Summary
denying compassionate release for defendant who served roughly 20% of his sentence
Summary of this case from United States v. MoonOpinion
Case No. 09-cr-00742-JST-1 Case No. 19-cr-00438-JST-1
05-08-2020
UNITED STATES of America, Plaintiff, v. Simha FURAHA, Defendant. United States of America, Plaintiff, v. Simha Furaha, Defendant.
Leah Paisner, U.S. Attorneys Office, Oakland, CA, for Plaintiff.
Leah Paisner, U.S. Attorneys Office, Oakland, CA, for Plaintiff.
ORDER DENYING MOTION FOR COMPASSIONATE RELEASE
Re: ECF No. 44
Re: ECF No. 25
JON S. TIGAR, United States District Judge
On February 24, 2009, Defendant Simha Furaha was sentenced to five years imprisonment and five years of supervised release for carrying and possessing a firearm during, in relation to, and in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). 09-cr-0742 ECF No. 20 at 1-3. While on supervised release, he was found in possession of a firearm, which resulted both in a September 6, 2019 arrest warrant for violating the terms of his supervised release, 09-cr-0742 ECF No. 26, and in a September 12, 2019 indictment for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), 19-cr-0438 ECF No. 1.
Furaha was arrested on September 10, 2019. 09-cr-0742 ECF No. 28. On September 17, 2019, he was remanded to custody after waiving a detention hearing and formal findings. 09-cr-0742 ECF No. 32; 19-cr-0438 ECF No. 8.
On November 22, 2019, Furaha admitted to violating the terms of his supervised release and pleaded guilty to being a felon in possession of a firearm. 09-cr-0742 ECF No. 37; 19-cr-0438 ECF No. 33. On February 7, 2020, the Court sentenced Furaha to 37 months in custody for the felon-in-possession charge, and 18 months in custody for violating his supervised release, with both sentences to be served concurrently. 09-cr-0742 ECF No. 41 at 2; 19-cr-0438 ECF No. 32 at 2. The Court also imposed an additional three-year term of supervised release on the felon-in-possession charge. 19-cr-0438 ECF No. 32 at 3.
At sentencing, the Court observed "many good things in Mr. Furaha's record," including that he was able to maintain employment and appeared to be a good father. ECF No. 22 at 26. The Court also noted that Furaha "performed generally well for a significant period of the [five-year] term of release including participation in substance abuse treatment and maintaining employment, [and] no positive drug tests were noted in case reports." Id. at 26-27. In addition, Furaha participated in rehabilitative programming while he was in custody for his most recent offenses. Id. at 27.
All remaining ECF citations in this order refer to documents filed in Case No. 19-cr-0438.
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On the other hand, the Court noted that Furaha "began to slip back into addiction and maybe criminal conduct" about two years prior to his most recent arrest, and that he fell back into addiction in part because of the "huge trigger" of his mother's death. Id. at 27-28. In imposing a 37-month sentence, the Court made the following observations:
I would say the biggest thing is you have a lot of prior convictions, and you've actually done real time. You've done time that's well in excess of what [your attorney] is proposing and not that much less than what the government and Probation are proposing.
You have felony and misdemeanor convictions going back to 1994, including firearms and narcotics offenses, a hit-and-run, failure to register as a narcotics offender – the last one ... I don't give too much weight to that as a predictor ... of future behavior.
So I'm sympathetic to the use of drugs, but I worry that when you use drugs, you arm yourself with heavy artillery and you become dangerous to people. That scares me on behalf of the community.
...
Presumably you knew that you were very close to the end of your supervised release and you were unable to control your impulses anyway. And impulse control's
a big thing for you so that makes me nervous.
...
So there are things that give me hope, and then there are things that give me pause. Considering the seriousness of the conduct, the prior sentences you've served, how well you did on supervised release for a lengthy period of time, how well you've been doing in custody, and the need to protect the community, and the seriousness of your record, I think that Probation is right about a sentence of 37 months. But I don't think stacking the supervised release time on top of that is necessary.
I think that would be more time than is required to protect the community; sort of remind you of your obligations to the community; give you a very extended period of sobriety, which is a big part of this, frankly; and keep the community safe.
So I am going to impose a sentence of 37 months and the 18 months that you have to do on supervised release, but I'm going to run those sentences concurrently as opposed to consecutively.
So in short, the sentence that I'll impose this morning is 37 months, and not 20 whatever it was on the one hand or 55 on the other. And those are my reasons.
I am also going to add a suspicionless search clause which the government asked me to do....
... It basically allows any law enforcement officer to search you at any time of the day or night with or without a reason, and they can search all your stuff and where you live, too.
You have a lengthy history involving firearms and drugs, and it's important for law enforcement to make sure that you're not carrying firearms or selling drugs and so I find ... that this condition of supervised release is supported by record evidence that the condition is necessary to accomplish the statutory goals of deterrence and protection of the public and involves no greater deprivation of liberty than is reasonably necessary.
Id. at 28-32. Furaha appealed his sentence on the felon-in-possession charge, ECF No. 19, and that appeal remains pending.
