Opinion
No. 1:18-cr-00219-DAD-BAM-4
04-14-2021
UNITED STATES OF AMERICA, Plaintiff, v. MARK RODNEY NOBLE, Defendant.
ORDER DENYING DEFENDANT NOBLE'S MOTION FOR MODIFICATION OF SENTENCE UNDER 18 U.S.C § 3582(c)(1)(A)
(Doc. Nos. 246, 260)
Pending before the court is a motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) brought on behalf of defendant Mark Rodney Noble. (Doc. No. 246.) That motion is based in part on the purported risks allegedly posed to defendant Noble by the ongoing coronavirus ("COVID-19") pandemic. For the reasons explained below, defendant's motion will be denied.
BACKGROUND
On September 27, 2018, an indictment was returned charging defendant Noble with two counts: (1) conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951; and (2) interference with commerce by robbery in violation of 18 U.S.C. § 1951. (Doc. No. 1.) On February 24, 2020, defendant entered a plea of guilty to Count 2 of the indictment pursuant to a plea agreement. (Doc. Nos. 106, 114.) On August 24, 2020, the court sentenced defendant to 48 months imprisonment in the custody of the U.S. Bureau of Prisons ("BOP"), to be followed by a 36-month term of supervised release. (Doc. Nos. 220, 223.) The court also imposed the mandatory $100 special assessment and ordered defendant to make restitution to a victim of his criminal conduct in the amount of $2,000. (Id.)
Following his initial appearance in this court, defendant Noble was ordered detained as posing a danger to the community pursuant to 18 U.S.C. § 3142(e) and (i). (Doc. Nos. 45, 46.) Thereafter, on April 29, 2019, the undersigned denied defendant Noble's motion to revoke the detention order and he remained detained pending trial. (Doc. No. 78.) Finally, on April 10, 2020, when the spread of COVID-19 had reached its peak at the Lerdo Detention Center where defendant Noble had been detained, the undersigned granted his motion to reconsider his bail status and ordered him released on a $75,000 appearance bond, with a third party custodian and numerous other conditions including confinement to his residence except as pre-approved by his supervising Pretrial Services Officer. (Doc. Nos. 140, 143, 144.) On August 24, 2020, defendant Noble was sentenced in this case and ordered to voluntarily surrender into custody on November 18, 2020. (Doc. No. 220.) Less than three months after his surrender into custody, defendant Noble filed this motion to vacate and reduce his sentence. (Doc. No. 246.)
Defendant is currently serving his sentence at Metropolitan Correctional Center, Chicago ("MCC Chicago") in Chicago, Illinois. (Doc. Nos. 246 at 3-4; 249 at 9.) Accounting for the award of good time credits and time served prior to sentencing while detained, defendant Noble has a current projected release date of February 13, 2022. (Doc. Nos. 249 at 9; 249-1 at 4; 260 at 6.) Defendant has thus served approximately 30.5 months (64%) of his full custodial sentence. (Id.)
On February 2, 2021, defendant filed the pending motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc. No. 246.) On February 18, 2021, the government filed its opposition to the motion, and on March 19, 2021, defendant filed his reply thereto. (Doc. Nos. 249, 260.)
LEGAL STANDARD
A court generally "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 824 (2010) ("'[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment' and may not be modified by a district court except in limited circumstances."). Those limited circumstances include compassionate release in extraordinary cases. See United States v. Holden, 452 F. Supp. 3d 964, 968 (D. Or. 2020). Prior to the enactment of the First Step Act of 2018 ("the FSA"), motions for compassionate release could only be filed by the BOP. 18 U.S.C. § 3582(c)(1)(A) (2002). Under the FSA, however, imprisoned defendants may now bring their own motions for compassionate release in the district court. 18 U.S.C. § 3582(c)(1)(A) (2018). In this regard, the FSA specifically provides that a court may
upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if it finds that -18 U.S.C. § 3582(c)(1)(A)(i) and (ii).
