Opinion
Case No. CR 08-01318-ODW-1
07-10-2020
UNITED STATES OF AMERICA Plaintiff, v. JEFF McGRUE, Defendant.
ORDER DENYING DEFENDANT'S MOTION PURSUANT TO 18 U.S.C. § 3582(C)(1)(A)(I) FOR SENTENCE MODIFICATION /COMPASSIONATE RELEASE
I. I NTRODUCTION
Before the Court is Defendant McGrue's Motion for Sentence Modification under 18 U.S.C. §3582(c)(1)(A)(i), presumably with the expectation that the modification would entitle him to immediate release. Generally, a "court may not modify a term of imprisonment once it has been imposed except that . . . upon motion of the Director of the Bureau pf 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 . . . may reduce the term 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 . . .." 18 U.S.C.§ 3582)c)(1). While the instant motion is styled a motion for modification of sentence, he submits it under 18 U.S.C. § 3582(c)(1)(A)(10) which covers "compassionate release." He contends there exist extraordinary and compelling reasons which warrant a sentence reduction.
"Congress has not defined what constitutes extraordinary and compelling reasons; instead, it defers consideration of the matter to the Sentencing Commission. See 18 U.S.C. § 994(t) ("The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18 shall describe what should be considered extraordinary and compelling for sentence reduction, including the criteria to be applied and a list of specific examples.."). See also, U. S. vs. Rodriguez, 424 F.Supp.3d 674,681 (N.D.Cal.2019).
Here, McGrue cites, for example, that he is over 60, has served "the greater of 10 years"[of a 25 year sentence], is housed in a 'low' facility, is a first time offender, is non-violent, no prison write-ups in the last year, in a low custody classification and pattern scores, is obese, not convicted of a sex crime, low risk of re-offense, not a risk to community, family and friends for support and housing and can provide a release plan. Apparently he contends this list of, what some would consider ordinary conduct, other than the obesity, is to be considered "extraordinary." They are not.
First, McGrue states that he has exhausted his administrative remedies by twice petitioning the warden, first in March and again in May with no response, within 30 days or at all. If this is so, this court would have jurisdiction to consider his request. However, McGrue offers no evidentiary support that he has in fact petitioned the warden prior to resorting to court intervention. Notwithstanding this deficiency, the court will review the request on its merits. /// /// 2. DISCUSSION
Assuming, but without finding, that there has been exhaustion of all administrative remedies, upon motion, a court may modify a defendant's sentence "after considering the factors set forth in §3553(a) to the extent applicable" if it finds 'extraordinary and compelling reasons to warrant such a reduction' and 'such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Section 3582(c) also permits a court to modify a term of imprisonment if, among other things, "the defendant is at least 70 years of age" and "has served at least 30 years in prison." 18 U.S.C. §3582(c)(1)(A)(ii). That subsection is not pertinent here because McGrue has fulfilled neither requirement. Instead, he relies on the purported existence of the extraordinary and compelling reasons prong of section 3582(c)(1)(A)(i). Under this subsection, a defendant bears the burden of establishing the existence of special circumstances "meeting the bar set by Congress and the Sentencing Commission for compassionate release to be granted." See United States v. Greenhut, No. 2:18-cr-00048-CAS-1, 2020 WL509385, at *1 (C.D.Ca.Jan 31, 2020) (citing United 'States v. Sprague, 135 F.3d 1301, 1306-07(9th Cir.1998).
The Sentencing Commission Policy Statement at U.S.S.G. Section 1B1.13 sets forth four "extraordinary and compelling reasons that warrant a sentence reduction. The first three reasons pertain to the medical condition of the defendant, age of the defendant and family circumstances. U.S.S.G 1B1.13 Application Note 1(A)-(C). The fourth provision is a "catch-all" provision which provides for compassionate release when "[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivision (A) through (C)" Id., app.note 1(D).
To demonstrate the extraordinary and compelling reasons for the request, McGrue states: "[t]he request is made in prevention of a COVOD-19 Virus Second Wave in accordance with the Center for Disease Control and Prevention guidelines." (Mtn. at p.1.) Further, "[t]o date the BOP is not prepared for a Second Virus wave and due to facility and staff limits can do very little more to protect inmates. The BOP is not in compliance with the CDC." Id. at p.2.
McGrue does not describe his housing conditions which might place him at heightened risk of becoming seriously ill from COVID-19 nor does he indicate he has co-morbidity factors which make him more susceptible to a life threatening outcome in the event he contracted the virus. In fact, he makes no mention of any aspect of his medical condition other than obesity. In sum, he makes no argument that he "is suffering from either a terminal illness or a 'serious physical or mental condition . . . that substantially diminishes [his] ability to provide self-care within the environment of a correctional facility and from which he . . . is not expected to recover,'" See U.S.S.G. Section 1B1.13, Application Note 1 (which lists other conditions which might qualify, such as being 65 years old and experiencing serious deterioration in health due to the aging process after serving at least 10 years or 75% of a term of imprisonment, family circumstances involving the death or incapacitation of the caregiver of the defendant's minor child or the incapacitation of the defendant's spouse or registered partner; and other reasons that in combination with listed circumstances are extraordinary and compelling); see also United States v. McGraw, No. 2:02-cr-00018-LJM-CMM, 2019 WL20159488, at *2(S.D.Ind.May 9, 2019). His generalized concerns about the pandemic do not rise to the level of either extraordinary or compelling. These are the same concerns shared by the vast majority of the people in this country - a country with more Coronavirus cases and resulting deaths than any other country in the world.
To say that McGrue has provided inadequate evidence of the factors listed in the Sentencing Commission's Policy Statement would be charitable, for indeed he has provided none. For these reasons, the Court finds no legal justification to grant Petitioner's request to modify his sentence and grant him compassionate release. Therefore the request is DENIED.
IT IS SO ORDERED. DATED: July 10, 2020.
/s/_________
OTIS D. WRIGHT,II
UNITED STATES DISTRICT JUDGE