Summary
considering whether: " the combination of [the defendant's] age and underlying health conditions elevate his risk of becoming seriously ill were he to contract COVID-19 . . . and he faces greater risk from COVID-19 if he continues to be housed at his current facility instead of being released"
Summary of this case from United States v. WolfgrammOpinion
Case No. 3:14-cr-00044-MMD-WGC-1
2020-06-03
UNITED STATES of America, Plaintiff, v. Devon KAUWE, Defendant.
ORDER
I. SUMMARY
Defendant Devon Kauwe is currently serving a 65 month sentence (followed by five years of supervised release) on one count of conspiracy to distribute methamphetamine ("meth") at the United States Penitentiary in Lompoc, California ("USP Lompoc"). (ECF No. 529 at 1-2.) Before the Court is his renewed emergency motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) based on the "extraordinary and compelling reasons" presented by the COVID-19 pandemic as applied to his health and particular circumstances—including a COVID-19 outbreak at USP Lompoc (the "Motion"). (ECF No. 542.) However, because the Court agrees with the government that Defendant has not shown his underlying health conditions place him at increased risk of a severe case of COVID-19—and as further explained below—the Court will deny the Motion.
The Court previously denied Defendant's compassionate release motion without prejudice because he did not wait 30 days after requesting compassionate release from the Bureau of Prisons ("BOP") before filing his initial motion. See U.S. v. Kauwe , Case No. 3:14-cr-00044-MMD-WGC-1, 2020 WL 2475792 (D. Nev. May 13, 2020).
The Court issues this order during the COVID-19 pandemic, as a novel coronavirus is killing many people around the world, and many governments, including the governments of the United States and Nevada, have at least partially shut down their societies and economies in response. (ECF No. 529 at 14-15.)
The government opposes the Motion. (ECF No. 546.)
II. BACKGROUND
Defendant sold five ounces of meth to an undercover DEA agent, and was then arrested after arranging to sell seven pounds of meth to the same DEA agent. (ECF No. 534 at 3.) However, he had no prior criminal history and had never been arrested before this arrest. (ECF No. 529 at 2.) He pleaded guilty to one count of conspiracy to distribute meth. (Id. ) Defendant was on pretrial release for three years without incident before he was sent to USP Lompoc on October 30, 2017. (Id. ) His projected release date is June 8, 2022. (Id. ) He is therefore nearly halfway through his custodial sentence. (Id. at 1-2.)
Defendant seeks release because his preexisting medical conditions make him particularly vulnerable to COVID-19, and there is an outbreak of COVID-19 at USP-Lompoc, which was locked down to fight the spread of the virus at the time he filed his initial motion. (Id. at 1, 6, 17-26.) Specifically, Defendant is overweight and has hypertension. (Id. at 15-16.) He is 39 years old. (ECF No. 536 at 2.) The government does not dispute his medical history. (ECF No. 534 at 22.) However, the government argues that "a closer examination of these medical conditions reveal that neither is considered a risk factor for serious complications from COVID-19." (ECF No. 546 at 13.)
The parties also disagree about both the severity of the COVID-19 outbreak at USP Lompoc, and the effectiveness of BOP's efforts to contain and combat the virus. Defendant argued in his initial motion that the COVID-19 outbreak at USP Lompoc was out of control (ECF No. 529 at 19), and now argues in his Motion the outbreak has gotten worse, not better (ECF No. 542 at 2-4). The government counters that, while the correctional complex including USP Lompoc "has suffered a significant number of COVID-19 infections[,]" the BOP has taken significant steps to contain the spread of COVID-19, and case counts have fallen. (ECF No. 546 at 5-10.)
Moreover, the parties dispute whether the 18 U.S.C. § 3553(a) factors and any applicable policy statements from the Sentencing Commission weigh in favor of granting Defendant's Motion. (ECF Nos. 529 at 26-30, 542 at 2, 4, 546 at 16-17.)