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
If the BOP denies a defendant's request within 30 days of receipt of such a request, the defendant must appeal that denial to the BOP's "Regional Director within 20 calendar days of the date the Warden signed the response." 28 C.F.R. § 542.15(a). If the regional director denies a defendant's administrative appeal, the defendant must appeal again to the BOP's "General Counsel within 30 calendar days of the date the Regional Director signed." Id. "Appeal to the General Counsel is the final administrative appeal." Id. When the final administrative appeal is resolved, a defendant has "fully exhausted all administrative rights." See 18 U.S.C. § 3582(c)(1)(A).
Under 18 U.S.C. § 3624(c)(2), the BOP may release an incarcerated defendant to home confinement "for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months." The Coronavirus Aid, Relief, and Economic Security Act ("the CARES Act"), Pub. L. 116-136, expands the BOP's authority to release incarcerated defendants without judicial intervention. The CARES Act allows the BOP to "lengthen the maximum amount of time" for which a prisoner may be placed in home confinement under § 3624(c)(2) "as the Director determines appropriate," assuming "the Attorney General finds that emergency conditions will materially affect the functioning" of the BOP. CARES Act, Pub. L. 116-136, Div. B, Title II, § 12003(b)(2) (2020). However, the BOP's authority in this regard is limited to "the covered emergency period." Id. The BOP's authority expires "30 days after the date on which the national emergency declaration terminates." Id. § 12003(a)(2). After the CARES Act was enacted, the Attorney General issued a memo instructing the BOP to "immediately review all inmates who have COVID-19 risk factors" beginning with those who are housed at facilities where "COVID-19 is materially affecting operations." Office of Att'y Gen., Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020). The BOP has acted on the Attorney General's guidance, including one case in which a sentenced prisoner was released to home confinement after serving less than half his sentence from a facility that reported no positive COVID-19 cases at the time of his release. See Hannah Albarazi, Paul Manafort Seeks Prison Release Over COVID-19 Fears, Law360 (Apr. 14, 2020), https://www.law360.com/articles/1263706/paul-manafort-seeks-prison-release-over-covid-19-fears (noting that the prisoner's counsel had argued that the CARES Act "broadens the authority" of the BOP to release prisoners to home confinement); Khorri Atkinson, Paul Manafort Released From Prison Amid COVID-19 Fears, Law360 (May 13, 2020), https://www.law360.com/articles/1273090/paul-manafort-released-from-prison-amid-covid-19-fears.
The applicable policy statement with respect to compassionate release in the U.S. Sentencing Guidelines sets out criteria and circumstances describing "extraordinary and compelling reasons." U.S. Sent'g Guidelines Manual ("U.S.S.G.") § 1B1.13 (U.S. Sent'g Comm'n 2018); see also United States v. Gonzalez, 451 F. Supp. 3d 1194, 1197 (E.D. Wash. 2020) (noting that many courts have relied on U.S.S.G. § 1B1.13 to define "extraordinary and compelling reasons," even though that policy statement was issued before Congress passed the FSA and authorized defendants to file compassionate release motions). However, the Ninth Circuit recently held "that the current version of U.S.S.G. § 1B1.13 is not an 'applicable policy statement[ ]' for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant." United States v. Aruda, ___F.3d___, No. 20-10245, 2021 WL 1307884, at *4 (9th Cir. Apr. 8, 2021). "In other words, the Sentencing Commission has not yet issued a policy statement 'applicable' to § 3582(c)(1)(A) motions filed by a defendant." Id. The Ninth Circuit clarified that "[t]he Sentencing Commission's statements in U.S.S.G. § 1B1.13 may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding." Id. (citing United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020)).
According to U.S.S.G. § 1B1.13(2), to be granted a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A), the defendant must not pose "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). However, as the Ninth Circuit recently clarified, "[t]his dangerousness finding is not statutorily required under 18 U.S.C. § 3582(c)(1)(A)(i), but [it] is part of the Sentencing Commission's policy statement in U.S.S.G. § 1B1.13(2)." Aruda, 2021 WL 1307884, at *2.
