Opinion
CRIMINAL NO. 07-0298-WS
2020-10-06
UNITED STATES of America v. Nouln SOUN, Defendant.
Adam Wayne Overstreet, Gloria A. Bedwell, Steven E. Butler, U.S. Attorney's Office, Mobile, AL, for United States of America.
Adam Wayne Overstreet, Gloria A. Bedwell, Steven E. Butler, U.S. Attorney's Office, Mobile, AL, for United States of America.
ORDER
WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the defendant's counseled motion for sentence reduction and compassionate release. (Doc. 331). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 323, 331, 334), and the motion is ripe for resolution. After careful consideration, the Court concludes that the motion is due to be granted.
The defendant initially filed his motion under seal, (Doc. 319), on the grounds that it "contains medical information of a personal and confidential nature." (Doc. 318). When the defendant was unable to explain why the entirety of his filing should be sealed when only a few pages of his brief (and only two of his ten exhibits) referenced his medical information, the Court ordered him to file an unsealed version redacting only those portions containing his medical information. (Docs. 322, 326). When the defendant sought leave to also redact information regarding his cooperation, (Doc. 328), the Court granted leave. (Doc. 329). The defendant thereafter filed what he styled a "redacted" motion for sentence reduction and compassionate release. (Doc. 331). The defendant, however, made no redactions. Moreover, the defendant improperly made alterations to his initially filed motion. (Id. at 1-2, 5, 6, 7-8, 9, 11, 13). Because the defendant has filed an unsealed motion that is non-identical to his original, sealed motion, his original motion is denied as moot .
The government responded to the original, sealed motion before the defendant filed his unsealed, non-identical motion. (Doc. 323). Because the defendant's alterations work no substantive change to his argument, evidence or requested relief, and because the government has not sought leave to respond separately to the unsealed motion, no further briefing is required.
[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, 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 section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission ....
Relief under this provision, known as "compassionate release," thus contemplates satisfaction of four elements: (1) a proper motion; (2) a finding that extraordinary and compelling reasons for such relief exist; (3) a finding of consistency with Sentencing Commission policy statements; and (4) consideration of the Section 3553(a) factors.
Congress delegated to the Sentencing Commission the task of "describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). The Sentencing Commission has done so. U.S.S.G. 1B1.13. The government explicitly concedes that the defendant's situation reflects an extraordinary and compelling reason as defined by the Sentencing Commission in application note 1(A) of Section 1B1.13. (Doc. 323 at 22 n.4). The government does not dispute that compassionate release would be consistent with Sentencing Commission policy statements, and it offers only a pro forma reference to Section 3553(a). (Id. at 23). Instead, the government devotes its brief to challenging satisfaction of the exhaustion requirement. (Id. at 10-16).
I. Exhaustion.
Section 3582(c)(1)(A) permits a motion for compassionate release to be brought either by the Bureau of Prisons ("BOP") or by the defendant. In this case, as in most, the motion is brought by the defendant. The statute permits the defendant to file such a motion in either of two situations: (1) after exhausting all administrative remedies to appeal the BOP's failure to bring such a motion on his behalf; or (2) after "the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." The defendant relies on the latter of these options.
According to the defendant, the camp administrator required him to file a BP-8 in order to seek compassionate release, and he accordingly did so. (Doc. 334 at 3). When relief was denied, he appealed to the warden using a BP-9, known as a "request for administrative remedy." (Doc. 331-1 at 2). The BP-9 reads as follows: "Warden Reiser, my BP-8 was denied. I now appeal to you pursuant to the CARES Act. I ask that I be placed directly into home confinement. Extraordinary and compelling reasons now exist. (Please see attached)." (Doc. 331-1 at 2). The warden responded as follows:
This is in response to your Request for Administrative Remedy receipted May 14, 2020, in which you are requesting Home Confinement.
You are automatically being considered for recommendation for home confinement under 18 U.S.C. § 3621. Presently, our institution staff are prioritizing review for inmates who qualify for release to home confinement under the United States Attorney General's recent guidance. If you meet this criteria [sic], or if you otherwise qualify for home confinement release, you will be notified by your unit team.
Based on our findings, your Request for Administrative Remedy is denied. If dissatisfied with this response, you may appeal to the Regional Director ....
(Id. at 1).
To be clear: (1) the defendant presented the warden with a document labeled as a "request for administrative remedy"; (2) the request asserted that "extraordinary and compelling reasons now exist"; (3) the request referred the warden to an attachment addressing these extraordinary and compelling reasons; and (4) the warden explicitly denied the request. The government nevertheless argues the document does not constitute a "request" within the contemplation of Section 3582(c)(1)(A) because: (1) it does not employ the term, "compassionate release"; (2) it does not seek a reduction of sentence but a transfer to home confinement; (3) it was not understood or treated by the warden as a request under Section 3582(c)(1)(A) ; and (4) it does not include certain information that BOP requires. The Court considers these arguments in turn.
