Opinion
Criminal No. 2:02-cr-178-1 Criminal No. 2:19-cr-68
2020-10-23
Gary Spencer ALBURY, Petitioner, v. UNITED STATES of America, Respondent.
ORDER
RAYMOND A. JACKSON, United States District Judge
Before the Court is Gary Spencer Albury's ("Petitioner") Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A), filed on August 10, 2020 through counsel. ECF No. 376. On July 10, 2020 the Government filed a Motion to Dismiss Petitioner's Motion. ECF No. 374. Petitioner replied to the Government's Motion to Dismiss. ECF No. 375. The Government opposed Petitioner's motion and Petitioner replied. ECF Nos. 381, 382. This matter is now ripe for judicial determination. For the reasons below, the Government's Motion is DENIED , and the Petitioner's motion is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
On January 9, 2003. Petitioner pleaded guilty to Count One of the indictment charging conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin and five grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). ECF No. 9. According to the Presentence report ("PSR"). Petitioner was attributed with 31,928.666 grams of heroin. 11,209.025 grams of cocaine, and 10.363 grams of cocaine base. ECF No. 377 at ¶ 53. Petitioner was assessed a two-level enhancement for possession of a dangerous weapon pursuant to U.S.S.G. 2D1.1(b)(1). Id. at ¶ 52. Petitioner's criminal history category was III. Id. at ¶ 104. On April 30, 2003, the Court sentenced the Petitioner to 254 months imprisonment with five years of supervised release under count One. ECF No. 15. On May 10, 2007, the Court reduced Petitioner's sentence to 127 months.
On September 16, 2011, Petitioner commenced his period of supervised release. On September 12, 2013, Petitioner was returned to Court for violating his supervised release. ECF Nos. 294, 297, 378. Petitioner's supervision was revoked, and he was sentenced to six months incarceration with 54 months of supervised release. Id. While serving his six months sentence in BOP, Petitioner assaulted a correctional officer. See U.S. v. Albury , 2:19cr68. On March 31, 2014, Petitioner pleaded guilty to assault on a government official, in violation of 18 U.S.C. § 111(a)(1). On August 5, 2014, Petitioner was sentenced to 42 months imprisonment with three years of supervised release. See Id. and ECF No. 24. On March 30, 2017, Petitioner was released onto supervision for a second time. On December 17th and 20th 2018, Petitioner sold heroin and methamphetamine to an undercover police officer. ECF No. 24. On July 17, 2019, Petitioner pleaded guilty to manufacture/distribute a Schedule I or II controlled substance (second offense) in Norfolk Circuit Court. ECF No. 378. Petitioner was sentenced to five years imprisonment with two years suspended and five years of supervised probation. Id. On February 6, 2020, Petitioner was returned to Court for violating the conditions of his supervised release based on committing the offenses described above. ECF Nos. 367, 368, 378. The Court revoked his supervision and sentenced Petitioner to 27 months incarceration with 36 months of supervised release under Criminal No. 2:02cr178. Id. Under Criminal No. 2:19cr68, the Court revoked Petitioner's supervision and sentenced him to 24 months incarceration, concurrent with 2:02cr178, with no further supervision. See 2:19cr68 ECF Nos. 10, 11, 24. Following this hearing, Petitioner was returned to state custody. Petitioner is currently incarcerated at St. Brides Correctional Center, a medium-security prisons in Virginia. Petitioner is scheduled to start serving his federal sentences in August 2021.
On June 4, 2020, Petitioner filed his pro se motion for compassionate release. ECF No. 369. On July 10, 2020, the Government filed a Motion to Dismiss Petitioner's motion. ECF No. 374. Petitioner replied to the Government's Motion to Dismiss on July 13, 2020. ECF No. 375. The Government opposed Petitioner's motion and Petitioner replied. ECF Nos. 381, 382.
Petitioner requests compassionate release because of the ongoing COVID-19 pandemic and his underlying health conditions that places him at a higher risk for serious illness if he contracts the virus. ECF No. 376. At age 52, Petitioner has hypertension and asthma, and is severely obese. Id. Given the pandemic and his underlying health conditions, Petitioner requests that this Court grant him compassionate release and permit him to serve his entire 27 months sentence on home confinement.