III. LEGAL STANDARD
Defendant specifically seeks release under the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act of 2018. (ECF Nos. 529 at 1-5, 542 at 1.) This provision offers Defendant a limited exception to the general rule that the Court may not modify or reduce the length of a sentence after the Court has imposed it. See 18 U.S.C. § 3582(c) ; see also U.S. v. Penna , 319 F.3d 509, 511 (9th Cir. 2003) (explaining that generally a court cannot modify a sentence after it has imposed it). "It allows the sentencing judge to reduce a sentence based on ‘extraordinary and compelling reasons’ after the defendant has asked the BOP to bring such a motion on her behalf and exhausted all administrative rights to appeal the BOP's denial of that request." United States v. Mogavero , Case No. 2:15-cr-00074-JAD-NJK, 2020 WL 1853754, at *2 (D. Nev. Apr. 13, 2020) (citing 18 U.S.C. § 3582(c)(1)(A)(i) ). Moreover, before granting such a request, the Court "must consider the factors in 18 U.S.C. § 3553(a) ‘to the extent that they are applicable,’ and any sentence reduction must be ‘consistent with applicable policy statements issued by the Sentencing Commission.’ " Id. (citations omitted).
IV. DISCUSSION
Section 3582(c)(1)(A) implies a three-step process under which the Court must evaluate the Motion. That process begins with the Court determining whether Defendant has satisfied the statutory prerequisites under Section 3582(c)(1)(A). The Court then proceeds to evaluating whether Defendant has shown "extraordinary and compelling reasons" for the Court to release him under Section 3582(c)(1)(A)(i), and then finally considers the applicable sentencing factors and policy statements under Section 3553(a). Here, as there is no dispute as to the first step, and the Court is persuaded by the government's argument at the second step, the Court will not address the third step—and instead, focuses its analysis on the second step.
As noted supra at n.1, the Court denied Defendant's prior motion without prejudice at this first step. See Kauwe , 2020 WL 2475792. There is no longer any dispute that Defendant has satisfied the statutory prerequisites. (ECF No. 542 at 2, 546 at 3-4.)
Federal district courts have seen a wave of compassionate release motions similar to the Motion since the COVID-19 pandemic began. For example, as of June 3, 2020, judges in this District have already issued at least 21 decisions on similar motions since the beginning of the COVID-19 pandemic. See WESTLAW NEXT , https://next.westlaw.com/ (view citing references of 18 U.S.C. § 3582, filter to view only District of Nevada decisions, then search within for "compassionate release"). As more decisions are published, it appears federal district courts are coalescing on what constitute "extraordinary and compelling reasons" under Section 3582(c)(1)(A)(i) in the context of the COVID-19 pandemic. In fact, the Court basically agrees with the government that, at this point, the "extraordinary and compelling reasons" prong of the analysis has two components. (ECF No. 546 at 13.) To establish "extraordinary and compelling reasons," the inmate must show "(1) the inmate has a condition or characteristic that is a cognizable basis for compassionate release ... (e.g. , a serious medical condition, debilitating condition, elderly offender with medical conditions, etc. ) and that condition or characteristic also elevates the inmate's risk of becoming seriously ill from COVID-19, and (2) the inmate is more likely to contract COVID-19 in his or her particular institution than if released." (Id. )
While USP Lompoc "has suffered a significant number of COVID-19 infections[,]" (ECF No. 546 at 9), COVID-19 case numbers have fallen substantially. As of June 3, 2020, there are 17 confirmed active cases amongst inmates, and five confirmed active cases amongst staff. See BOP, COVID-19 Coronavirus (last visited June 3, 2020), https://www.bop.gov/coronavirus/ (by first scrolling over map, then zooming in over Southern California, and then hovering mouse over Lompoc). Regardless, the Court finds the government's argument more persuasive than Defendant's that his proffered underlying medical conditions do not elevate his risk of contracting a serious case of COVID-19.
In his Motion, Defendant incorporates his arguments regarding his health from his initial motion. (ECF No. 542 at 2.) In his initial motion, Defendant, who is 39, argued that the combination of his weight (he is 5’8" and 190 pounds (ECF No. 529 at 16)) and his hypertension (id. at 15-16) means he "faces a heightened risk of serious illness or death from COVID-19" (id. at 16). Defendant relied on three sources to support his argument that his weight combined with his hypertension puts him at an elevated risk of contracting a severe case of COVID-19: (1) the "JAMA Article"; (2) the "Italy Article;" and (3) the "AHA Guidance." (Id. at 15-16.) But the government counters that the JAMA Article and the AHA Guidance qualified their findings such that they do not support Defendant's argument. (ECF No. 546 at 14 n.5 & 6.) And the government appears to be correct, as the JAMA Article notes it does not account for comorbidities (see supra n.5), and the AHA Guidance only states that older people are at higher risk of contracting severe cases of COVID-19 if they have hypertension (see supra n.7). Further, the Italy Article makes such a general point that it too does not really support Defendant's argument—only explaining that people with one or more underlying illnesses are more likely to develop severe or fatal cases of COVID-19. (See supra n.6.)
Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New York City Area , Journal of the American Medical Association (April 22, 2020), https://jamanetwork.com/journals/jama/fullarticle/2765184?utm c% 20ampaign=articlePDF&utm medium=articlePDFlink&utm source=articlePD% 20F&utm content=jama.2020.6775.
Tommaso Ebhardt, Chiara Remondini, and Marco Bertacche, 99% of Those Who Died From Virus Had Other Illness, Italy Says , Bloomberg News (March 18, 2020), https://www.bloomberg.com/news/articles/2020-03-18/99-of-those-who-died-from-virus-had-other-illness-italy-says.
Eduardo Sanchez, M.D., M.P.H., FAAFP, Chief Medical Officer for Prevention, the American Heart Association, Coronavirus precautions for patients and others facing higher risks , American Heart Association (April 15, 2020), https://www.heart.org/en/coronavirus/coronavirus-covid-19-resources/coronavirus-precautions-for-patients-and-others-facing-higher-risks.
Moreover, the Court is persuaded by the government's reliance on the current Centers for Disease Control and Prevention ("CDC") guidance. (ECF No. 546 at 13-15.) More specifically, the government refers to the CDC's current guidance on COVID-19 risk for people with hypertension, which says "it is unclear at this time if hypertension is an independent risk factor for severe illness from COVID-19." (Id. at 14 n.7.) The government also notes neither hypertension nor being overweight is on the CDC's current list of risk factors. (Id. at 15 n.8.) And while being severely obese (BMI > 40) is a risk factor, Defendant's BMI, based on his height of 5’8" and weight of 190 pounds (ECF No. 529 at 16) is well below 40 (ECF No. 546 at 15; see also id. at 15 n.9). The government therefore persuasively argues that, based on current CDC guidance, Defendant is not at a particularly high risk of contracting a severe case of COVID-19.
The Court agrees. Defendant has not shown he is at high risk of contracting a severe case of COVID-19 were he to be infected. The Court therefore finds he has not shown "extraordinary and compelling reasons" that weigh in favor of his release under Section 3582(c)(1)(A)(i). For that reason, the Court will deny his Motion, and declines to address the parties' arguments regarding whether the sentencing factors and policy statements weigh in favor of Defendant's release.
V. CONCLUSION
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the Motion before the Court.
It is therefore ordered that Defendant's renewed emergency motion for compassionate release (ECF No. 542) is denied.
ORDER ON RECONSIDERATION
I. SUMMARY
Defendant Devon Kauwe is currently about halfway through his 65 month sentence (followed by five years of supervised release) on one count of conspiracy to distribute methamphetamine ("meth") at the United States Penitentiary in Lompoc, California ("USP Lompoc"). (ECF No. 529 at 1-2.) Before the Court is his motion for reconsideration of the Court's prior order (ECF No. 553 ("Prior Order")) denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) based on the "extraordinary and compelling reasons" presented by the COVID-19 pandemic as applied to his health and particular circumstances—including a COVID-19 outbreak at USP Lompoc (the "Motion"). (ECF No. 560.) Because Defendant persuasively explains in his motion that the Centers for Disease Control ("CDC")'s guidance as to who is at risk of severe complications of COVID-19 has changed since the Court issued the Prior Order, indicating that Defendant is at higher risk of contracting a severe case—and as further explained below—the Court will grant the Motion and release Defendant into his sister's custody in Washington State.
The Court issues this order during the COVID-19 pandemic, as a novel coronavirus is killing many people around the world, and many governments, including the governments of the United States and Nevada, have at least partially shut down their societies and economies in response. (ECF No. 529 at 14-15.)
The Court has also reviewed the government's response (ECF No. 565), and Defendant's reply (ECF No. 566).
