Opinion
1:15-CR-00142 EAW
2020-05-06
UNITED STATES of America, v. Sean MCINDOO a/k/a Professor, Defendant.
Brendan T. Cullinane, Joseph M. Tripi, Richard D. Kaufman, U.S. Attorney's Office, Buffalo, NY, Marianne Shelvey, U.S. Department of Justice/Organized Crime Section, Washington, DC, for United States of America.
Brendan T. Cullinane, Joseph M. Tripi, Richard D. Kaufman, U.S. Attorney's Office, Buffalo, NY, Marianne Shelvey, U.S. Department of Justice/Organized Crime Section, Washington, DC, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court is a motion filed by defendant Sean McIndoo a/k/a Professor (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 1874). Because the Court may not excuse Defendant's failure to exhaust administrative remedies as required by that statute, Defendant's motion is denied.
II. BACKGROUND
Defendant was one of 16 defendants named in a 46-count Second Superseding Indictment (Dkt. 33) (hereinafter "Indictment") returned on March 16, 2016, alleging various crimes, including a RICO conspiracy in violation of 18 U.S.C. § 1962(d), firearm offenses in violation of 18 U.S.C. § 924(c), and VICAR counts, pertaining to the operation of the Kingsmen Motorcycle Club ("KMC"). Defendant was named in the following six counts:
An additional four defendants were named as part of the same RICO conspiracy in a separate indictment returned on October 4, 2017. Indictment, United States v. Long , No. 1:17-cr-00189-EAW-MJR, Dkt. 1 (W.D.N.Y. Oct. 4, 2017).
"RICO" refers to the Racketeer Influenced and Corrupt Organizations Act, codified at 18 U.S.C. §§ 1961 -68.
"VICAR" refers to the Violent Crimes in Aid of Racketeering Activity statute, codified at 18 U.S.C. § 1959.
(1) Count 1 (RICO conspiracy) in violation of 18 U.S.C. § 1962(d) ;
(2) Count 2 (possession of firearms in furtherance of crime of violence) in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2;
(3) Count 14 (attempted murder in aid of racketeering) in violation of VICAR, 18 U.S.C. §§ 1959(a)(5) and 2;
(4) Count 15 (assault with a dangerous weapon in aid of racketeering) in violation of VICAR, 18 U.S.C. §§ 1959(a)(3), 1959(a)(6), and 2;
(5) Count 16 (use and discharge of a firearm during and in relation to a crime of violence) in violation of 18 U.S.C. §§ 924(c)(1)(a)(iii) and 2;
(6) Count 45 (using and maintaining the KMC South Buffalo Chapter's
clubhouse for drug dealing) in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 ; and
(7) Count 46 (possession of firearms in furtherance of drug trafficking) in violation of 18 U.S.C. § 924(c)(1)(A)(i) and 2.
(Dkt. 33).
Defendant was arrested and subsequently arraigned on March 22, 2016, in the United States District Court for the Middle District of Florida (Orlando Division). (Dkt. 49 at 4). On April 11, 2016, a detention hearing was held before United States Magistrate Judge Michael J. Roemer in this District, who issued an Order of Detention. (Dkt. 98; Dkt. 102).
On August 4, 2016, Defendant filed a motion to revoke Magistrate Judge Roemer's Detention Order pursuant to 18 U.S.C. § 3145(b). (Dkt. 251). By Decision and Order entered September 19, 2016, the undersigned denied Defendant's motion, finding that the Government had established by clear and convincing evidence that Defendant's release presented a risk of danger that no condition or combination of conditions would reasonably protect against. (Dkt. 308).
Defendant continued to aggressively defend the case until the eve of trial when, on January 12, 2018, he entered into a plea agreement with the Government. (Dkt. 996). Defendant pleaded guilty to Counts 1 and 46 of the Indictment, and the plea agreement contemplated an aggregate sentencing range of 97 to 106 months in prison. (Dkt. 1017 at ¶¶ 1, 14).
On February 5, 2018, Defendant filed a motion to be released from custody pending sentencing. (Dkt. 1043). An appearance was held on February 13, 2018, and the Court requested further information relevant to the pending motion. (Dkt. 1070). Defendant filed supplemental information in support of his motion for release on March 22, 2018 (Dkt. 1151), and on March 28 and 29, 2018, he testified as a witness for the Government at the trial of three of his co-defendants (Dkt. 1161; Dkt. 1169).
