Opinion
1:17-CR-00110 EAW
10-13-2020
UNITED STATES of America, v. Antwone K. DEAN, Defendant.
Wei Xiang, U.S. Attorney's Office, Buffalo, NY, for United States of America. Thomas J. Eoannou, Buffalo, NY, for Defendant.
Wei Xiang, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Thomas J. Eoannou, Buffalo, 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 Antwone Dean (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 42). For the reasons set forth below, Defendant's motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was indicted on June 7, 2017, with three separate counts: (1) possession with intent to distribute fentanyl and butyryl fentanyl in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) ; (2) possession of firearm in furtherance of drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) ; and (3) possession of firearm and ammunition by convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Dkt. 13). On November 14, 2017, Defendant appeared before the undersigned and pleaded guilty to Counts 1 and 2 of the Indictment. (Dkt. 24; Dkt. 25). Defendant was sentenced by the undersigned on May 7, 2018, to the mandatory minimum aggregate prison sentence of 10 years with five years supervised release to follow. (Dkt. 37; Dkt. 38). Defendant is currently housed at Federal Correctional Institution Loretto ("FCI Loretto") in Pennsylvania, and his projected release date is May 31, 2025. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Oct. 9, 2020). According to a Bureau of Prisons ("BOP") website, FCI Loretto has no inmates who are currently testing positive for COVID-19, although seven staff members are noted as currently testing positive. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Oct. 9, 2020). That same website notes that 56 inmates and three staff members who previously tested positive have recovered, and no inmates or staff have died from COVID-19. Id. In addition, 840 tests have been administered to inmates at the facility, with no pending tests and 57 positive tests. Id.
It is not clear how there could be 57 positive tests but only 56 inmates who have tested positive and recovered. There seems to be one inmate who is not accounted for with these numbers.
--------
Defendant now seeks to be released because of the COVID-19 pandemic and his pre-existing health conditions of hypertension, chronic lung issues, and prediabetes. (Dkt. 42 at 10). The government opposes Defendant's motion, arguing in opposition that his documented medical conditions do not place him at increased risk for serious illness from COVID-19, that he has failed to establish extraordinary and compelling reasons justifying a sentence reduction, that FCI Loretto has taken appropriate steps to control the spread of the virus, and that the factors set forth in 18 U.S.C. § 3553(a) do not support a sentence reduction. (Dkt. 47; Dkt. 48). Defendant filed a reply in further support of his motion, contending that the Court should be skeptical of claims that the BOP has successfully contained COVID-19 within FCI Loretto, and that Defendant's pre-existing medical conditions place him at increased risk of serious illness from COVID-19. (Dkt. 49).
The United States Probation Office ("USPO") has submitted a memorandum to the Court dated August 17, 2020, noting that Defendant admitted as part of the offense conduct, that while on parole supervision for a manslaughter conviction, he possessed a .45 caliber semi-automatic pistol, loaded with seven rounds, and a bag containing 56.31 grams of a brown powder containing fentanyl and butyryl fentanyl. (Dkt. 50 at 2). The USPO sets forth its position that, under the circumstances, a sentence reduction would diminish the objectives of sentencing as set forth at 18 U.S.C. § 3553(a). (Id. ).
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 oppose Defendant's application on exhaustion grounds, as he has filed a request with the Warden at FCI Loretto for release and more than 30 days have elapsed since the Warden's receipt of that request, which was denied. (See Dkt. 47-2; Dkt. 47 at 1); see also United States v. Wen , 454 F. Supp. 3d 187, 192–94 (W.D.N.Y. 2020) (as a claim-processing rule, § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional and thus subject to the doctrines of waiver and equitable estoppel). Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.
In terms of whether Defendant's current medical conditions place him at increased risk from COVID-19, the record is somewhat unclear as to the extent and seriousness of Defendant's medical conditions. Defendant is 39 years old (Dkt. 36 at 2), and in the Presentence Investigation Report, the only medical conditions noted were past surgery for hernia repair, and hypertension that is effectively controlled with medication (id. at ¶¶ 74-75). The Centers for Disease Control notes that having hypertension "may" place an individual at an increased risk of serious illness from COVID-19. See Coronavirus Disease 2019 (COVID-19): People with Certain Medical Conditions , Ctrs. for Disease Control & Prevention (Oct. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html.
The BOP medical records also note complaints by Defendant of lung pain and at least one report of prediabetes, although the underlying etiology for the lung pain is not clear and at one point a medical provider suggested that Defendant may be embellishing his symptoms. (See Dkt. 45 at 43). On this record, the Court cannot conclude that Defendant has adequately established that he suffers from pre-existing medical conditions that place him at an increased risk of serious illness from COVID-19. Moreover, despite Defendant's arguments to the contrary, it does appear that FCI Loretto is taking adequate precautions to attempt to prevent the spread of COVID-19.
Additionally, the Court agrees with the Government that the § 3553(a) factors warrant against granting Defendant's requested relief. Defendant's criminal history dates back to the age of 16, when he was charged with felony crimes that were ultimately resolved through a plea to disorderly conduct (a violation). (Dkt. 36 at ¶ 35). Defendant was convicted of his first felony (manslaughter, first degree) in March 2001, and he was sentenced to over 12 years in prison and five years post release supervision. (Id. at ¶ 42). His parole was revoked twice, including most recently when Defendant was involved with the underlying crimes in this case. (Id. at ¶¶ 8-15). The Presentence Investigation Report noted that Defendant was "a violent felon with a well-established history of gang membership in the ‘Downtown Boys.’ " (Id. at ¶ 9). The underlying offenses arose when on November 22, 2016, during a routine parole home inspection at Defendant's residence, a loaded semi-automatic stolen pistol was recovered, $3,477 in cash, and drugs including heroin that subsequently tested positive for fentanyl and butyral fentanyl. (Id. at ¶¶ 10-13). Given the seriousness of the current offenses, along with Defendant's serious criminal history, a reduction of Defendant's sentence would not be consistent with the objectives of sentencing set forth in 18 U.S.C. § 3553(a). Indeed, reducing Defendant's sentence would thwart the mandatory minimum statutory incarceration called for by the statutes of conviction, that Defendant agreed to as part of his plea agreement. The current COVID-19 pandemic does not justify disregarding those statutory provisions under the circumstances of this case. See United States v. Ebbers , 432 F. Supp. 3d 421, 430-31 (S.D.N.Y. 2020) ("The Court thus finds that, in considering the section 3553(a) factors, it 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.").
In sum, the Court appreciates that Defendant is concerned about the pandemic and being housed in a correctional facility with certain medical conditions that he believes may place him at an increased risk for serious illness from COVID-19. Moreover, the Court recognizes that prison settings can present challenges in thwarting the spread of this virus. However, on the record before the Court, a reduction of Defendant's prison 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. 42) is denied.
SO ORDERED.