Opinion
No. 1:14-cr-00099-NONE
10-07-2020
UNITED STATES OF AMERICA, Plaintiff, v. ROBERT ANGEL ARIAS, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE
(Doc. No. 76)
Pending before the court is defendant Robert Angel Arias' motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). The motion is largely based on defendant's medical condition and the alleged risks posed to him by the ongoing coronavirus ("COVID-19") outbreak. (Doc. No. 76.) For the reasons explained below, defendant's motion will be denied.
BACKGROUND
Between 1997 and 2013, defendant was convicted of various state felony offenses, including possessing stolen vehicles, possessing methamphetamine, and unlawful sexual intercourse with a minor, among others. (Doc. No. 26 (Presentence Report) at 7-18.) On November 17, 2014, defendant Arias entered a plea of guilty in this case to the charge of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) as alleged in Count One of the indictment in this case. (Doc. Nos. 17, 21.) It was determined that under the U.S. Sentencing Guidelines, defendant Arias' adjusted offense level was 21 and his criminal category was VI, resulting in an advisory sentencing guideline range calling for a sentence of between 77 and 96 months in the custody of the U.S. Bureau of Prisons (BOP). (Doc. No. 26 (Presentence Report) at 33.) The U.S. Probation Office recommended a low-end guideline sentence of 77 months. (Id.) On April 27, 2015, the court departed downward from the guideline range and sentenced defendant to a 48-month term of imprisonment with 36 month term of supervised release to follow. (Doc. Nos. 35; 36 at 2-3.)
Defendant was released after serving his sentence of imprisonment and his term of supervised release commenced on January 24, 2018. (Doc. No. 39 at 1.) Between February to March 2018, however, defendant tested positive for using amphetamines and methamphetamines, in violation of one of the conditions of his supervised release. (Id. at 1-2.) On April 17, 2018, a petition for violation of supervised release was filed against defendant and a warrant was issued for his arrest. (Doc. Nos. 39, 41.) After defendant admitted to the charged violation, the court sentenced defendant to an 82-day term of imprisonment (credit for time served), two years of supervised release to follow, and required him to reside at and participate in an 18-month drug rehabilitation program. (Doc. Nos. 51; 53; 55 at 2-3, 5.)
Defendant successfully completed the drug rehabilitation program on January 13, 2020, but about one week later, he again tested positive for methamphetamine use. (Doc. No. 58 at 2.) On February 12, 2020, a new petition for violation of supervised release was filed against defendant. (Id.) After defendant admitted the new violation, on June 19, 2020, the court sentenced defendant to 11 months in prison with no term of supervised release to follow. (Doc. Nos. 66, 74, 75.)
Defendant is currently serving his sentence at the Fresno County Jail. (Doc. No. 76 at 3.) On July 8, 2020—less than a month after the court sentenced defendant to his current term of imprisonment—defendant's appointed counsel filed the pending motion for compassionate release on defendant's behalf pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc. No. 76.) On July 16, 2020, the government filed its opposition to the motion, and on July 20, 2020, defendant filed his reply thereto. (Doc. Nos. 77, 80.)
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, ___ F. Supp. 3d ___, 2020 WL 1673440, at *2 (D. Or. April 6, 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 -
(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 [.]18 U.S.C. § 3582(c)(1)(A)(i) and (ii).
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. Sentencing Guidelines Manual ("U.S.S.G.") § 1B1.13; see also United States v. Gonzalez, No. 2:18-cr-00232-TOR, 2020 WL 1536155, at *2 (E.D. Wash. Mar. 31, 2020) (noting that courts "universally" rely 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, a large and growing number of district courts across the country have concluded that because the Sentencing Commission has not amended the Guidelines since the enactment of the FSA, courts are not limited by the pre-FSA categories described in U.S.S.G. § 1B1.13 in assessing whether extraordinary and compelling circumstances are presented justifying a reduction of sentence under 18 U.S.C. § 3582(c). See, e.g., United States v. Parker, ___ F. Supp.3d ___, 2020 WL 2572525, at *8-9 (C.D. Cal. May 21, 2020) (collecting cases); United States v. Rodriguez, 424 F. Supp. 3d 674, 681 (N.D. Cal. 2019).
The Sentencing Guidelines also require that 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).
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 brought pursuant to § 3582(c) as amended by the FSA, district courts that have done so have agreed that the burden remains with the defendant. See, e.g., United States v. Greenhut, No. 2:18-cr-00048-CAS, 2020 WL 509385, at *1 (C.D. Cal. Jan. 31, 2020); United States v. Van Sickle, No. 18-cr-0250-JLR, 2020 WL 2219496, at *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.Rodriguez, 424 F. Supp. 3d at 680; see also United States v. Ramirez-Suarez, 16-CR-00124-LHK-4, 2020 WL 3869181, at *2 (N.D. Cal. July 9, 2020); Parker, 2020 WL 2572525, at *4; 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
At the time the original motion was filed, defendant conceded that he had not submitted an administrative request for compassionate release to his institution of confinement. (Doc. No. 76 at 7.) However, defendant is imprisoned at the Fresno County Jail, not at a BOP facility. (Id.) Many district courts have concluded that exhaustion is satisfied, or alternatively excused, when a defendant seeking compassionate release is not in the custody of the BOP. See, e.g., United States v. Jepsen, No. 3:19-cv-00073(VLB), 2020 WL 1640232, at *3 (D. Conn. Apr. 1, 2020) (finding exhaustion satisfied where defendant was not in a BOP facility); United States v. Gonzalez, 451 F. Supp. 3d 1194, 1196 (E.D. Wash. 2020) (finding that exhaustion of administrative remedies was excused where the defendant was not confined in a BOP facility). Defendant's counsel represents to the court that when he contacted the BOP's regional counsel to inquire regarding the administrative remedies available to defendant, the BOP responded by stating: "Because Mr. Arias is not in BOP custody, BOP cannot evaluate him for compassionate release and will not be seeking a motion for compassionate release on his behalf at this time." (Doc. Nos. 76 at 7; 76-1 at 2.) The government does not address the issue of exhaustion in its opposition to the pending motion for compassionate release. (See passim Doc. No. 77.) Because the administrative exhaustion procedures are specific to BOP, see 28 C.F.R. § 542.15(a), a defendant in Arias' position "is essentially caught in a 'Catch-22'; neither the warden at [the county jail] nor the BOP will consider his request because of his designation to [the county jail], a non-BOP facility," Jepsen, 2020 WL 1640232, at *3.