The attachment to the BP-9 has not been submitted to the Court, but from the language and context of the BP-9, the warden's silence, and the government's failure to argue otherwise, the Court finds that the attachment was presented to the warden and that it described the extraordinary and compelling reasons supporting the defendant's request for relief.
The warden received the defendant's request no later than May 14 and did not respond to it until June 18. (Doc. 331-1 at 1). The government concedes that, if the BP-9 constitutes a "request" within the statute, the defendant satisfied the exhaustion requirement under the 30-day rule of Section 3582(c)(1)(A). (Doc. 323 at 10).
A. "Compassionate Release."
The government identifies no court that has ever rejected a defendant's motion under 3582(c)(1)(A) on the grounds the defendant's request to the warden did not incant the thaumaturgical phrase, "compassionate release." This is hardly surprising, since no such term appears anywhere within Section 3582(c)(1)(A) ; it is instead simply a shorthand manner of describing the relief available under that provision.
More significant is the phrase the defendant did use: "extraordinary and compelling." As far as the Court can determine, the phrase occurs only five times in the United States Code: once in Section 3582(c)(1)(A), twice in Section 994(t), and twice in the bankruptcy context, 11 U.S.C. § 1116(2), (3). It does not appear in 18 U.S.C. § 3624(c)(2), which governs BOP's authority to place a defendant in home confinement of the final months of his prison term, or in Section 12003(b)(2) of the CARES Act, which permits expanded use of such home confinement authority, or in the Attorney General's memoranda of March 26 and April 3, 2020, which implement the authority conferred by Section 12003. Nor does it appear in BOP's regulations regarding home confinement, 28 C.F.R. §§ 570.20 - .21, or in Program Statement 7320.01, which establishes policies and procedures for home confinement. There is, in short, no plausible way to construe a request for relief based on the existence of "extraordinary and compelling reasons" other than as an invocation of Section 3582(c)(1)(A).
B. "Home Confinement."
The government correctly notes that Section 3582(c)(1)(A) permits a court to "reduce the term of imprisonment." The government suggests that a request for home confinement is fatally inconsistent with a request for a reduced term of imprisonment, such that the defendant's request for the former rather than the latter negates a request for compassionate release. Except that Section 3582(c)(1)(A) permits a court to couple a reduced sentence with "a term of probation or supervised release with or without conditions," including home confinement. "Thus, with a few extra steps, a district court can craft a reduced sentence that, for all practical purposes, looks very much like ordering that the defendant be allowed to spend the remainder of his current sentence on home confinement." United States v. Spencer , 2020 WL 5498932 at *2 (6th Cir. 2020) (internal quotes omitted). Indeed, defendants often move for compassionate release to home confinement, and courts often impose home confinement as a condition of compassionate release. At least when the defendant expressly asserts the existence of "extraordinary and compelling reasons" for relief – language that carries no relevant legal significance apart from Section 3582(c)(1)(A) – phrasing the requested relief as home confinement rather than as a reduced sentence cannot reasonably be construed as negating a request for compassionate release.
E.g., United States v. Feiling , 453 F. Supp. 3d 832 (E.D. Va. 2020) ; United States v. Roundtree , 2020 WL 5819541 at *1 (S.D. Fla. 2020) ; United States v. Dison , 2020 WL 2564677 at *1 (S.D. Ala. 2020) ; United States v. Cruz , 455 F. Supp. 3d 154, 156–57 (M.D. Pa. 2020).
E.g., United States v. Fowler , 445 F. Supp. 3d 452, 454 (N.D. Cal. 2020) ; United States v. Davidson , 2020 WL 4877255 at *22-23 (W.D. Pa. 2020) ; United States v. Feucht , 462 F. Supp. 3d 1339, 1343–44, (S.D. Fla. 2020) ; United States v. Rountree , 460 F. Supp. 3d 224, 240–42, (N.D.N.Y. 2020).
The BP-9 states that the defendant appeals the denial of his BP-8 "pursuant to the CARES Act." The CARES Act made no changes to Section 3582(c)(1)(A) but, as noted in text, Section 12003 of the Act permitted expanded use of home confinement under Section 3624(c)(2). The government does not rely on the defendant's reference to the CARES Act as reflecting the lack of a request for compassionate release. Even had the government made such an argument, it would be rejected, given the defendant's explicit urging of "extraordinary and compelling reasons" for relief.