A motion hearing was held before the undersigned on April 5, 2018, concerning Defendant's motion for release pending sentencing (Dkt. 1185), and continued to April 12, 2018 (Dkt. 1199), at which time the Court, over the Government's objections, released Defendant with certain conditions (Dkt. 1201). Among other reasons, the Court was persuaded to release Defendant pending sentencing because of its changed assessment concerning his risk of danger and his significant mental health issues. For more than one year thereafter, prior to Defendant's sentencing, he was fully compliant with the conditions of release. (Dkt. 1741 at ¶ 8).
On June 19, 2019, Defendant was sentenced to an aggregate prison sentence of 41 months, to be followed by three years supervised release. (Dkt. 1743). The Court allowed Defendant to voluntarily surrender for his sentence, which he is now serving at the Elkton Federal Correctional Institution ("Elkton FCI") in Lisbon, Ohio, and he is due to be released on June 12, 2020.
According to the Federal Bureau of Prisons website, Defendant's release date is June 12, 2020. Find an Inmate , Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited May 5, 2020). However, according to a Memorandum prepared by the United States Probation Office in response to Defendant's motion, in less than 30 days (on June 1, 2020) he is scheduled to begin his placement at a residential re-entry center.
On April 20, 2020, Defendant filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 1874). The basis for Defendant's motion is the national emergency and worldwide pandemic caused by the Coronavirus Disease-2019 ("COVID-19"). Defendant contends that Elkton FCI is experiencing one of the deadliest outbreaks of COVID-19 in the Bureau of Prisons ("BOP"), that the prison is inadequately protecting its inmates, that Defendant's physical conditions place him at greater risk under guidelines promulgated by the Centers for Disease Control and Prevention, that his mental health conditions have been exacerbated by the crisis, and that he has been unable to petition the BOP for compassionate release. (Id. ).
On March 13, 2020, President Trump declared a National Emergency concerning COVID-19. Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020). According to the World Health Organization's website, as of May 6, 2020, there were 3,557,235 confirmed cases of COVID-19 worldwide, with 245,150 confirmed deaths. See Coronavirus (COVID-19), World Health Org., https://covid19.who.int/ (last visited May 6, 2020).
At the request of the Court, the United States Probation Office ("USPO") submitted a memorandum dated April 27, 2020, which among other things summarized a communication with a staff member assigned to Defendant's floor at Elkton FCI who largely contradicts many of Defendant's reports concerning conditions on the ground at the prison. For instance, contrary to Defendant's claims, the USPO reports that all inmates have been provided masks, all inmates have access to soap, and that appropriate medical and mental health treatments are available to inmates. The USPO also reports that Defendant is scheduled to be placed in quarantine at Elkton FCI for a 14-day period on May 18, 2020, prior to his scheduled release on June 1, 2020. The USPO memorandum concludes:
Given the information provided by FCI Elkton, and the current limited availability of resources available to address the defendant's mental health needs upon immediate release, the U.S. Probation Office opposes the motion requesting a modification of the defendant's sentence to time served. To ensure the health and safety of both the defendant and the community, our office believes the best option for Mr. McIndoo is to undergo the BOP's quarantine procedure 14 days prior to his release ... as scheduled on June 1, 2020.
The Government filed a response in opposition on May 4, 2020. (Dkt. 1886). In its response, the Government spends a good eight pages detailing purported efforts being undertaken at Elkton FCI to protect inmates from infection with COVID-19, claiming that the "overall percentage of inmates at [Elkton FCI] who have contracted COVID-19 remains small." (Id. at 3-11). The Government opposes Defendant's motion on four grounds: (1) Defendant's motion is procedurally barred pursuant to 18 U.S.C. § 3582(c)(1)(A) ; (2) there is no extraordinary and compelling reason to release Defendant; (3) the factors set forth at 18 U.S.C. § 3553(a) require Defendant to complete his 41-month sentence; and (4) the Court lacks authority to order Defendant released to home confinement. (Id. at 13).
The Government appears to misapprehend the nature of the relief requested by Defendant in making this fourth argument. (See Dkt. 1886 at 29-30). While the Court is not authorized to determine Defendant's place of incarceration or order the BOP to place Defendant on home confinement, if the standard set forth at 18 U.S.C. § 3582(c)(1)(A) is satisfied, the Court is authorized to reduce Defendant's prison sentence to time served and impose home detention or incarceration as a condition of supervised release.
