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granting compassionate release based, in part, on the petitioner's underlying health conditions that made him particularly susceptible to a COVID-19 infection
Summary of this case from Tucker v. United StatesOpinion
CRIMINAL NO. 4:17-cr-72
2020-07-16
Angel Lewis BRUNO, Petitioner, v. UNITED STATES of America, Respondent.
Megan Cowles, United States Attorney Office—Newport News, Newport News, VA, for Petitioner. Shawn M. Cline, Law Office of Shawn M. Cline, P. C., Hampton, VA, for Respondent Xavier Justice Lee Greenauer-Mattox. James Stephen Ellenson, Law Office of James Stephen Ellenson, Newport News, VA, for Respondent Angel Lewis Bruno.
Megan Cowles, United States Attorney Office—Newport News, Newport News, VA, for Petitioner.
Shawn M. Cline, Law Office of Shawn M. Cline, P. C., Hampton, VA, for Respondent Xavier Justice Lee Greenauer-Mattox.
James Stephen Ellenson, Law Office of James Stephen Ellenson, Newport News, VA, for Respondent Angel Lewis Bruno.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United States District Judge
Before the Court is Angel Lewis Bruno's ("Petitioner") Motion for Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). ECF No. 122.
I. FACTUAL AND PROCEDURAL HISTORY
On February 12, 2017, Petitioner and two others burglarized a Federal Firearms Licensee and stole 52 firearms from the premises. On February 21, 2017, Petitioner and his codefendants were in a hotel room in Newport News that was under law enforcement surveillance. After being alerted to the presence of law enforcement, Petitioner attempted to leave the hotel room carrying three stolen long guns and was apprehended shortly thereafter. A search of the hotel room revealed nine of the stolen firearms, along with cocaine, marijuana, and spent ammunition. Further investigation yielded another gun in a different room of the same hotel and text messages incriminating Petitioner as a cocaine dealer. On July 19, 2017, Petitioner was named in a three-count Indictment. ECF No. 6. On September 25, 2017, Petitioner pleaded guilty to Count 2, Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2; Count 3, Possession of a Stolen Firearm, in violation of 18 U.S.C. §§ 922(j) and 2. ECF No. 41–43. On January 17, 2018, Petitioner was sentenced to a total term of 96 months as follows: 60 months on Count 2, to be served consecutively to the term imposed on Count 3 and 36 months on Count 3. ECF No. 87. To date, Petitioner has served about 40 months in the custody of the Bureau of Prisons on the instant offense.
Petitioner filed his Motion for Compassionate Release on May 26, 2020 ECF No. 122. The Court ordered the appropriate responses on May 28, 2020 ECF No. 123. The Government responded in opposition on June 29, 2020 ECF No. 128. Petitioner replied to the Government's response on July 6, 2020. ECF No. 129. This matter is ripe for disposition.
II. LEGAL STANDARD
A. The Exhaustion Requirement
A district court may modify a petitioner's 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. ; see also Coleman v. United States , 465 F.Supp.3d 543, 549 – ––––, (E.D. Va. June 4, 2020) (discussing the reasons "judicial waiver of the exhaustion requirement is permissible in light of the extraordinary threat certain inmates face from COVID-19").
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 Bureau of Prisons 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 Bureau of Prisons. Therefore, 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, 250 (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 Exhaustion Issue
This Court has previously held that the exhaustion requirement within § 3582(c)(1)(A) may be waived in the midst of the COVID-19 pandemic. See supra Part II.A; Coleman v. United States , 465 F.Supp.3d 543, 547–50 – ––––, (E.D. Va. June 4, 2020). In addition, the Court finds that Petitioner filed his administrative request for compassionate release with the Bureau of Prisons on April 2, 2020 and 30 days have passed without a response. ECF No. 126 at 2. Therefore, Petitioner has satisfied the exhaustion requirement within § 3582(c)(1)(A).
