Opinion
20-cr-0354 (LJL)
11-18-2021
UNITED STATES v. ANTHONY GUZZONE
ORDER
LEWIS J. LIMAN, United States District Judge:
Defendant Anthony Guzzone moves the Court for compassionate release pursuant to 18 U.S.C. § 3582(c)(1). The motion is denied.
Section 3582(c)(1)(A)(i) of Title 18 provides that the court “may not modify a term of imprisonment once it has been imposed, ” except that:
[T]he 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.
The Second Circuit has held that such policy statements are applicable only to compassionate release motions brought by the Bureau of Prisons and not those brought by defendants. United States v. Brooker, 976 F.3d 228, 234-36 (2d Cir. 2020). Thus, as a substantive matter, the court may grant compassionate release only if (1) it finds that there exist “extraordinary and compelling reasons” that warrant such relief and only after (2) it considers the sentencing factors set forth at Section 3553(a) of Title 18 to the extent they are applicable. United States v. Jones, No. 20-3698-cr, slip op. at 6 (2d Cir. Nov. 16, 2021).
Guzzone argues that the Court should grant compassionate relief because of the COVID-19 risks at the Federal Correctional Institution at Fort Dix, where he is incarcerated, and because of his medical conditions. Defendant suffers from asthma, irritable bowel syndrome, and diverticulitis. Dkt. No. 33 at 25. He does not present any evidence that he has exhausted administrative remedies prior to bringing the motion, and the government has represented that Defendant has not previously made a request for compassionate release to the Bureau of Prisons.
The Second Circuit has reserved decision on whether the exhaustion requirement of Section 3582(c)(1)(A)(i) is jurisdictional. See Jones, slip op. at 6 n.2 (noting request by defendant that court “waive the exhaustion requirement” but declining to address the issue because the government did not dispute exhaustion of remedies). Assuming the requirement is not jurisdictional, Guzzone still has not presented “an extraordinary circumstance, not of [his] own making, [that would] stan[d] as a substantial obstacle to him obtaining the meaningful relief that Congress intended” if he had to exhaust administrative remedies or that would relieve him from the obligation to exhaust. See United States v. Russo, 454 F.Supp.3d 270, 278 (S.D.N.Y. 2020) (holding that exhaustion requirement is not jurisdictional but that movant has to show an “extraordinary circumstance”). His motion therefore is not ripe. The Court denies Guzzone's application for that reason alone.
In addition, Guzzone has not shown an “extraordinary and compelling” circumstance that would justify compassionate release. Although Guzzone claims that he has asthma, “current guidance from the Centers for Disease Control and Prevention (‘CDC') lists ‘moderate-to-severe' asthma as a condition that ‘can make [it] more likely' that a COVID-19 infection will result in severe illness, ” Jones, slip op. at 9 (quoting People with Moderate to Severe Asthma, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html (updated Apr. 7, 2021)), and Guzzone “does not claim that he suffers from moderate or severe asthma, rather than a mild form of asthma, ” id. His medical records indicate that his pattern of asthma has been unchanged since 2001 and that it is well controlled. In addition, Guzzone is now fully vaccinated, and the Bureau of Prisons website reports that there are currently just seven cases of COVID-19 among the 3, 171 inmates housed at Fort Dix. Dkt. No. 35 at 5.
Finally, the Court's consideration of the factors set forth at section 3553(a) provides an “alternative and independent basis for denial of compassionate release.” Jones, slip op. at 6-7 (quoting United States v. Robinson, 848 Fed.Appx. 477, 478 (2d Cir. 2021)). As the Court observed at the time of sentencing, Guzzone's crime was “very serious, ” warranting a “serious and substantial sentence.” Dkt. No. 28 at 43. His criminal activity took place over a long period of time, and it resulted in a substantial amount of tax due and owing. Id. at 43-44. It was also part of a larger pattern of criminal activity by Guzzone in which he took bribes and deprived his employer of honest services and resulted in a breach by Guzzone of the trust which had been placed in him by his employer. The Court specifically considered in connection with the sentence the fact that Guzzone would have to serve time during the COVID-19 pandemic and that as a result, the time he would serve would be harder than prior to the pandemic. It gave him a lighter sentence as a result. Id. at 49. Guzzone has not brought to the attention of the Court any facts that would mitigate his sentence that the Court was not aware of at the time of sentencing.
The Court has received letters from Guzzone's family and members of his community urging it to grant compassionate release. The letters point out that Guzzone is genuinely remorseful and is trying to make the best of his time in custody, but that serving time is difficult for him. He has health issues. The Court specifically considered Guzzone's caring relationships with his family and community and his genuine remorse at the time of his sentencing; it remains moved by those expressions of support. Id. at 46-47. It also took into account how difficult serving time would be. The letters do not change the Court's view of the factors relevant to sentencing; they were incorporated into the Court's views regarding the appropriate sentence. The Court remains hopeful that Guzzone can make the best of his time in custody and that, when he is released, he will return to being a valuable member of the community. There is every reason to believe he will continue to be a productive member of society. But the Court's view of the Section 3553(a) factors articulated at sentencing and based on the crime he committed remains applicable today. Guzzone committed a very serious crime that requires a substantial sentence. So do the factors of specific and general deterrence. Even if there were extraordinary and compelling circumstances here, Guzzone's compassionate release would be inconsistent with the factors of sentencing as set forth at Section 3553(a).
The motion is DENIED. The Clerk of Court is respectfully directed to close the motion at Dkt. No. 33.
SO ORDERED.