C. Warden's Treatment.
The government insists the warden did not consider the BP-9 to be a request for compassionate release and did not address compassionate release but only home confinement. What the 30-day rule of Section 3582(c)(1)(A) requires as a predicate to a judicial motion is only a request to the warden to bring a compassionate release motion; it does not require a ruling on the request, much less a knowing or informed ruling. To the uncertain extent the government suggests that the warden's mental state and response to the request are relevant to whether the BP-9 in fact constitutes a "request" under the statute, it has identified no authority for the dubious proposition that a request does not satisfy Section 3582(c)(1)(A) unless the warden thinks it does and acts accordingly.
In any event, the government has offered no evidence of the warden's subjective understanding of the BP-9, and his action on the BP-9 is consistent with a denial of compassionate release. The warden did not deny the defendant home confinement under Section 3624(c)(2) ; on the contrary, he expressly kept open the possibility of such relief. Thus, when he denied the request for administrative remedy, he was necessarily denying something other than home confinement under that provision, and the government has suggested nothing else he could have been denying other than the request for compassionate release embedded in the BP-9.
The government has not, for example, submitted an affidavit or declaration from the warden to explain his perception of the BP-9.
As noted in text, home confinement for the final months of a defendant's sentence, as may be granted by BOP, is governed by Section 3624(c)(2). The warden's reference instead to Section 3621 is not easily explained but does not alter the analysis in text.
D. Section 571.61.
(a) A request for a motion under 18 U.S.C. ... 3582(c)(1)(A) shall be submitted to the Warden. .... The inmate's request shall at a minimum contain the following information:
(1) The extraordinary or compelling circumstances that the inmate believes warrant consideration;
(2) Proposed release plans, including where the inmate will reside, how the inmate will support himself/herself, and, if the basis for the request involves the inmate's health, information on where the inmate will receive medical treatment, and how the inmate will pay for such treatment.
28 C.F.R.§ 571.61(a). According to the government, this provision demonstrates that "BOP requires that defendants provide certain ‘minimum’ information before it considers a defendant to have ‘request[ed]’ compassionate release." (Doc. 323 at 15 (emphasis added)).
The government is starting on the wrong foot. The requirement of a "request" to the warden as a predicate to a judicial motion is imposed by Congress in Section 3582(c)(1)(A), not by BOP in Section 571.61, and it is thus the meaning of the term as used in the statute that determines when the requirement is satisfied. "As in any statutory construction case, we start, of course, with the statutory text, and proceed from the understanding that unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning." Sebelius v. Cloer , 569 U.S. 369, 133 S. Ct. 1886, 1893, 185 L.Ed.2d 1003 (2013) (internal quotes omitted). "In determining the ordinary meaning of statutory terms, we often find guidance in dictionary definitions." In re: James , 406 F.3d 1340, 1343 (11th Cir. 2005). The Supreme Court does so as well.
The cases are legion, but recent examples include Yates v. United States , 574 U.S. 528, 135 S. Ct. 1074, 1081, 191 L.Ed.2d 64 (2015) ; Octane Fitness, LLC v. ICON Health & Fitness, Inc. , 572 U.S. 545, 134 S. Ct. 1749, 1756, 188 L.Ed.2d 816 (2014) ; Taniguchi v. Kan Pacific Saipan, Ltd. , 566 U.S. 560, 132 S. Ct. 1997, 2002, 182 L.Ed.2d 903 (2012) ; and Schindler Elevator Corp. v. United States ex rel. Kirk , 563 U.S. 401, 131 S. Ct. 1885, 1891, 179 L.Ed.2d 825 (2011).
Because Section 3582 provides no definition of "request," the Court looks for the term's ordinary meaning. The dictionary definition of "request" is straightforward: "the act or an instance of asking for something." Merriam Webster's Online Dictionary 2020; accord American Heritage Dictionary 1492 (5th ed. 2011) ("An act of asking for something"). Notably lacking from this ordinary meaning is any requirement that, in order to constitute a "request," the circumstances prompting the ask, the reasons the ask should be granted, or any other information the recipient deems relevant, must be stated. The dictionary definition is consistent with Congress's stated purpose in amending Section 3582(c)(1)(A) to permit defendants for the first time to move for compassionate release themselves following a request to BOP to so move: to " ‘Increas[e] the Use and Transparency of Compassionate Release.’ " United States v. Rodriguez , 451 F. Supp. 3d 392, 396 (E.D. Pa. 2020) (quoting the title of Section 603(b) of the First Step Act).