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, No. 02 CR 743-07 (CM), (S.D.N.Y. Jan. 15, 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[.]
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) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; (3) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.
The Court addresses below whether the exhaustion requirement bars the relief requested by Defendant, because if it does, the Court cannot proceed any further. However, before doing so, the Court is compelled to address its concerns over the Government's failure to meaningfully discuss the conditions at Elkton FCI in its response to Defendant's motion.
A. Elkton FCI
The conditions at Elkton FCI appear dire. Indeed, Attorney General William P. Barr highlighted Elkton FCI as one of three facilities where the BOP is "experiencing significant levels of infection...." William P. Barr, Attorney General, Memorandum for Director of Bureau Prisons: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020), https://www.justice.gov/file/1266661/download. The BOP website lists Elkton FCI as having the sixth highest level of inmate infections of BOP facilities, and the highest level of inmate deaths and staff infections. See COVID-19: Coronavirus, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited May 5, 2020).
In a putative class action litigation commenced in federal court in the Northern District of Ohio, United States District Judge James Gwin concluded that the number of reported cases of inmate infections at Elkton FCI unlikely reflects the number of actual cases "given the paltry number of tests the federal government has made available for the testing of Elkton's inmates." Wilson v. Williams , 455 F.Supp.3d 467, 471 (N.D. Ohio Apr. 22, 2020), appeal filed , No. 20-3447, 2020 WL 2120814 (6th Cir. Apr. 27, 2020). According to Judge Gwin's findings:
Elkton has received only 50 COVID-19 swab tests and one Abbott Rapid testing machine with 25 rapid tests. Most swab tests have already been used. Because the Department of Justice has given BOP so few tests, Elkton medical staff has needed to triage test usage.
[Prison officials] represent that "test swabs are back-ordered until July or August," but they "believe that they will receive an additional 25 rapid test[s]" each week. These additional tests are all
but useless considering Elkton's 2,400 inmates.
Id. (second alteration in original) (footnotes omitted). In his decision, Judge Gwin goes on to outline the ineffectiveness of the various procedures and protocols being implemented at Elkton FCI, id . at 471-72 —the same procedures and protocols touted by the Government in its opposition to Defendant's motion (Dkt. 1886 at 3-11). As ominously explained by Judge Gwin:
[D]espite their efforts, the Elkton officials fight a losing battle. A losing battle for staff. A losing battle for inmates.... With the shockingly limited available testing and the inability to distance inmates, COVID-19 is going to continue to spread, not only among the inmate population, but also among the staff.
Wilson , 455 F.Supp.3d at 471. Judge Gwin granted in part the petitioners' motion for emergency habeas relief, id. at 480-81, and the Government has appealed that decision to the Sixth Circuit Court of Appeals. See Wilson v. Williams , No. 20-3447, Dkt. 1, 2020 WL 2120814 (6th Cir. Apr. 27, 2020). In an Order denying the Government's request for an administrative stay of Judge Gwin's Order, the Sixth Circuit similarly described the problems at Elkton FCI: "The measures the BOP implemented to lessen contagion met with limited success at Elkton: dozens of inmates and staff have contracted the virus; and several have died." Wilson v. Williams , No. 20-3447, Dkt. 16-2, 2020 WL 2120814 at *2 (6th Cir. Apr. 30, 2020).
Among the relief ordered by Judge Gwin was the identification of all medically vulnerable inmates housed at Elkton FCI. See Wilson , 455 F.Supp.3d at 480-81. Of note, Defendant is not identified on that list as a medically vulnerable inmate. See Exhibit A to Notice of Identification of Inmates, Wilson v. Williams , No. 4:20-CV-00794-JG, Dkt. 35-1 (N.D. Ohio Apr. 30, 2020).
