Stringer v. United StatesStringer v. United States
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Thomas T. Heslep for appellant.
Paul Maneri, with whom Samia Fam and Alice Wang, Public Defender Service, were on the brief, for amicus curiae on behalf of appellant.
Eric Hansford, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney and Chrisellen R. Kolb, Assistant United States Attorney, were on the brief, for appellee.
Before EASTERLY,* DEAHL, and HOWARD, Associate Judges.
* Associate Judge AliKhan was originally assigned to this case. Following her appointment to the U.S. District Court for the District of Columbia, effective December 12, 2023, Associate Judge Easterly has been assigned to take her place on the panel.
HOWARD, Associate Judge: In this appeal, we are asked to explain what qualifies an incarcerated person as “acute[ly] vulnerab[le]” to severe medical complications or death from COVID-19 under the District of Columbia‘s compassionate release statute. See
I. Legal Framework
Under the District of Columbia‘s compassionate release statute, a court “shall modify a term of imprisonment” if an incarcerated person can satisfy two requirements by a preponderance of evidence: non-dangerousness and eligibility under the terms of the statute. Colbert v. United States, 310 A.3d 608, 610 (D.C. 2024) (quoting
To demonstrate eligibility, an incarcerated person may show that they satisfy one of two “primary examples,” Autrey v. United States, 264 A.3d 653, 656 (D.C. 2021), including either: having a “terminal illness” or being “60 years of age or older and ha[ving] served at least 20 years in prison,”
(3) Other extraordinary and compelling reasons warrant such a modification, including:
. . . (B) Elderly age, defined as a defendant who:
(i) Is 60 years of age or older;
(ii) Has served the lesser of 15 years or 75% of the defendant‘s sentence; and
(iii) Suffers from a chronic or serious medical condition related to the aging process or that causes an acute vulnerability to severe medical complications or death as a result of COVID-19; . . .
To show a risk of severe illness or death from COVID-19, an incarcerated person who has been vaccinated4 must
Autrey, 264 A.3d at 659. Rather, an incarcerated person “must show” that they remain “acutely vulnerable to those outcomes despite being vaccinated,” and “must do so by a preponderance of the evidence.” Id. (internal quotation marks omitted).
II. Factual and Procedural Background
In June 2003, police found the body of Tilford Johnson in the driver‘s seat of a vehicle parked in an alley in southeast D.C. Stringer v. United States, No. 06-CF-1515, Mem. Op. & J. at 1 (D.C. July 20, 2009); see also Stringer v. United States, 301 A.3d 1218, 1220 (D.C. 2023) (same). Following a jury trial, Mr. Stringer was found guilty of murdering Mr. Johnson. A jury convicted Mr. Stringer of felony murder, armed robbery, second-degree murder, and three related firearm counts. Stringer, Mem. Op. & J. at 3-4. The trial court sentenced Mr. Stringer to an aggregate term of thirty-six years in prison. On direct appeal, we affirmed Mr. Stringer‘s convictions, but remanded for the merger of certain offenses and resentencing. Stringer, Mem. Op. & J. at 6. After merger, the trial court imposed the same aggregate prison sentence.5 Mr. Stringer then filed a compassionate release motion, which was denied and is now on appeal before us.
A. The Compassionate Release Motion
Mr. Stringer, proceeding without counsel, moved for compassionate release in September 2020 due to the ongoing COVID-19 pandemic. The trial court appointed him counsel, who filed a supplemental motion. In January 2021, the trial court denied his motion. The trial court agreed with the United States’ concession that Mr. Stringer had demonstrated “extraordinary and compelling reasons” for release: his Type 2 diabetes and obesity put him at “greater risk of severe consequences from COVID-19.” But Mr. Stringer had failed to show that he was “not a danger to the safety of any other person or the community.”
