Opinion
No. 1:17-cr-00170-NONE
12-29-2020
UNITED STATES OF AMERICA, Plaintiff, v. ELIOT BROWN, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE
(Doc. No. 27)
Pending before the court is defendant Eliot Brown's 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 risks posed to him by the ongoing coronavirus ("COVID-19") pandemic. (Doc. No. 60.) For the reasons explained below, defendant's motion will be denied.
BACKGROUND
On July 24, 2017, defendant Brown waived his right to proceed in this action by way of grand jury Indictment and entered a plea of guilty to count one of an Information charging him with receipt and distribution of material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(2). (Doc. Nos. 2 at 2; 3, 5 and 6.) The presentence report prepared in defendant's case following his entry of plea summarized his offense conduct, reporting that an investigation into defendant was launched in April 2014 after he uploaded a file of containing child pornography to a Facebook server. (Doc. No. 8 (Presentence Report) at 4.) Law enforcement identified the IP address in question as belonging to defendant. (Id.) Thereafter, law enforcement agents conducted a search warrant of defendant's residence, including his cell phone and computer. (Id. at 4-5.) The search revealed that his computer contained 239 images of child pornography, 12 child pornographic videos, and 1,365 images and five videos of child erotica. (Id. at 5-6.) Defendant's cell phone was found to contain another 130 of child pornography images, 64 child pornographic videos, and 760 images and seven videos of child erotica. (Id. at 6.) "Some of the images portrayed sadistic or masochistic conduct, or other depictions of violence." (Id.) Finally, the investigation revealed that defendant had developed improper personal relationships with some of the victims. (Id. at 5-6.) After defendant's plea of guilty was entered, it was determined that under the U.S. Sentencing Guidelines defendant's adjusted offense level was 37 and his criminal history placed him in category I, resulting in an advisory sentencing guideline range calling for a term of imprisonment in his case of between 210 and 240 months. (Id. at 16.) However, the U.S. Probation Office recommended a downward variance from the sentencing guideline range to a sentence of 135 months because of defendant's "well-documented psychological evaluations" revealed that he suffered social and developmental delays during childhood, tested below average with respect to communication, daily living skills and socialization and was at a borderline level of intellectual functioning. (Id. at 16-17.) On October 16, 2017, the court sentenced defendant to 135 months in prison, a 180-month term of supervised release to follow, and a special assessment of $100. (Doc. Nos. 16; 17 at 2-7.)
That offense of conviction carried with a punishment of a mandatory minimum 5 year term of imprisonment up to a maximum of 20 years. (Doc. No. 2 at 8.)
Defendant is currently serving his sentence at the U.S. Bureau of Prisons' ("BOP") Lompoc Federal Correctional Institution in Lompoc, California ("FCI Lompoc"). Find an inmate, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/inmateloc/ (last visited Dec. 22, 2020.). Defendant's projected release date is April 6, 2027. Id. On November 2, 2020, defendant filed the pending motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc. No. 27.) On November 20, 2020, the government filed its opposition to the motion, and on December 7, 2020, defendant filed his reply thereto. (Doc. Nos. 30, 35.)
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, 452 F. Supp. 3d 964, 968 (D. Or. 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 [BOP] that the defendant is not a danger to the safety of any other person or the community, as
provided under section 3142(g);18 U.S.C. § 3582(c)(1)(A)(i) and (ii).
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission [.]
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, 451 F. Supp. 3d 1194, 1197 (E.D. Wash. 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, 461 F. Supp. 3d 966, 978-79 (C.D. Cal. 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, 461 F. Supp. 3d at 973-74; 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
On July 16, 2020, defendant submitted an administrative request to the Warden at FCI Lompoc seeking compassionate release based on his medical conditions and the circumstances of his family, i.e., his elderly parents needing his care. (Doc. No. 27-1 at 1.) On September 9, 2020, the administrative remedy coordinator at FCI Lompoc replied, stating that additional time was needed to properly respond to defendant's administrative request, "as provided for in the administrative remedy program statement." (Id. at 2-3.) In short, defendant exhausted his administrative remedies because he filed the pending motion for compassionate release after submitting a request to the Warden at FCI Lompoc and waiting more than 30 days without receiving a response thereto. Moreover, the government concedes that administrative exhaustion is satisfied here. (Doc. No. 30 at 11.) Therefore, the court will turn to the merits of defendant's motion.
