Opinion
CASE NO. 12-60027-CR-COHN
05-18-2020
UNITED STATES of America, v. Travis MCGHEE, Defendant.
Lisa Anne Hirsch, United States Attorney's Office, Miami, FL, Rosa Rodriguez-Mera, Brent Tantillo, United States Attorney's Office, Fort Lauderdale, FL, for United States of America.
Lisa Anne Hirsch, United States Attorney's Office, Miami, FL, Rosa Rodriguez-Mera, Brent Tantillo, United States Attorney's Office, Fort Lauderdale, FL, for United States of America.
ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE
JAMES I. COHN, United States District Judge
THIS CAUSE is before the Court upon Defendant Travis McGhee's Motion for Compassionate Release and/or Reduction in Sentence in the Wake of the COVID-19 Pandemic ("Motion") [DE 305.] The Court has considered the Motion, the Government's Response [DE 310], and the record in this case, and is otherwise advised in the premises.
I. BACKGROUND
On August 9, 2012, Defendant was convicted by a jury of conspiracy to possess less than 500 grams of cocaine, with intent to distribute, in violation of 21 U.S.C. § 846, and attempt to possess less than 500 grams of cocaine, with intent to distribute, in violation of 21 U.S.C. § 846. DE 173. The Court found that Defendant qualified as a career offender based on two prior Florida convictions for possession with intent to sell, deliver, or manufacture cocaine. On October 26, 2012, the Court sentenced Defendant to 210 months imprisonment, which was the low end of the guideline range. DE 209.
Defendant is now 37 years old and his projected release date is December 30, 2026. DE 310-2. In his Motion, Defendant seeks compassionate release because he suffers from end-stage lung disease (pulmonary sarcoidosis ) and is therefore especially vulnerable to COVID-19. The Government opposes the Motion.
II. LEGAL STANDARD
Under 18 U.S.C. § 3582(c), as amended by the First Step Act of 2018, courts may reduce a term of imprisonment upon finding "extraordinary and compelling reasons" that are "consistent with applicable policy statements issued by the [United States] Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). The relevant policy statement issued by the Sentencing Commission is found in U.S.S.G. § 1B1.13. It provides that a court may reduce a term of imprisonment if "(1)(A) extraordinary and compelling reasons warrant the reduction;" "(2) the defendant is not a danger to the safety of any other person or to the community;" and "(3) the reduction is consistent with this policy statement." U.S.S.G. § 1B1.13. The policy statement then explains in its commentary that extraordinary and compelling reasons can mean one of three things.
Relevant here, the first is the medical condition of the defendant, which, inter alia , confers eligibility for a reduction on defendants "suffering from a terminal illness (i.e. , a serious and advanced illness with an end of life trajectory)." Id. § 1B1.13 Application Note 1(A)(i). The policy statement explains that "[a] specific prognosis of life expectancy ... is not required," and lists as examples of qualifying illnesses "metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia." Id. Alternatively, extraordinary and compelling reasons may also exist where a defendant is "suffering from a serious physical or medical condition ... 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." Id. § 1B1.13 Application Note 1(A)(ii).
Courts may only grant a defendant's motion under 18 U.S.C. § 3582(c)(1)(a), however, "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."
III. DISCUSSION
A. Exhaustion of Administrative Remedies
The Government first argues that "[t]he Court must deny the Defendant's motion, because the Defendant has failed to establish that he has exhausted all administrative remedies." DE 310 at 3. Defendant seems to concede that he has failed to exhaust his administrative remedies because he argues that he should be excused from doing so under the circumstances. The Court finds, however, that Defendant's failure to fully exhaust his administrative remedies is irrelevant in this case because he satisfies the alternative condition of 18 U.S.C. § 3582(c)(1)(A). That is, more than 30 days have passed since the receipt by the warden of Defendant's facility of Defendant's request for compassionate release. As another District Court has explained:
Importantly, § 3582(c)(1)(A) does not contain an exhaustion requirement in the traditional sense. That is, the statute does not necessarily require the moving defendant to fully litigate his claim before the agency (i.e., the BOP) before bringing his petition to court. Rather, it requires the defendant either to exhaust administrative remedies or simply to wait 30 days after serving his petition on the warden of his facility before filing a motion in court.
United States v. Haney, 19-CR-541 (JSR), 454 F.Supp.3d 316, 321 (S.D.N.Y. Apr. 13, 2020) (emphasis in original). Here, Defendant submitted a request to the warden of his facility on April 8, 2020, which was denied on April 15, 2020. DE 305 at 20. Thus, the instant Motion is now ripe for review.