II. BACKGROUND
The Court incorporates by reference its recitation of the factual background of this case in the Prior Order, and does not restate it here. (ECF No. 553 at 2.)
In the Prior Order, the Court denied Defendant's compassionate release motion because he had not shown that his underlying health conditions—he is a 39-year-old with hypertension and borderline obesity (Body Mass Index ("BMI") of approximately 29)—placed him at an elevated risk of contracting a severe case of COVID-19. (Id. at 1-2, 6.) The Court specifically relied on the CDC's guidance in effect at the time, proffered by the government, which stated, "it is unclear at this time if hypertension is an independent risk factor for severe illness from COVID-19[,]" and only stated that severely obese people—those with a BMI greater than 40—were at an elevated risk of contracting a severe case of COVID-19. (Id. at 5-6.) The Court found this CDC guidance more persuasive than the evidence Defendant proffered as to the risks he faced from COVID-19. (Id. at 5.) Thus, the Court denied Defendant's compassionate release motion primarily on the basis of this medical evidence, and did not reach other factors relevant to Defendant's compassionate release motion in much detail.
III. LEGAL STANDARDS
A. Reconsideration
"No precise ‘rule’ governs the district court's inherent power to grant or deny a motion to reconsider a prior ruling in a criminal proceeding." U.S. v. Lopez-Cruz , 730 F.3d 803, 811 (9th Cir. 2013). But this Court, and other courts, look to the standard governing motions for reconsideration in civil cases for guidance in ruling on motions for reconsideration in criminal cases. See, e.g., U.S. v. Ritchie , Case No. 2:15-cr-00285-APG-PAL, 2018 WL 6579181, at *4 (D. Nev. June 20, 2018), report and recommendation adopted , Case No. 2:15-cr-00285-APG-PAL, 2018 WL 6580954 (D. Nev. Dec. 13, 2018).
In civil cases, a motion to reconsider must set forth "some valid reason why the court should reconsider its prior decision" and set "forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision." Frasure v. United States , 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J v. ACandS, Inc. , 5 F.3d 1255, 1263 (9th Cir. 1993). But "[a] motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled." Brown v. Kinross Gold , U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005) (citation omitted).
B. Compassionate Release
As mentioned, Defendant seeks release under the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act of 2018. (ECF Nos. 529 at 1-5, 542 at 1.) This provision offers Defendant a limited exception to the general rule that the Court may not modify or reduce the length of a sentence after the Court has imposed it. See 18 U.S.C. § 3582(c) ; see also U.S. v. Penna , 319 F.3d 509, 511 (9th Cir. 2003) (explaining that generally a court cannot modify a sentence after it has imposed it). "It allows the sentencing judge to reduce a sentence based on ‘extraordinary and compelling reasons’ after the defendant has asked the BOP to bring such a motion on her behalf and exhausted all administrative rights to appeal the BOP's denial of that request." U.S. v. Mogavero , Case No. 2:15-cr-00074-JAD-NJK, 2020 WL 1853754, at *2 (D. Nev. Apr. 13, 2020) (citing 18 U.S.C. § 3582(c)(1)(A)(i) ). Moreover, before granting such a request, the Court "must consider the factors in 18 U.S.C. § 3553(a) ‘to the extent that they are applicable,’ and any sentence reduction must be ‘consistent with applicable policy statements issued by the Sentencing Commission.’ " Id. (citations omitted). IV. DISCUSSION
Section 3582(c)(1)(A) implies a three-step process under which the Court must evaluate compassionate release motions. That process begins with the Court determining whether Defendant has satisfied the statutory prerequisites under Section 3582(c)(1)(A). The Court then proceeds to evaluating whether Defendant has shown "extraordinary and compelling reasons" for the Court to release him under Section 3582(c)(1)(A)(i), and then finally considers the applicable sentencing factors under Section 3553(a). Here, as there is no dispute as to the first step, the Court will address the latter two steps in light of the revised CDC guidance. Following that discussion, the Court will address Defendant's release plan. In general, the revised CDC guidance Defendant proffered constitutes new facts of a strongly compelling nature that have convinced the Court to reverse its prior decision. See Frasure , 256 F. Supp. 2d at 1183 (stating new facts can constitute a proper basis for reconsideration).