Mr. Stringer appealed and moved for summary reversal. In June 2021, this court remanded the matter because it was “unclear whether the trial court analyzed both eligibility and dangerousness under the preponderance of the evidence standard.” Stringer v. United States, No. 21-CO-0132 (D.C. June 24, 2021) (Judgment). On remand, the trial court allowed the parties to supplement their prior filings. The United States withdrew its earlier concession that Mr. Stringer had demonstrated “extraordinary and compelling reasons” for release because Mr. Stringer had been vaccinated against COVID-19.6
B. The Evidentiary Hearing
The trial court held an evidentiary hearing on two dates: December 17, 2021, and
Dr. Mohareb observed that correctional facilities across the country “have had higher rates of COVID-19.” As Dr. Mohareb summarized, an incarcerated person who contracts COVID-19 is “more likely to have severe illness or hospitalization, they‘re less likely to have effective or early treatment than they would [have] in the community.” Dr. Mohareb based his conclusion on factors common to the carceral setting: “poor ventilation;” “limitations in how individuals can move and separate from one another;” rotations of staff, visitors, and incarcerated persons; and heightened risks for people with “certain medical comorbidities who are older,” such as diabetes, hypertension, obesity, and cardiovascular disease. “Anyone who is incarcerated is at a high risk of COVID-19 because they have less control over how they protect themselves from other people,” Dr. Mohareb concluded.
Dr. Mohareb stated that COVID-19 vaccines have been a “lifesaving intervention” since vaccines “dramatically reduc[e] the risk of symptomatic infection of severe disease, of hospitalizations, and of death.” But, Dr. Mohareb noted, the efficacy of vaccines can be limited for patients who are “older,” have “more comorbidit[ies],” or are “immunosuppressed.” Such patients could have a “fairly high risk of severe illness if they‘re hospitalized with COVID, even if they‘ve gotten vaccinated.”
Based on his “review of the medical records,” Dr. Mohareb concluded that “. . . Mr. Stringer is not immunocompromised, but does have those co-morbidities that put him at a higher risk, and he‘s a long-term inhabitant of a carceral facility, so I would say he‘s at high risk.” Those comorbidities included, “by virtue of him being incarcerated;” being “someone who is older;” “on medication for diabetes” and “being screened for diabetes;” “ta[king] medication for high blood pressure [and] high cholesterol;” and, because his “body mass index [wa]s high,” “he[ wa]s obese.” “And all of those put him at higher risk of developing severe lung disease, severe complications if he were to acquire COVID-19.” Dr. Mohareb explained that the risk factors worked “independent of one another,” such that “[s]omeone who has two of those risk factors [is] at higher risk than if they were to just have one of those risk factors.”
To reduce the risk of reinfection following vaccination, Dr. Mohareb explained, a person may get a booster shot six months after receiving the primary series of the vaccine.7 Dr. Mohareb confirmed that Mr.
C. The Trial Court Order
On May 19, 2022, the trial court denied Mr. Stringer‘s motion for compassionate release. While Mr. Stringer proved that he was no longer a danger to the community, he failed to show an “acute vulnerability” to severe illness or death from COVID-19.
In reaching this conclusion, the trial court found Dr. Mohareb both “thoroughly credible” and “knowledgeable about all of the areas within his expertise.” The court credited the doctor‘s testimony that “prison inmates as a group are more vulnerable to COVID-19 because of the congregate setting, the inability to social distance or avoid unvaccinated people, and deficiencies in the prison health care system” and that “as compared to other vaccinated prisoners, Mr. Stringer‘s comorbidities and age make him more vulnerable should he contract COVID-19.”
But the trial court found that Mr. Stringer‘s expert had not addressed “how vulnerable Mr. Stringer himself actually is.” While Dr. Mohareb had classified Mr. Stringer as “high risk,” Dr. Mohareb
did not define that term in any way except in relation to people without comorbidities or who are not incarcerated. Most importantly, he did not offer any testimony, either generally or specifically regarding Mr. Stringer, that contradicts or narrows the observation in Autrey that the vaccines have generally, at least to date, proven extremely effective at preventing severe illness or death.
The trial court reached this conclusion since Dr. Mohareb had not
testif[ied], for example, that Mr. Stringer‘s comorbidities themselves make the vaccine less effective or are more likely to lead to a breakthrough infection. Nor did he identify any other fact that makes Mr. Stringer less likely than other individuals to benefit from the vaccine. In light of these facts, and notwithstanding Dr. Mohareb‘s use of the term ‘high risk,’ the Court cannot find that Mr. Stringer is “acutely vulnerable” to severe illness or death under the standard established in Autrey.
While the trial court acknowledged Mr. Stringer‘s level of risk, the court determined that his risk could not “be termed ‘urgent,’ ‘nearly a crisis,’ or ‘critical,’ given that the vaccine remains extremely effective in protecting against severe illness and death.”