In so holding, the Ninth Circuit joined the five other circuits who have addressed this issue and have unanimously held "that U.S.S.G. § 1B1.13 only applies to § 3582(c)(1)(A) motions filed by the BOP Director, and does not apply to § 3582(c)(1)(A) motions filed by a defendant." Id.; see, e.g., United States v. Brooker (Zullo), 976 F.3d 228, 237 (2d Cir. 2020) ("[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release. Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court's discretion."); United States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020) ("In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define 'extraordinary and compelling' without consulting the policy statement § 1B1.13."); Gunn, 980 F.3d at 1181 ("[T]he Guidelines Manual lacks an 'applicable' policy statement covering prisoner-initiated applications for compassionate release. District judges must operate under the statutory criteria—'extraordinary and compelling reasons'—subject to deferential appellate review."); United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020) ( "In short, we agree with the Second Circuit and the emerging consensus in the district courts: There is as of now no 'applicable' policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are 'empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.'") (citation omitted); United States v. Maumau, ___ F.3d ___, 2021 WL 1217855, at *12 (10th Cir. Apr. 1, 2021) ("We therefore agree with the district court that under the second part of § 3582(c)(1)(A)'s test, its finding that extraordinary and compelling reasons warranted a reduction in Maumau's case was not constrained by the Sentencing Commission's existing policy statement, U.S.S.G. § 1B1.13.").
In the past, when moving for relief under 18 U.S.C. § 3582(c), it was recognized that the defendant bore the initial burden of demonstrating that a sentence reduction was warranted. See United States v. Sprague, 135 F.3d 1301, 1306-07 (9th Cir. 1998). Although the Ninth Circuit has not specifically addressed the question of which party bears the burden in the context of a motion for compassionate release brought pursuant to § 3582(c) as amended by the FSA, district courts to have done so agree that the burden remains with the defendant. See, e.g., United States v. Greenhut, No. 2:18-cr-00048-CAS, 2020 WL 509385, *1 (C.D. Cal. Jan. 31, 2020); United States v. Van Sickle, No. 18-cr-0250-JLR, 2020 WL 2219496, *3 (W.D. Wash. May 7, 2020).
ANALYSIS
As district courts have summarized, in analyzing whether a defendant is entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), the court must determine whether a defendant has satisfied three requirements:
First, as a threshold matter, the statute requires defendants to exhaust administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Second, a district court may grant compassionate release only if "extraordinary and compelling reasons warrant such a reduction" and "that such reduction is consistent with applicable policy statements issued by the Sentencing Commission. Id. Third, the district court must also consider "the factors set forth in Section 3553(a) to the extent that they are applicable." Id.United States v. Rodriguez, 424 F. Supp. 3d 674, 680 (N.D. Cal. 2019); see also United States v. Ramirez-Suarez, No. 16-cr-00124-LHK-4, 2020 WL 3869181, at *2 (N.D. Cal. July 9, 2020); United States v. Parker, 461 F. Supp. 3d 966, 970 (C.D. Cal. 2020); United States v. Trent, No. 16-cr-00178-CRB-1, 2020 WL 1812242, at *2 (N.D. Cal. Apr. 9, 2020) (noting that as to the third factor, under 18 U.S.C. § 3582(c)(1)(A) release must be "consistent with" the sentencing factors set forth in § 3553(a)).
A. Administrative Exhaustion
In his pending motion, defendant asserts that he exhausted his administrative remedies prior to filing the pending motion for relief under § 3582 because he "requested compassionate release from the warden at MCC [Chicago] and has been totally ignored," and "the [w]arden merely refused to respond to [his] request." (Doc. No. 246 at 6.) Specifically, defendant represents that "on December 19, 2020, [defendant] submitted a request to Warden Heisner and to his case manager, requesting compassionate release, explaining the reasons for the request, and a release plan, which to date has been ignored." (Id. at 8.) However, as the government points out in its opposition, defendant did not attach a copy of any such administrative request as an exhibit to his pending motion. (Doc. No. 249 at 10.) According to the government, as of February 18, 2021—the date of the government's opposition—the BOP had no record of defendant submitting an administrative request for compassionate release or reduction in his sentence to any BOP staff. (Id.)
