Update for April 18, 2020: Three Interesting 3582 cases

Last week I shared three cases where courts quickly granted relief on 3582 cases for individuals in light of COVID-19.  The three cases that I shared were from the the Federal Defenders Page where six cases are discussed discussing sentence reductions in light of COVID-19.  I was going to go back to that well and give you more cases from that page but I’ve found several more cases that I believe that you may want to see.  

United States vs. Sawicz, 08-cr-287 (ARR) (E.D.N.Y. Apr. 10, 2020)

Sawicz was charged with counts pertaining to child pornography.  He pled guilty to those charges in the past.  He was indicted with another child pornography charge as well as a violation of supervised release for the first case.  In August of 2016 the court sentenced Sawicz to five years of imprisonment for a violation of supervised release.  Sawicz was imprisoned at Danbury.  Sawicz indicated that he had received approval from his unit manager to transfer to a halfway house and that probation had approved his parent’s home in Deer Park, NY for his reentry.  He also indicated that the BOP’s residential reentry office was still processing his reentry application.  

On April 5, 2020 he submitted a letter to the warden of Danbury requesting home confinement and citing the CARES Act. On April 9, 2020, he submitted a letter to the Warden of Danbury seeking compassionate release pursuant to the FIRST STEP Act.  He cited hypertension and indicated that he takes Lisinopril and baby aspirin  As of the filing of this order he had not gotten a response on either.  The government opposed, averring that Sawicz had not exhausted all of his administrative rights with the Bureau of Prisons. “A prisoner exhausts his administrative rights when the BOP fails to bring a motion for compassionate release on his behalf and he exercises all administrative rights to appeal, or after ‘the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier[.]’”  18 USC 3582(c)(1)(A). 

The court waived the exhaustion requirement in this case.  The court found that  “Even where [administrative] exhaustion is seemingly mandated by statute or decisional law, the requirement is not absolute.” Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019).  The court went on to say that “A court may waive an administrative exhaustion requirement ‘where [exhaustion] would be futile, . . . where the administrative process would be incapable of granting adequate relief . . . [or] where pursuing agency review would subject [the person seeking relief] to undue prejudice.’”  Further, “”[U]ndue delay, if it in fact results in catastrophic health consequences,” can justify waiving an administrative exhaustion requirement for any of those three reasons.”  Id. at 120-21.  

Here the court determined that the COVID-19 outbreak at FCI Danbury combined with Sawicz’s risk of suffering severe complications because of his hypertension justified waiver.  “ The delay that the defendant would experience if he had to wait for thirty days to expire before pursuing a motion for compassionate release in this court would put him at significant risk of suffering catastrophic health consequences.”

The court also stated that extraordinary and compelling reasons warranted Sawicz’s release here by way of the COVID-19 pandemic combined with Sawicz’s particular vulnerability to complications from COVID-19 because of his hypertension.  

The court then evaluated the 3553(a) factors to determine whether to grant a reduction in sentence here.  The court acknowledged that this was a serious charge and that Saciwz had already violated one term of supervised release.  However, that “do[es] not justify keeping the defendant in prison amidst an outbreak of a potentially deadly virus to which he is particularly vulnerable.”  The court also noted that Sawicz is five months away from being eligible for home confinement under normal circumstances.  

Finally, the court evaluated whether Sawicz was a danger to the safety of any other person or to the community.  The court noted that when Sawicz is released he will quarantine himself at home with his parents for 14 days and that in doing so he would pose little, if any risk to the public.  The court went on to note that the violation that Sawicz was serving his prison sentence on did not involve violence or physical contact.  

Sawicz’s compassionate release motion was granted and his sentence was reduced to time served.  He was ordered to be immediately released upon receipt of this order (as opposed to 14 days in quarantine at Danbury) and he was to be sentenced to home confinement that included home incarceration to be enforced by location monitoring.  United States vs. Sawicz, 08-cr-287 (ARR) (E.D.N.Y. Apr. 10, 2020) 

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Located in the Dallas/Fort Worth Area, the Law Office of Jeremy Gordon has been an award winning federal criminal defense firm since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. You can also add us on Facebook or Twitter.  You can sign up for our newsletter below.

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The Federal Prison’s Visitation Policy is Neither Visitation nor a Policy

I am all for the incarcerated persons seeing their loved ones inside the walls of the federal prisons. It is one of the things that criminal justice advocates have shown is proven to fight recidivism. But I’m just not sure that handling it in this manner is the right thing to do. Between this, cold and flu season and cramped prisons I do believe that the prisons could experience a spike in COVID-19 cases all over the United States. It feels like a time to show that everything is back to normal at a time when it just isn’t. I am afraid that without a change we could see an inspector general report similar to the one at Lompoc.

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