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, 451 F. Supp. 3d 392, 405-06 (E.D. Pa. 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, 445 F. Supp. 3d 22, 24 n.1 (N.D. Cal. Apr. 10, 2020).
Because defendant Brown is only 31 years old, (see Doc. No. 8 (Presentence Report) at 2), these age and age-related factors are irrelevant to the court's disposition of the pending motion.
Here, defendant Brown argues that extraordinary and compelling reasons warranting his compassionate release exist due to his medical conditions. 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 FCI Lompoc 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). Specifically, defendant argues that his asthma and intellectual disability make him more vulnerable to COVID-19. (Doc. No. 27 at 8.) At the time of defendant's sentencing, it was noted that he suffered from asthma and used an inhaler as needed. (Doc. No. 8 (Presentence Report) at 11.) Additionally, a psychological evaluation prepared in 2008 scored defendant "in the 'low average to borderline deficit' range on the intellectual and adaptive measures administered" and reported that he had "academic achievement at an elementary level." (Id.) Defendant's daily living and socialization skills were found to be equivalent to those of adolescents between seven and 15 years old. (Id.) According to defendant's BOP medical records, he suffers from asthma and is prescribed an albuterol inhaler, which he is instructed not to use daily but only "as needed to prevent/relieve [an] asthma attack[.]" (Doc. No. 34 at 10, 19 (sealed).) Based on the evidence presented in connection with the pending motion, however, it appears that defendant only suffers from a mild condition of asthma. See Adult-Onset Asthma, WEBMD, https://www.webmd.com/asthma/guide/adult-onset-asthma (last visited Dec. 22, 2020). Individuals suffering from symptoms less than twice a week likely suffer from mild intermittent asthma, whereas individuals suffering from symptoms about three to six times a week likely suffer from mild persistent asthma. Id. Individuals who suffer from moderate persistent asthma (a moderate-intermittent-asthma category does not exist) display symptoms daily, sometimes lasting for days. Id. However, as noted above, defendant has been instructed not to use his inhaler on a daily basis but only as needed. No other evidence before the court suggests that defendant suffers from a moderate asthma condition. (See, e.g., Doc. No. 34 at 1 (sealed: Denies cough, wheezing, [shortness of breath] or night time symptoms. No interference in [activities of daily living].").) Therefore, the court concludes based upon the evidence before it that defendant suffers from mild, not moderate, asthma.
Defendant is also prescribed "Mometasone Furoate[,]" which he must take daily. (Doc. No. 34 at 3 (sealed).) It appears this prescription is used to "prevent," rather than treat, asthma attacks and other side effects of asthma. Mometasone Oral Inhalation, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/druginfo/meds/a608035.html (last visited Dec. 22, 2020).
According to the United States Centers for Disease Control and Prevention ("CDC"), it does not appear that defendant suffers from any comorbidities that either place or may place him at greater risk of suffering a severe illness were he to contract 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 Dec. 22, 2020). Defendant's mild asthma condition is not an at-risk category, according to the CDC. Id. (stating that individuals with moderate-to-severe asthma "might be at an increased risk," but providing no comment on a mild asthma condition). Furthermore, the CDC recognizes that individuals with "neurological disorders" may be at greater risk of suffering a severe illness from COVID-19. Id. However, defendant's intellectual disability is not considered to be a neurological disorder, at least as that term is generally used in the medical field. See Neurologic Diseases, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/neurologicdiseases.html (last visited Dec. 22, 2020) (providing examples, such as Parkinson's disease, Huntington's disease, and epilepsy). Defendant argues that the cause of his intellectual disability is unknown. (Doc. No. 27 at 7.) However, it is the defendant's burden to demonstrate that he is entitled to compassionate release.