B. "Extraordinary and Compelling Reasons" Warranting a Reduction
Defendant asserts in his Motion that he has been diagnosed with stage IV pulmonary sarcoidosis, an irreversible condition characterized by the scarring of lung tissue . DE 305 at 2. Medical records provided by Defendant corroborate this diagnosis and his multiple hospitalizations related to same. See id. at 13 (noting that Defendant's medical history includes pulmonary sarcoidosis, "likely stage IV."). An October 26, 2018 CT scan noted "[e]xtensive pulmonary fibrosis and interstitial changes consistent with sarcoidosis." Id. at 8. Additionally, Defendant's medical condition was described after an April 10, 2018 examination as being "very complicated" and "requir[ing] aggressive medical care and follow-up," including consideration of lung transplantation due to Defendant's "end-stage lung disease." Id. at 9. See also id. at 11 (noting "[e]xtensive bilateral pulmonary lesions" and recommending "[r]espiratory precautions."). Based on this severe respiratory condition, Defendant asserts that he is at a greatly increased risk of death due to COVID-19 if he contracts the virus, DE 305 at 2, and that he is at increased risk of contracting the virus because his respiratory condition renders it difficult for him to breathe if he wears a face mask . DE 309 at 2.
The Government does not dispute either the existence of Defendant's medical condition or the increased risk of death it will present should he contract COVID-19. Rather, the Government: (1) cites an April 15, 2020 opinion of a physician's assistant that Defendant's sarcoidosis is "under control," DE 310-1; (2) argues that Defendant does not qualify for compassionate release because there is no evidence that Defendant is suffering from any of the conditions listed in the Sentencing Commission's policy statement found in U.S.S.G. § 1B1.13, DE 310 at 5; and (3) asserts that, as of the date of its Response (May 11, 2020), "no one in the general population of Defendant's BOP facility has tested positive for Covid-19." Id. at 6.
First, as noted above, the Sentencing Commission's policy statement specifically lists "end-stage organ disease" as an example of a terminal illness that may constitute an "extraordinary and compelling reason" justifying compassionate release. Id. § 1B1.13 Application Note 1(A)(i). And Defendant has submitted ample evidence of his "end-stage lung disease." DE 305 at 9. While the Government vaguely claims that Defendant's condition is "under control," it fails to elaborate on this conclusion, provide the basis for same, or address Defendant's evidence that his medical condition is in fact dire. And since the Government noted in its May 11th response that no inmates at Defendant's facility had tested positive for COVID-19, updated information from the BOP now shows that one week later, thirty inmates have tested positive . See Fed. Bureau of Prisons, Coronavirus , www.bop.gov/coronavirus/. Accordingly, the Court concludes that Defendant suffers from a terminal illness as described in the relevant Sentencing Commission policy statement that, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify his sentence.
In the alternative, the Court finds that Defendant also qualifies for compassionate release based on the Sentencing Commission's definition of a "serious physical or medical condition." U.S.S.G. § 1B1.13 Application Note 1(A)(ii). Defendant's condition is undoubtedly serious and, given that he has sustained permanent lung damage, is not one from which he is expected to recover. Additionally, Defendant's inability to wear a face mask due to his condition shows that his ability to provide self-care within the prison environment has been substantially diminished.
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C. Section 3142(g) and Section 3553(a) Evaluation
Next, the Court must evaluate whether Defendant is a danger to the safety of others or the community under 18 U.S.C. § 3142(g). In making this determination, courts should consider (1) "the nature and circumstances of the offense charged;" (2) "the weight of the evidence against the person;" (3) "the history and characteristics of the person;" and (4) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g). The Government does not argue that Defendant is a danger to the safety of others or the community and, after considering these factors, the Court finds that Defendant is not a danger to the community. Defendant was convicted of a non-violent drug offense in 2012, and he has no history of committing violent offenses.
Finally, the Court must consider "the factors set forth in section 3553(a) to the extent that they are applicable." 18 U.S.C § 3582(c)(1)(A). The relevant factors include: "(1) the nature and circumstances of the offense and the history and characteristics of the defendant," as well as "(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; [and] (C) to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a). In addition, the Court must consider "the need to avoid unwarranted sentence disparities among defendants with similar records." § 3553(a)(6). Upon consideration of these factors, and given Defendant's medical condition and the fact that he has served over eight years of his sentence and is expected to be released in approximately six years, the Court finds that a reduced sentence satisfies the purposes of punishment under § 3553(a)(2) and modification of Defendant's sentence is warranted under 18 U.S.C. § 3582(c).
IV. CONCLUSION
For the foregoing reasons, the Court finds that Defendant is eligible for compassionate release under the First Step Act. Accordingly, it is
ORDERED AND ADJUDGED as follows:
1. Defendant Travis McGhee's Motion for Compassionate Release and/or Reduction in Sentence in the Wake of the COVID-19 Pandemic [DE 305] is GRANTED .
2. Defendant's sentence is hereby MODIFIED as follows:
a. Defendant's sentence is reduced to time served, effective immediately, followed by three years of supervised release, including, as an additional special condition of supervised release, a 24-month period of home confinement without electronic monitoring. He will be allowed to leave the home only for medical reasons. All other terms and conditions of supervision that were originally imposed remain unchanged. Defendant must report in person to the United States Probation Office within 72 hours of his release.
b. The Federal Bureau of Prisons is directed to release Defendant immediately after the United States Probation Office approves his release plan.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 18th day of May, 2020.