B. Resolution of the Defendant's Request for Compassionate Release
1. Consideration of the Factors Listed in 18 U.S.C. § 3553(a)
In its consideration of the factors listed in 18 U.S.C. § 3553(a), the Court begins with Petitioner's offense conduct, which remains very serious and inexcusable. See supra Part I (describing Petitioner's offense conduct, which included cocaine dealing, burglarizing the premises of a Federal Firearms Licensee, and the theft of 52 firearms); see also 18 U.S.C. § 3553(a)(2)(A)–(C) (implicating the need for a sentence that reflects the seriousness of the offense, punishment, specific deterrence, and incapacitation). However, Petitioner's personal history helps to explain some of his troubles. As an initial matter, Petitioner's home life was unstable from the beginning, as both his parents were only intermittently involved with him for his entire childhood. ECF No. 124 at ¶¶ 55–64. He mostly raised by his uncle and began rebelling at an early age. Id. at ¶ 60 (reporting that Petitioner began acting out at age 11); see also id. at ¶ 56–62 (documenting Petitioner's tumultuous relationship with his parents, the associated custody battles, and the beginning of his behavioral issues).
Petitioner received his first mental health diagnoses in 2013 and his clinical history indicates that he has a track record of noncompliance with treatment and regresses quickly without it. Id. at ¶¶ 70–79. More specifically, Petitioner suffers from Bipolar Disorder and has been intermittently treated with therapy and medication during several encounters with the state system. Worse yet, Petitioner has a habit of self-medicating with alcohol and illegal illegal drugs, a pattern of behavior that began when he was just 14 years old. Id. at ¶¶ 80–84 (documenting the origins of Petitioner's drinking at age 14, and his use of marijuana, spice, and cocaine). However, there is some evidence that Petitioner is capable of compliance with supervision. See id. at ¶ 85 (noting that he successfully completed substance abuse relapse prevention in 2016). Petitioner's behavioral issues, in combination with his stints of supervision in the juvenile system prevented him from earning a traditional high school diploma, but he did earn a distance education diploma in 2016. See also id. at ¶ 91; ECF No. 126 at 14–15 (documenting that Petitioner has food service certifications and skills in that area). The sum of Petitioner's checkered personal history and his young age implicate an urgent need for mental health treatment, lest he come out of prison in his twenties with the same unsuccessfully treated mental health issues that he went in with as a teenager. 18 U.S.C. § 3553(a)(2)(D).
2. Evaluation of "Extraordinary and Compelling Reason"
In evaluating whether an "extraordinary and compelling reason" for a sentence reduction has been established, the Court considers the severity of the ongoing COVID-19 outbreak in federal prisons. See e.g. Wilson v. Williams , 2020 WL 2542131, at *1–2 (N.D. Ohio May 19, 2020) (documenting the BOP's ineffective efforts to curtail the spread of the virus within FCI Elkton). Specific to each petitioner, the Court examines the Centers for Disease Control's ("CDC") list of risk factors for severe COVID-19 complications when assessing compassionate release motions during the pandemic. United States v. Lewellen , 2020 WL 2615762, at *4 (N.D. Ill. May 22, 2020).
HIV is a condition that can weaken the immune system when an individual has a low CD4 cell count (white blood cells that assist the body in fighting off bacterial and viral infections) or is not receiving treatment. Here, Petitioner offers his status as an HIV-positive individual to support the conclusion that he is especially susceptible to COVID-19. ECF No. 126 at 2. Fortunately, Petitioner is receiving HIV treatment and his CD4 cell count remains at a healthy level. ECF No. 126 at 3. However, the Court does not discount the threat the pandemic poses to Petitioner, as the effects of COVID-19 on HIV-positive individuals are still not fully understood. Further, the symptomatic overlap between the opportunistic infections that can be deadly for HIV-positive individuals and COVID-19 is unmistakable.
People of Any Age with Underlying Medical Conditions , Ctrs. for Disease Control (June, 25 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov% 2Fneed-extra-precautions% 2Fgroups-at-higher-risk.html#immunocompromised-state.
See AIDS and Opportunistic Infections , Ctrs. for Disease Control (July 2020), https://www.cdc.gov/hiv/basics/livingwithhiv/opportunisticinfections.html; Symptoms of Coronavirus , Ctrs. for Disease Control (May 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.
