Arenda L. Wright Allen, United States District Judge

Peter G. Osyf, United States Attorney Office, Newport News, VA, for United States of America.

ORDER

Arenda L. Wright Allen, United States District Judge

Before the Court is a Motion for a Reduction in Sentence by Nathaniel Hambrock. Mot. for Reduction, ECF No. 36. For the following reasons, Petitioner's Motion (ECF No. 36) is GRANTED .

I. BACKGROUND

On August 20, 2020, Mr. Hambrock pleaded guilty to one count of Receipt of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2). Plea Agreement, ECF No. 19. Mr. Hambrock was sentenced on January 8, 2020 to the mandatory minimum sentence of 60 months' imprisonment. Judgment at 2, ECF No. 33. He is scheduled to self-surrender on February 26, 2020. Id.

Prior to his self-surrender date, Mr. Hambrock filed the instant Motion for a Reduction in Sentence under 18 U.S.C. § 3582(c). Mot. for Release, ECF No. 36. He argues that his sentence should be reduced to home confinement because he suffers from medical conditions—obesity and autism—that place him at increased risk of severe illness from COVID-19, which is prevalent throughout the Bureau of Prisons ("BOP"). Id. at 2–4.

The Court ordered the Government and the United States Probation Office to advise the Court of their positions regarding Mr. Hambrock's Motion. Both oppose the Motion. Recommendation, ECF No. 40; Resp. in Opp'n, ECF No. 41. The Motion is fully briefed and ripe for resolution.

II. LEGAL STANDARDS

Title 18 U.S.C. § 3582(c)(1)(A) provides that a court may reduce a term of imprisonment after it has been imposed "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 ...." 18 U.S.C. § 3582(c)(1)(A).

Although the United States Court of Appeals for the Fourth Circuit has yet to fully evaluate the impact of these preconditions, other federal Courts of Appeals have ruled that satisfying one of them is a mandatory claim-processing rule. United States v. Alam , 960 F.3d 831, 833–34 (6th Cir. 2020) (ruling that although the "exhaustion requirement does not implicate [a court's] subject-matter jurisdiction," the statute provides that a prisoner may bring a motion on his own behalf only if he fully exhausts administrative rights to appeal with the prison or "wait[s] 30 days after his first request to the prison"); see also United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020) (finding the petitioner's failure "to comply with § 3582(c)(1)(A)'s exhaustion requirement" to be a "roadblock foreclosing compassionate release at this point").

"When ‘properly invoked,’ mandatory claim-processing rules ‘must be enforced.’ " Alam , 960 F.3d at 834 (quoting Hamer v. Neighborhood Hous. Servs. of Chicago , ––– U.S. ––––, 138 S. Ct. 13, 17, 199 L.Ed.2d 249 (2017) ). "Because ‘Congress sets the rules’ when it comes to statutory exhaustion requirements, the judiciary has a role to play in exception-crafting ‘only if Congress wants [it] to.’ Nothing in § 3582(c)(1)(A) suggests the possibility of judge-made exceptions." Id. at 834 (quoting Ross v. Blake , 578 U.S. 632, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016) ). Therefore, the 30-day waiting period is mandatory unless the Government waives or forfeits the requirement. Id. ("[M]andatory claim-processing rules bind the courts only when properly asserted and not forfeited.").

If a motion satisfies the statutory preconditions, a court may reduce the sentence if the Court finds that "extraordinary and compelling reasons warrant such a reduction" and concludes "that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). The Fourth Circuit has ruled recently that there are no applicable policy statements for the Court to consider in defining extraordinary and compelling reasons; it is within the Court's discretion to assess whether extraordinary and compelling reasons exist. United States v. McCoy , 981 F.3d 271, 281 (4th Cir. 2020).

