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.
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)
Miller pled guilty to conspiracy to distribute and possess with intent to distribute Heroin and Felon in Possession of a Firearm. He was sentenced to six years in prison and four years of supervised release. The court recommended that he be evaluated upon imprisonment due to his history of serious medical conditions.
“Miller’s medical records show that he has a history of: Coronary Artery Disease, Chronic Obstructive Pulmonary Disease (“COPD”), Hypertension, Hepatitis C, Liver Cancer, Heart Disease, and Cirrhosis of the liver.” The court noted that at the signing of this order Miller had 14 active prescriptions for treatment including an inhaler that he is told to use as needed to prevent or relieve asthma attacks caused by his COPD.
Miller and his family sought a compassionate release through administrative remedies and reaching out to his United States Senator. The Bureau of Prisons indicated that they denied his release due to a medical review that showed “normal liver function with no diagnosis of cancer [and] no detection of Hepatitis C.
“Miller’s appeal was rejected on February 5, 2019 for two reasons: failing to raise a sensitive issue and failing to first file a BP-9 request. (Id. at 2301). Miller then appealed this rejection on February 25, 2019 and March 10, 2019, claiming that he had already filed a BP-9 form that the Warden responded to in October of 2018. (Id. at 2302; ECF No. 383-1, PageID. 2423-24). This appeal was rejected on March 13, 2019, for failing to attempt an informal resolution. (ECF No. 380, PageID 2301). On March 15, 2019, Miller filed an “Attempt at Informal Resolution” form, yet again seeking review of his compassionate release request and treatment for his Cirrhosis. (ECF No. 383-3, PageID. 2426-27). Miller’s release request was again denied on June 4, 2019, because the Warden found that his condition remained stable. (ECF No. 383-4, PageID. 2428).”
Miller then sought release through either home confinement under 3624 or compassionate release under 3582(c)(1)(A)(i). The court only considered him for compassionate release under 3582 because the BOP has sole discretion over home confinement.
First, the court determined that Miller had exhausted all of his administrative remedies. The court noted that Miller sought compassionate release due to his medical conditions in the fall of 2018 and his request was denied. He appealed the denial twice and was rejected twice. The government opposed this, arguing that Miller did not specify that he was requesting release due to the COVID-19 outbreak.
The court found that the government’s arguments were unfounded and that Miller’s request was due to his myriad of serious health conditions and that the COVID-19 pandemic accentuates his meritorious claims for release. In the alternative, the court also determined that waiver of exhaustion cold apply “where [exhaustion] would be futile, “either because agency decisionmakers are biased or because the agency has already determined the issue” and “where pursuing agency review would subject plaintiffs to undue prejudice.” Washington, 925 F.3d 118.
The court held that both executions applied here. First, Miller had already petitioned the BOP once and appealed its denial twice. In their prior denials. the BOP indicated that Miller’s conditions were stable and do not warrant release. The court indicated that it would be futile for Miller to submit another petition to indicate his heightened vulnerability due to COVID-19. The court also stated that a delay would unduly prejudice Miller, citing the rapid spread of COVID-19 in North Carolina.
The court also determined that a sentence reduction was consistent with applicable policy statements by the Sentencing Commission.
Here, Miller stated that he had experienced extraordinary and compelling circumstances under 18 USC 3582(c)(1)(A)’s “catch-all” provision. The court noted that “prison populations are subject to heightened vulnerability” to the COVID-19 pandemic. The court went on to note that “the persuasive precedent for granting compassionate release under the current circumstances is overwhelming,” citing other cases where courts granted relief to similarly situated inmates. The court went on to note that Miller, at 69 years old, was at higher risk of falling severely ill from COVID-19. “The CDC also states that individuals with underlying medical conditions, such as chronic lung disease, a serious heart condition, and liver disease, have a higher risk of severe illness… Miller suffers from all three.” As a result of all of this, the court found that there were extraordinary and compelling reasons for his release.
Miller’s Motion for Compassionate Release from Custody was granted. Miller was placed in a 14-day quarantine before his release from Butner.
Miller v. United States, Criminal Case No. 16-20222-1 (E.D. Mich. Apr. 9, 2020)
United States vs. Francis Raia, 18-cr-00657, District of New Jersey and No. 20-1033, Third Circuit, April 2, 2020
Raia was found guilty of conspiring to use the mails to promote unlawful activity. The district court sentenced Raia to three months in prison and one year of supervised release. The government appealed the case. Raia reported to prison and asked the BOP to move for compassionate release on his behalf. Before 30 days had passed Raia filed a motion with the District Court seeking compassionate release given the COVID-19 pandemic. Raia is 68 years old and suffers from diabetes and heart issues.
The district court denied the motion, stating that the government’s appeal took away the district court’s jurisdiction. In a footnote, the district court stated
“Due to the increased risk posed by a custodial term and the original reasons for a reduced sentence, this Court believes a non-custodial sentence would be more appropriate. The crime here was non-violent and Defendant has otherwise been a highly productive, charitable member of his community. He should be released to home confinement.”
Raia did not appeal that order but instead filed a motion asking the Third Circuit to decide his compassionate-release motion. The Third Circuit opined that they could send the case back to the District Court under Rule 12.1 but then the Third Circuit indicated that any remand would be futile because Raia had not satisfied the 30-day “exhaustion” requirement. The Third Circuit went on to say:
“[T]he mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread… Given BOP’s shared desire for a safe and healthy prison environment, we conclude that strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added—and critical—importance. And given the Attorney General’s directive that BOP “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” we anticipate that the exhaustion requirement will be speedily dispatched in cases like this one.”
The Third Circuit denied Raia’s motion. United States vs. Francis Raia, 18-cr-00657, District of New Jersey and No. 20-1033, Third Circuit, April 2, 2020
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