Suffice it to say, Elkton FCI appears to be struggling to cope with this virus, unable to even test its inmates to gauge the level of infection. Now, the Court is not suggesting that the conditions at Elkton FCI warrant the wholesale release of all its inmates. Nor is the Court convinced that Defendant's reports concerning the conditions at Elkton FCI are entirely accurate, particularly in view of the contradictory information learned by the USPO. But in its opposition, the Government fails to even acknowledge these significant problems at Elkton FCI, instead minimizing them and claiming that the "overall percentage of inmates" who have contracted the disease "remains small" (Dkt. 1886 at 3), without recognizing that the prison has no idea how many of its inmates have contracted the virus given the lack of adequate testing. The Government goes on extensively to argue that the measures being undertaken at Elkton FCI are adequate to protect against the spread of COVID-19 (id . at 3-11), but the Government's discussion appears to be a classic copy-and-paste job, with a general discussion about BOP efforts but no real specifics concerning Elkton FCI. In fact, the Government repeatedly and mistakenly refers to "Danbury FCI" in its discussion of Elkton FCI. (Id . at 3, 9).
The Government's failure to discuss the conditions at Elkton FCI in a more forthcoming manner renders its submission of limited use to the Court. The Government's devotion of such a significant portion of its response to the conditions at Elkton FCI suggests that it views those facts as critical, yet it has not addressed the specifics of the conditions at this facility, including the fact that Elkton FCI ranks high on the list of prisons impacted by this terrible virus and by its own admissions lacks the tools necessary to adequately test inmates. Certainly the Government does not need to concede that the conditions warrant Defendant's release, nor is the Court suggesting that such a result automatically ensues in the face of a prison's difficulties in stopping the spread of COVID-19. The Court further understands the Government's desire to recognize the steps that BOP has taken to protect the inmates in its custody and care. But in order to make appropriate, reasoned decisions, the Court must have a complete picture of the relevant facts—good and bad. The Government's failure to address the reality of the conditions at Elkton FCI provides little assistance to the Court and undermines the persuasiveness of its opposition.
B. Failure to Exhaust
The Court now considers whether it has the authority to grant Defendant's motion. The compassionate release statute, as amended by the First Step Act, expressly provides that a court may only reduce a defendant's sentence pursuant to the provisions of the statute 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...." 18 U.S.C. § 3582(c)(1)(A). In other words, to be entitled to relief pursuant to § 3582(c)(1)(A), a defendant generally must exhaust administrative remedies or wait 30 days from the warden's receipt of a request for release, as a precondition to seeking judicial intervention.
The COVID-19 pandemic has caused a flood of compassionate release motions in this Circuit, many of which have been brought without satisfying the statutory exhaustion requirement. The judges who have been confronted with such motions have reached differing conclusions. Some have found that § 3582(c)(1)(A)'s exhaustion requirement is mandatory and not subject to equitable exceptions. See, e.g. , United States v. Hart , No. 17 CR. 248 (VSB), 2020 WL 1989299, at *4 (S.D.N.Y. Apr. 27, 2020) ; United States v. Cassidy , No. 17-CR-116S, 2020 WL 1969303, at *3 (W.D.N.Y. Apr. 24, 2020) ; United States v. Engleson , No. 13-CR-340-3 (RJS), 2020 WL 1821797, at *1 (S.D.N.Y. Apr. 10, 2020) ; see also United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020) (describing a failure to exhaust as "a glaring roadblock foreclosing compassionate release" and denying motion to remand to district court for consideration of compassionate release request as futile).
Other judges have found, for differing reasons, that a court can waive § 3582(c)(1)(A)'s exhaustion requirement under the circumstances presented by the COVID-19 pandemic. See, e.g. , United States v. Bess , 16-cr-156, 2020 WL 1940809, at *2-7 (W.D.N.Y. Apr. 22, 2020) ; United States v. Sanchez , No. 18-cr-00140-VLB-11, 2020 WL 1933815, at *4 (D. Conn. Apr. 22, 2020) ; United States v. Russo , 16-cr-441 (LJL), 2020 WL 1862294, at *4-7 (S.D.N.Y. Apr. 14, 2020) ; United States v. Haney , 454 F.Supp.3d 316, 320-21, 19-cr-541 (JSR), (S.D.N.Y. Apr. 13, 2020).