Courts must also consider the sentencing factors under 18 U.S.C. § 3553(a). A "court may deny a motion for compassionate release if the § 3553(a) factors override what would otherwise be extraordinary and compelling circumstances" meriting compassionate release. Easter v. United States , No. 4:16-cr-49(7), 2020 WL 3315993, at *4 (E.D. Va. June 18, 2020) (citing United States v. Doumas , No. 13-cr-120 (JMA), 2020 WL 3256734, at *2 (E.D.N.Y. June 16, 2020) ).

III. APPLICATION

A. Statutory Precondition

Mr. Hambrock has satisfied the thirty-day waiting period. Defense counsel submitted a request to the warden of FCI Seagoville on January 19, 2021. Ex. 5, ECF No. 42-1. The thirty-day waiting period lapsed on February 18, 2021.

The Government suggests that this Court cannot consider the Motion because Mr. Hambrock is not in custody and the BOP cannot physically evaluate his condition. The statute does not require this. The statute provides that a defendant may seek compassionate release from the Court 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) (emphasis added).

Nothing in the plain language of the statute requires the defendant to be in custody presently or to have served any portion of his sentence. Mr. Hambrock has submitted a request to the warden of his facility. The request was denied. At least 30 days have passed. This is all that is required by the statute. The Court finds that the statutory precondition is satisfied. The Court has the statutory authority to consider Mr. Hambrock's request and proceeds to evaluate the merits of the Motion. B. Extraordinary and Compelling Reasons

"[W]hile the COVID-19 pandemic is undoubtedly serious and of great concern, numerous courts have found that the risks posed by the pandemic alone do not constitute extraordinary and compelling reasons for release, absent additional factors such as advanced age or serious underlying health conditions that place a defendant at greater risk of negative complications from the disease." United States v. Nwankwo , No. 12-CR-31(VM), 2020 WL 2490044, at *1 (S.D.N.Y. May 14, 2020). Therefore, "compassionate release motions amid the COVID-19 pandemic have required a ‘fact-intensive’ inquiry, made in the ‘unique circumstances’ and ‘context’ of each individual defendant.... [C]ourts ... have considered the age of the prisoner; the severity and documented history of the defendant's health conditions, as well as the defendant's history of managing those conditions in prison; the proliferation and status of infections in the prison facility; [and] the proportion of the term of incarceration that has been served by the prisoner ...." United States v. Brady , No. 18-CR-316, 2020 WL 2512100, at *3 (S.D.N.Y. May 15, 2020) (citations omitted). Considering these factors, the Court finds that the COVID-19 pandemic in combination with Mr. Hambrock's health and risk factors rise to "extraordinary and compelling" reasons for a reduction in sentence. 18 U.S.C. § 3582(c)(1)(A)(i).

Mr. Hambrock's age weighs against finding that there are extraordinary and compelling reasons for a reduction in sentence. Mr. Hambrock is 31. Presentence Investigation Report ("PSR") at 2, ECF No. 39. He is not in an age category that is at an increased risk from COVID-19. See Centers for Disease Control and Prevention ("CDC"), Weekly Updates by Selected Demographic and Geographic Characteristics, https://www.cdc.go-v/nchs/nvss/vsrr/covid_weekly/index.htm (last visited Feb. 18, 2021) (noting the jump in risk to begin around forty-five to fifty-four age category). When compassionate release is granted, the defendant is often older than Mr. Hambrock. Compare United States v. Mangum , No. 2:17-CR-50 (E.D. Va. June 22, 2020) (granting compassionate release to a seventy-three-year-old defendant), with Brown v. United States , No. 4:18-CR-96, 2020 WL 3129573, at *2 (E.D. Va. June 12, 2020) (quoting United States v. Belle , 457 F.Supp.3d 134, 139 (D. Conn. 2020) ) (denying a twenty-eight-year-old defendant's motion in part because he was "substantially younger than many of those who have been granted compassionate release for [underlying] conditions during the pandemic").

