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finding extraordinary and compelling reasons where the defendant had asthma and was overweight
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Case No.: 3:17-cr-4477-BTM
2020-08-05
UNITED STATES of America, Plaintiff, v. Brenda RODRIGUEZ, Defendant.
Billy Joe McLain, Lauren G. LaBuff, United States Attorney's Office, San Diego, CA, for Plaintiff.
Billy Joe McLain, Lauren G. LaBuff, United States Attorney's Office, San Diego, CA, for Plaintiff.
ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE
[ECF No. 36]
Barry Ted Moskowitz, United States District Judge
Brenda Rodriguez is an inmate at FCI Victorville in the custody of the Bureau of Prisons ("BOP"). Ms. Rodriguez petitions this Court for compassionate release in light of the COVID-19 pandemic. (ECF No. 36 ("Mot.").) The Court GRANTS Ms. Rodriguez's motion for the reasons that follow.
I. BACKGROUND
Ms. Rodriguez is serving an 86-month sentence for importation of methamphetamine. She pled guilty to this charge on February 1, 2018 and has been in continuous federal custody since her November 29, 2017 arrest. To date, Ms. Rodriguez has served 32 months and 8 days. Taking good time credit into account, Ms. Rodriguez has served 1,125 days, which is nearly 37 months. FCI Victorville Medium II, where Ms. Rodriguez is confined, is presently facing a COVID-19 outbreak: 48 active cases among inmates and 7 among the staff. COVID-19 Cases , BOP, http://www.bop.gov/coronavirus/.
Ms. Rodriguez suffers from asthma, obesity, and major depressive disorder, chronic conditions she argues "make her more vulnerable to COVID-19." (Mot., 1:22–35.) She asserts that the current outbreak at FCI Victorville puts her "at grave risk." (Id. at 1:26–28.) The Government opposes Ms. Rodriguez's motion. (ECF No. 46 ("Opp.").) The Court held a hearing on the motion on July 27, 2020.
II. LEGAL STANDARD
A district court may modify an existing term of imprisonment under the framework set forth in 18 U.S.C. § 3582(c). The court may only do so upon motion of either the Bureau of Prisons ("BOP") on behalf of a federal inmate or the inmate herself. § 3582(c)(1)(A). This latter avenue — in which the inmate moves on her own accord — is a new addition to the statute, implemented by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).
Under § 3582(c)(1)(A), a court may only rule on a motion filed by the inmate after she "has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on [her] 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." See United States v. Alam , 960 F.3d 831 (6th Cir. 2020) ; United States v. Raia , 954 F.3d 594 (3d Cir. 2020).
A district court may reduce a previously imposed sentence and grant compassionate release if "extraordinary and compelling reasons warrant such a reduction," so long as (1) such release is consistent with applicable policy statements of the U.S. Sentencing Commission, (2) the defendant is not a danger to any person or to the community, and (3) the release is consistent with the factors in 18 U.S.C. § 3553(a). § 3582(c)(1)(A). The U.S. Sentencing Commission determines what these "extraordinary and compelling reasons" are. 28 U.S.C. § 994(t). Among them is the medical condition of the defendant. U.S. S. G. § 1B1.13 cmt. n. 1(A).
III. DISCUSSION
A. Exhaustion
Ms. Rodriguez alleges that she initiated the administrative remedy process pursuant to FCI Victorville protocols on May 29, 2020. (Mot., 3:17–24.) She followed up with the Associate Warden about this request two days later. (Id. at 3:24–4:1.) No one at FCI Victorville responded to Ms. Rodriguez. On June 23, 2020, her attorney contacted the Warden, the Warden's assistant, and on-site counsel at the institution. (Id. at 4:1–4.) As of the date Ms. Rodriguez filed this motion, neither she nor her attorney had received any response from FCI Victorville. (Id. at 4:3–4.) Thirty days have lapsed since Ms. Rodriguez initiated the administrative remedy process and since her attorney contacted the institution directly. The Government stated that it "considers the administrative remedies exhaustion requirement to be satisfied." (Opp., 10 n.4.) Ms. Rodriguez has satisfied § 3582(c)(1)(A).
B. Extraordinary and Compelling Reasons
The 2018 U.S. Sentencing Commission's Guidelines ("Guidelines") permit a district court to grant a § 3582(c)(1)(A) motion "if, after considering the factors set forth in 18 U.S.C. § 3553(a), ... the court determines that (1) (A) extraordinary and compelling reasons warrant the reduction; ... (2) the defendant is not a danger to the safety of any other person or to the community, ...; and (3) the reduction is consistent with this policy statement." U.S. S. G. § 1B1.13. That policy statement permits a sentence reduction in the case of "a serious physical or medical condition ... that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." Id. § 1B1.13 cmt. n.1(A)(ii).