This Court previously considered § 3582(c)(1)(A)'s exhaustion requirement in United States v. Wen , No. 454 F.Supp.3d 187, 6:17-CR-06173 EAW, (W.D.N.Y. Apr. 13, 2020). In Wen , the Court declined to reach the issue of whether § 3582(c)(1)(A)'s exhaustion requirement could be judicially waived in light of the COVID-19 pandemic. Id. at 193 ("The Court need not resolve whether the exhaustion requirement of § 3582(c)(1)(A) can be disregarded given the current COVID-19 pandemic...."). Instead, the Court concluded that "the exhaustion requirement of § 3582(c)(1)(A) is a claim-processing rule, not a jurisdictional bar," and thus is subject to the doctrines of waiver and estoppel pursuant to well-established case law. Id . at 192-94. The Court further found that, under the particular factual circumstances of the Wen case, the Government was equitably estopped from raising the exhaustion requirement as a defense. Id . at 194-97.
The reference to "waiver" in this context is not to a judicially created waiver over the objections of the Government, but rather to the affirmative waiver by the Government of the failure to exhaust argument in response to a compassionate release motion. As referenced in the Wen decision, the Government itself has taken the position that it may elect to waive the requirement of administrative exhaustion. See United States v. Gentille , No. 19 CR. 590, 2020 WL 1814158, at *3 (S.D.N.Y. Apr. 9, 2020) ("The Court agrees with the Government that § 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional, but rather is a claims-processing rule that the Government can waive by failing to raise an exhaustion argument."); Letter Response, United States v. Jasper , No. 18-CR-390-18 (PAE), Dkt. 440, 2020 WL 1673140 (S.D.N.Y. Apr. 4, 2020) ("Although the defendant has not exhausted her administrative remedies pursuant to 18 U.S.C. § 3582(c)(1)(A), based on the particular circumstances of this case, the Government has concluded that it is appropriate to waive the exhaustion requirement."); see also United States v. Roberts , No. 18-CR-528-5 (JMF), 2020 WL 1700032, at *1 (S.D.N.Y. Apr. 8, 2020) ("And although the Government has taken the view that the requirements can be waived, and has exercised its discretion to waive them in other cases based on the threat of COVID-19, it has—for whatever reason—elected not to do so here." (citations omitted)). In fact, this District's United States Attorney's Office appropriately adopted that very position in another case before the undersigned. See Letter filed by USA, United States v. Jason Haynes , Case No. 6:18-CR-6015, Dkt. 270 (W.D.N.Y. Apr. 14, 2020).
The Court continues to find, as it did in Wen , that § 3582(c)(1)(A)'s exhaustion requirement is a claim-processing rule, not a jurisdictional prerequisite. As noted in Wen , "[d]istrict courts in this Circuit have recognized that § 3582(c)(1)(A) is not jurisdictional and can be waived, and the Government itself has taken that position in other cases." Id . at *6 (explaining that both Supreme Court and Second Circuit case law support the conclusion that § 3582(c)(1)(A)'s exhaustion requirement is non-jurisdictional). Further, the Court reaffirms that § 3582(c)(1)(A)'s exhaustion requirement, like other claim-processing rules, is subject to both waiver and estoppel based on the conduct of the Government. This legal concept is well-established in the case law and fully supported by Supreme Court and Second Circuit precedent. See Hamer v. Neighborhood Hous. Servs. of Chi. , ––– U.S. ––––, 138 S. Ct. 13, 17, 199 L.Ed.2d 249 (2017) ("If properly invoked, mandatory claim-processing rules must be enforced, but they may be waived or forfeited."); Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (finding requirement to file a charge of discrimination contained in Title VII of the Civil Rights Act of 1964 "not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling"); Briones v. Runyon , 101 F.3d 287, 290 (2d Cir. 1996) (finding a statutory administrative exhaustion requirement "analogous to a statute of limitations and ... therefore, considered subject to waiver, estoppel, and equitable tolling").
However, the facts of this case do not support a finding of either waiver or estoppel. In other words, the Government has regrettably elected not to waive the exhaustion argument in this case, and the facts set forth in Defendant's motion do not justify the invocation of equitable estoppel principles as they did in Wen , where the unique circumstances of that case established that the Government made a misrepresentation upon which the defendant had reasonably and detrimentally relied and that the Government engaged in affirmative misconduct. 2020 WL 1845104, at *6-7. Further, the other well-recognized equitable principle that may be applied to a claim-processing rule—the doctrine of equitable tolling—is inapposite, inasmuch as it extends but does not shorten the time for seeking relief. Accordingly, the Court must now confront the question it avoided in Wen : Is § 3582(c)(1)(A)'s exhaustion requirement subject to other, judicially-created equitable exceptions? For the reasons set forth below, the Court reluctantly concludes that it is not.
