Opinion
6:13-CR-06006 EAW
2021-01-05
UNITED STATES of America, v. Shawnta BROWN, Defendant.
Robert Marangola, U.S. Attorney's Office, Rochester, NY, for United States of America. Avik K. Ganguly, Ganguly Brothers, PLLC, Rochester, NY, for Defendant Shawnta Brown. David R. Morabito, East Rochester, NY, for Defendant Kenya Brown.
Robert Marangola, U.S. Attorney's Office, Rochester, NY, for United States of America.
Avik K. Ganguly, Ganguly Brothers, PLLC, Rochester, NY, for Defendant Shawnta Brown.
David R. Morabito, East Rochester, NY, for Defendant Kenya Brown.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
BACKGROUND
On November 16, 2020, defendant Shawnta Brown ("Defendant") submitted a pro se motion for reconsideration of the Court's previous denial of his request for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 340). By way of background, on April 30, 2020, Defendant filed a motion for compassionate release (Dkt. 320), and on May 26, 2020, the Court denied the motion without prejudice based on the failure to exhaust and the government's position that it would not waive that requirement. (Dkt. 323). Defendant subsequently filed a renewed motion for compassionate release (Dkt. 324) and a motion for reconsideration (Dkt. 326), and on September 9, 2020, this Court issued a Decision and Order which, among other things, denied those motions (Dkt. 332). That Decision and Order also denied Defendant's petition pursuant to 28 U.S.C. § 2255, seeking to vacate and set aside his sentence. (Id. ). Defendant has filed a notice of appeal from the Decision and Order to the extent it denied Defendant's § 2255 petition. (Dkt. 334).
In its prior Decision and Order denying the request for compassionate release, the Court elected not to resolve the disputes over whether Defendant exhausted his administrative remedies, concluding that even if he had, he had not established extraordinary and compelling reasons for a sentence reduction, nor had he established that the factors set forth at 18 U.S.C. § 3553(a) justified the requested relief. (Dkt. 332 at 26-32). As the Court noted in that Decision and Order: "[A]t least up to this point, FCI Fort Dix appears to be doing a successful job in containing the spread of COVID-19 within its facility and treating the prisoners who have contracted it." (Id. at 31).
The conditions at FCI Fort Dix have taken a discouraging negative turn since the Court issued that Decision and Order. At that time, the Bureau of Prisons ("BOP") was reporting that no inmates were currently testing positive for the virus causing COVID-19, and 36 inmates had recovered. (Id. at 27). Now, there is clearly an outbreak at FCI Fort Dix, with the BOP website reporting that the facility has the largest number of infected inmates in the country with 590 inmates currently testing positive and 348 inmates having recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Jan. 5, 2021). That same website indicates that 2,348 inmates have been tested, 1,088 have tested positive, and 188 inmates are awaiting test results. Id. The BOP indicates that the inmate population at FCI Fort Dix is 2,589, see Fed. Bureau of Prisons, https://www.bop.gov/locations/institutions/ftd/ (last visited Jan. 4, 2021), thus suggesting that close to the entire inmate population has been tested.
Defendant contends in his motion for reconsideration that the reason for this outbreak is that the BOP transferred 230 inmates from FCI Elkton, including inmates who were positive for the virus causing COVID-19. (Dkt. 340 at 1-2). Defendant contends that this new information warrants reconsideration of the Court's prior denial of his motions for compassionate release. Defendant has filed a reply stating that he is "in quarantine/isolation" and that he is "crammed in a room with 22 other infected inmates." (Dkt. 345). Defendant seems to suggest that he has tested positive for COVID-19, although it is not entirely clear from the filing.