II. LEGAL STANDARD
A. The Exhaustion Requirement
A petitioner may bring a motion to modify his or her sentence "after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons ("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." 18 U.S.C. § 3582(c)(1)(A). Accordingly, a petitioner seeking compassionate release is generally required to exhaust his or her administrative remedies prior to bringing a motion before the district court. Id. However, the exhaustion requirement may be waived under the following circumstances: (1) the relief sought would be futile upon exhaustion; (2) exhaustion via the agency review process would result in inadequate relief; or (3) pursuit of agency review would subject the petitioner to undue prejudice. United States v. Zukerman , 451 F.Supp.3d 329, 332-33 (S.D.N.Y. 2020) citing Washington v. Barr , 925 F.3d 109, 118 (2d Cir. 2019). The COVID-19 pandemic, which could result in catastrophic health consequences for petitioners vulnerable to infection, implicates all three exceptions justifying the waiver of the exhaustion requirement. Miller v. United States , 453 F.Supp.3d 1062, 1064-65 (E.D. Mich. 2020) ; United States v. Zukerman , 451 F.Supp.3d 329, 332-33 (S.D.N.Y. 2020) ; United States v. Perez , 451 F.Supp.3d 288, 292-94 (S.D.N.Y. 2020) ; United States v. Gonzalez , 451 F.Supp.3d 1194, 1196-97 (E.D. Wash. 2020).
B. The Compassionate Release Standard
As amended by the FIRST STEP Act, a court may modify a term of imprisonment on the motion of the petitioner after considering the factors set forth in 18 U.S.C. § 3553(a) if "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). "Extraordinary and compelling reasons" was previously defined by the United States Sentencing Commission ("Sentencing Commission") in U.S.S.G. § 1B1.13, Application Note 1. Before the passage of the FIRST STEP Act, the Sentencing Commission provided that a sentence may be modified due to the petitioner's medical condition, age, or family circumstances and further defined the limits under which a sentence reduction may be given under those justifications. U.S.S.G. § 1B1.13, n. 1 (A)–(C). The Sentencing Commission also provided a "catch-all provision" that allowed for a sentence modification upon a showing of "extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)." Id. at n. 1 (D). Use of the "catch-all provision" prior to the FIRST STEP Act was severely restricted because it required approval from the BOP before an individual could petition the district court for relief. Id.
However, U.S.S.G. § 1B1.13 is now outdated following the passage of the FIRST STEP Act, which allows individuals to petition the district court directly without clearance from the BOP. As such, U.S.S.G. § 1B1.13 is merely advisory and does not bind the Court's application of § 3582(c)(1)(A). McCoy v. United States , 2020 WL 2738225, at *4 (E.D. Va. May 26, 2020) ; see also United States v. Lisi , 440 F.Supp.3d 246, 249-50 (S.D.N.Y. 2020) ("[T]he Court may independently evaluate whether [petitioner] has raised an extraordinary and compelling reason for compassionate release ... [but § 1B1.13's policy statement] remain[s] as helpful guidance to courts...."): United States v. Fox , 2019 WL 3046086, at *3 (D. Me. July 11, 2019) ("[T]he Commission's existing policy statement provides helpful guidance on the factors that support compassionate release, although it is not ultimately conclusive"). A petitioner's rehabilitation standing alone does not provide sufficient grounds to warrant a sentence modification. 28 U.S.C. § 994(t). In sum, the Court may consider a combination of factors, including but not limited to those listed in U.S.S.G. § 1B1.13, in evaluating a petitioner's request for a sentence modification under 18 U.S.C. § 3582(c)(1)(A)(i).