The Supreme Court has declined to reach the general issue of "whether mandatory claim-processing rules may be subject to equitable exceptions." Hamer , 138 S. Ct. at 17 n.3. However, in Ross v. Blake , 578 U.S. 632, 136 S. Ct. 1850, 195 L.Ed.2d 117 (2016), the Supreme Court, in considering the exhaustion requirement contained in the Prison Litigation Reform Act (the "PLRA"), held that while "judge-made exhaustion doctrines ... remain amenable to judge-made exceptions.... a statutory exhaustion provision stands on a different footing. There, Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to." Id . at 1857 ; see also Bastek v. Fed. Crop Ins. Corp. , 145 F.3d 90, 94 (2d Cir. 1998) ("Statutory exhaustion requirements are mandatory, and courts are not free to dispense with them. Common law (or ‘judicial’) exhaustion doctrine, in contrast, recognizes judicial discretion to employ a broad array of exceptions that allow a plaintiff to bring his case in district court despite his abandonment of the administrative review process."). In other words, "statutory exhaustion requirements, such as those set forth in Section 3582(c), must be ‘strictly’ enforced." United States v. Roberts , No. 18-CR-528-5 (JMF), 2020 WL 1700032, at *2 (S.D.N.Y. Apr. 8, 2020) (quoting United States v. Monzon , No. 99-CR-157 (DLC), 2020 WL 550220, at *2 (S.D.N.Y. Feb. 4, 2020) ). Further, to the extent the Second Circuit has suggested otherwise, those decisions predate the Supreme Court's decision in Ross . See, e.g. , Fowlkes v. Ironworkers Local 40 , 790 F.3d 378, 387 (2d Cir. 2015) (in pre- Ross decision, remanding to district court to consider in the first instance "whether futility is a cognizable equitable defense in the context of EEOC Title VII exhaustion"); Boos v. Runyon , 201 F.3d 178, 183 (2d Cir. 2000) (in pre- Ross decision, sua sponte waiving failure to exhaust administrative remedies in Title VII context "in the interest of judicial economy").
The exhaustion provision of § 3582(c)(1)(A) is set out in mandatory terms—if a defendant moves to modify his term of imprisonment, the sentencing court may do so only "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." 18 U.S.C. § 3582(c)(1)(A). Nothing in the text of the statute suggests a role for the courts in creating exceptions to the exhaustion requirement. Additionally, Defendant has not identified, nor has the Court's research found, any legislative history indicating that Congress intended for § 3582(c)(1)(A) to allow for judicially-created exhaustion exceptions. See United States v. Ogarro , No. 18-CR-373-9 (RJS), 2020 WL 1876300, at *5 (S.D.N.Y. Apr. 14, 2020) ("[T]here is nothing in the First Step Act or its history to suggest that courts may modulate the exhaustion waiting period when they see fit."); Roberts , 2020 WL 1700032, at *2 ("[The defendant] has identified no comparable legislative history for Section 3582(c). In fact, the legislative history that [the defendant] cites indicates that Congress recognized the importance of expediting applications for compassionate release and still chose to require a thirty-day waiting period."); Monzon , 2020 WL 550220, at *1 n.1 ("The mandatory language in § 3582(c) ... has remained unchanged since the provision's inception." (citing Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 1998 (1984))); cf. Ross , 136 S. Ct. at 1858 (holding that the text and legislative history of the PLRA foreclose the possibility of a judicially created exception to the statute's exhaustion requirement).
The Court is not persuaded by arguments to the contrary. The Court does not disagree with the judges who have concluded that during these unprecedented times caused by the COVID-19 pandemic, strict enforcement of § 3582(c)(1)(A)'s exhaustion requirement frustrates "congressional intent that a defendant has a right to a prompt and meaningful judicial determination of whether she should be compassionately released, regardless of whether administrative remedies have been exhausted." Russo , 2020 WL 1862294, at *6. While the 30-day waiting period contained in the compassionate release statute does not impede this purpose under normal circumstances, the impact of the COVID-19 pandemic changes on a daily (if not more frequent) basis and invites swift intervention. However, the Court cannot rewrite explicit, unambiguous statutory language in the name of furthering Congress' intent. See Honig v. Doe , 484 U.S. 305, 306, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (when faced with an unambiguous statute, a court is "not at liberty to engraft onto the statute an exception Congress chose not to create"); Mei Xing Yu v. Hasaki Rest., Inc. , 944 F.3d 395, 412 (2d Cir. 2019) ("In accordance with the Constitution's separation of powers, courts are charged with interpreting the actual text of the laws Congress enacts, and not with rewriting or expanding the scope of the laws in the absence of statutory text, no matter how much one may think it may advance purported remedial goals or represent congressional intent." (footnote omitted)). There is no room for interpretation in the phrase "30 days," c.f. Util. Air Regulatory Grp. v. E.P.A. , 573 U.S. 302, 326, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) ("It is hard to imagine a statutory term less ambiguous than ... precise numerical thresholds...."), nor, as discussed above, is there any suggestion in the text or legislative history of the compassionate release statute that Congress intended the courts to have the authority to dispense with the administrative exhaustion requirement.