On April 29, 2020, Furaha filed a motion for compassionate release to home confinement under 18 U.S.C. § 3582(c) on grounds that he "suffers from serious medical conditions that place him at a high risk of a severe infection should he contract COVID-19." ECF No. 25 at 1. Furaha has a history of congestive heart failure and obesity, both of which are conditions that, according to the Centers for Disease Control and Prevention ("CDC"), "might [cause an individual to] be at higher risk for severe illness from COVID-19." ECF No. 25 at 4-5; ECF No. 29 (medical records filed under seal); CDC, People Who Are at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited May 6, 2020). He is currently housed at Santa Rita Jail. In response to correspondence from Furaha's counsel, the Bureau of Prisons ("BOP") explained that "Mr. Furaha remains in the custody of the United States Marshals Service at a private facility. Because Mr. Furaha is not in BOP custody, BOP cannot evaluate him for compassionate release and will not be seeking a motion for compassionate release on his behalf at this time." ECF No. 25-1 at 4.
The government opposes Furaha's motion. ECF No. 34. It argues that this Court lacks jurisdiction to consider a compassionate release motion because Furaha's sentence remains pending on appeal, and that Furaha cannot meet the requirements under 18 U.S.C. § 3143(b)(1) for bail pending appeal. Id. at 3-10. It also argues that, even if this Court had jurisdiction, it should not grant compassionate release "because Defendant cannot demonstrate he is no longer a danger to society." Id. at 7 n.2.
In his reply, ECF No. 35, Furaha does not dispute that his appeal divested this Court of jurisdiction to grant his motion for compassionate release. Nor does he argue that the Court should grant bail pending appeal. Instead, he seeks an indicative ruling under Federal Rule of Appellate Procedure 12.1 and Federal Rule of Criminal Procedure 37 that the Court "would grant the motion or that the motion raises a substantial issue," in which case "the court of appeals may remand for further proceedings." Id. at 2 (quoting Fed. R. App. P. 12.1(b) ).
The Court agrees that it has the authority to make an indicative ruling. Federal Rule of Criminal Procedure 37 addresses the exact procedural posture of this case: where a "motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending." Fed. R. Crim. P. 37(a). It provides that "the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." Id. If the court chooses the third option, "[t]he movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1." Fed. R. Crim. P. 37(b). The advisory committee notes to both Rule 37 and Rule 12.1 explicitly list "motions under 18 U.S.C. § 3582(c)" as one of three types of motions for which the committee "anticipates" the rule "will be used primarily if not exclusively." Fed. R. Crim. P. 37 advisory committee's note to 2012 adoption; Fed. R. App. P. 12.1 advisory committee's note to 2009 adoption.
The Court acknowledges that at least two other courts have found that a COVID-related motion under Section 3582(c) "raise[d] a substantial issue" under Rule 37. United States v. Valencia , No. 15 Cr. 163 (AT), 2020 WL 1974233 (S.D.N.Y. Apr. 24, 2020) ; United States v. Moseley , No. 16 Crim. 79 (ER), 2020 WL 1911217 (S.D.N.Y. Apr. 20, 2020) ("Absent further factual development, the Court cannot say whether it would ultimately grant the motion if the case were remanded for such purposes, but neither is it willing to deny the motion outright."). In this case, however, the Court will deny the motion for the reasons discussed below.
In considering Furaha's request to reduce his sentence based on "extraordinary and compelling reasons," the Court must "consider[ ] the factors set forth in section 3553(a) to the extent they are applicable." 18 U.S.C. § 3582(c)(1)(A). As Furaha correctly observes, one of the factors the Court must consider is "the need for the sentence imposed ... to provide the defendant with needed ... medical care." 18 U.S.C. § 3553(a)(2)(D). Furaha argues that granting compassionate release "will permit him to take advantage of any continued medical care he may require without delay or hindrance." ECF No. 25 at 7. But he has not demonstrated that he lacks access to medical care while in custody; to the contrary, he has received specialty care, including ablation surgery, for his heart condition while he has been in custody. ECF No. 29. He further argues that "just punishment does not warrant a sentence that includes exposure to a life-threatening illness," ECF No. 25 at 7, but he has not presented any evidence that Santa Rita Jail's response to COVID-19 is inadequate or unreasonable under the circumstances. The Court is not persuaded that Furaha's risk of contracting COVID-19 warrants his permanent release from custody.
Furaha has served only roughly 20 percent of his sentence, and the Court does not find an 80 percent reduction in custodial time to be appropriate. For the reasons explained at Furaha's sentencing, and as set forth above, an eight-month custodial sentence would not satisfy "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." 18 U.S.C. § 3553(a)(2)(A). Nor would it "afford adequate deterrence to criminal conduct" or adequately "protect the public from further crimes of the defendant." 18 U.S.C. §§ 3553(a)(2)(B)-(C). "[T]he nature and circumstances of the offense" also require a much longer term of imprisonment. 18 U.S.C. § 3553(a)(1).
Furaha's motion for compassionate release is denied. However, the Court strongly encourages the BOP to make a prompt designation and to consider whether to grant Furaha a temporary designation to home confinement or a temporary release on medical furlough, with appropriate conditions to protect the public. The government shall serve this order on the BOP's regional counsel to ensure that this matter gets immediate attention.