Opinion
2:15-cr-00168
05-06-2021
UNITED STATES OF AMERICA, v. FREDERICK H. BANKS, Defendant.
MEMORANDUM ORDER
MARK R. HORNAK CHIEF UNITED STATES DISTRICT JUDGE
AND NOW, this 6th day of May, 2021, the Court hereby issues the following Order: The Defendant filed a pro se Motion for Compassionate Release and for Discharge due to COVID-19 at ECF No. 1373, seeking compassionate release in the above-captioned matter. For the following reasons, the Defendant's Motion is DENIED without prejudice.
I. BACKGROUND
On January 12, 2016, a federal Grand Jury returned a seven (7) count Superseding Indictment against Mr. Banks, charging him with wire fraud in violation of 18 U.S.C. § 1343 and aggravated identity theft in violation of 18 U.S.C. § 1028A, among other things. (ECF No. 96.) Mr. Banks was found guilty by a jury at trial as to the wire fraud and aggravated identity theft counts and was sentenced to an aggregate of 104 months in custody, followed by a term of supervised release of three (3) years. (ECF Nos. 1116, 1288.) Mr. Banks presently resides at FCI Allenwood Low. As of the date of this Order, the Bureau of Prisons (“BOP”) lists Mr. Banks's release date as December 26, 2022.
Mr. Banks first moved for compassionate release in July 2020 based on his hypertension and related COVID-19 health concerns. (ECF No. 1303.) The Court denied the motion without prejudice because it concluded that Mr. Banks failed to establish “extraordinary and compelling” reasons for release. (ECF No. 1316.)
In December 2020, Mr. Banks again filed a pro se motion for compassionate release, this time citing multiple other health conditions in addition to hypertension, including heart disease and obesity. (ECF No. 1373.) Soon after, he filed pro se supplemental documents in support of his Motion. (ECF Nos. 1376, 1380, 1382.) Mr. Banks's then-counsel, Mr. Marvin Miller, declined to file a counseled supplement to the Motion. (ECF No. 1386.) Mr. Miller later withdrew from representing Mr. Banks, leaving Mr. Banks unrepresented in this Court. Mr. Banks is, however, represented by appellate counsel relative to his appeal before the Third Circuit. The Court gave Mr. Banks's appellate counsel the opportunity to supplement Mr. Banks's compassionate release motion, but appellate counsel opted not to do so. (See ECF No. 1399.)
The Court ensured that there were no gaps in legal representation as to Mr. Banks. The Court deferred ruling on Mr. Miller's motion to withdraw until after the Third Circuit appointed appellate counsel and after that counsel entered her appearance. (ECF Nos. 1384, 1387.)
The Government opposes Mr. Banks's motion for compassionate release. (ECF No. 1393.) The Government contends that Mr. Banks's circumstances do not rise to an “extraordinary and compelling” level because Mr. Banks is fully vaccinated, a fact that mitigates any heightened risk that Mr. Banks has of contracting or becoming severely ill from COVID-19. (Id. at 9.) Further, it argues that release is inconsistent with the § 3553(a) factors. (Id. at 9-10.) The Government also filed Mr. Banks's sealed medical records on the docket. (ECF No. 1398.)
Mr. Banks filed a reply, arguing that he can still contract COVID-19 despite being vaccinated. (ECF No. 1407.) He also argues that he will be eligible for release relatively soon, given his good-time credits and involvement with the Residential Drug Abuse Program (“RDAP”). (Id.; see also ECF No. 1417.) The matter is ripe for disposition.
II. LEGAL STANDARD
“[A]s a general matter, a court cannot modify a term of imprisonment after it has been imposed without specific authorization.” McMillan v. United States, 257 Fed.Appx. 477, 479 (3d Cir. 2007); see also Dillon v. United States, 560 U.S. 817, 819 (2010) (“A federal court generally may not modify a term of imprisonment once it has been imposed.”). One such specific authorization is the First Step Act's amendment of 18 U.S.C. § 3582. As amended, that provision allows a court to modify a defendant's term of imprisonment if “extraordinary and compelling reasons warrant such a reduction.” § 3582(c)(1)(A)(i). In addition, the court must consider: (1) whether the defendant has exhausted the appropriate administrative remedies; (2) the factors set forth in 18 U.S.C. § 3553(a) to the extent that they are applicable; and (3) whether such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. § 3582(c)(1)(A).
III. DISCUSSION
While the Court finds that Mr. Banks's Motion is properly before it, the Court finds that Mr. Banks fails to establish “extraordinary and compelling” circumstances for release. In addition, even if “extraordinary and compelling” reasons did authorize consideration of early release, the Court finds that release of Mr. Banks is nonetheless inappropriate at this time in light of the factors set forth in § 3553(a). Compassionate release is thus denied on the record currently before the Court.