III. DISCUSSION
A. The Court has Authority to Reduce Petitioner's Incarceration Term
The Court finds that it does have the authority to reduce Petitioner's term of incarceration under 18 U.S.C.§ 3582(c)(1)(A)(i). The Government argues that this Court does not have the authority because Petitioner is not in the custody of the BOP serving a federal sentence. However, pursuant to the First Step Act and holdings in sister jurisdictions, this Court "may reduce the term of imprisonment, after considering the factors set forth in § 3553(a) to the extent 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." See United States v. Bucci , 409 F. Supp. 3d 1, 2 (D. Mass. 2019) (holding that "the most sensible interpretation of the Sentencing Commission's guidance in light of Congress's recent statutory amendments is that ‘the Commission's existing policy statement provides helpful guidance on the factors that support compassionate release, although it is not ultimately conclusive.’ " (quoting United States v. Fox , No. 2:14-cr-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019) ); United States v. Beck , 425 F.Supp.3d 573, 579-80 (M.D.N.C. 2019) ("While the old policy statement provides helpful guidance, it does not constrain the Court's independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A)(i)."); United States v. Rodriguez , 451 F.Supp.3d 392 (E.D. Pa. 2020) (same).
Moreover, pursuant to 18 U.S.C. § 3582(c), this Court may "modify a term of imprisonment once it has been imposed, except that" it must follow certain procedures to do so. None of the exceptions to 18 U.S.C. § 3582(c) prohibits the Court from acting before the person begins serving the sentence in BOP custody. Accordingly, per the doctrine of expressio unius est exclusion alterius , since § 3582(c) is silent on this prohibition then the statute grants this Court the power to modify Petitioner's federal sentence for extraordinary and compelling reasons and subject to satisfying the administrative exhaustive requirement. See United States v. Brown , 352 F.Supp.3d 589, 591-92 (E.D. Va. 2018) (RAJ) (where statute specifies that certain hearings must be held in the competency-determination process, its silence with respect to other parts of the process establishes that hearings are not required in those instances).
B. The Exhaustion Requirement
The Court finds that although Petitioner did not exhaust his administrative remedies prior to bringing his motion with the Court, this requirement is waived. Petitioner is currently incarcerated at St. Brides, a prison operated by the Virginia Department of Corrections. Therefore, there is no BOP Warden to whom Petitioner can direct a compassionate release request. The Government argues that the Petitioner has not meet the exhaustion requirement and that § 3582(c)(1)(A)'s language is mandatory. See, e.g., United States v. Little , No. 1:10-CR-135 (CJH), 2020 WL 3442173, at *1 (E.D. Va. June 23, 2020) ("The statutory language imposes a mandatory exhaustion requirement when no provision for an exception has been made."); United States v. White , No. 3:18-CR-61 (HEH), 2020 WL 3442171, at *3-*5 (E.D. Va. June 23, 2020) ("[T]he principal issue in the case at bar is whether the § 3582(c)(1)(A) requirements may be excused. This Court finds that they may not."). On the other hand, Petitioner argues that the exhaustion requirement may be, and has been, waived by this Court. See United States v. Casey , No. 4:18cr4, 2020 WL 2297184, at *2 (E.D. Va. May 6, 2020) (waiving exhaustion for compassionate release and holding that "preservation of the exhaustion requirement could subject [Casey] to severe illness and death if he contracts COVID-19 because of his underlying health conditions"); United States v. Russo , No. 16-cr-441, ECF No. 54, at 5 (S.D.N.Y. Apr. 3, 2020) ("In essence, the 30-day rule was meant as an accelerant to judicial review .... and it would pervert congressional intent to treat it as a substantial obstacle to effective judicial review.").
Although, in other cases, this Court has waived the exhaustion requirement given the COVID-19 pandemic and the catastrophic health consequences, it has done so for inmates with underlying health conditions; and the Court has done so when the Petitioner is in BOP custody. See United States v. Poulios , No. 2:09-cr-109, 2020 WL 1922775, at *1 (E.D. Va. April 21, 2020) ; United States v. Casey , No. 4:18-cr-4, 2020 WL 2297184, at *2 (E.D. Va. May 6, 2020) ; Miller v. United States , 453 F.Supp.3d 1062, 1064-65 (E.D. Mich. 2020) ; Zukerman , 451 F.Supp.3d at 332-33 ; United States v. Perez , 451 F.Supp.3d 288, 292-93 (S.D.N.Y. 2020) ; Gonzalez , 451 F.Supp.3d at 1196-97.
