last visited Nov. 15, 2021).
The Court has considered the remaining factors in § 3553(a) and, to the extent they are applicable, finds that none of them provide sufficient weight to justify Defendant's release. Thus, as an additional and alternative ground for denial of Defendant's motion for compassionate release, the Court finds that even if Defendant established extraordinary and compelling reasons, release is not warranted after consideration of the § 3553(a) factors.
CONCLUSION
For the foregoing reasons, it is recommended that Defendant's motion for compassionate release (ECF No. 56) be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of these portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.