In response, defendant has attached a copy of a request for compassionate release that was received by a unit manager at MCC Chicago on February 20, 2021—two days after the government filed its opposition to the pending motion—and that was received by the warden at that prison on March 10, 2021. (Doc. No. 260-1 at 2.) Defendant also has attached a copy of the warden's response, dated March 12, 2021, which advised defendant that his request had been given careful review and was being denied because he did not qualify for a reduction of his sentence under "section 3, Elderly with Medical Condition," given his current age of 34 years old. (Id. at 1.) Defendant emphasizes that the warden did not address his reasons for seeking compassionate release but rather his request was denied based solely on his age and without any specific explanation as to defendant's risk of harm if he were to contract COVID-19, in light of his history of suffering from asthma. (Id. at 3-4.) Accordingly, defendant contends that any meaningful appeal of the warden's denial was frustrated and that the administrative exhaustion requirement should therefore be excused in this instance. (Id. at 3-5.)
The court declines to decide in this case whether a failure to satisfy the administrative exhaustion requirement can be excused and, if so, under what circumstances. See, e.g., United States v. Connell, No. 18-cr-00281-RS, 2020 WL 2315858 (N.D. Cal. May 8, 2020) (finding that administrative exhaustion under § 3582(c)(1)(A) can be excused); United States v. Meron, No. 2:18-cr-0209-KJM, 2020 WL 1873900 (E.D. Cal. Apr. 15, 2020) (holding that the exhaustion requirement is jurisdictional and cannot be excused under any circumstances). Rather, for the reasons explained below, the court finds that defendant Noble has, in any event, not established that extraordinary and compelling reasons warrant his compassionate release. The court also concludes that the requested reduction in defendant's sentence would be inconsistent with consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a). Declining to address whether defendant has satisfied the administrative exhaustion requirement under § 3582(c)(1)(A) or may be relieved of the obligation to do so, the court instead turns to the merits of the pending motion.
In cases where the filing of an otherwise meritorious motion for compassionate release precedes administrative exhaustion, some courts have stayed compassionate release until 30 days have lapsed from the BOP's receipt of the unanswered request. See United States v. Krashna, 465 F. Supp. 3d 988, 991 (N.D. Cal. 2020) (staying compassionate release pending exhaustion); United States v. Reid, No. 17-cr-00175-CRB-1, 2020 WL 1904598, at *4 (N.D. Cal. Apr. 18, 2020) (same); United States v. Route, 458 F. Supp. 3d 1285, 1290 (W.D. Wash. 2020) ("[T]he Court finds that a stay best favors the interests of judicial economy in this instance."). However, no such stay is warranted in this case because the court will deny defendant Noble's motion for compassionate release on the merits.
B. Extraordinary and Compelling Reasons
According to the Sentencing Commission's policy statement, "extraordinary and compelling reasons" warranting compassionate release may exist based on a defendant's medical conditions, age and other related factors, family circumstances, or "other reasons." U.S.S.G. § 1B1.13, cmt. n.1 (A)-(D). As addressed above, even though the catch-all of "other reasons" was included in the policy statement at a time when only the BOP could bring a compassionate release motion, courts have agreed that it may be relied upon by defendants bringing their own motions for reductions in their sentence under the FSA. See, e.g., United States v. Kesoyan, No. 2:15-cr-00236-JAM, 2020 WL 2039028, at *3-4 (E.D. Cal. Apr. 28, 2020) (collecting cases.)