Because defendant has not identified any comorbidities that place him at greater risk for suffering a severe illness if he were to contract COVID-19, the court concludes that he is not "suffering from a serious physical . . . condition . . . from which he . . . is not expected to recover." See U.S.S.G. § 1B1.13, cmt. n.1 (A)(ii). Thus, the court need not consider whether defendant's medical conditions "substantially diminish[] [his] ability . . . to provide self-care" in FCI Lompoc. See id. The court does observe that the evidence before it establishes that defendant tested positive for COVID-19 on May 7, 2020. (Doc. No. 34 at 19 (sealed).) Fortunately, he denied having any major symptoms identified with COVID-19 and was monitored by the BOP's medical staff for about two weeks after his positive diagnosis without any issue. (Id. at 12-13.) In short, defendant has failed to carry his burden in demonstrating that his medical conditions warrant his release. See 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, in this case, the court does not find extraordinary and compelling reasons justifying defendant's 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 undersigned would note that with good time credits accounted for defendant Brown has served only approximately 47 months of his 135-month sentence, or not more than approximately 40% of the sentence imposed. Moreover, defendant has not even yet served the mandatory minimum term of imprisonment which his offense of conviction carried. See United States v. Purry, No. 2:14-cr-00332-JAD-VCF, 2020 WL 2773477, at *2 (D. Nev. May 28, 2020); United States v. Shayota, No. 1:15-cr-00264-LHK-1, 2020 WL 2733993, at *5-6 (N.D. Cal. May 26, 2020) ("The length of the sentence remaining is an additional factor to consider in any compassionate release analysis, with a longer remaining sentence weighing against granting any such motion." (citation omitted)).
Defendant has suggested that the court could amend the conditions of his supervised release to require him to serve what would have been the remaining portion of his custodial term on home confinement. (Doc. No. 27 at 6.) First, the CARES Act "'authorizes the BOP—not courts—to expand the use of home confinement' under 18 U.S.C. § 3624(c)(2)." United States v. Fantz, No. 5:14-cr-32-BR, 2020 WL 3492028, at *1 (E.D.N.C. June 26, 2020) (quoting United States v. Nash, No. 19-cr-40022-01-DDC, 2020 WL 1974305, at *2 (D. Kan. Apr. 24, 2020) (collecting cases)); see also United States v. Rice, No. 12-cr-818-PJH, 2020 WL 3402274, at *4 (N.D. Cal. June 19, 2020) (denying a defendant's request for release to home confinement made in conjunction with his motion for compassionate release because "the court has no authority to designate the place of confinement" and the "Bureau of Prisons has the statutory authority to choose the locations where prisoners serve their sentence."); United States v. Gray, No. 4:12-cr-54-FL-1, 2020 WL 1943476, at *3 (E.D.N.C. Apr. 22, 2020) (holding that the CARES Act "does not authorize the court to order defendant's placement in home confinement"). The district court may only impose home detention as a condition of supervised release, rather than as part of a sentence of imprisonment. See United States v. Connell, No. 18-cr-00281-RS, 2020 WL 2315858, at *5, n.6 & *7 (N.D. Cal. May 8, 2020). Accordingly, to do as defendant requests, the court would be required to reduce his sentence to one of time served and modify the conditions of supervised release to require home confinement for the remainder of his sentence. The court is unwilling to do so for the reasons set forth above. The BOP knows its capabilities to effectively and appropriately care for defendant Brown in a custodial setting. If the BOP determines that defendant should be released to home confinement to serve his sentence under the Attorney General's expanded authority in that regard, the court trusts it will do so. The issue that this court resolves is merely whether in its view, under the applicable legal standards, defendant's sentence should be reduced at this time.
CONCLUSION
For the reasons explained above, the court concludes that defendant has not demonstrated that "extraordinary and compelling reasons" exist warranting his compassionate release from prison. Accordingly, defendant's motion for compassionate release (Doc. No. 27) is denied. IT IS SO ORDERED.
Dated: December 29 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE