Opinion
19-cr-00171-BAS-1
09-28-2021
UNITED STATES OF AMERICA, Plaintiff, v. ROBERT JAY AVILLA, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE (ECF No. 54)
Cynthia Bashant United States District Judge
On October 21, 2019, this Court sentenced Defendant to seventy-eight months in custody following his conviction for possession of child pornography. (ECF No. 46.) Defendant now moves to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) for compassionate release. (ECF No. 54 (“Motion”)). The Government opposes (ECF No. 61 (“Opposition”), and Defendant replies (ECF No. 64 (“Reply”). For the reasons stated below, the Court DENIES the Motion. I. BACKGROUND
Defendant used peer-to-peer file sharing to obtain files of child pornography. (Presentence Report, ECF No. 35 (“PSR”) ¶¶ 3-20.) The pornography included prepubescent minors as well as depictions of sadistic conduct with these minors. (Id.) Defendant pled guilty to receiving images of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). (ECF Nos. 24, 29.) The Court sentenced him to 78 months in custody of which he has served approximately 21 months. (ECF No. 46.)
Defendant now moves for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)-largely because he claims his mental health conditions are not being adequately treated in custody. (Motion.) Defendant, who is now 66 years old, also argues that he qualifies for compassionate release because he suffers from memory problems, cerebrovascular disease, high blood pressure, high cholesterol, obesity, vertigo, ear infections, scabies, severe finger injury, back pain and scoliosis, shoulder pain, an infected testicle and a urinary tract infection. (Id.) Although the Government addresses the COVID-19 situation at Lompoc, where Defendant is being held, Defendant maintains that he is not seeking compassionate release because of the COVID epidemic. (Reply.) Instead, his request is largely based on the lack of care for his mental health conditions.
Just prior to his incarceration, Defendant reports he was taking psychotropic medications to treat his schizoaffective disorder with auditory hallucinations. (Motion, Exh. C, at 39-40.) Once he was transferred to Lompoc, he was referred to telepsychiatry. (Motion, Exh. A, at 26.) According to the medical records submitted, Defendant had a telepsychiatry appointment approximately two weeks after his arrival at Lompoc. (Id.) Because he reported no significant symptoms, nor were any observed, the doctor prescribed no medications. (Id.) He was seen again a month later for a follow-up, and the doctor concluded there was no immediate need for mental health interventions and that Defendant demonstrates the ability to seek help when necessary. (Motion, Exh. C, at 21-23.)
This proved to be true, as eight months later on September 18, 2020, Defendant sought help from a BOP psychologist and reported he was “not doing well.” (Motion, Exh. C, at 28-29.) Within two weeks, he again had an appointment with a telepsychiatrist who prescribed Remeron and Abilify for his concerns. (Motion Exh. A, at 22, 238-39, Exh. C, at 9-23.) When Defendant complained that the medication caused him unpleasant side effects, one month later, on October 27, 2020, the psychiatrist reduced the dose, which appeared to work. (Motion, Exh. A, at 6-8.) By January 2021, Defendant reported he was “feeling better.” (Motion, Exh. A, at 6-9.) Defendant appears to now be getting ongoing medical care for his psychiatric problems. (Motion, Exh. B, at 13-16, Exh. C, at 1-16.)
Defendant argues that he is suffering from memory problems and needs neurocognitive testing. (Motion.) He also expresses concerns about a wide variety of medical conditions, which, in combination, he says warrant his compassionate release. (Id.)
Defendant attaches a request for compassionate release dated July 16, 2020, and stamped “rec'd” by the Bureau of Prisons (“BOP”). (Motion, Exh. H.) There is no indication whether Defendant received any response to his request from the facility where he is being housed.
II. ANALYSIS
A. Exhaustion of Administrative Remedies
A district 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, 825-26 (2010). A narrow exception, compassionate release, allows a court to reduce a sentence for “extraordinary and compelling reasons.” 18 U.S.C. § 3582(c)(1)(A)(i).