The medical condition of a defendant may warrant the granting of compassionate release by the court where the defendant "is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory)," though "[a] specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required." U.S.S.G. § 1B1.13, cmt. n.1(A)(i). Non-exhaustive examples of terminal illnesses that may warrant a compassionate release "include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia." Id. In addition to terminal illnesses, a defendant's debilitating physical or mental condition may warrant compassionate release, including when:
The defendant isId. at cmt. n.1(A)(ii). Where a defendant has moderate medical issues that otherwise might not be sufficient to warrant compassionate release under ordinary circumstances, many courts have concluded that the risks posed by COVID-19 may tip the scale in favor of release when the particular circumstances of a case are considered in their totality. See, e.g., Parker, 461 F. Supp. 3d at 980 ("Since the onset of the COVID-19 pandemic, courts have determined that inmates suffering from conditions such as hypertension and diabetes are now at an even greater risk of deteriorating health, presenting 'extraordinary and compelling' circumstances that may justify compassionate release.") (collecting cases); United States v. Rodriguez, 451 F. Supp. 3d 392, 405 (E.D. Pa. 2020) ("Without the COVID-19 pandemic—an undeniably extraordinary event—Mr. Rodriguez's health problems, proximity to his release date, and rehabilitation would not present extraordinary and compelling reasons to reduce his sentence. But taken together, they warrant reducing his sentence.").
(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.
Compassionate release may also be warranted based on a defendant's age and other related factors. Thus, "extraordinary and compelling reasons" exist where a "defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less." U.S.S.G. § 1B1.13, cmt. n.1(B). /////
Here, however, because defendant Noble is only 34 years old (Doc. No. 249 at 18), his age and age-related factors do not play a role in consideration of his pending motion.
In his motion, defendant argues that extraordinary and compelling reasons warranting reduction of his custodial sentence exist because: (1) he "has faced a lifelong battle with asthma and faces the likelihood of a bad outcome if he contracts COVID-19," and (2) the BOP has failed to prevent the spread of COVID-19 at MCC Chicago, an overcrowded facility with dormitory style housing, limited supply of bar soap, and irregular distribution of cloth masks. (Doc. No. 246 at 15, 16, 22, 23.) Defendant's motion focuses on BOP's overall response to the COVID-19 pandemic from early Spring 2020, BOP's response to COVID-19 at MCC Chicago, including its testing policy, cleaning/sanitizing practices, and outbreaks that predated defendant Noble's arrival at MCC Chicago. (Id. at 11-24.) But defendant does not describe his personal experiences in MCC Chicago in this regard. For example, defendant asserts in conclusory fashion that MCC Chicago provides inadequate healthcare to inmates and that routine healthcare requests are not attended to, but defendant does not represent that he has ever requested healthcare from MCC Chicago or that any such request was ignored by staff at MCC Chicago. (Id. at 24.) Although defendant states that he "has gone without his inhaler medicine, sometimes for weeks, during the pandemic" (id.), defendant does not explain why he has gone without his inhaler, let alone that MCC Chicago was responsible for him not having his inhaler during those times. Indeed, defendant does not even specify that this happened while he was in custody at MCC Chicago.
The court notes that at his sentencing defendant Noble requested that the court recommend to the Bureau of Prisons that he be designated to serve his sentence at a Bureau of Prisons facility as near as possible to his home in Chicago. The court made the defense requested recommendation to the extent it was consistent with security classification and space availability. (See Doc. Nos. 222 at 28; 223 at 2.) The Bureau of Prisons followed the recommendation requested by defendant Noble resulting in MCC Chicago becoming his place of imprisonment. The court also notes that it was fully aware of defendant Noble's reported history of suffering from asthma because he argued for a downward departure based upon that condition and the issues that COVID-19 posed in Bureau of Prison's facilities at the time of his sentencing. (Doc. No. 210 at 1-6.)