The Court denied Defendant's initial motion without prejudice at this first step. See U.S. v. Kauwe , Case No. 3:14-cr-00044-MMD-WGC-1, 2020 WL 2475792 (D. Nev. May 13, 2020). There is no longer any dispute that Defendant has satisfied the statutory prerequisites. (ECF No. 542 at 2, 546 at 3-4.)
A. Extraordinary and Compelling Reasons
As stated in the Prior Order, the Court's view is that, to prevail on the "extraordinary and compelling reasons" prong of the analysis, Defendant must establish: (1) the combination of his age and underlying health conditions elevate his risk of becoming seriously ill were he to contract COVID-19 (the "Underlying Health Conditions Prong"); and (2) he faces greater risk from COVID-19 if he continues to be housed at his current facility instead of being released (the "Location Prong"). (ECF No. 553 at 4.)
1. Underlying Health Conditions Prong
The first element is impacted by the CDC's revised guidance issued on June 25, 2020. (ECF Nos. 560 at 5-10, 565 at 4-5.) The Court's Prior Order relied on CDC guidance proffered by the government, which at the time stated, "it is unclear at this time if hypertension is an independent risk factor for severe illness from COVID-19." (ECF No. 553 at 5 (citing ECF No. 456 at 14 n.7). ) But the content of the CDC Hypertension Page has since changed. It now says:
This citation, in turn, was to Coronavirus Disease 2019 (COVID-19) , Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Patients-with-Hypertension ("CDC Hypertension Page").
Many patients with severe illness from COVID-19 have underlying hypertension. Hypertension is common in the United States. Hypertension is more frequent with advancing age and among non-Hispanic blacks and people with other underlying medical conditions such as obesity and diabetes. At this time, people whose only underlying medical condition is hypertension might be at increased risk for severe illness from COVID-19.
CDC Hypertension Page, https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Patients-with-Hypertension (last visited Aug. 10, 2020) (footnotes omitted).
Similarly, while the CDC's guidance was that severely obese people (with a BMI over 40) were at elevated risk of contracting a severe case of COVID-19 at the time the Court issued the Prior Order (ECF No. 553 at 5-6), the CDC now advises that merely obese people (with a BMI over 30) are at elevated risk. See Coronavirus Disease 2019 (COVID-19), People with Certain Medical Conditions , Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Aug 10, 2020) ("CDC Medical Conditions Page"). Moreover, this page also states that people with hypertension might be at increased risk. See id. The CDC's guidance has thus changed in ways pertinent to Defendant since the Court issued the Prior Order.
Under the current guidance, Defendant's underlying health conditions place him just barely below the threshold for one risk factor (obesity ), and indicate his hypertension is a risk factor that ‘may’ increase his risk. See id. (See also ECF No. 553 at 2, 5-6 (stating Defendant is 39 years old, with hypertension and a BMI of approximately 29).) The government argues this means he cannot establish extraordinary and compelling reasons or show reconsideration is warranted—because he is not quite at high risk. (ECF No. 565 at 6-11.) However, the government's argument does not consider how these risk factors may interact. (Id. ) Logically, having two comorbidities (or one possible comorbidity and one almost comorbidity, as is the case here) would increase one's risk of experiencing severe complications if, as here, either of the two would. Indeed, the CDC Hypertension Page states that "people whose only underlying medical condition is hypertension might be at increased risk for severe illness from COVID-19[,]" suggesting that people with both hypertension and another underlying medical condition would be at increased risk.
Defendant's age is not particularly relevant to his Motion, nor is it disputed. At 39, he is relatively young. However, the CDC guidance discussed in this portion of this order applies regardless of age. See CDC Medical Conditions Page, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Aug 7, 2020) ("People of any age...").
Moreover, the government's argument that Defendant is not at increased risk because his BMI is slightly under 30 is unpersuasive. (ECF No. 565 at 6-7.) If someone with a BMI of 30 is at risk, it is simply illogical that someone like Defendant, with a BMI of approximately 29, is at no risk. Instead, it is more logical to find that Defendant is at almost as much risk as someone with a BMI of 30.
