Opinion
3:14-cr-00312-JO
04-23-2021
UNITED STATES OF AMERICA, Plaintiff, v. ROBERT CRAIG HOUGHTON, Defendant.
OPINION AND ORDER
Robert E. Jones, Senior District Court Judge
Defendant Robert Craig Houghton (Houghton) moves to have the Court reconsider its denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(1)(A)(i). ECF No. 44. Houghton, currently incarcerated at Sea Tac FDC, has a projected release date on September 11, 2022. Def.'s Mot. to Reduce Sentence, ECF No. 33, at 2. He requests that his sentence be reduced to time served. His reasons for filing the motion for reconsideration are that his medical conditions (asthma, hypertension, lingering neurological symptoms following a COVID-19 infection) in light of the recent developments in COVID-19 science, and his vulnerability to reinfection, provide extraordinary and compelling reasons for compassionate release. Additionally, he asserts that his commitment to rehabilitative prison programing, his plan to complete drug treatment and find stable employment, and a new psychological analysis indicating his low risk for future offending prove he is no longer a danger to the community if released. The government opposes his motion. For the reasons that follow, I DENY Houghton's motion for reconsideration.
BACKGROUND
Houghton was convicted of conspiracy to distribute heroin and possession of a firearm in connection with a drug trafficking crime. He has served approximately 81 percent (including good time credits) of his 120-month sentence. In his 45 years, Houghton amassed 35 convictions, including 5 felonies, and has a significant history of substance abuse. Presentence Report, ECF No. 27 at 13-21. While incarcerated at FCI Terminal Island for this conviction and prior to his original motion for compassionate release, Houghton contracted COVID-19. He has since been transferred to SeaTac FDC where he has been fully vaccinated against COVID-19.
LEGAL STANDARD
A district court generally "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see Dillon v. United States, 560 U.S. 817, 824-25 (2010). However, Congress has expressly authorized a district court to modify a defendant's sentence in three limited circumstances, including granting a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A).
Although the compassionate release statute previously permitted sentence reductions only upon motion of the Director of the Bureau of Prisons (BOP), Congress expanded the statute in the First Step Act of 2018. Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (Dec. 21, 2018) (FSA). Pursuant to the FSA, a court may reduce a defendant's sentence if "extraordinary and compelling reasons warrant such a reduction;.. . and .. . such a reduction is consistent with applicable policy statements issued by the Sentencing Commission ... ." 18 U.S.C. § 3582(c)(1)(A)(i). Congress did not define "extraordinary and compelling" other than providing that "[rehabilitation of the defendant alone" is insufficient. 28 U.S.C. § 994(t).
The "applicable policy statement by the Sentencing Commission" for sentence reductions was last amended before the FSA passed and is found in the Application Notes to United States Sentencing Guidelines (U.S.S.G.) § 1B1.13. Application Note 1 of the policy statement commentary defines extraordinary and compelling reasons justifying compassionate release. U.S. Sentencing Guidelines Manual § 1B1.13, cmt. n.1 (U.S. Sentencing Comm'n 2018). Application Note 4 directs courts to consider the sentencing factors found in 18 U.S.C, §3553(a) and determine whether the defendant is a danger to the safety of the community before granting compassionate release, Id. at cmt. n.4. Although applying only to motions filed by the BOP director and not those filed by a defendant, the policy statement "may inform a district court's discretion for §3 582(c)(1)(A) motions filed by a defendant." United States v. Aruda, No. 20-10245, 2021 WL 1307884 at *4 (April 8, 2021).
The Sentencing Commission's policy statement defines extraordinary and compelling circumstances to include among other factors the medical condition of the defendant, including a terminal illness, or any non-terminal illness "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. Sentencing Guidelines Manual § 1B1.13 at cmt. n.1 (A).
While the COVID-19 global health crisis is an exceptional event, even so, compassionate release remains "rare" and "extraordinary," and courts routinely deny claims from inmates absent a showing of truly exceptional circumstances, United States v. Hamman, No. 3:16-cr-185-SI, 2020 WL 3047371, at *5 (D. Or. June 8, 2020); United States v. Valdez, No.3:19-cr-323-IM-01, 2021 WL 325715, at *3 (D. Or. Feb. 1, 2021). The existence of COVID-19 cannot alone justify compassionate release. As the United States Court of Appeals for the Third Circuit explained:
We do not mean to minimize the risks that COVID-19 poses in the federal prison system, ... [b]ut the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP's statutory role, and its extensive and professional efforts to curtail the virus's spread.United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020).