In its opposition to the pending motion, the government argues that the mere existence of COVID-19 in society or in the correctional institution where defendant Noble is imprisoned is not an extraordinary and compelling reason justifying the granting of the requested relief. (Doc. No. 249 at 17.) The government also maintains that defendant Noble is receiving treatment for his asthma at MCC Chicago. (Id. at 9-10.) Although the government does not dispute that defendant suffers from asthma, the government points to defendant's BOP medical records, which reflect that defendant's asthma is being treated. (Id. at 9-10; Doc. No. 253-sealed at 1, 4, 10, 33, 48, 55.) The government also emphasizes that defendant has been tested for COVID-19 twice since he arrived at MCC Chicago just a few months ago in December 2020, and both tests returned negative results. (Doc. Nos. 249 at 10; 253-sealed at 48.) Moreover, despite defendant's alleged concerns regarding the risks posed to him if he were to contract COVID-19, according to his medical records, defendant was offered the Moderna vaccine on January 21, 2021, and refused to receive it. (Doc. Nos. 253-sealed at 51; 249 at 10.) The government acknowledged that defendant has the right not to avail himself of medical treatment, including the vaccine that was offered to him by MCC Chicago. (Doc. No. 249 at 18.) But the government notes that several district courts have recognized that an inmate's refusal to get a vaccine when offered the opportunity to do so substantially undermines that inmate's motion for compassionate release where the motion is based on the threat of contracting COVID-19. (Id. at 18-19) (citing cases).
In his reply, defendant explains that he refused the Moderna vaccine at that time because MCC Chicago did not provide him with any information about the risks associated with the vaccine, and in particular, how the vaccine would impact his asthma. (Doc. No. 260 at 1-2.) Defendant explains that he was concerned because some medications triggered asthma attacks when he was a child. (Id.)
Here, the court finds that although defendant's history of asthma may increase his risk of suffering severe illness if he were to be infected with COVID-19, he has clearly not shown that MCC Chicago is unable to monitor and adequately treat his asthma. See United States v. Ayon-Nunez, No. 1:16-cr-00130-DAD, 2020 WL 704785, at *3 (E.D. Cal. Feb. 12, 2020) ("Chronic conditions that can be managed in prison are not a sufficient basis for compassionate release.") (internal quotation marks and citation omitted); see also United States v. McCollough, No. 15-cr-00336-001-PHX-DLR, 2020 WL 2812841, at *2 (D. Ariz. May 29, 2020) (relevant questions include the adequacy of the care and treatment being provided to the defendant in BOP given his pre-existing conditions and concluding there was no evidence that the circumstances surrounding his health or treatment were extraordinary or compelling.). Moreover, defendant is an otherwise healthy, young man. Notably, defendant does not dispute that MCC Chicago is treating his asthma, as reflected in his medical records. Indeed, defendant has made no showing whatsoever that he is being denied necessary treatment or prescriptions or that necessary treatment of his asthma is being delayed in any way. See, e.g., United States v. Gorai, No. 2:18-cr-00220-JCM, 2020 WL 1975372, at *3 (D. Nev. Apr. 24, 2020) (finding that defendant "has been unable to self-care in a BOP facility already overburdened by its COVID-19 response" where defendant could not receive breathing treatments to clear his lungs as required to treat his asthma, despite repeated requests for them); United States v. Adeyemi, No. 06-cr-124, 2020 WL 3642478, at *19 (E.D. Pa. July 6, 2020) (finding no extraordinary and compelling reason even though a potential lag in medication prescription refills of defendant's inhaler might impact his ability to self-manage his mild asthma). Defendant Noble has not persuasively argued or presented any evidence establishing that the conditions he is currently facing at MCC Chicago render him unable to adequately provide for his self-care.
The court also notes that according to BOP's website, as of April 13, 2021, MCC Chicago reported only one inmate and 41 staff members with active positive tests for COVID-19. See Federal Bureau of Prisons, COVID-19 Coronavirus, available at www.bop.gov/coronavirus/ (last visited Apr. 13, 2021). In addition, BOP's website provides data on the number of staff and inmates that have received "full inoculations" (meaning both doses of a vaccine have been administered), and according to that data, MCC Chicago has 130 staff members and 250 inmates fully inoculated as of April 13, 2021. (Id.)
The undersigned does not necessarily accept these reported numbers at face value given the manner in which the CDC guidelines apparently allow for individuals to be counted as recovered from the virus without confirming test results. However, there is also no evidence before the court contradicting those reported numbers.
In light of all of the above, the court concludes that although defendant Noble suffers from asthma, a medical condition that may place him at higher risk of becoming seriously ill if he were to be infected by COVID-19, he has not met his burden of demonstrating extraordinary and compelling reasons for compassionate release under § 3582(c)(1)(A). Therefore, his motion for compassionate release will be denied.
C. Consistency With the § 3553(a) Factors
Finally, even if defendant Noble's motion were supported by a showing of extraordinary and compelling reasons for his compassionate release, the undersigned is not persuaded that the requested reduction in his sentence would be consistent with consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a). See Parker, 461 F. Supp. 3d at 979.
Title 18 U.S.C. § 3553(a) provides that, in determining the sentence to be imposed, the court shall consider: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence, protect the public from further crimes of the defendant and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; the kinds of sentences available; the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines; any pertinent policy statement issued by the Sentencing Commission; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense.
Defendant does not address the § 3553(a) sentencing factors at all in his pending motion. In his reply, defendant merely asserts that he is not a threat to public safety, as shown by the court ordering him released to home confinement under Pretrial Services supervision while he awaited his change of plea proceeding and subsequent sentencing. (Doc. No. 260 at 5-6.) In addition, defendant asserts that he "not only followed every condition that was placed on him during his home confinement, he [also] managed to be productive and assist his family." (Id. at 6.)
In its opposition, the government argues that defendant poses a continuing danger to public safety, as shown by the nature and circumstances of his criminal offense, i.e., his participation in a horrific armed robbery in which victims were tied up and beaten, one assailant died while fleeing police in a high-speed chase, and 105 pounds of marijuana and about $27,000 in cash were stolen. (Doc. No. 249 at 20-21.) The government also contends that defendant's purported rehabilitation, in the form of his good behavior while on home confinement and during his brief period of confinement at MCC Chicago, is not sufficient to warrant a reduction of his sentence. (Id. at 21.) /////
As noted above, defendant is currently serving a 48-month sentence of imprisonment following his entry of a plea of guilty to interference with commerce by robbery in violation of 18 U.S.C. § 1951. (Doc. Nos. 220, 223.) With his early acceptance of responsibility, the U.S. Probation Office determined that defendant's total offense level was 25 and his criminal history was I, resulting in an advisory sentencing range calling for a term of imprisonment of between 57 and 71 months. (Doc. No. 222 at 14, 16, 21.) The probation officer recommended a low-end of the guideline range sentence of 57 months in BOP custody. (Id. at 25.) The undersigned relied upon its careful consideration of the § 3553(a) factors in varying downward from the advisory sentencing guideline range and sentenced defendant to a 48-month term of imprisonment. (Doc. Nos. 220, 223.) Specifically, in finding a downward variance appropriate in defendant Noble's case the court took into account his work and education history, his lack of prior criminal record, the need to avoid unwarranted sentencing disparity among the various defendants and the fact that he had served 19 ½ months in local confinement the last month of which was served under even more difficult circumstances than usual due to the surge in COVID-19 infections at the Lerdo Detention facility. The sentence ultimately imposed by the court in light of these circumstances was significantly less than the low-end of the applicable guideline range as calculated in the presentence report. In short, defendant Noble received what can be fairly characterized as a lenient sentence given the seriousness of his criminal conduct in this case.