Moreover, Congress is plainly capable of including exceptions to administrative exhaustion requirements in a statutory scheme where it intends to do so. As the Ross court explained, Congress included such an exception in the PLRA, which requires exhaustion only of available remedies. See Ross , 136 S. Ct. at 1858 ("[T]he PLRA contains its own, textual exception to mandatory exhaustion.... An inmate ... must exhaust available remedies, but need not exhaust unavailable ones."); cf. Heldman ex rel. T.H. v. Sobol , 962 F.2d 148, 158 (2d Cir. 1992) (explaining that there is a futility exception to the exhaustion requirements contained in the Individuals with Disabilities Education Act based on clear legislative history stating that "exhaustion of the administrative procedures established under this part should not be required for any individual complainant filing a judicial action in cases where such exhaustion would be futile either as a legal or practical matter"). Congress did not include any comparable language in the compassionate release statute, but instead accounted for the possibility of a failure to respond by the BOP by allowing an inmate to file his own motion after 30 days had passed. See United States v. Gross , No. 15-CR-769 (AJN), 2020 WL 1673244, at *2 (S.D.N.Y. Apr. 6, 2020) ("[T]he case for carving out an equitable exception [to § 3582(c)(1)(A) ] is weak. Not only does the First Step Act explicitly circumscribe judicial review, requiring a defendant to first fully exhaust all administrative rights, but it also provides a built-in futility exception in the form of the 30-day rule."), subsequent determination , 2020 WL 1862251 (S.D.N.Y. Apr. 14, 2020).
Further, Congress has passed legislation in response to the COVID-19 pandemic that, among other things, provides that " ‘if the Attorney General finds that emergency conditions will materially affect the functioning of the BOP, the Director of the BOP may lengthen the maximum amount of time for which the BOP Director is authorized to place a prisoner in home confinement’ under 18 U.S.C. § 3624(c)(2)." Ogarro , 2020 WL 1876300, at *5 (original alterations and footnote omitted) (quoting the Coronavirus Aid, Relief, and Economic Security ("CARES") Act, Pub. L. No. 116-136, § 12003(b)(2) (2020)). However, nothing in the CARES Act modified the compassionate release statute's exhaustion requirement. In other words, "Congress recognized the danger that COVID-19 poses to inmates and determined that the problem required a centralized response by a specialized agency in the executive branch, not piecemeal consideration by courts." Id . Regardless of the Court's view of the wisdom of this approach, the Court is not free to substitute its judgment for that of Congress.
The Court is aware that some judges have found support for judicially-created exceptions to § 3582(c)(1)(A)'s exhaustion requirement in Washington v. Barr , 925 F.3d 109, 118 (2d Cir. 2019). See, e.g. , Sanchez , 2020 WL 1933815, at *4 ; United States v. Sawicz , 08-cr-287 (ARR), 2020 WL 1815851, at *2 (E.D.N.Y. Apr. 10, 2020) ; United States v. Perez , No. 17 CR. 513-3 (AT), 2020 WL 1546422, at *2-3 (S.D.N.Y. Apr. 1, 2020). This Court is not persuaded that Washington supports waiver of § 3582(c)'s exhaustion requirement. It is true that Washington states that "[e]ven where exhaustion is seemingly mandated by statute or decisional law, the requirement is not absolute." 925 F.3d at 116. However, when placed in context, this statement does not support waiver of a mandatory statutory exhaustion requirement. In Washington , the Second Circuit addressed whether the exhaustion requirement should be waived in a case brought pursuant to the Controlled Substances Act ("CSA") but, unlike the First Step Act, "the CSA does not mandate exhaustion of administrative remedies." Id . at 116. In other words, the Second Circuit's holding in Washington addressed judicially-imposed exhaustion requirements, and any statement made regarding mandatory statutory exhaustion is simply dicta . Additionally, the Circuit relied on McCarthy v. Madigan , 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) to support its assertion, see Washington , 925 F.3d at 116, where the Supreme Court specifically noted that "Congress has not meaningfully addressed the appropriateness of requiring exhaustion" in the administrative scheme at issue, McCarthy , 503 U.S. at 149, 112 S.Ct. 1081. The Court is not persuaded that dicta from a Second Circuit decision about a judicially-created exhaustion requirement somehow overcomes the Supreme Court's clear holding in Ross that mandatory statutory exhaustion regimes are not similarly amenable to broad, equitable exhaustion.