In response, Petitioner argues that numerous courts have held that exhaustion would be futile where, as here, a Petitioner is not in BOP custody and thus unable to take advantage of the internal BOP request mechanisms (such as a request to the warden) referenced in § 3582. See. e.g., United States v. Norris , 458 F.Supp.3d 383, 386 (E.D.N.C. 2020) (granting compassionate release to client at Piedmont Regional Jail, where "there is no BOP warden to whom Norris can direct a compassionate release request"); United States v. Hernandez , 451 F.Supp.3d 301, 302-03 (S.D.N.Y. 2020) (granting compassionate release where BOP agreed that it was unable to evaluate the merits of any claim by the defendant, who was not then in BOP custody); United States v. Jepsen , 451 F.Supp.3d 242, 245 (D. Conn. 2020) (granting compassionate release where defendant was in a "Catch-22," in that he was unable to apply to a BOP warden for compassionate release because he was not in a BOP facility).
Accordingly, although Petitioner is not yet at a BOP facility, this Court waives the exhaustion requirement. The Petitioner's circumstances support the need for a waiver. First, Petitioner is unable to exhaust his administrative remedies since there is no BOP Warden to whom he can direct a compassionate relief request. Second, the Government has not attempted to identify any additional administrative procedures available to Petitioner. Finally, in line with this Court's and sister jurisdiction's reasoning, accelerated judicial review is warranted given the COVID-19 pandemic and the catastrophic health consequences it has for inmates with underlying health conditions.
C. Petitioner's Compassionate Release Request
The Court now turns to whether Petitioner has set forth extraordinary and compelling reasons to modify his sentence because of the grave risk COVID-19 poses to individuals with underlying health conditions. During the COVID-19 pandemic, federal courts around the country have found that compassionate release is justified under the circumstances. Zukerman , 451 F.Supp.3d at 332-33 citing Perez , 451 F.Supp.3d at 292-93 ; United States v. Colvin , 451 F.Supp.3d 237, 241-42 (D. Conn. 2020) ; United States v. Rodriguez , 451 F.Supp.3d 392, 401 (E.D. Pa. 2020) ; United States v. Jepsen , 451 F.Supp.3d 242, 246-47 (D. Conn. 2020) ; Gonzalez , 451 F.Supp.3d at 1197-98 ; United States v. Muniz , No. 4:09-CR-0199-1, ––– F.Supp.3d ––––, ––––, 2020 WL 1540325, at *2 (S.D. Tex. Mar. 30, 2020) ; United States v. Campagna , No. 16 CR. 78-01 (LGS), ––– F.Supp.3d ––––, ––––, 2020 WL 1489829, at *3 (S.D.N.Y. Mar. 27, 2020). Similar to the above cases, Petitioner's compassionate release is justified under the circumstances.
First, Petitioner shows a potential susceptibility to COVID-19. As indicated in his BOP medical records, Petitioner is 52 years old and suffers from hypertension, asthma, and severe obesity (body mass index of 39.7). ECF No. 369 at Exhibit 1; ECF No. 376 at Exhibit 1 ("BOP Medical Records"). The Government "accepts that Petitioner's severe obesity makes him susceptible to severe illness from COVID-19". ECF. 381 at 13. Moreover, while the Government accepts that Petitioner has asthma and hypertension, the Government contends that Petitioner's asthma is not moderate-to-severe and that his hypertension is controlled with medication. However, Petitioner argues that "despite receiving medication for hypertension, [his] blood pressure remains regularly within the hypertensive range, meaning that it is not adequately controlled despite medication." ECF. 376 at 15. Petitioner currently receives alvesco and xopenex for his asthma and hydrocholothiazide for hypertension. ECF No. 369 at Exhibit 1; ECF No. 376 at Exhibit 1. According to the Centers for Disease Control and Prevention, individuals with obesity (BMI of 30 or higher) are at an increased risk for severe illness from COVID-19. Individuals with hypertension or high blood pressure and moderate-to-severe asthma might also be at an increased risk for severe illness if they contract the virus. Thus, the combination of Petitioner's underlying medical conditions puts him at higher risk for serious illness if he contracts COVID-19.