In general, while the Court agreed with the government when the government's argument was supported by the prevailing CDC guidance, it is no longer, and the government is attempting to draw unnecessarily fine distinctions—and generally impose a high burden of proof on Defendant that is too difficult to meet in light of the scientific and medical community's rapidly-evolving understanding of COVID-19. Further, the Court finds persuasive Defendant's argument that resolving this close call as to Defendant's risk in Defendant's favor better embodies the ‘compassion’ providing the Court's discretion here. (ECF No. 566 at 2.) And as Defendant also pointed out, doing so would better align with the Court's decision in U.S. v. Watson , Case No. 3:18-cr-00025-MMD-CLB-1, 2020 WL 4251802, at *2 (D. Nev. July 22, 2020) ("the Court must err on the side of caution to avoid potentially lethal consequences for [Defendant].") (citation omitted). (ECF No. 566 at 2.) Moreover, the Court finds persuasive the Northern District of New York's discussion of hypertension in U.S. v. Salvagno , No. 5:02-CR-51 (LEK), 456 F.Supp.3d 420, (N.D.N.Y. Apr. 23, 2020), reconsideration denied (June 22, 2020) proffered by Defendant in his Motion. (ECF No. 560 at 9 (relying on this case).) The Salvagno court found that hypertension alone constituted a risk factor sufficient to satisfy the Underlying Health Conditions Prong of the "extraordinary and compelling reasons" analysis. See Salvagno , 2020 WL 3410601, at *12-*17. If only hypertension was enough for the Salvagno court, that weighs in favor of the Court finding Defendant's hypertension coupled with his borderline obesity places him at elevated risk of experiencing severe complications were he to contract COVID-19.
In sum, Defendant has persuaded the Court to reconsider its prior decision because of the CDC's updated guidance. The Court finds Defendant is at elevated risk of a severe case of COVID-19 because of his borderline obesity combined with his hypertension, which weighs in favor of finding "extraordinary and compelling reasons" support his Motion.
2. Location Prong
Turning to the next element—whether remaining at USP Lompoc places Defendant at elevated risk of contracting COVID-19—the government conceded in response to Defendant's initial motion there was a serious COVID-19 outbreak at USP Lompoc (ECF No. 534 at 22-23), but later argued the Bureau of Prisons ("BOP") had taken sufficient action against the pandemic—both generally and at USP Lompoc specifically—and that the outbreak at USP Lompoc had subsided such that Defendant's location does not favor granting his Motion (ECF No. 546 at 5-10). The government maintains the outbreak at Lompoc has subsided in its most recent brief, and thus does not favor granting Defendant's Motion. (ECF No. 565 at 12-13.)
Defendant first argues the government waived its argument that current conditions at USP Lompoc do not favor releasing Defendant because the government initially conceded there was a serious outbreak at USP Lompoc. (ECF No. 566 at 3.) The Court disagrees. "[W]aiver is an equitable doctrine." Cox v. Ocean View Hotel Corp. , 533 F.3d 1114, 1125 (9th Cir. 2008). It would be inequitable to—as the Court is doing—allow Defendant to reopen the Court's prior decision because pertinent facts have changed (the CDC guidance), but not let the government also change its argument based on changing facts regarding the severity of the COVID-19 outbreak at USP Lompoc.
That said, the Court agrees with Defendant on the merits of his argument as to this prong. From the perspective of COVID-19 exposure, USP Lompoc is a more dangerous place for Defendant to be than with his sister in Washington State or his fiancée in Hawaii. While the Court accepts the government's explanation that the COVID-19 outbreak at USP Lompoc has subsided to some degree, and the BOP is doing more to contain and treat COVID-19 than it did initially, even the government states in its most recent brief that there are "currently-reported 10 active cases among inmates and 2 among staff[.]" (ECF No. 565 at 13.) Even that case count creates risk for Defendant. And more generally, several other courts have granted compassionate release motions based in part on conditions at the Lompoc correctional complex, which includes USP Lompoc. See, e.g., U.S. v. Connell , Case No. 18-CR-00281-RS-1, --- F.Supp.3d ----, 2020 WL 2315858, at *6 (N.D. Cal. May 8, 2020) ; U.S. v. Robinson , Case No. 18-CR-00597-RS-1, --- F.Supp.3d ----, 2020 WL 1982872, at *2 (N.D. Cal. Apr. 27, 2020) ; U.S. v. Head , Case No. 2:08-CR-00093-KJM-2, 2020 WL 3180149, at *1, *5-*6 (E.D. Cal. June 15, 2020), as amended (July 1, 2020). Thus, the conditions at USP Lompoc are dangerous enough, from a COVID-19 exposure perspective, to weigh in favor of granting Defendant's Motion.