Because Section 571.61 predates Section 603(b), it might be possible to argue that Congress employed "request" with the regulation in mind and that it adopted or approved whatever definition of "request" is embedded therein. Cf. Lamar, Archer & Cofrin, LLP v. Appling , ––– U.S. ––––, 138 S. Ct. 1752, 1762, 201 L.Ed.2d 102 (2018) ("When administrative ... interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative ... interpretations as well.") (emphasis added, internal quotes omitted). The government, however, has made no such argument, and the Court therefore need not wade into that thicket.
Even had the government asserted and demonstrated that Congress embraced Section 571.61 as the measure of a "request" for purposes of Section 3582(c)(1)(A), that regulation does not define "request" to mean "an ask for compassionate release accompanied by supporting information." On the contrary, by stating that a defendant's "request shall ... contain" certain information, Section 571.61 labels a defendant's submission a "request" whether or not it contains the information. A submission not containing the information may be a poor request, but it is, by the very language of the regulation, still a request.
This is hardly a surprising result. The Federal Rules of Civil Procedure require that "[a] pleading that states a claim for relief must contain" a statement of jurisdiction, a statement of the claim, and a demand for the relief sought. Fed. R. Civ. P. 8(a). A filing that omits any of these items is exposed to dismissal as a defective complaint, but it does not cease to be a complaint. See, e.g., Ashcroft v. Iqbal , 556 U.S. 662, 680, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (because it failed to satisfy Rule 8(a), "plaintiffs’ complaint must be dismissed").
The government urges the Court to follow the lead of Chief Judge DuBose. (Doc. 323 at 15). Very well. In United States v. Bullock , 2020 WL 5412964 (S.D. Ala. 2020), the defendant identified his request for administrative remedy (i.e. , BP-9) as his "request" for purposes of Section 3582(c)(1)(A). Id. at *2. As in this case, the document asserted that "extraordinary and compelling circumstances exist in my case" and identified those circumstances at least generally, but it did not include any proposed release plans. Id. at *2 n.5. The government argued dismissal was required because the defendant's submission "did not contain the minimum information required by" Program Statement 5050.50 (which echoes Section 571.61 ). Id. at *2. Chief Judge DuBose disagreed, ruling that, "[r]egardless of the sufficiency" of the request, it satisfied the exhaustion requirement. Id. at *2. Bullock thus refutes the government's position that presentation of all the information identified in Section 571.61 is necessary before the "request" requirement of Section 3582(c)(1)(A) can be satisfied.
E. Summary.
The Court concludes that the defendant submitted a "request" for compassionate release within the contemplation of Section 3582(c)(1)(A), in the form of his BP-9 and attachment thereto, and that the defendant satisfied the exhaustion requirement. The government's arguments to the contrary are rejected.
II. Eligibility.
As noted, the government concedes that the defendant has presented extraordinary and compelling reasons for relief under Section 3582(c)(1)(A) as described by the Sentencing Commission. (Doc. 323 at 22 n.4). The Court finds that extraordinary and compelling reasons warrant a reduction in sentence, which reduction is consistent with applicable policy statements issued by the Sentencing Commission.
III. Public Safety.
The Sentencing Commission's policy statement includes the requirement that "the defendant is not 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). The Court has evaluated the Section 3142(g) factors in light of the record and concludes the defendant is not a danger to the safety of any other person or to the community. The government advances no argument to the contrary.
IV. Section 3553(a).
The Court has considered the Section 3553(a) factors in light of the record, including the nature and circumstances of the offense and the history and characteristics of the defendant, and concludes that the 12-plus years the defendant has served is sufficient, but not greater than necessary, to satisfy the purposes set forth in Section 3553(a). The government's perfunctory argument to the contrary, (Doc. 323 at 23), has been considered and rejected.
CONCLUSION
For the reasons set forth above, the defendant's motion for sentence reduction and compassionate release is granted . The defendant's previously imposed sentence of 235 months is reduced to time served , subject to the following provisions:
1. This Order is stayed for up to 14 days, for the verification of the defendant's residence and/or establishment of a release plan, to make appropriate travel arrangements, and to ensure the defendant's safe release. The defendant shall be released as soon as a residence is verified, a release plan is established, appropriate travel arrangements are made, and it is safe for the defendant to travel. There shall be no delay in ensuring travel arrangements are made. If more than 14 days are needed to make appropriate travel arrangements and ensure the defendant's safe release, the parties shall immediately notify the Court and show cause why the stay should be extended;
2. The defendant must provide the complete address where he will reside upon release to the Probation Office in the district where he will be released because it was not included in the motion for sentence reduction; and
3. The defendant's previously imposed terms and conditions of supervised release are unchanged.
DONE and ORDERED this 6th day of October, 2020.