Centers for Disease Control and Prevention, "People Who are at Higher Risk," CDC.gov , available at https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html
Second, Petitioner shows a potential risk of contracting the disease at his prison facility. As of October 15, 2020, the Virginia Department of Corrections has reported 315 cases of COVID-19 at St. Brides Correctional Center. Moreover, increased testing is showing that COVID-19 has rapidly spread throughout prisons all over the country. However, Petitioner cannot show a particularized risk for his BOP facility because he is not in BOP custody. Despite the BOP's protection measures, individuals housed in prisons remain particularly vulnerable to infection. See Muniz , ––– F.Supp.3d at ––––, 2020 WL 1540325, at *1 ; see also United States v. Esparza , 2020 WL 1696084, at *1 (D. Idaho) (noting that "[e]ven in the best run prisons, officials might find it difficult if not impossible to follow the CDC's guidelines for preventing the spread of the virus among inmates and staff: practicing fastidious hygiene and keeping a distance of at least six feet from others"). Therefore, the Court need not wait until an outbreak occurs at a specific federal prison facility to determine that Petitioner has a particularized risk of contracting the disease, especially whereas here, Petitioner suffers from underlying health conditions that put him at higher risk for severe illness if he contracts COVID-19. See Zukerman , 451 F.Supp.3d at 336 citing Rodriguez , 451 F.Supp.3d at 407 ("the Court did not intend for that sentence to include incurring a great and unforeseen risk of severe illness or death brought on by a global pandemic").
See Virginia Department of Correction, "COVID-19/Coronavirus Updates," vadoc.virginia.gov , https://vadoc.virginia.gov/news-press-releases/2020/covid-19-updates/
See Centers for Disease Control and Prevention, "Coronavirus Disease 2019: Cases in the US," CDC.gov , https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html
Finally, the § 3553(a) factors weigh against Petitioner's compassionate release. The seriousness of Petitioner's conduct for his underlying offense remain unchanged. Petitioner was convicted of a large-scale drug trafficking crime that he conducted over the course of five years from a fortified house equipped with police scanners and camera surveillance. Petitioner possessed firearms and often travelled interstate to purchase and sell drugs. ECF No. 377.
Petitioner has also demonstrated a history of not only disobeying court rules but also of committing more crimes during his supervised release. ECF Nos. 294, 297, 378. For example, while on supervised release in 2013, Petitioner submitted eight (8) urine specimens that tested positive for cocaine, Id. Accordingly, his supervised release was revoked. When he returned to federal custody in 2013, Petitioner demonstrated that he was a danger to others. For example, while serving his six months sentence in BOP, Petitioner assaulted a correctional officer after the officer discovered that Petitioner was hiding marijuana in his asthma inhaler. See U.S. v. Albury , 2:19cr68. While she was inspecting the inhaler, Petitioner "became aggressive and assaulted the officer by grabbing her hand and placing her in a headlock." Id. Another inmate and a prison employee had to pull the Petitioner off the officer. Id. According to the inmate, the officer tried multiple times to pull away from the Petitioner, "who appeared to be choking her." Id. After four of five attempts, the other inmate and the prison employee were able to pull the Petitioner off the officer. Id. Approximately 1.63 grams of marijuana were recovered from the inhaler. Id. On March 31, 2014, the Petitioner pled guilty to assault on a government official.
On March 30, 2017, the Petitioner was released from BOP and onto supervision for a second time. However, Petitioner continued to commit more drug related offenses. On December 17th and 20th 2018, Petitioner sold heroin and methamphetamine to an undercover police officer. ECF No. 24. On March 28, 2019, the police executed a search warrant at the Petitioner's home in Norfolk and recovered heroin, cocaine, MDMA, and marijuana. On July 17, 2019, Petitioner pleaded guilty to manufacture/distribute a Schedule I or II controlled substance (second offense) in Norfolk Circuit Court. Id. On February 6, 2020, Petitioner was returned to Court for violating the conditions of his supervised release. ECF Nos. 367, 368, 378. Accordingly, he was sentenced to serve a state sentence and a federal sentence consecutively for violating his supervised release.
The Petitioner's criminal history and his utter disregard in following court rules, state and federal law, make him unlikely to remain crime free if released to home confinement. The Court finds that Petitioner is a danger to the safety of any other person or to the community. Therefore, based on the aforementioned factors, the Court finds that Petitioner does not qualify for compassionate release.
IV. CONCLUSION
For the foregoing reasons, the Government's Motion is DENIED, and the Petitioner's motion is DENIED.