The Court's analysis as to the applicability of the 2018 Guidelines is set forth in United States v. Arreola-Bretado , 3:19-CR-3410-BTM, 445 F. Supp. 3d 1154, 1157–58, (S.D. Cal. May 15, 2020). This Court applies the same discretion entrusted to the BOP Director and "consider[s] the vast variety of circumstances that may constitute ‘extraordinary and compelling.’ " United States v. Brown , 411 F. Supp. 3d 446, 451 (S.D. Iowa Oct. 8, 2019).
The Court finds that Ms. Rodriguez's combination of obesity, asthma, and major depressive disorder present extraordinary and compelling reasons to grant her compassionate release, consistent with the Guidelines' policy statement. See id. The Government acknowledges that Ms. Rodriguez has a "combination of medical and mental health conditions" that qualify as extraordinary and compelling reasons to grant compassionate release. (Opp., 10:14–12:22.)
First, Ms. Rodriguez has suffered from chronic asthma since childhood. (Mot., 9:14–17, Exh. F.) She uses both a rescue inhaler (Albuterol ) and a steroidal inhaler (Mometasone Furoate) to manage her asthma. (Id. ) The CDC lists asthma as an underlying condition that may increase the risk of severe illness from COVID-19." "People Who Need Extra Precautions," Coronavirus Disease 2019 (COVID-19) , CDC, http://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. Asthma is a respiratory condition that causes the airways to "narrow and swell." Asthma , MAYO CLINIC , https://www.mayoclinic.org/diseases-conditions/asthma /symptoms-causes/syc-20369653. Several studies have found strong correlations between asthma and worsened COVID-19 consequences. See, e.g., Asthma Associated with Longer Time on Ventilators for Younger COVID-19 Patients , RUSH UNIVERSITY MEDICAL CENTER (May 15, 2020), http://www.rush.edu/news/press-releases/asthma-associated-longer-time-ventilators-younger-covid-19-patients; Shikha Garg, et al., Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 — COVID-NET, 14 States, March 1–30, 2020 , CDC (Apr. 17, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm?s_cid=mm6915e3_w. This is partly because COVID-19 exacerbates the effects of asthma by inflaming and restricting the airways further and making it even harder to breathe. See Sandee LaMotte, Asthma and Coronavirus , CNN (Apr. 21, 2020), https://www.cnn.com/2020/04/21/health/asthma-coronavirus-wellness/index.html. For these reasons, several district courts nationwide have granted compassionate release for individuals who suffer from asthma in light of the coronavirus pandemic. See, e.g., United States v. Head , 2020 WL 3180149 (E.D. Cal. June 15, 2020) ; United States v. Gileno , 455 F. Supp. 3d 1, (D. Conn. Apr. 20, 2020).
Second, Ms. Rodriguez suffers from major depressive disorder. (Mot., 8:18–21, Exh. F.) She asserts this is an underlying condition that makes her "immunocompromised," a status the CDC has identified as potentially putting someone at "an increased risk for severe illness from COVID-19." "People Who Need Extra Precautions," Coronavirus Disease 2019 (COVID-19) , CDC, http://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. The CDC's full explanation of an "immunocompromised" person who "might be at an increased risk for severe illness from COVID-19" is somebody who has an "[i]mmunocompromised state (weakened immune system) from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines." Id. While major depressive disorder does not fall under this description, this Court is not constrained by the CDC's guidelines and can "also consider applicable studies from the medical community at large." United States v. Adeyemi , 2020 WL 3642478, at *19 (E.D. Pa. July 6, 2020).
Major depressive disorder, or clinical depression, causes stress, which impairs the immune system against viral infections, such as COVID-19. (Mot., Exh. D ("A variety of stressors worsen the pathological features of asthma including worsening of asthma-induced bronchoconstriction, airway impedance, airway inflammation, accumulation of inflammatory lung fluid and decreased lung volume.").) While Defendant's major depressive disorder is not sufficient to justify § 3582(c) relief on its own, courts have found mental health conditions to contribute to extraordinary and compelling reasons warranting compassionate release. See, e.g., United States v. Lavy , 2020 WL 3218110, at *5 (D. Kan. June 15, 2020) (finding associations between major depressive disorder and "atypical immune responses"); United States v. Johnson , 464 F. Supp. 3d 22, 37–39, (D.D.C. May 16, 2020) (finding extraordinary and compelling the movant's PTSD combined with his physical illness).