The Court therefore finds "extraordinary and compelling reasons" exist because of the combination of the conditions at USP Lompoc, and Defendant's underlying health conditions of hypertension and borderline obesity. The Court will thus move on to the final step of the COVID-19 compassionate release analysis.
B. Sentencing Factors
The Court must next consider the factors set forth in Section 3553(a) to the extent they are applicable. 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; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established in the Sentencing Guidelines; (5) any pertinent policy statement issued by the Sentencing Commission; (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. See 18 U.S.C. § 3553(a)(1)-(7).
And as a preliminary matter, the Court has previously found its discretion is not constrained by the Sentencing Commission's policy statements in the context of COVID-19 compassionate release motions because the Sentencing Commission has not issued a policy statement since the First Step Act became law. See U.S. v. Regas , Case No. 3:91-cr-00057-MMD-NA-1, 2020 WL 2926457, at *3-*4 (D. Nev. June 3, 2020). Thus, to the extent the government continues to argue to the contrary (ECF No. 546 at 10-13), the Court rejects that argument.
The government's argument as to the Section 3553(a) factors is that Defendant would pose a danger to the community if released because he committed a serious crime:
Kauwe's crime of conviction was serious. Kauwe was a participant in a narcotics conspiracy in which he personally agreed to sell seven pounds of methamphetamine to an undercover DEA agent and arranged for its delivery. PSR ¶¶ 11, 16, 18. In light of seriousness of the crime, this Court imposed a 65-month sentence. ECF No. 516.
(ECF No. 534 at 23.) The Court agrees with the government that Defendant's crime was serious. However, the government does not address the several other factors raised by Defendant that convince the Court the Section 3553(a) factors overall favor releasing Defendant.
Those other factors include the following. First, Defendant was not the leader, or the most culpable member of, the meth conspiracy. (ECF No. 529 at 26.) His involvement in the conspiracy was also nonviolent. (Id. ) Second, Defendant had no criminal history whatsoever before the events leading to this conviction. (Id. at 27.) Third, he enjoys both broad and deep family support. (Id. ) Fourth, Defendant was on pretrial release without any incident for nearly three and a half years, indicating he will comply with conditions the Court will impose on him upon release. (Id. ) Fifth, Defendant has no history of mental health or addiction issues. (Id. ) Sixth, Defendant proposed two, alternative, release plans where he would live with family members, further indicating his family support. (Id. at 28-30.)
Taken together, and without any dispute from the government, these factors persuade the Court that ordering Defendant's release, particularly with home confinement and conditions of supervised release, does not pose a risk to public safety, and otherwise aligns with the Section 3553(a) factors. Thus, all three steps of the Section 3582(c)(1)(A) analysis favor granting Defendant's motion for compassionate release. The Court will therefore order Defendant released to home confinement for a period of 24 months, as further provided below. C. Release Plan
As mentioned, Defendant proffers two, alternative release plans. (ECF No. 529 at 28-30.) The Court will order Defendant be compassionately released into the custody of his sister, Crystal Wilkerson, after he has been quarantined consistent with BOP policy for 14 days.
V. CONCLUSION
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the Motion before the Court.
It is therefore ordered that Defendant's motion for reconsideration (ECF No. 560) is granted.
It is further ordered that Defendant is compassionately released into home confinement for a period of 24 months, followed by five years of supervise release. Defendant will be initially released into the custody of his sister, Crystal Wilkerson, after he has been in quarantine for a period of 14 days. The Court directs the Probation Department to ensure an assessment is made as to the appropriate residence for Defendant during the period of home confinement and supervised release.
It is further ordered that in addition to the mandatory, standard and special conditions of release imposed in the Judgment (ECF No. 516), the Court imposes an added special condition of home confinement with location monitoring for a period of 24 months.
DATED THIS 10th day of August 2020.