Opinion
6:19-CR-06089 EAW
10-09-2020
UNITED STATES of America, v. Lattrell TERRY, Defendant.
Steven G. Slawinski, Wedade Wendy Abdallah, Federal Public Defender, Rochester, NY, for Defendant.
Steven G. Slawinski, Wedade Wendy Abdallah, Federal Public Defender, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court is a pro se motion filed by defendant Lattrell Terry (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 49). For the reasons set forth below, Defendant's motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 26, 2019, Defendant appeared before the undersigned, waived indictment, and pleaded guilty pursuant to a plea agreement to possession of fentanyl with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and possession of a firearm with altered serial number in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). (Dkt. 28; Dkt. 30; Dkt. 31; Dkt. 32). The plea agreement was entered into pursuant to Fed. R. Crim. P. 11(c)(1)(C) and called for a 57-month prison sentence. (Dkt. 31 at ¶ 13). On February 13, 2020, the undersigned accepted the plea agreement and sentenced Defendant to an aggregate prison sentence of 57 months. (Dkt. 45; Dkt. 46).
Because of an error in the statutory reference in the Information, Defendant subsequently appeared before the undersigned on August 6, 2019, for purposes of correcting that error and pleading guilty to the corrected Information. (Dkt. 33).
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Defendant is currently housed at Allenwood Low Federal Correctional Institution ("FCI Allenwood (Low)") in Allenwood, Pennsylvania, and his projected release date is May 6, 2023. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Oct. 8, 2020). Defendant now seeks to be released because of the COVID-19 pandemic and his pre-existing health condition of asthma. (Dkt. 49). The government opposes Defendant's motion on the grounds that he has failed to demonstrate extraordinary and compelling circumstances and that he presents a danger to the community. (Dkt. 51).
According to a Bureau of Prisons ("BOP") website, FCI Allenwood (Low) has no inmates or staff currently testing positive for COVID-19, and only one inmate and one staff member who previously tested positive and have recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Oct. 8, 2020). A total of 128 tests have been administered to inmates at the facility, with one pending test and one positive test. Id. No inmates or staff at the facility have died from the virus. Id.
The United States Probation Office ("USPO") has submitted a memorandum to the Court dated September 24, 2020, opining that compassionate release is not warranted here, in part because of Defendant's medical condition and the status of the pandemic at FCI Allenwood (Low). In addition, the USPO notes that Defendant was found guilty by BOP staff on April 30, 2020, of Failing to Follow Safety Regs and Refusing to Obey an Order, related to his failure to wear a face mask when outside his cubicle.
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 (S.D.N.Y. 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 ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
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) extraordinary and compelling reasons warrant a reduction of the prison sentence; (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.
The government does not oppose Defendant's application on exhaustion grounds, as he has filed a request with the Warden at FCI Allenwood (Low) for release and more than 30 days have elapsed since the Warden's receipt of that request, which was denied. (Dkt. 51 at 4); see also United States v. Wen , 454 F. Supp. 3d 187, 192–94 (W.D.N.Y. 2020) (as a claim-processing rule, § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional and thus subject to the doctrines of waiver and equitable estoppel). Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.
However, the Court agrees with the government that Defendant has failed to establish extraordinary and compelling reasons justifying the granting of his motion, and furthermore, the § 3553(a) factors counsel against granting Defendant's motion. Defendant is 26 years old and suffers from asthma. (Dkt. 40 at 3, 16). While Defendant's asthma "may" present a heightened risk for serious illness from COVID-19, see Coronavirus Disease 2019 (COVID-19): People with Certain Medical Conditions , Ctrs. for Disease Control & Prevention (Oct. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#asthma, the record before the Court suggests that FCI Allenwood (Low) is adequately addressing Defendant's medical conditions and the COVID-19 pandemic.
Moreover, given Defendant's criminal history (including that he had just started serving on state probation for a misdemeanor drug conviction at the time of the instant offense (Dkt. 40 at ¶¶ 23, 24, 67, 69)), and the dangerous nature of his underlying offenses of conviction, the Court concludes that consideration of the factors set forth at 18 U.S.C. § 3553(a) counsel against granting Defendant's requested relief. See United States v. Ebbers , 432 F. Supp. 3d 421, 430-31 (S.D.N.Y. 2020) ("The Court thus finds that, in considering the section 3553(a) factors, it should assess whether those factors outweigh the ‘extraordinary and compelling reasons’ warranting compassionate release, particularly whether compassionate release would undermine the goals of the original sentence.").
In sum, the Court appreciates that Defendant is concerned about the pandemic and being housed in a correctional facility with certain medical conditions that may place him at an increased risk for serious illness from COVID-19. Moreover, the Court recognizes that prison settings can present challenges in thwarting the spread of this virus. However, on the record before the Court, a reduction of Defendant's prison sentence is not warranted.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 49) is denied.
SO ORDERED.