Finally, Ms. Rodriguez is obese. The CDC states that obesity creates "an increased risk of severe illness from COVID-19." "People Who Need Extra Precautions," Coronavirus Disease 2019 (COVID-19) , CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. Ms. Rodriguez is five feet, eight inches tall (ECF No. 22) and was recorded as weighing 212 pounds at her most recent doctor's appointment (Mot., Exh. F.) She estimates that she weighs 240 pounds today. (Id. at Exh. A.) Ms. Rodriguez would be considered obese at either of these weights using a body mass index calculator. See "Calculate Your Body Mass Index," Nat'l Heart, Lung, and Blood Institute , U.S. DEP'T HEALTH & HUMAN SERVS. , https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm. District courts have granted compassionate release for individuals who are obese and suffer from additional medical conditions. See , e.g., United States v. Jenkins , 460 F. Supp. 3d. 1121, 1129–30, (D. Co. May 8, 2020) (describing several studies connecting obesity with a higher risk of COVID-19 complications); United States v. Delgado , 457 F. Supp. 3d. 85, 88–90, (D. Conn. Apr. 30, 2020) (noting NYU study that found that "obesity of patients was the single biggest [chronic] factor, after age, in whether those with COVID-19 had to be admitted to a hospital").
The prison environment heightens the potential lethality of Ms. Rodriguez's situation and substantially diminishes her ability to provide self-care. See U.S. S.G. § 1B1.13 cmt. n.1(A)(ii). For example, the central ventilation system at FCI Victorville, which recirculates dust and other particles in the air, and the presence of "mold, irritating cleaning products, [and] pests like cockroaches and mice" trigger severe asthmatic symptoms in Ms. Rodriguez. (Mot., 10:1–6); see also Reduce Your Exposure to Asthma Triggers , CDC, https://www.cdc.gov/asthma /reduce_ triggers.html. The mental health consequences of continued incarceration in the midst of a global pandemic place further stress on the body and immune system. See Substantial investment needed to avert mental health crisis , WHO, http://www.who.int.ezproxy.lib.ntust.edu.tw/news-room/detail/14-05-2020-substantial-investment-needed-to-avert-mental-health-crisis. Furthermore, the self-care actions the CDC recommends to prevent contracting COVID-19 — such as social distancing and constant sanitization of living spaces — are incompatible with prison conditions. Prevent Getting Sick , CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/index.html. Social distancing is impossible for Ms. Rodriguez in her prison unit, which is a "dormitory-style structure" with bunk beds that "are not spaced 6 feet apart, and [no one] is wearing masks when they sleep." (Mot., Exh. A.) She also works in a facility warehouse every day, where she interacts with delivery drivers from outside the prison. (Id. ) There is a high likelihood that she would come into contact with somebody that has COVID-19. Compassionate release is appropriate for an individual like Ms. Rodriguez who would be unable to provide self-care under these circumstances. See United States v. Ramirez , 459 F. Supp. 3d 333, 339–40, (D. Mass. May 12, 2020).
C. Dangerousness and 18 U.S.C. § 3553 Factors
The Government opposes compassionate release, arguing that (1) Ms. Rodriguez poses a danger to public safety and (2) the 18 U.S.C. § 3553 sentencing factors weigh against her release. (Opp., 10:4–15:2.) With respect to dangerousness, the Government puts forward Ms. Rodriguez's prior record, which consists of a misdemeanor shoplifting conviction in 1999, two felony convictions for fraudulent checks in 2000 and 2002, two felony convictions for identity theft in 2010 and 2014, and the present methamphetamine importation case. While the Court shares the Government's concern, it does not anticipate that Ms. Rodriguez will reoffend. First, she has not been convicted of any crime of violence. Second, the 32 months she has been in custody on the present conviction is far more time than she has ever served before and will likely act as a deterrent. Third, she will be on strict home confinement with electronic monitoring and will be frequently drug tested and required to undergo drug counseling. Finally, she will be living in her parents' home away from the negative influences and people that drove her to commit crimes in the past. The present circumstances, with close monitoring and the threat of being returned to custody for a lengthy period for a violation of the conditions of supervision, alleviate concerns of any danger to the community.
With respect to the § 3553 sentencing factors, the Court has considered them and finds a sentence of the equivalent of 37 months of imprisonment and five years of supervised release with 24 months of strict home confinement will serve as a deterrent, provide fair and reasonable punishment, and provide drug treatment in the most effective manner.
IV. CONCLUSION
The motion for release under § 3582(c) is GRANTED. Ms. Rodriguez is sentenced to time served effective August 6, 2020. The Court is substituting two additional years of supervised release with home confinement for the balance of her term of imprisonment. Therefore, she is placed on five years of supervised release on the previously imposed conditions and with 24 months of home confinement with electronic monitoring.
Upon returning to her home, Ms. Rodriguez will self-quarantine for fourteen (14) days. If the Bureau of Prisons does not test Ms. Rodriguez for COVID-19 prior to her release, she must get a COVID-19 test afterwards. She must report the results to her probation officer.