To demonstrate extraordinary and compelling reasons for compassionate release, defendants should show that they are particularly susceptible to serious illness or death if they contract CO VID-19, usually as a result of one or more underlying comorbidities. United States v. Singh, No. 4:15-CR-00028-11, 2021 WL 928740, at *2 (M.D. Pa. Mai". 11, 2021). And' [c]hronic conditions that can be managed in prison are not a sufficient basis for compassionate release." United States v. Ayon-Nunez, No. 1:16-cr-130-DAD, 2020 WL 704785, at *2-3 (E.D. Cal. Feb 12, 2020); United States v. Valdovinos, No. 3:18-cr-497-SI-03, 2020 WL 7711363, at *2 (D. Or. Dec. 29, 2020).
A defendant bears the burden to establish both that he has satisfied the procedural requirements for judicial review and that compelling and extraordinary reasons exist to justify compassionate release. 18 U.S.C. § 3582(c)(1)(A).
DISCUSSION
Houghton contends that he suffers from multiple underlying health conditions that put him at risk for severe illness if he is reinfected with COVID-19. Houghton's medical records confirm that he is overweight, asthmatic, and hypertensive, which, when combined, increase his susceptibility to serious illness if infected with COVID-19. The Centers for Disease Control and Prevention (CDC) lists these conditions as factors that increase an individual's risk for serious complications from COVID-19. People Who Are at Higher Risk for Severe Illness, CDC (March 29, 2021, ) https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited April 23, 2021). This has led some courts to conclude that inmates with these conditions are at an increased risk of serious illness or death from COVID-19 and provide extraordinary and compelling reasons justifying compassionate release. See United States v. Hancock, No. 3:12-cr-00015 (VAB), 2021 WL 71451, at *5-*6 (D. Conn. Jan.8, 2021) (granting compassionate release to a defendant who was overweight and hypertensive); United States v. Correa, No. 08-CR-1026 (VEC), 2020 WL 7490098, at *5 (S.D.N.Y. Dec. 21, 2020) (granting compassionate release to a defendant who was overweight and asthmatic); United States v. Harris, No. EHL-02-0381, 2020 WL 7828771, at *10 (D. Md. Dec. 30, 2020) (granting compassionate release to an overweight defendant with kidney disease, prediabetes, and hypertension who had previously been infected with and recovered from COVID-19).
Here, however, the Court concludes that Houghton's recent vaccination mitigates his risk from COVID-19 to such an extent that COVID-19, in combination with Houghton's underlying conditions, no longer presents an extraordinary and compelling reason to grant compassionate release. Although vaccines are not one hundred percent effective, the CDC states that" [a] 11 COVID-19 vaccines currently available in the United States have been shown to be safe and effective at preventing COVID-19." Benefits of Getting a COVID-19 Vaccine, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/vaccine-benefits. html (last visited April 23, 2021). Vaccines are particularly effective at preventing "severe illness and death." What We Know and What We 're Still Learning, https://www.cdc.gov/coronavirus/2019- ncov/vaccines/fully-vaccinated html (last visited April 23, 2021).
Houghton received a 2-shot regime, meaning he got either the Pfizer-BioNTech or Moderna vaccine. According to the CDC, during clinical trials, the Pfizer-BioNTech vaccine had a 95% efficacy rate (Pfizer-BioNTech COVID-19 Vaccine Overview and Safety, https://www. cdc.gov/coronavirus/2019-ncov/vaccines/ different-vaccines/Pfizer-BioNTech. html), and the Modema vaccine had a 94.1% efficacy rate (Moderna COVID-19 Vaccine Overview and Safety, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/Moderna. html). Both vaccines have been found with high certainty to prevent symptomatic COVID-19. Morbidity and Mortality Weekly Report (MMWR}, The Advisory Committee on Immunization Practices' Interim Recommendation for Use of Pfizer-BioNTech CO VID-19 Vaccine-United States, December 2020, https://www.cdc.gov/mmwr/volumes/69/wr/mm6950e2.htm (last visited April 23, 2021), Morbidity and Mortality Weekly Report (MMWR), The Advisory Committee on Immunization Practices' Interim Recommendation for Use of Moderna COVID-19 Vaccine__United States, December 2020, https://www.cdc.gov/mmwr/volumes/69/wr/mm695152e1. htm?s_cid=mm695 l 52e1_w (last visited April 23, 2021). While new variants of COVID-19 have emerged, the CDC reports that they are still learning how effective vaccines are against variants. "So far, studies suggest that antibodies generated through vaccination with currently authorized vaccines recognize these variants. This is being closely investigated and more studies are underway." About Variants of the Virus that Causes COVID-19, https:/lwww.cdc.gov/coronavirus/2019- ncov/transmission/variant. html (last visited April 23, 2021).