The government opposes Defendant's motion, continuing to insist that he has not exhausted his administrative remedies. (Dkt. 342 at 2). Previously, the government's argument was based on Defendant's alleged failure to comply with certain technical requirements in making his request to the Warden. (See Dkt. 327 at 2-3). The government does not expound upon that argument with its present opposition, but the Court notes that there is authority for the notion that Defendant should have filed a new request with the Warden, even though the present motion is couched as a motion for reconsideration. See United States v. Nwankwo , 12 CR 31 (VM), 2020 WL 7335287, at *1 (S.D.N.Y. Dec. 14, 2020) (where defendant sought reconsideration of denial of motion for compassionate release based on outbreak of COVID-19 cases at FCI Fort Dix, court not persuaded that exhaustion requirements were satisfied because this was new argument not previously presented to BOP); but see United States v. Daugerdas , 09cr581, 2020 WL 4931988, at *1 n.1 (S.D.N.Y. Aug. 18, 2020) (rejecting government's argument that defendant's motion was a successive motion for compassionate release thus requiring exhaustion of administrative remedies, and instead finding that it was a motion for reconsideration).
The government also addresses this Court's specific request as to whether reconsideration is warranted because in its prior Decision and Order this Court relied on the Sentencing Guidelines policy statements (see Dkt. 332 at 29-30), and the Second Circuit held in United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020), that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court (Dkt. 341). The government responds that Brooker does not warrant reconsideration since the Court previously recognized its discretion to determine what constitutes extraordinary and compelling reasons notwithstanding the "anachronistic nature" of U.S.S.G. § 1B1.13. (Dkt. 342 at 3).
The government goes on to argue that the conditions at Fort Dix FCI do not warrant this Court's reconsideration of whether extraordinary and compelling reasons exist to support a reduction in Defendant's sentence. (Id. at 3-7). In addition, the United States Probation Office has submitted a memorandum in response to Defendant's most recent motion, along with his medical records, confirming that Defendant's medical classification remains at level 2 and setting forth its position that the motion for compassionate release should be denied. (Dkt. 343; Dkt. 344).
STANDARD FOR MOTION FOR RECONSIDERATION
The Court notes that some circuits have imposed a time limit on filing a motion for reconsideration of denial of a sentencing reduction motion pursuant to § 3582(c)(2) in order to avoid circumvention of the time limits for pursuing an appeal. See United States v. Randall , 666 F.3d 1238, 1242-43 (10th Cir. 2011) ; United States v. Redd , 630 F.3d 649, 651 (7th Cir. 2011). Because the government has not raised that issue here, the Court does not address it further.
Although the Federal Rules of Criminal Procedure do not specifically recognize motions for reconsideration, such motions "have traditionally been allowed within the Second Circuit." United States v. Yannotti , 457 F. Supp. 2d 385, 388 (S.D.N.Y. 2006). District courts "have applied the applicable civil standard to such motions in criminal cases." United States v. Larson , No. 07-CR-304S, 2013 WL 6196292, at *2 (W.D.N.Y. Nov. 27, 2013).
"The standard for granting ... a motion [for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir. 1995). Common grounds for reconsideration include "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd. , 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted). "These criteria are strictly construed against the moving party so as to avoid repetitive arguments on issues that have been considered fully by the court." Boyde v. Osborne , No. 10-CV-6651, 2013 WL 6662862, at *1 (W.D.N.Y. Dec. 17, 2013) (quoting Griffin Indus., Inc. v. Petrojam, Ltd. , 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999) ). The decision to grant or deny a motion for reconsideration is within "the sound discretion of the district court...." Aczel v. Labonia , 584 F.3d 52, 61 (2d Cir. 2009) (citation omitted).
ANALYSIS
Here, Brown has admittedly presented new evidence—that FCI Fort Dix is experiencing an outbreak of COVID-19 cases. Moreover, the issuance of the Second Circuit's decision in Brooker arguably changed the legal landscape to some degree. With respect to that latter point, the Court agrees with the government that it does not warrant reconsideration as the Court previously interpreted the law as allowing it to exercise its discretion in determining what constitutes extraordinary and compelling reasons.
The Court is not so sure, though, that the outbreak of cases at FCI Fort Dix, combined with Defendant's medical condition that places him at a heightened risk of serious illness or death from COVID-19, would not at least warrant reconsideration of the Court's prior determination that Defendant failed to establish extraordinary and compelling circumstances. Cf. United States v. Lytch , 02-CR-891 (ARR), 2020 WL 7488880, at *2 (E.D.N.Y. Dec. 21, 2020) (declining to grant motion to reconsider denial of request for release based on outbreak at Fort Dix, which the court found "appears to have come under control").
Nonetheless, Defendant is not entitled to a sentence reduction because assuming arguendo that he exhausted administrative remedies and that he established extraordinary and compelling reasons, the Court continues to believe that consideration of the factors set forth at 18 U.S.C. § 3553(a) does not warrant the relief requested by Defendant. It is important to note that "a compassionate-release motion ‘is not an opportunity to second guess or to reconsider’ the sentencing court's original decision." United States v. Roney , 833 F. App'x 850, 854, No. 20-1834 (2d Cir. Nov. 2, 2020) ; see United States v. Ebbers , 432 F. Supp. 3d 421, 429 (S.D.N.Y. 2020) ("What justifies compassionate release is a finding that new mitigating ‘extraordinary and compelling’ circumstances exist to reduce that sentence; it is not an opportunity to second guess or to reconsider whether the original sentence was just."). The Court sentenced Defendant on December 19, 2016, to 248 months in prison—a sentence at the low end of the Guidelines range and consistent with the plea agreement. (Dkt. 265 at ¶ 100). Defendant was convicted of a significant drug conspiracy involving firearms, and this was not his first felony conviction. The development of the COVID-19 pandemic, even in view of Defendant's medical condition and the outbreak at FCI Fort Dix, does not warrant a reduction of Defendant's sentence. The Court has considered all of the relevant § 3553(a) factors, including the nature and circumstances of the offense of conviction; Defendant's history and characteristics; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; the need to afford adequate deterrence to any future criminal conduct by Defendant and protect the public from any further crimes that he might commit; the need to provide medical care in the most effective manner, particularly in view of this current pandemic; the need to avoid unwarranted sentence disparities among defendants with similar records convicted of similar conduct; and the recommendations under the Sentencing Guidelines as to an appropriate sentence. The Court concludes that granting Defendant's request would seriously undermine the fairness and purpose of the original sentence. See Roney , 833 Fed.Appx. at 854 ("[C]ourts regularly consider whether compassionate release would be consistent with § 3553(a) by considering how early release would impact the aims of the original sentence."). CONCLUSION
For the foregoing reasons, Defendant's motion for reconsideration of his request for compassionate release (Dkt. 340) is denied. To the extent the Court lacks jurisdiction over the pending motion because of Defendant's pending appeal of the denial of his request for relief under 28 U.S.C. § 2255 (Dkt. 337), an issue not raised by the parties, the Court denies the present motion pursuant to Fed. R. Crim. P. 37(a).
The law appears somewhat unsettled on whether a pending appeal from denial of a § 2255 petition deprives a district court of jurisdiction to entertain a motion for compassionate release. Compare United States v. Rankin , No. 1:06-CR-41-LG-JMR-1, 2020 WL 5083864, at *1 (S.D. Miss. Aug. 26, 2020) (a pending appeal of the denial of a § 2255 petition divests the court of jurisdiction over a compassionate release motion); United States v. Hammond , No. CR 02-294, 2020 WL 1891980, at *1 (D.D.C. Apr. 16, 2020) (same) with United States v. Fields , 457 F. Supp. 3d 726, 728 n.1 (D. Alaska 2020) (notwithstanding pending appeal of denial of § 2255 petition, concluding that compassionate release motion presented issues that were factually and legally distinct and therefore the court had jurisdiction over the motion); United States v. Hunter , No. 3:06-CR-61, 2020 WL 127711, at *1 (S.D. Ohio Jan. 10, 2020) (same). In United States v. Bunch , 828 F. App'x 185, 185 (4th Cir. 2020), the Fourth Circuit held that the district court lacked authority to grant the defendant's compassionate release motion "while his appeal of his collateral challenge to the judgment was pending," but instead of dismissing the motion the district court should have considered the motion under Rule 37.
SO ORDERED.