Summary
In Asmar, the defendant failed to mention any health conditions in his administrative request, but only referenced "the coronavirus pandemic."
Summary of this case from United States v. MacLloydOpinion
Case No. 18-20668
06-05-2020
UNITED STATES of America, Plaintiff, v. Junior ASMAR, D-1, Defendant.
Paul Kuebler, J. Michael Buckley, U.S. Attorney's Office, Detroit, MI, for Plaintiff.
Paul Kuebler, J. Michael Buckley, U.S. Attorney's Office, Detroit, MI, for Plaintiff.
ORDER DISMISSING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE [ECF No. 58]
GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE
Defendant Junior Asmar moves the Court for compassionate release from prison due to dangers posed by COVID-19. For the reasons set forth below, Defendant's motion is DISMISSED without prejudice.
I. Factual Background
Defendant Junior Asmar pled guilty to conspiring to distribute marijuana and launder money arising from his participation in a conspiracy involving an unlicensed medical marijuana dispensary. The scheme began as early as 2016 and involved growing marijuana in the Detroit Metro Area and using a number of businesses to launder the millions of dollars in proceeds.
Defendant was indicted in 2018, and on May 6, 2019 he was sentenced to a term of 60 months imprisonment, followed by a term of supervised release of four years. Defendant began serving his sentence on June 20, 2019 and has a projected release date of September 21, 2023. He has served approximately 22% of his projected prison term. Defendant is housed at FCI Morgantown in Morgantown, West Virginia.
Defendant is 47 years old and asserts he has medical conditions which place him at a greater risk of contracting and suffering the most severe consequences of COVID-19. Specifically, Defendant describes his health as follows:
(1) is medically obese; (2) was an everyday cigarette smoker (before he entered prison); (3) has struggled with substance abuse in the past (including the regular smoking of marijuana and the over-consumption of alcohol); (4) is a borderline diabetic (with a Hemoglobin A1C count of between 5.8-6.0, which means that he is at a significantly increased risk of full-blown diabetes ); and (5) has fluctuating blood pressure (indicating hypertension ), which has been as high as 154/98 and is almost consistently over 135/80 (over the past year). Moreover, in the past, Mr. Asmar was diagnosed as someone who suffered from sciatic nerve and acid reflux.
[ECF No. 59, PageID 709]. Defendant asserts that these medical conditions taken in the aggregate, along with his status as a prisoner, put him at high risk of falling ill with COVID-19 and having serious medical complications or death if he is infected.
Defendant's medical records show that upon arriving at FCI Morgantown, he declined the influenza and Tdap vaccines [ECF No. 65-2, PageID 893-94]. Defendant did not report any notable health concerns during his initial screening with the Bureau of Prisons ("BOP"). He denied having diabetes, cardiovascular problems and hypertension. Defendant did report daily marijuana use and his medical exam recorded his blood pressure as 154/98. Defendant did not report taking any medications [ECF No. 65-4, PageID 898-903].
Defendant's November 14, 2019 medical record showed that his BMI was 38.4 which the CDC categorizes as "obese." [ECF No. 65-3, PageID 895-97]. The BOP reports that Defendant currently has the following conditions: tinea cruris (jock itch); cannabis use disorder, severe; retinopathy, NOS (eye condition); dermatitis, unspecified (skin inflammation ); low back pain; hematuria, unspecified (blood in urine); and prediabetes [ECF No. 65-5, PageID 904].
On April 8, 2020, Defendant sent a request to the Warden at FCI Morgantown requesting that the BOP file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(1)(A)(I). Defendant's request was denied by the Warden on April 27, 2020 for the following reason: "Our review of your request indicates that you have not provided the minimum criteria for review at this time." [ECF No. 65-7, Page ID 906]. The Program Statement followed by the BOP requires that requests based on Extraordinary or Compelling Circumstances at a minimum must contain (1) the extraordinary or compelling circumstances that the inmate believes warrant consideration and (2) proposed release plans, including where the inmate will reside, how the inmate will support himself, and if the basis for the request involves the inmates health, information on where the inmate will receive medical treatment. Id. In his request for compassionate release to the Warden, Defendant did not reference any health conditions or concerns, nor did he propose any release plans.
At present there have been no confirmed cases of COVID-19 at FCI Morgantown. However, because of the lack of widespread testing, there is no guarantee that FCI Morgantown does not have any active cases, even if they are asymptomatic. In his request for release, Defendant asks the Court to modify his sentence under such restrictions and conditions as it deems appropriate.