However, "the proliferation and status of infections in the prison facility" in which Mr. Hambrock is intended to be incarcerated weighs strongly in favor of finding that his circumstances are "extraordinary and compelling." Brady , 2020 WL 2512100, at *3. Mr. Hambrock is designated to serve his sentence at FCI Seagoville. Letter, ECF No. 37. There are 8 positive cases currently (4 staff and 4 inmates), and there was a severe outbreak previously. BOP, Coronavirus, Full Breakdown and Additional Details, https://www.bop.gov/coronavirus/ (updated daily at 3:00 P.M.) (last visited Feb. 17, 2021). At one time, this facility had 1,239 inmates and 45 staff test positive. Id. This is the second highest number of infections to occur in any BOP facility. Id. It constitutes more than 70 percent of the facility's inmate population. BOP, FCI Seagoville, https://www.bop.gov/locations/institutions/sea/ (last visited Feb. 17, 2021). Four inmates have died. BOP, Coronavirus, Full Breakdown and Additional Details, https://www.bop.gov/coronavirus/. This facility has been unable to prevent the spread of the virus among its population. This factor weighs strongly in favor of finding extraordinary and compelling reasons for a reduction in sentence.

Mr. Hambrock's health conditions also weigh in favor of finding that his circumstances are extraordinary and compelling. The CDC has released a list of conditions that increase a person's risk of severe illness from COVID-19. CDC, People Who Are at Increased Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last updated Feb. 3, 2021). According to the CDC, those with obesity are at increased risk for severe illness as a result of COVID-19. Id. Mr. Hambrock is six feet three inches tall and currently weighs 310 pounds. PSR at 12, ECF No. 39; Ex. 1, ECF No. 36-1. This is a Body Mass Index of 38.7, which is close to the CDC's definition of severely obese.

Mr. Hambrock also has Autism Spectrum Disorder ("ASD"). PSR at 12, ECF No. 39. The Government asserts that the Court should disregard this condition in its analysis of extraordinary and compelling reasons because it is not listed by the CDC as a condition that increases a person's risk from COVID-19. The CDC acknowledges that its list is "not exhaustive" and "may not include every condition that might increase one's risk for developing severe illness from COVID-19." CDC, People Who Are at Increased Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last updated Feb. 3, 2021). A multi-state study revealed that individuals with an intellectual or developmental disability such as ASD are significantly more likely to die from COVID-19. Spreat, Cox, & Davis, COVID-19 Case & Mortality Report: Intellectual or Developmental Disabilities, available at https://paroncloud.egnyte.com/dl/rXBmRNk3EC/? (last visited Feb. 17, 2021). Another study reached the same conclusion, noting that there is a higher prevalence of comorbidities—such as obesity—among those with intellectual or developmental disabilities. Margaret A. Turk, et al. , Intellectual and developmental disability and COVID-19 case-fatality trends: TriNetX analysis, 13 Disability & Health J. 3 (2020), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7245650/pdf/main.pdf (last visited Feb. 17, 2021). Others have also publicized increased death rates among those with intellectual and developmental disabilities. See Joseph Shapiro, People With Intellectual Disabilities And Autism Die Of COVID-19 At A Higher Rate, NPR (June 9, 2020), available at https://www.npr.org/2020/06/09/872401607/covid-19-infections-and-deaths-arehigher-among-those-with-intellectual-disabili (last visited Feb. 17, 2021); Alistair MacDonald & Caitlin Ostroff, Covid-19 Is Deadlier for People With Autism, Down Syndrome. Now Families Are Pushing Hard for Vaccines, Wall St. J. (Dec. 23, 2020), available at https://www.wsj.com/articles/covid-is-deadlier-for-people-withautism-down-syndrome-now-families-are-pushing-hard-for-vaccines-11608729816 (last visited Feb. 17, 2021).