Despite the leniency shown to defendant at the time of his sentence, the court agrees with the government that the nature and circumstances of defendant's offense of conviction were quite serious and clearly suggest that defendant poses a danger to the safety of the community. For his part, defendant rests solely on the facts that the court eventually, in the face of a then raging COVID-19 pandemic that had infiltrated the detention facilities located within this district, had ordered him released on bond prior to his plea and sentencing on various conditions including Pretrial Services supervision with a home confinement condition. Most importantly, the court fully and carefully considered the § 3553(a) sentencing factors when it imposed defendant's sentence a mere seven months ago in August 2020. Defendant has failed to show that a reduction ///// in his sentence at this time would be consistent with consideration of those factors only seven months later.
The court recognizes that defendant has served approximately 64% of his custodial sentence, and that "'[t]he length of the sentence remaining is an additional factor to consider in any compassionate release analysis,' with a longer remaining sentence weighing against granting any such motion." United States v. Shayota, No. 1:15-cr-00264-LHK-1, 2020 WL 2733993, at *6 (N.D. Cal. May 26, 2020) (quoting United States v. Connell, No. 18-cr-00281-RS, 2020 WL 2315858, at *6 (N.D. Cal. May 8, 2020)); see also United States v. Lonich, No. 1:14-cr-00139-SI-1, 2020 WL 2614874, at *3 (N.D. Cal. May 21, 2020) (denying motions for compassionate release, noting, "the Court finds it significant that defendants have served far less than half of their sentences"). Nevertheless, in the court's view, considering that defendant already received a well below-guideline range sentence, a reduction of defendant's 48-month custodial sentence to effectively one of approximately 31 months would not adequately reflect the seriousness of his offense of conviction, promote respect for the law, provide just punishment, or afford adequate deterrence to criminal conduct. See United States v. Purry, No. 2:14-cr-00332-JAD-VCF, 2020 WL 2773477, at *2 (D. Nev. May 28, 2020); Shayota, 2020 WL 2733993 at *5; 18 U.S.C. § 3553(a).
In the pending motion, defendant also appears to ask the court to release him on home confinement. (See Doc. No. 246 at 1.) However, the CARES Act "'authorizes the BOP—not courts—to expand the use of home confinement' under 18 U.S.C. § 3624(c)(2)." United States v. Fantz, No. 5:14-cr-32-BR, 2020 WL 3492028, at *1 (E.D.N.C. June 26, 2020) (quoting United States v. Nash, No. 19-40022-01-DDC, 2020 WL 1974305, at *2 (D. Kan. Apr. 24, 2020) (collecting cases)); see also United States v. Rice, No. 12-cr-818-PJH, 2020 WL 3402274, at *4 (N.D. Cal. June 19, 2020) (denying a defendant's request for release to home confinement made in conjunction with his motion for compassionate release because "the court has no authority to designate the place of confinement" because the "Bureau of Prisons has the statutory authority to choose the locations where prisoners serve their sentence."); United States v. Gray, No. 4:12-cr-54-FL-1, 2020 WL 1943476, at *3 (E.D.N.C. Apr. 22, 2020) (holding that the CARES Act "does not authorize the court to order defendant's placement in home confinement"). The district court may only impose home detention as a condition of supervised release, rather than as part of a sentence of imprisonment. See Connell, 2020 WL 2315858, at *5 n.6 & *7. Accordingly, to do as defendant requests, the court would be required to reduce his sentence to one of time served (i.e. approximately 31 months) and modify the conditions of his term of supervised release to include approximately 17 months of home confinement. The court is unwilling to do so for the reasons set forth above.
Thus, on balance, the court finds that granting defendant's motion and reducing his sentence to time served would not be consistent with the § 3553(a) sentencing factors.
CONCLUSION
Because defendant Noble has failed to demonstrate that "extraordinary and compelling" reasons exist justifying a reduction of his sentence under 18 U.S.C. § 3582 (c)(1)(A) or that such a reduction at this time would be consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a), his motion for compassionate release (Doc. No. 246) is denied. IT IS SO ORDERED.
Dated: April 14 , 2021
/s/_________
UNITED STATES DISTRICT JUDGE