The BOP has been directed by the Attorney General to assess its entire prison population to determine which inmates face the most risk from COVID-19, pose the least danger to public safety, and can safely be granted home confinement. 03-26-2020 Directive to BOP; 04-03-2020 Directive to BOP. This process necessarily requires the BOP to identify the best candidates for release, ensure that their homes are suitable for home confinement, and arrange a way to quarantine each of them for 14 days. As of June 1, 2020, these directives have resulted in at least 3,544 inmates being placed on home confinement. See BOP COVID-19 Website.
II. Legal Standard
This Court's authority to grant Defendant's request for compassionate release is governed by 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018. This section allows for judicial modification of an imposed term of imprisonment when three criteria have been met: (1) the defendant has first exhausted all administrative remedies with the BOP or at least allowed the BOP 30 days to act on his request before seeking compassionate release on their own motion; (2) extraordinary and compelling reasons warrant such a reduction; and (3) the reduction is consistent with the applicable policy statements issued by the Sentencing Commission and the court has considered the factors set forth in section 3553(a). 18 U.S.C. § 3582(c)(1)(A)(i).
An "extraordinary and compelling reason" for the reduction can be satisfied in cases where a defendant's medical conditions or overall state of health are such that they cannot be treated effectively or will worsen in a custodial environment. To qualify, a defendant must have a medical condition, age-related issue, family circumstance, or other reason that satisfies the criteria in USSG § 1B1.13(1)(A) & cmt. n.1, and he must "not [be] a danger to the safety of any other person or to the community," USSG § 1B1.13(2).
Before granting a motion for compassionate release, the Court must review the § 3553(a) factors to the extent that they are applicable and determine whether they support or undermine the sentence reduction.
III. Analysis
A. Exhaustion of Administrative Remedies
Until recently, only the BOP could move for compassionate release. The First Step Act of 2018 amended the statute, permitting defendants to move for compassionate release themselves. First Step Act § 603(b), Pub. L. No. 115-319, 132 Stat. 5194, 5239 (Dec. 21, 2018). The provision permitting a defendant-initiated motion includes an exhaustion requirement. Id. If a defendant moves for compassionate release, the district court may not act on the motion unless the defendant files it "after" either completing the administrative process within the BOP or waiting 30 days from when the warden at the facility received the request. 18 U.S.C. § 3582(c)(1)(A).
This week the Sixth Circuit issued an opinion holding that the compassionate release exhaustion requirement, while not jurisdictional, is "a mandatory condition." United States v. Alam , 960 F.3d 831, 833, No. 20-1298, 4 (6th Cir. June 2, 2020). The Sixth Circuit noted the "good reason" for exhaustion: "to implement an orderly system for reviewing compassionate-release applications, not one that incentivizes line jumping." Id. In Alam , where the defendant "waited just 10 days after the warden's receipt of his request to file his motion in federal court, not the required 30 days," the Sixth Circuit concluded that it should "dismiss [the motion] without prejudice," rather than "[sitting] on untimely motions until the 30-day window ran its course." Id. at 832, 836, at 3, 6.
In this case, Defendant did submit an administrative request to the Warden which was denied. However, Defendant's administrative request did not reference any of the health conditions he raises as the basis for his request for compassionate release before this court. Where the factual basis in the administrative request and the motion before the court are different, a defendant does not satisfy the exhaustion requirement because he does not give the BOP an opportunity to act on the request before Defendant brings his request to the courts. United States v. Mogavero , No. 15-00074, 2020 WL 1853754, at *2 (D. Nev. Apr. 13, 2020) ("Proper exhaustion necessarily requires the inmate to present the same factual basis for the compassionate-release request to the warden."); see also United States v. Jenkins , 2020 WL 1872568, at *1 (D. Neb. Apr. 14, 2020) ; United States v. Valenta , 2020 WL 1689786, at *1 (W.D. Pa. Apr. 7, 2020).
There is an undeniable value in having the BOP make the initial review before an inmate is released. The BOP is already responding to the pandemic—not just through heightened safety measures, but by evaluating its entire prison population for home confinement. By requiring a defendant to exhaust, § 3582(c)(1)(A) gives the BOP the opportunity to gather an inmate's medical documentation and other records, evaluate the request, and decide in the first instance whether it justifies seeking compassionate release or pursuing some other form of relief. In his administrative request to the Warden, Defendant did not provide a basis for the relief he sought, therefore he did not give the BOP an adequate opportunity to evaluate his request. The Sixth Circuit has held that § 3582(c)(1)(A) ’s exhaustion requirement is a mandatory claims-processing rule. As such, the exhaustion requirement is not waivable and Defendant's motion must be dismissed without prejudice. Accordingly, IT IS HEREBY ORDERED that Defendant's motion for compassionate release is DISMISSED without prejudice.