Recently, the CDC reported that under real-world conditions, both vaccines were 90% effective against COVID-19. Interim Estimates of Vaccine Effectiveness of BNT162b2 and mRNA-1273 COVID-19 Vaccines in Preventing SARS-CoV-2 Infection Among Health Care Personnel, First Responders, and Other Essential and Frontline Workers __ Eight U.S. Locations, December 2020-March 2021, https://www.cdc.gov/mmwr/volumes/70/wr/mm7013e3.html (last visited April 23, 2021).
To be clear, while Houghton is not one hundred percent protected from COVID-19, his vaccination provides significant protection from serious illness or death. The CDC reported that breakthrough cases, defined as positive COVID-19 test results received at least two weeks after patients receive their final doses, represent 0.0077 percent of the fully vaccinated population. COVID-19 Breakthrough Case Investigations and Reporting, https://www.cdc.gov/vaccines/covid-19/health-departments/breakthrough-cases. html (last visited April 23, 2021). Current CDC guidelines allow fully vaccinated individuals to visit indoors with other fully vaccinated individuals----or non-vaccinated individuals who are at low risk from COVID-19-without taking precautions such as wearing masks or social distancing. Interim Public Health Recommendation for Fully Vaccinated People. https://www. cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html (last visited April 23, 2021). For fully vaccinated people, the CDC's primary concern appears to be not with fully vaccinated individuals becoming severely ill or being hospitalized due to COVID- 19, but with those individuals potentially spreading the virus to unvaccinated people. See id.
The sum of this data demonstrates to the Court that, as a result of his vaccination, Houghton now has significant protection against serious illness or death should he contract COVID-19 and, accordingly, the Court concludes that Houghton has not demonstrated that his underlying conditions-in combination with the possibility of a COVID-19 infection-provide extraordinary and compelling reasons to grant his motion for compassionate release.
Even if Houghton could demonstrate extraordinary and compelling reasons justifying compassionate release, the Court is concerned Houghton remains a danger to society. The Court is aware that Houghton has served more than 80% of his sentence and commends him for completing his GED and taking advantage of the educational opportunities offered while incarcerated. However, Houghton's convictions, while seven years ago, were for heroin trafficking and possession of a firearm in connection with a drug trafficking crime. In that offense, Houghton possessed five handguns, one rifle, two firearm suppressors, a grenade, and various gun parts. Houghton has a history of supervised release violations and failures to appear. He has participated in formal substance abuse treatment on three occasions, including an inpatient setting in 1995, and relapsed. His most recent psychological test reveals that he may have "low treatment motivation" even though he reports being eager to begin out-patient treatment. ECF No. 45-2 at 12. As described in his motion, his employment plans are uncertain:
While in custody, Mr. Houghton discovered a passion and a talent for ceramics, and he intends to pursue it as a career. To further this goal, Mr. Houghton has sent letters to multiple ceramics shops in the Portland area. He has high hopes for his prospects in his chosen field, but also plans to look for other employment immediately upon release in order to provide income and stability until he can secure a job in ceramics.ECF No. 44 at 13. A recent letter from a Portland-area ceramics company offers only an opportunity to discuss employment, but no firm job offer.
Based on these factors, Houghton has not carried his burden to show he is no longer a danger to the community if he were to be released.
CONCLUSION
The Court concludes that Houghton has not sustained his burden of establishing that extraordinary and compelling reasons justify granting compassionate release. Further, he has not carried his burden to show he is no longer a danger to society if released. Houghton's Motion to Reconsider Reduction of Sentence (ECF No. 44) is DENIED.