In addition to Petitioner's status as HIV-positive, the Court is also concerned that his mental health needs are being neglected during his term of incarceration. Despite the fact that Petitioner has a clear history of mental health issues that are intertwined with his criminal history, the parties agree that he is receiving no mental health treatment. ECF No. 128 at 12 ("[w]hile incarcerated, the defendant is not receiving mental health treatment"); ECF No. 129 at 9 ("despite the mental health diagnoses clearly listed in his PSR, Mr. Bruno appears to be receiving no mental health treatment at FCI Edgefield"); see also United States v. Morrison , 2020 WL 3447757 (D. Md. June 24, 2020) ; United States v. Mel , 2020 WL 2041674 (D. Md. Apr. 28, 2020) (granting compassionate release based on untreated and potentially fatal physical conditions). This outcome is plainly unacceptable, as Petitioner was sentenced based in large part on his need for mental health treatment for his Bipolar Disorder. ECF No. 88 at 2; see U.S.S.G. § 5H1.3 ("a downward departure may be appropriate to accomplish a specific treatment purpose"). As a practical matter, Petitioner's release from custody and supervision without adequate mental health treatment would not serve his personal interests or the interests of justice.
After considering Petitioner's HIV-positive status and untreated mental health conditions, the Court is persuaded that compassionate release is appropriate in this case. However, § 3582(c)(1)(A) allows the Court to impose a term of supervised release with conditions that will aid in the objectives of sentencing. The text of § 3582(c)(1)(A) allows the Court to replace any unserved period of incarceration from the original criminal judgment with a period of supervised release (not to exceed the unserved period of incarceration). Further, the statute allows the Court to impose special conditions on that period of supervised release. Additionally, the Court's conversion of an unserved portion of incarceration to a period of supervised release does not eliminate the period of supervised release ordered in the original criminal judgment. See United States v. White , 466 F.Supp.3d 666, (S.D. W. Va. June 12, 2020) (granting compassionate release and ordering service of the 4 year term of supervised release in the original criminal judgment after the petitioner had served 30 months of a 60 month sentence); McCoy , 2020 WL 2738225, at *6 (granting compassionate release, but ordering the petitioner to serve the term of supervised release as ordered in his original criminal judgment).
In this case, Petitioner's release from FCI Edgefield is only appropriate with the application of the Special Conditions of Supervision as ordered in his original criminal judgment. ECF No. 87 at 4. In the past, Petitioner has been "defiant" while living with his sister in North Carolina, though during this period he was clearly struggling with his mental health. ECF No. 124 at ¶ 60. Upon release, Petitioner wishes to live with his sister and her family in North Carolina. ECF No. 126 at 15. While continued confinement in a BOP facility without mental health treatment would pose an undue threat to Petitioner's physical and mental health, his personal history and offense conduct clearly indicates that specialized supervision and mental health treatment is required by the § 3553(a) factors. As a practical matter, if Petitioner refuses to participate in mental health treatment, he will be returned to the custody of the Bureau of Prisons, providing a strong incentive for him to comply. Accordingly, the Court finds it necessary to reduce Petitioner's term of imprisonment and begin his term of supervised release with the Special Conditions of Supervision listed in his original criminal judgment.
Based on Petitioner's projected release date of October 3, 2021, he still has approximately 15 months remaining on his original period of incarceration. ECF No. 123 at 1 n. 1. Additionally, service of the 60 month term of supervised release ordered in the original criminal judgment is also appropriate. See U.S.S.G. § 1B1.13 (advising that any grant of compassionate release should protect the safety of other persons and the community). Therefore, the Court's grant of compassionate release has the following effects: (1) Petitioner shall be released from FCI Edgefield after 14 days of quarantine; (2) upon his release from BOP custody, Petitioner shall be on supervised release for 15 months with a special condition of home confinement with electronic monitoring pursuant to the Court's grant of compassionate release; (3) at the conclusion of the initial 15 months of supervised release with home confinement, Petitioner shall remain on supervised release for an additional 60 months as ordered in his original criminal judgment; (4) all standard and special conditions listed in the original criminal judgment shall apply to Petitioner's entire 75 month period of supervised release. ECF No. 87.
IV. CONCLUSION
For the foregoing reasons, Petitioner's Motion is GRANTED. Upon his release from FCI Edgefield, Petitioner shall be on supervised release for seventy-five (75) months with all standard and special conditions imposed in his original criminal judgment. ECF No. 87. Additionally, Petitioner shall be on home confinement with electronic monitoring for the initial 15 months of his 75 month supervised release term. The Bureau of Prisons is DIRECTED to place Petitioner in quarantine for fourteen (14) days prior to his release. Petitioner is DIRECTED to contact the United States Probation Office within seventy-two (72) hours of his release.