Summary
denying compassionate release because Defendant's criminal history "includes harassing and stalking minor females, sending pictures of his penis and videos of himself masturbating, and requesting nude photographs" demonstrated that Defendant's release would endanger the community"
Summary of this case from United States v. HoffmanOpinion
6:18-CR-06044 EAW
2020-10-13
UNITED STATES of America, v. Joshua VANDEGRIFT, Defendant.
Kyle P. Rossi, U.S. Attorney's Office, Rochester, NY, for United States of America. Paul J. Vacca, Jr., One East Main Street, Rochester, NY, for Defendant.
Kyle P. Rossi, U.S. Attorney's Office, Rochester, NY, for United States of America.
Paul J. Vacca, Jr., One East Main Street, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Defendant Joshua Vandegrift ("Defendant") previously filed a pro se motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 151). In a Decision and Order entered on August 7, 2020, this Court concluded that Defendant had not established that he exhausted his administrative remedies before the Bureau of Prisons ("BOP"), and therefore it denied the motion without prejudice. (Dkt. 156). Subsequent to the issuance of that Decision and Order, Defendant submitted proof that, in fact, he did make a request for compassionate release to the BOP (Dkt. 161), and the Court treated Defendant's submission as a renewed motion for compassionate release (Dkt. 162). The government filed a response on September 18, 2020, agreeing that Defendant satisfied the exhaustion requirement (Dkt. 163 at 2), but opposing Defendant's motion on the grounds that he had failed to establish extraordinary and compelling reasons to justify his release and that the factors set forth at 18 U.S.C. § 3553(a) did not support granting Defendant's motion (id. at 4-9). Defendant submitted a letter in further support of his motion on September 23, 2020 (Dkt. 165).
As the Court noted in its previous Decision and Order, this Court lacks jurisdiction over Defendant's motion because he has an appeal pending with the Second Circuit Court of Appeals. (Dkt. 156 at 1). However, pursuant to Federal Rule of Criminal Procedure 37(a), the Court may "(1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." See, e.g. , United States v. Moseley , No. 16 CRIM. 79 (ER), 2020 WL 1911217, at *1 (S.D.N.Y. Apr. 20, 2020) (finding no jurisdiction over compassionate release motion based on COVID-19 pandemic because of pending appeal, and stating that "[a]bsent further factual development, the Court cannot say whether it would ultimately grant the motion if the case were remanded for such purposes, but neither is it willing to deny the motion outright. These are complex and time-sensitive issues, but they are ones that the Court can only take up if the Second Circuit agrees it would be useful to decide the instant motion before it decides the appeal"); United States v. Vigna , 455 F. Supp. 3d 68, 72, 74-75 (S.D.N.Y. 2020) (finding same regarding jurisdiction, and declining to issue indicative ruling because defendant had not exhausted administrative remedies); United States v. Martin , No. 18-CR-834-7 (PAE), 2020 WL 1819961, at *1-2 (S.D.N.Y. Apr. 10, 2020) (finding same regarding jurisdiction but denying motion on merits under Rule 37 ). Here, pursuant to Rule 37(a), the Court denies Defendant's motion. Specifically, Defendant has failed to establish extraordinary and compelling reasons to justify his motion, and he has further failed to establish that the factors set forth at 18 U.S.C. § 3553(a) support modification of his prison term. According to a memorandum submitted by the United States Probation Office ("USPO") dated September 22, 2020, Defendant is classified by the BOP at the lowest medical classification level—Medical Care Level 1 (Dkt. 166 at 2). However, based on the medical information before the Court, including Defendant's history of hypertension and asthma and his BMI calculation of 50.4, the Court concludes that based on guidance from the Centers for Disease Control and Prevention ("CDC"), it does appear as though Defendant, while only 33 years old, is at risk of suffering serious illness if infected with the virus causing 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. However, in and of itself, this does not constitute extraordinary and compelling reasons justifying Defendant's release.
Defendant is presently housed at Federal Correctional Institution Loretto ("FCI Loretto") in Pennsylvania, and his projected release date is February 11, 2030. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Oct. 9, 2020). According to a BOP website, FCI Loretto has no inmates who are currently testing positive for COVID-19, although seven staff members are noted as currently testing positive. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Oct. 9, 2020). That same website notes that 56 inmates and three staff members who previously tested positive have recovered, and no inmates or staff have died from COVID-19. Id . In addition, 840 tests have been administered to inmates at the facility, with no pending tests and 57 positive tests. Id. Thus, based on those statistics, it would appear that FCI Loretto is adequately managing COVID-19 within its inmate population. Accordingly, the Court concludes that Defendant has not established extraordinary and compelling reasons justifying his release.
It is not clear how there could be 57 positive tests but only 56 inmates who have tested positive and recovered. There seems to be one inmate who is not accounted for with these numbers.
In addition, the § 3553(a) factors do not support Defendant's release. Less than one year ago, this Court sentenced Defendant to 156 months in prison to be followed by 10 years of supervised release for his crime of receipt and attempted receipt of child pornography. (Dkt. 134; Dkt. 136). This Court's assessment at the time of sentencing, and its continued assessment, is that Defendant is dangerous and his release would endanger the community. The USPO notes that Defendant's criminal history "includes harassing and stalking minor females, sending pictures of his penis and videos of himself masturbating, and requesting nude photographs." (Dkt. 166 at 2). Similarly, Defendant's underlying offense of conviction involved ongoing conduct in which he targeted minors as young as 12 years old online for sexually explicit chats and manipulated them into producing child pornography. (See Dkt. 129 at ¶¶ 38-56). Due to noncompliance issues while under pretrial supervision involving a similar type of conduct, Defendant was taken into custody and his pretrial release was revoked. (Id. at ¶¶ 32-36). Not surprisingly, Defendant's course of noncompliance appears to have continued in prison, as he has had two disciplinary infractions since being incarcerated. (Dkt. 166 at 1-2).
For all of the foregoing reasons, Defendant's motion for compassionate release is denied.
SO ORDERED.