Mr. Hambrock's ASD also weighs in favor of finding that his circumstances are extraordinary and compelling notwithstanding concerns about COVID-19. See Chiara Eisner, Prison Is Even Worse When You Have a Disability Like Autism, The Marshall Project (Nov. 2, 2020), available at https://www.themarshallproject.org/2020/11/02/prison-is-even-worse-when-youhave-a-disability-like-autism (last visited Feb. 11, 2021). "Autistic people ... often have difficulty understanding prison rules and norms, making them especially vulnerable to exploitation in prison" and "[t]here's disproportionate exposure to violence, sexual or otherwise." Id. Moreover, those with ASD are at increased risk of abuse. See S.M. Brown-Lavoie, et al. , Sexual Knowledge and Victimization in Adults with Autism Spectrum Disorders, 44 J. Autism Dev. Disord. 2185 (2014) (finding adults with ASD to be at increased risk for sexual victimization). Mr. Hambrock's ASD weighs in favor of finding that his circumstances are extraordinary and compelling.

The Court acknowledges that Mr. Hambrock has not served a significant portion of his sentence. He has spent one week of his 60-month sentence in custody. PSR at 1, ECF No. 39. However, this fails to be a significant factor in this case. The Court has already acknowledged at sentencing that any custodial sentence was greater than necessary to serve the goals of sentencing. A custodial sentence was imposed as a requirement associated with the mandatory minimum sentence.

The Court weighs these factors together. Mr. Hambrock is not in an age category at heightened risk of serious complications from COVID-19. However, he suffers from one condition that the CDC has declared places him at increased risk, and suffers from another condition for which there is empirical evidence of increased risk. FCI Seagoville has demonstrated an inability to control the spread of COVID-19 at its facility. Although Mr. Hambrock has served little of his sentence, this factor is not significant in the context of this case, where the Court noted at sentencing that a custodial sentence was greater than necessary. The Court concludes that Mr. Hambrock has established extraordinary and compelling reasons for a reduction in sentence.

C. Section 3553(a) Factors

Even where a defendant establishes extraordinary and compelling reasons for a reduction in sentence, the Court must evaluate whether a reduction is appropriate under the Section 3553(a) factors. Under Section 3553(a) courts must consider:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

...

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). A lengthy evaluation of the factors is not necessary. The Court noted at sentencing and in the Judgment that a custodial sentence was greater than necessary to serve the goals of sentencing. Considering these factors now, in the context of a request for a reduction in sentence, Mr. Hambrock is a suitable candidate for a reduction in sentence to home confinement.

All child pornography offenses are serious, including Mr. Hambrock's; here, however, a custodial sentence is greater than necessary to reflect the seriousness of this offense, particularly under current carceral conditions and considering Mr. Hambrock's ASD. The seriousness of Mr. Hambrock's offense fails to warrant exposing the risk of harm or death to Mr. Hambrock in light of his particular vulnerabilities to COVID-19 and to abuse.

Mr. Hambrock is not a danger to the public. Mr. Hambrock was first confronted by law enforcement in January 2020. He consented to an interview, cooperated with law enforcement, and self-surrendered on June 1, 2020. PSR at 7, ECF No. 39. He voluntarily took a polygraph test that indicated that he was being honest with law enforcement. The fact that law enforcement waited approximately five months to require Mr. Hambrock to surrender belies any insistence now that Mr. Hambrock poses a threat to the public. Additionally, the Court notes that Mr. Hambrock was on pretrial release for more than six months. He has been out in the public for more than a year since he was first confronted by law enforcement in January 2020. He has not endangered the public in any way during that time. Moreover, there is no evidence that individuals who view child pornography are particularly disposed to abuse children. See Richard Wollert, The Implication of Recidivism Research and Clinical Experience For Assessing and Treating Federal Child Pornography Offenders: Written Testimony Presented to the U.S. Sentencing Commission (Feb. 15, 2012), available at https://www.researchgate.net/publication/-259691247_Wollert_R_2012_February_15_The_implications_of_recidivism_research_and_clinical_experience_for_assessing-_and_treating_federal_child_pornography_offenders_Testimony_presented_to_the_United_States_Sente. The evidence in this case does not support the Government's assertion that a reduction in sentence will endanger the public.