However, a court may only consider a defendant's motion for compassionate release “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.” Id.
“Requiring inmates to exhaust their administrative remedies before seeking court intervention serves several purposes. First, it protects administrative agency authority by guaranteeing agencies the ‘opportunity to correct [their] own mistakes.'” United States v. Ng Lap Seng, 459 F.Supp.3d 527, 532 (S.D.N.Y. 2020) (quoting Woodford v. Ngo, 548 U.S. 81, 89 (2006)), reconsidered on other grounds, 2021 WL 961749 (S.D.N.Y Mar. 15, 2021). “Second, it promotes efficiency, since claims ‘generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.'” Id. Finally, it ensures an orderly processing of applications for early release. United States v. Alam, 960 F.3d 831, 832 (6th Cir. 2020).
The requirement that a defendant exhaust his administrative remedies is a mandatory claim-processing rule and not a jurisdictional bar. United States v. Keller, 2 F.4th 1278, 1282 (9th Cir. 2021) (per curiam). Thus, the rule is “mandatory in the sense that a court must enforce the rule if a party properly raise[s] it, but the objection may be forfeited if the party asserting the rule waits too long to raise the point.” Id. (internal quotation marks omitted) (quoting Fort Bend Co. v. Davis, 139 S.Ct. 1843, 1849 (2019)). If the rule is not properly invoked, it may be waived. Id.
Although defendant attaches a request for compassionate release stamped “received” by the BOP, he fails to state whether any response was received to this request. Hence, he fails to demonstrate that he has exhausted his administrative remedies. However, the Government fails to address the issue. Thus, the issue is waived, and the Court addresses the substantive issues raised by the Motion.
In fact, the majority of the Government's Response addresses threats from COVID-19, an issue that is not placed in issue by Defendant's Motion.
B. Extraordinary and Compelling Reasons
If the exhaustion requirement is met, a court may modify or reduce the defendant's term of imprisonment “after considering the factors set forth in [18 U.S.C. § 3553(a)]” if the Court finds, as relevant here, that “extraordinary and compelling reasons warrant such a reduction” and “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). As the movant, the defendant bears the burden to establish that he or she is eligible for a sentence reduction. United States v. Holden, 452 F.Supp.3d 964, 966 (D. Or. 2020).
Unfortunately, Congress provided no statutory definition of “extraordinary and compelling reasons” and instead delegated that responsibility to the U.S. Sentencing Commission. See United States v. Aruda, 993 F.3d 797, 800 (9th Cir. 2021). Due to vacancies in the Sentencing Commission, the Commission has been unable to update its definition of “extraordinary and compelling reasons” following passage of the First Step Act that amended § 3582(c)(1)(A). Id. at 800 n.1. Nonetheless, the Sentencing Commission's original policy statements, although not binding, may inform the district court's decision as to whether certain conditions are extraordinary and compelling. Id. at 802.
In the Application Notes, the Sentencing Commission gives examples of extraordinary and compelling reasons, including that the defendant is:
(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.U.S.S.G. § 1B1.13(1)(A)(ii), Application Note 1(A)(ii).
Although Mr. Avilla has many varied physical and medical conditions, and suffers from mental health issues, his condition fails to rise to the level of “extraordinary and compelling reasons” justifying his release. He is currently receiving mental health treatment, and, when he has sought such treatment, it has been provided. Similarly, he has received medical treatment for the various problems he has listed. The only exception are issues that are listed by his girlfriend, but do not appear to have been communicated to the BOP. (See Motion, Exh. E) (referencing dangerous polyps on defendant's colon and cancerous spots on his lungs).) Her statements are insufficient evidence to support his claim that he is suffering from conditions that are extraordinary and compelling. Nor is his claim of cognitive decline sufficient at this point to justify release. Hence, Defendant has failed to meet his burden of showing extraordinary and compelling reasons for his release.
III. CONCLUSION
Defendant's Motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (ECF No. 54) is DENIED. IT IS SO ORDERED.