A. Administrative Exhaustion
In order to consider the merits of the Defendant's Motion, the Court must first determine whether Mr. Banks has complied with 18 U.S.C. § 3582(c)(1)(A)'s exhaustion requirement. Prior to petitioning a court for relief under § 3582(c), a defendant must first file an administrative request for compassionate release with the warden of their facility and then either: (1) fully exhaust the BOP's administrative remedies, or (2) wait thirty (30) days from the date the administrative request was filed with the warden. § 3582(c)(1)(A). The Third Circuit has confirmed that either of § 3582(c)(1)(A)'s options (acting independently) are sufficient to satisfy the exhaustion requirement. See United States v. Harris, 973 F.3d 170, 171 (3d Cir. 2020) (rejecting the argument that a defendant is required to completely exhaust the administrative remedy process if the warden denies a defendant's request within thirty (30) days of receiving it, primarily because “the statute states that the defendant may file the motion [before a district court] thirty days after the warden receives his request”).
Based on the record before it, the Court concludes that Mr. Banks has satisfied the administrative exhaustion requirement. Mr. Banks submitted a request for reduction in sentence to the Warden of the facility where he then resided more than thirty (30) days ago on November 24, 2020. (ECF No. 1373-1.) The request referred to Mr. Banks's various underlying health conditions. (Id.) The Warden received this request on December 1, 2020 and denied it on December 7, 2020. (Id.) The Government does not contest administrative exhaustion, having verified with the BOP that Mr. Banks administratively exhausted his request on those dates. (ECF No. 1393, at 5.) Because more than thirty (30) days have elapsed since Mr. Banks's request was filed with the Warden of a BOP facility, Mr. Banks's Motion is properly before the Court.
B. “Extraordinary and Compelling” Reasons
Next, the Court must determine whether Mr. Banks's medical conditions, in combination with the ongoing COVID-19 pandemic, rise to an “extraordinary and compelling” level so as to warrant release under § 3582(c)(1)(A)(i). Mr. Banks argues that extraordinary and compelling circumstances for release exist here based on his heart disease, high cholesterol, obesity, hypertension, and mental health conditions. (ECF No. 1373, at 2.) He also raises concern about the spread of COVID-19 in BOP facilities.
The Court denied Mr. Banks's previous compassionate release motion which was based primarily on Mr. Banks's asserted hypertension because his hypertension was not “serious” enough in nature to warrant release and his concerns were too generalized to be considered extraordinary and compelling. (ECF No. 1316, at 7, 9.)
A few things have changed since the Court previously considered Mr. Banks's motion for release. First, at the time of the Court's prior decision, it was unclear if hypertension was an independent risk factor for severe illness from COVID-19. (See Id. at 8 (citing Frequently Asked Questions, Ctrs. for Disease Control & Prevention (last updated July 15, 2020)).) Now, as the Government acknowledges, the Centers for Disease Control and Prevention (“CDC”) warns that hypertension “can make” a person “more likely to get severely ill from COVID-19.” See Medical Conditions, Ctrs. for Disease Control & Prevention (last updated April 29, 2021), https://bit.ly/3iZBI5M. Second, Mr. Banks now argues that he also has additional health conditions that make him more susceptible to severe illness should he contract COVID-19: obesity and heart disease. Third, Mr. Banks is now full vaccinated for COVID-19. (See ECF No. 1398, at 123.) He received his second dose of the Moderna vaccine on February 4, 2021. (Id.)
Mr. Banks also mentions high cholesterol and mental health conditions (and one illegible condition). (ECF No. 1373, at 2.) But the CDC does not list either of these conditions as ones that can make a person more likely to get severely ill from COVID-19. Nor does it appear to the Court that others in the scientific or medical communities have determined that those conditions make someone more prone to severe illness from the virus, and no such support is in the record in this case.
Given the record before the Court, the Court concludes that the circumstances here still do not establish “extraordinary and compelling” reasons for release. First of all, the medical records do not support Mr. Banks's assertion that he has the additional condition of obesity. As of September 2020, his recorded height and weight translate to a BMI of approximately 27.3, which is squarely considered to be “overweight” but not “obese.” (See ECF No. 1398, at 82.) In addition, the record is unclear as to the existence or extent of any heart conditions from which Mr. Banks may suffer. Mr. Banks is prescribed two different medications that may be taken to treat heart problems and/or hypertension, the latter of which is a condition with which Mr. Banks has been affirmatively diagnosed. (See, e.g., id. at 5, 48.) It is not clear to the Court which precise condition(s) of Mr. Banks these medications were intended to treat, though it appears from the medical records that they were prescribed to treat his hypertension. (See, e.g., id. at 34-35.)
