In United States vs. Fischman, 4:16-cr-00246-HSG, the Northern District of California determined a way that an inmate can receive 3582 relief even when they are COVID-19 positive.

Fischman pled guilty and was sentenced to 70 months of imprisonment for one count of possession of child pornography.  His halfway house date was scheduled for September 18, 2020.  On April 5, 2020, Fischman, who was 72 years old as of the time of the court’s order, requested a sentence reduction under 3582(c)(1)(A)(i) via email to the Warden at FCI Terminal Island.  On April 7, 2020 Fischman’s attorney wrote the warden requesting that Fischman be transferred to home confinement.  On April 28, 2020 Mr. Fischman tested positive for the virus.  As of May 1, neither Fischman’s nor his attorney’s requests had been responded to.  The court noted that “At least as of April 30, his temperature and oxygen levels have remained at normal levels. However, during the May 1 hearing, the government could not provide detail about Mr. Fischman’s specific treatment status or explain how FCI Terminal Island is ensuring the safety and health of the inmates given the exponential growth in cases over such a short period of time.”  

The court noted that Fischman waived his right to seek compassionate release under 18 USC 3582(c) in his plea agreement.  But the court indicated that it was not persuaded that Fischman’s plea agreement precluded this motion.  The court also noted that Fischman’s age and diagnosis put him at heightened risk of becoming seriously ill.  The court determined that these things established “extraordinary and compelling reasons” warranting Fischman’s immediate release.  The court also noted that Fischman took steps to rehabilitate himself, including completion of the RDAP Program, leading reading groups, teaching classes and leading religious services.  The court also indicated that his sentence was non-violent.  

The court pointed out that the government’s position was May 5 was the first day that the court could release Mr. Fischman.  The counted noted that the government has taken inconsistent positions on whether the 30-day exhaustion requirement meant that courts could not consider a motion for compassionate release before all 30 days has elapsed.  The court noted that “In several of these cases, the government waived its objections in light of the unusual circumstances presented by COVID-19 after having time to reconsider its initial position.”  The court said the following:

“The Court has serious concerns that the government’s apparent case-by-case approach to its position on the legal question of exhaustion results in arbitrary differences in the treatment of similarly-situated defendants. The government’s interpretation of § 3582(c) should not change based on whether an inmate is incarcerated in New York or California. Moreover, as the Bureau of Prisons faces a prison population at FCI Terminal Island where 60% of inmates have COVID- 19, the Court finds no reason to conclude that a response from the Bureau of Prisons is possible, let alone likely, within the next business day. And there simply is no time for additional briefing from the government on this issue. Unfortunately, Mr. Fischman’s health has already been compromised in the few weeks since he filed this motion. Indeed, Mr. Fischman’s case illustrates the difference that just a few days’ delay may have under these circumstances. Mr. Fischman first tested negative for COVID-19 on April 24, 2020. See Dkt. No. 74 at 2. Just four days later, on April 28, 2020, he tested positive. Id. Considering the extraordinary circumstances present in this case, the Court will grant Mr. Fischman’s request now, rather than one or two business days from now.”

Judge Geraci,

The court GRANTED the motion for reduction in sentnece.  The court stated that Fischman was subject to home incarceration without electronic monitoring in Oakland, CA through the remaining term of imprisonment.  The court also indicated that Mr. Fischman was to comply with the Shelter in Place Order of his home state.  

US v. Fischman, 4:16-cr-00246-HSG

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