For all these reasons, the Court cannot find that it has the authority to read an equitable exception into the compassionate release statute's exhaustion requirement for reasons such as futility and prejudice. The Court notes that there would, of course, be no need to reach the issue of judicially-recognized equitable exceptions to § 3582(c)(1)(A)'s exhaustion requirement if the Government had agreed to waive enforcement thereof, as it has in other cases. The undersigned shares the frustration expressed by another judge in this District about the Government's insistence on enforcing the administrative exhaustion requirement under the current circumstances. See Bess , 2020 WL 1940809, at *4 ("The most the government could stand to gain by holding steadfast to the exhaustion period would be to forestall the inevitable, to say nothing of the lives it would jeopardize and the resources it would waste in the meantime by litigating the issue and requiring courts to issue two decisions in many cases.").
Indeed, in light of the unprecedented public health emergency caused by the COVID-19 pandemic and the indisputably heightened danger the virus poses in the context of correctional facilities, it is unfathomable to the Court that the Government has adopted this approach. This Court has seen no evidence that the BOP has the capacity to timely and effectively consider the flood of compassionate release motions occasioned by the COVID-19 pandemic—and instead, it seems apparent that the BOP is struggling to handle the crisis within its prison population.
Further, the sentencing judge, who is familiar with a particular defendant and the circumstances of the crime(s) of conviction, is uniquely situated to assess the appropriateness of compassionate release under the present circumstances, and should not be hamstrung from doing so by the BOP's lack of capacity. The Government must know the absurdity of its argument that some faceless bureaucrat within the BOP has "more information" about Defendant's eligibility for compassionate release than the district judge who has handled this case since 2016. (Dkt. 1886 at 21). The Government should not have to be reminded that the undersigned has handled countless hours of proceedings related to this massive RICO case, including numerous detention proceedings involving Defendant and others; has presided over a four month jury trial involving Defendant's co-defendants where Defendant testified over the course of two days; and has extensive knowledge concerning Defendant's background, mental health issues, and involvement in the RICO conspiracy.
It is one thing for the Government to take the position that compassionate release is not warranted on the merits, and the Court is in no way suggesting that the Government should simply acquiesce in the compassionate release of any inmate who seeks such relief. Indeed, the Court understands the Government's motivations for opposing Defendant's motion on the merits. And to be clear, the Court is not suggesting that it would have granted Defendant's motion if permitted to reach the merits. But the Government's strategy to invoke the administrative exhaustion requirement reveals its lack of confidence in the Court being able to resolve the merits of Defendant's motion in a fair and just manner.
By insisting, in the face of a once-in-a-century pandemic, on opposing motions for compassionate release on technical grounds, the Government has helped create a fundamentally unjust, chaotic system in which an inmate's opportunity to even have his motion heard depends on the judge or prosecutor who is assigned to his case. The Government could have avoided this result by exercising its discretion to waive § 3582(c)(1)(A)'s exhaustion requirement until the emergency circumstances presented by the COVID-19 pandemic have subsided.
Regrettably, the Government has chosen not to do so. And, for the reasons discussed at length above, in the absence of waiver or facts amounting to estoppel, this Court is without the authority to excuse Defendant's failure to comply with § 3582(c)(1)(A)'s exhaustion requirement. Accordingly, the Court has no choice but to deny the motion.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 1874) is denied without prejudice for failure to exhaust the administrative remedies required by the statute.
SO ORDERED.