Though the Court recognizes that Mr. Banks's hypertension can make him more likely to get severely ill from COVID-19, the record does not demonstrate that his hypertension is sufficiently persistent or significant so as to qualify as extraordinary and compelling on its own. The Court also notes that the medical records show that Mr. Banks is being regularly treated for his hypertension in a manner that reflects that the BOP is appropriately managing it. See United States v. Blanks, No. 15-146, 2021 WL 37633, at *3 (W.D. Pa. Jan. 4, 2021) (finding that extraordinary and compelling reasons did not exist where there was no indication that the defendant lacked access to medication or to appropriate care for his conditions in prison). In fact, the medical records show that any lack of care for Mr. Banks's hypertension is due to Mr. Banks's own “noncompliance” and refusal to take medication, not any deficiency in the BOP's medical care. (See, e.g., ECF No. 1398, at 11, 45, 91, 133.) The BOP has had to advise Mr. Banks multiple times that he must take his blood pressure medications regularly. (Id. at 91, 94, 97, 112, 133.)
At one point in his filings, Mr. Banks claims that he is “being denied medical treatment.” (ECF No. 1407, at 2.) The record in this Court in this case, which includes 202 pages of BOP medical records (ECF No. 1398), simply does not support this assertion.
Mr. Banks's concerns about the spread of COVID-19 in his specific facility are also unwarranted at this time. At the time that Mr. Banks submitted his Motion, Mr. Banks was at FCI Oakdale. He is now at FCI Allenwood Low. According to the BOP, as of May 5, 2021, there were zero (0) positive cases of inmates or staff across all three (3) of the Allenwood facilities, including the one where Mr. Banks resides. Further, Mr. Banks informs the Court that, despite that Mr. Banks is fully vaccinated (a fact discussed below), the BOP nonetheless still requires him to comply with mask wearing and social distancing. (ECF No. 1407, at 1.) But this policy is consistent with medical advice from the CDC and demonstrates to the Court that the BOP is maintaining its efforts to mitigate the spread of the virus within its facilities.
In any event, Mr. Banks's vaccination significantly mitigates any risk he faces from COVID-19. He has been fully vaccinated since February 18, 2021 (exactly two (2) weeks after his second dose of the Moderna vaccine on February 4, 2021). (See ECF No. 1398, at 123.) While “no vaccine prevents illness 100 percent of the time, ” the COVID-19 vaccines are considered to be effective. See What You Should Know About the Possibility of COVID-19 Illness After Vaccination, Ctrs. for Disease Control & Prevention (last updated April 21, 2021), https://bit.ly/2Rn0Uv1. COVID-19 vaccination not only prevents most fully vaccinated people from contracting COVID-19 in the first place, but it also reduces the “overall risk of hospitalization and death among fully vaccinated people” as compared to people with similar risk factors who are not vaccinated. Id.; see also COVID-19 Vaccines Work, Ctrs. for Disease Control & Prevention (last updated April 7, 2021), https://bit.ly/3upcKn2. Indeed, the Moderna vaccine has a 94.1% efficacy rate, including among persons with underlying medical conditions. See Moderna COVID-19 Vaccine Overview and Safety, Ctrs. for Disease Control & Prevention (last updated April 5, 2021), https://bit.ly/3xKDY9E. Given this scientific and medical research, the fact that Mr. Banks is fully vaccinated cuts against his argument that he is at a heightened risk of serious illness from COVID-19. See, e.g., United States v. Singh, No. 15-00028, 2021 WL 928740, at *3 (M.D. Pa. Mar. 11, 2021) (explaining that the significant protection that the vaccine provided the defendant minimized the health risks that the defendant faced and concluding that the defendant failed to establish extraordinary and compelling reasons for release); see Id. at *3 n.36 (citing cases).
Even without the COVID-19 vaccination, Mr. Banks does not have significant enough health concerns to establish extraordinary and compelling reasons for release. The medical records show that he is being adequately treated for his health conditions. In addition, the public information available from the BOP shows that FCI Allenwood has greatly mitigated the spread of COVID-19. On top of this, Mr. Banks is fully vaccinated, which significantly diminishes the likelihood that he will fall severely ill from COVID-19. In consideration of these circumstances, the Court concludes that Mr. Banks does not meet his burden to establish extraordinary and compelling reasons that would warrant his release.