Therefore, given the circumstances posed by defendant Arias' place of confinement, the court concludes that administrative exhaustion is properly excused here because no administrative remedies are available to defendant. The court will therefore address the pending motion on the merits below.
B. Extraordinary and Compelling Reasons
"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). Even though the catch-all of "other reasons" was included in the policy statement at a time when only BOP could bring a compassionate release motion, courts have agreed that it may be relied upon by defendants bringing their own motions under the FSA. See, e.g., United States v. Kesoyan, No. 2:15-cr-236-JAM, 2020 WL 2039028, at *3-4 (E.D. Cal. Apr. 28, 2020) (collecting cases).
Thus, the medical condition of a defendant may warrant compassionate release where he or she "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, some courts have concluded that the risks posed by COVID-19 tips the scale in favor of release in particular situations. See, e.g., United States v. Rodriguez, No. 2:03-cr-00271-AB, 2020 WL 1627331, at *10-11 (E.D. Pa. Apr. 1, 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. In these situations, "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). In determining a defendant's projected release date, courts may take into account any "good time credits" awarded to the defendant by BOP for "exemplary" behavior in prison as set forth in 18 U.S.C. § 3624(b)(1). See, e.g., United States v. Burrill, No. 17-cr-00491-RS, 2020 WL 1846788, at *1 n.1 (N.D. Cal. Apr. 10, 2020).
However, because defendant Arias is only 50 years old (Doc. No. 26 at 2), his age and age-related factors do not play a role in consideration of his pending motion.
Here, defendant Arias argues that extraordinary and compelling reasons warranting his compassionate release exist due to medical condition. Defendant is currently 50 years old. (See Doc. No. 26 (Presentence Report) at 2.) Thus, to qualify for compassionate release, defendant must demonstrate that he is suffering from some serious medical condition "that substantially diminishes [his] ability . . . to provide self-care" in Fresno County Jail and the medical condition is one "from which he . . . is not expected to recover." U.S.S.G. § 1B1.13, cmt. n.1 (A)(ii). Defendant cites his asthma and the risks associated with that medical condition posed by COVID-19 as the basis for his release. (Doc. No. 76 at 10.) At the time of his original sentencing, the only reported medical issues that defendant suffered from were "physical infirmities," including pain in his lower back and Achilles heel. (Id. at 25.) Defendant was not reported to have been diagnosed as suffering from asthma at that time. (See passim id.) However, according to defendant's BOP medical records—which are dated from 2017—defendant was (at that time) prescribed an albuterol inhaler and it was noted that he had "unspecified" asthma. (Doc. No. 76-1 at 5.) However, there is no indication from the BOP's medical records regarding the severity of defendant's asthma condition. More specifically, it was not noted in those records whether defendant suffers from mild, moderate, or severe asthma. /////
According to the U.S. Centers for Disease Control and Prevention, individuals who have "moderate-to-severe" asthma "might be at an increased risk for severe illness from COVID-19." See Coronavirus Disease 2019 (COVID-19): People Who Are at Increased Risk for Severe Illness, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-increased-risk.html (last visited Oct. 7, 2020). The CDC does not identify mild asthma as an at-risk factor for severe illness if one contracts the COVID-19 virus. The court is not persuaded that defendant suffers from at least moderate asthma simply because he is required to take four puffs of his inhaler a day while incarcerated at Fresno County Jail, as counsel claims without support from any medical records or other evidence before the court. (Doc. No. 76 at 11.) Based on the current record, the court cannot conclude that defendant is at higher risk of becoming severely ill based on any medical condition that he suffers from were he to contract COVID-19.
Because of this lack of supporting evidence, defendant Arias has not carried his burden of demonstrating that he suffers from a "serious" medical condition. See U.S.S.G. § 1B1.13, cmt. n.1 (A)(ii); Greenhut, 2020 WL 509385, at *1 ("The defendant bears the initial burden to put forward evidence that establishes an entitlement to a sentence reduction."). Therefore, the court does not find extraordinary and compelling reasons justifying defendant Arias' compassionate release pursuant to § 3582(c)(1)(A).
C. Consistency With the § 3553(a) Factors
Because the pending motion fails to establish extraordinary and compelling reasons justifying compassionate release in this case, the court need not address whether any reduction in defendant's sentence would be consistent with consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a). Nonetheless, the court notes that both at the time of his original sentencing and when sentenced on his first violation of the conditions of his supervised release, defendant Arias received below-guideline sentences. Defendant's violation conduct was egregious as discussed on the record at his dispositional hearing on June 19, 2020. The mid-guideline sentence of a 11-month term of imprisonment on his latest violation was, after considering the factors set ///// forth in 18 U.S.C. § 3583(e), most certainly warranted in light of the defendant's history of repeated violations.
CONCLUSION
For the reasons explained above, defendant's motion for compassionate release (Doc. No. 76) is denied. IT IS SO ORDERED.
Dated: October 7 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE