Opinion
6:17-CR-06086 EAW
07-20-2020
UNITED STATES of America, v. Henry T. DEAN, III, Defendant.
Kyle P. Rossi, U.S. Attorney's Office, Rochester, NY, for United States of America. Mark D. Hosken, Federal Public Defender, Rochester, NY, for Defendant.
Kyle P. Rossi, U.S. Attorney's Office, Rochester, NY, for United States of America.
Mark D. Hosken, Federal Public Defender, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court is a motion filed by defendant Henry T. Dean III (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 69). For the reasons set forth below, Defendant's motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2016, Defendant was charged by Criminal Complaint with wire fraud in violation of 18 U.S.C. § 1343. (Dkt. 1). An indictment was returned on June 13, 2017, charging one count of wire fraud. (Dkt. 17). A superseding indictment was returned on December 19, 2017, charging 17 counts of wire fraud and 13 counts of mail fraud. (Dkt. 30). Defendant ultimately elected to plead guilty pursuant to a plea agreement to one count of wire fraud. (Dkt. 37). The underlying facts involved Defendant defrauding individuals of money through the false advertisement of vacation rental homes, with the accrued loss to the victims totaling approximately $137,272. (Id. at ¶ 4). On December 3, 2018, the undersigned sentenced Defendant to an above-Guidelines sentence of 36 months in prison (the calculated prison sentence range under the Guidelines was 15 to 21 months). (Dkt. 59; Dkt. 60; Dkt. 61). Defendant appealed the Court's sentence, and by summary order dated January 13, 2020, the Second Circuit Court of Appeals affirmed the judgment. (Dkt. 68).
Defendant, who is 59 years old (Dkt. 51 at 2), is currently incarcerated at Federal Correctional Institution Loretto ("FCI Loretto"), in Loretto, Pennsylvania, with a projected release date of June 22, 2021. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited July 20, 2020). According to the Bureau of Prisons ("BOP") website, there is one staff member and no inmates who have tested positive for COVID-19 at FCI Loretto. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited July 20, 2020). That same website indicates that there have been 45 COVID-19 tests administered to inmates at the facility, with five pending results. Id.
On June 26, 2020, Defendant filed a one-page letter seeking a reduction in his prison sentence. (Dkt. 69). Defendant contends that his requested relief is justified by his "numerous preexisting and new medical conditions" posing an "extreme risk" to COVID-19. (Id. at 1). Defendant does not specify these supposed conditions. Defendant contends that he was scheduled to be released to home confinement under the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act"), Pub. L. 116-136, § 12003, 134 Stat. 281 (2020), but "the address fell through very late in the process." (Id. ). Defendant asks that counsel be assigned to assist with his motion. (Id. ).
The Government filed a response in opposition on July 13, 2020. (Dkt. 71). The Government contends that Defendant's medical records supplied by FCI Loretto do not support his claim that he is at increased risk of serious illness from COVID-19. (Id. at 5).
The United States Probation Office ("USPO") also submitted a memorandum to the Court on July 14, 2020, in connection with Defendant's motion, expressing the view that Defendant's motion should be denied. (Dkt. 72 at 3). The USPO memorandum details Defendant's medical history, explains that Defendant has sustained two disciplinary incidents while incarcerated, and states that Defendant had been approved for release to home confinement under the CARES Act, but as he was being escorted out of FCI Loretto by BOP staff on May 4, 2020, "it was learned that the release address he provided to BOP was fraudulent therefore he was not released." (Id. at 1-2).
III. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons 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 section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.
The Government does not contend that administrative exhaustion operates as a bar to Defendant's requested relief. (See Dkt. 71 at 1). The Government does contest, however, the presence of extraordinary and compelling circumstances, and the Court agrees. Defendant has wholly failed to satisfy the standard of presenting extraordinary and compelling circumstances justifying a reduction in his prison sentence. Defendant does not appear to suffer from any medical condition placing him at increased risk of serious illness from COVID-19, and the virus appears to be well-controlled within FCI Loretto.
Additionally, the § 3553(a) factors warrant against granting the relief requested by Defendant. The Court imposed an above-Guidelines sentence in this case, in part, because of its assessment that Defendant presents a high risk of recidivism. Defendant's record while incarcerated does nothing to negate that assessment. Indeed, although he had been approved for release to home confinement, his fraudulent activity caused that decision to be revoked. Based also on the underlying offense conduct and Defendant's criminal history, the Court concludes that a reduction in Defendant's sentence is not warranted.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 69) is denied. Further, because there is no merit to Defendant's request for relief, his request for assignment of counsel is denied.
SO ORDERED.