C. § 3553(a) Factors
But even if Mr. Banks's COVID-19-related concerns were extraordinary and compelling enough for the Court to consider release, the Court's consideration of the § 3553(a) factors would prohibit release of Mr. Banks. “[I]n considering the section 3553(a) factors, [the Court] should assess whether those factors outweigh the ‘extraordinary and compelling reasons' warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence.” United States v. Bess, 455 F.Supp.3d 53, 66 (W.D.N.Y. Apr. 22, 2020) (citation omitted).
The determination of “whether to reduce an eligible defendant's term of incarceration for compassionate release after considering the § 3553(a) factors is committed to the discretion of the [district court].” United States v. Jones, No. 12-cr-38, 2020 WL 3871084, at *4 (W.D. Pa. July 8, 2020) (citing United States v. Pawlowski, 967 F.3d 327 (3d Cir. June 26, 2020)). That discretion includes the district court's authority to consider the length of the defendant's original custodial sentence, including the portions served and remaining, when weighing the § 3553(a) factors. Pawlowski, 967 F.3d at 330-31.
Here, the Court concludes that any reduction of Mr. Banks's sentence would be inappropriate at this time because the § 3553(a) factors continue to fully support the sentence that this Court originally imposed. In particular, the Court finds that at least three (3) of the § 3553(a) factors substantially weigh against Mr. Banks's release: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to afford adequate deterrence to criminal conduct; and (3) the need to protect the public from further crimes.
Based on the record before it, the Court concludes that release of Mr. Banks at this time would materially undermine the original purposes of sentencing. Mr. Banks was convicted in this case on multiple counts of wire fraud and one count of aggravated identity theft. These convictions were by no means Mr. Banks's first foray into criminal fraud. Mr. Banks has three (3) prior convictions for fraud, with the first occurring in 1996, more than 15 years before the offense conduct related to the convictions in this matter. (ECF No. 1207, at 8-17.) Though Mr. Banks argues that further incarceration is unnecessary because he is a non-violent offender (ECF No. 1373, at 3), his criminal record reflects a pattern of fraudulent and deceptive behavior done with no regard for the significant financial harm that his actions may cause-and did cause in certain instances. His convictions run the gamut of criminal deception and include wire fraud, mail fraud, criminal copyright infringement, money laundering, and possession of a counterfeit or forged security. (Id. at 8-17.) In one of his schemes, Mr. Banks devised a plan to defraud individuals by advertising his business as an entity designed to help people locate missing relatives or friends. (Id. at 8.) In another scheme, he caused an actual loss of more than $70,700 (with an intended loss of more than $367,000). (Id. at 9-10.)
Mr. Banks's criminal record demonstrates that his criminal behavior has only persisted over time, despite periods of incarceration and court supervision. Mr. Banks served substantial time in prison for his prior convictions, including one 63-month sentence. (Id. at 12.) Moreover, Mr. Banks committed the offenses of which he was convicted in this case while he was serving a term of supervised release. (Id. at 17.) His criminal history thus indicates that past periods of incarceration and supervision have not deterred him from further engaging in the exact same type of criminal activity of which he was convicted here.
Mr. Banks, however, suggests that the amount of time left on his sentence warrants his release. At various points in his filings, Mr. Banks asserts that he has just four (4) months left of his sentence (ECF No. 1373, at 3); that he that he has just six (6) months left of his sentence (ECF No. 1407, at 2); and that he has just nine (9) months left of his sentence (ECF No. 1407, at 2; ECF No. 1417, at 1). All of these estimated release dates rely on supposed earned reductions due to good-time credits and RDAP programming. At this time, though, the only expected release date reported by the BOP is December 26, 2022, which is approximately nineteen (19) months from now and which amounts to almost 20% of his 104-month sentence.
In any event, the fact of the matter is that even if Mr. Banks had as low as four (4) months left on his sentence, the Court would still conclude, for all the reasons stated above, that those four (4) months were sufficient but not greater than necessary to fulfill the original purposes of sentencing. The remainder of the sentence imposed is necessary both to protect the public from Mr. Banks's crimes and to deter Mr. Banks from committing further crimes. As a result, in addition to the lack of “extraordinary and compelling” reasons warranting release, the § 3553(a) factors weigh heavily against Mr. Banks's release.
IV. CONCLUSION
The Court finds that Mr. Banks's Motion is properly before it, but that Mr. Banks does not establish “extraordinary and compelling” reasons warranting release nor do the § 3553(a) factors support his release. Accordingly, the Defendant's pro se Motion to Reduce Sentence at ECF No. 1373 is DENIED without prejudice.