The Government also suggests that a significant prison sentence is necessary to deter Mr. Hambrock. But the Court finds that Mr. Hambrock, who had no criminal history prior to this offense, has been adequately deterred by his federal conviction, his status as a sex offender, and his time spent in custody, which Mr. Hambrock testified was the worst experience of his life. The collateral consequences of his conviction are not minor. Mr. Hambrock has lost his job and a supportive relationship, and he will be placed on home detention for a significant period. This is sufficient deterrence in this case. See United States v. Pauley , 511 F.3d 468, 474–75 (4th Cir. 2007) (noting that consideration of collateral consequences of a conviction is consistent with § 3553(a) ).

The Court also finds that a lengthy custodial sentence in this case results in unwarranted sentencing disparities after considering defendants similarly situated to Mr. Hambrock. See United States v. Mallat , No. 4:13cr3005, 2013 WL 6196946 (D. Neb. Nov. 23, 2013) (sentencing a 31 year old with ASD with time served for possession of child pornography); United States v. Carpenter , No. 6:08cr6256 (W.D.N.Y. June 17, 2009) (imposing probation for a defendant with ASD in a child pornography case); United States v. Joy , No. 1:07cr187 (N.D.N.Y. July 28, 2008) (imposing one day time served for defendant with ASD on child pornography charges). Although Mr. Hambrock pleaded guilty to Receipt of Child Pornography, rather than Possession, there is no significant factual difference between Mr. Hambrock's conduct and the conduct of a defendant charged with Possession. All individuals who possess child pornography must have, at some point, received it. The distinction between Receipt and Possession is rejected here under these circumstances as a basis for incarcerating a vulnerable person in the middle of a deadly pandemic.

The Court finds that Mr. Hambrock needs sex offender and mental health treatment. Many of these programs are presently unavailable in the BOP because of the pandemic. If they become available to inmates, Mr. Hambrock can obtain this treatment while on supervision.

Mr. Hambrock has a well-designed and viable release plan. He proposes to reside at his parents' home for a period of home confinement followed by supervision. These are the conditions under which Mr. Hambrock successfully served pretrial and presentencing release. This plan has proven to be viable or safe. Accordingly, the Section 3553(a) factors favor a reduction in sentence.

IV. CONCLUSION

For the foregoing reasons, Mr. Hambrock's Motion for a Reduction in Sentence (ECF No. 36) is GRANTED . Mr. Hambrock's sentence is hereby REDUCED to TIME SERVED .

The previously imposed ten-year period of supervised release shall commence immediately. All standard and special conditions of supervised release, as described in the Judgment (ECF No. 33), remain in effect.

It is hereby ORDERED that the following additional conditions be imposed: (1) Mr. Hambrock shall reside at his parents' residence; (2) his term of supervised release shall include the additional condition of 48 months' home detention; and (3) within 72 hours of the date of this Order, he shall contact the United States Probation Office by phone for specific reporting instructions.

The cost of electronic monitoring shall be at Mr. Hambrock's expense. During the period of home confinement, Mr. Hambrock shall remain at his place of residence except for employment, medical appointments, and other activities approved in advance by the United States Probation Officer. While on home detention, Mr. Hambrock shall maintain a telephone at his residence without party lines, telephone answering machines, a modem, call forwarding, caller ID, call waiting, portable cordless telephones or any other devices or services that may interfere with the proper functioning of the electronic monitoring equipment for the above period. Mr. Hambrock shall wear an electronic monitoring device, comply with electronic monitoring procedures, and pay the costs of electronic monitoring, all as directed by the Probation Officer.

Relatedly, on January 13, 2021, defense counsel filed a Motion addressing objections raised at sentencing to the applicability of the financial assessments under the Justice for Victims Trafficking Act. Def.'s Mem., ECF No. 35. Counsel indicated that the Government would oppose the objections. Id. The Government has not yet filed a Response. The Government is ORDERED to file a Response to this memorandum no later than March 19, 2021.

IT IS SO ORDERED.