This timely appeal followed.
III. Discussion
A. Precedent on “Acute Vulnerability”
In cases under Section 24-403.04(a)(3)(B)(iii), this court has defined “acute vulnerability” based on the requirement articulated in Autrey v. United States. While we declined to “hazard a precise definition” of “acute vulnerability” in that case, we observed that acute vulnerability “requires more than ‘above-average’ risk, as compared to the general population.” 264 A.3d at 659 n.13 (quoting Acute, Webster‘s Third New International Dictionary Unabridged 23 (2020) (defining “acute” as “serious, urgent, and demanding attention; intensified or aggravated nearly to a crisis, culmination, or breaking point: extreme, severe, critical“)).8 We then concluded that an incarcerated person “cannot rely on the mere possibility of residual risks without evidence that those risks actually exist, apply to the prisoner, and rise to the level of an acute vulnerability.” Id. at 659. The appellant had “a host of comorbidities generally increasing his risk of severe illness or death from COVID-19“—including obesity, diabetes, hyperlipidemia, hypertension, and asthma. Id. at 654-55, 659. But the appellant presented no evidence to meet his “burden to demonstrate some acute vulnerability to severe illness or death from COVID-19 despite being vaccinated.” Id. at 659.
Following Autrey, a showing of “acute vulnerability” to severe illness or death from COVID-19 has required more than showing an individual‘s “heightened susceptibility.” See Facon, 288 A.3d at 336. In United States v. Facon, we remanded a compassionate release appeal so that a trial court could make “particular findings” as to whether an incarcerated person‘s risk factors rendered him “acutely” vulnerable. Id. at 337. The trial court had concluded that an incarcerated person who had obesity, Type 2 diabetes, and hypertension9 but had been vaccinated had shown a “heightened susceptibility” to COVID-19 since the Pfizer vaccine was not “100% effective at preventing infection or serious complications.”10 Id. at 336. We disagreed after concluding that the “more than an ‘above-average’ risk” requirement of Autrey required more than a showing of “heightened susceptibility.” Id. 336-37 (quoting Autrey, 264 A.3d at 659 n.13).
We made a similar observation in Colbert v. United States, 310 A.3d 608 (D.C. 2024). The appellant did not suffer from comorbidities that would leave him “acutely vulnerable to severe illness even if he [had been] vaccinated.” Id. at 611. But the appellant was sixty-seven years old and “repeatedly” cited age as a risk factor. Id. at 614. We declined to uphold a trial court‘s ineligibility finding where that court “failed to account for—and did not so much as mention—a significant risk factor
In short, “acute vulnerability” under
When gauging an individual‘s acute vulnerability, courts should continue to consider “any reasonable factor“—and “not just vaccination”12 status—as to whether an incarcerated person has shown “an ‘extraordinary and compelling’ reason warranting a sentence modification.” Autrey, 264 A.3d at 658 (quoting Page v. United States, 254 A.3d 1129, 1130 (D.C. 2021) (Easterly, J., dissenting), and listing factors). In doing so, a judge should exercise their discretion and consider evidence of any factor they find relevant.
Still, an incarcerated person moving for compassionate release bears the burden to show by a preponderance of the evidence the extent to which their medical conditions render them “acutely vulnerable” to severe illness or death from COVID-19. While we still do not demand “conclusive statistical evidence” to meet this standard, an incarcerated person may not “rely on the mere possibility of residual risks without evidence that those risks actually exist, apply to the prisoner, and rise to the level of an acute vulnerability.” Id. at 659. Finally, we reiterate that, “[g]iven how rapidly the above eligibility calculus can change, it would also be prudent for trial courts in each compassionate release case to decide whether the prisoner has demonstrated their non-dangerousness, regardless of any eligibility determination.” Id.
B. Application to Mr. Stringer
Here, the parties only dispute the trial court‘s eligibility ruling, which we review under the abuse of discretion standard. See Colbert, 310 A.3d at 614 (citing Facon, 288 A.3d at 336). To be sure, the trial court credited Dr. Mohareb‘s testimony about the heightened risks from COVID-19 that incarcerated individuals face. And the trial court credited Dr. Mohareb‘s testimony that “as compared to other vaccinated prisoners, Mr. Stringer‘s comorbidities and age make him more vulnerable should he contract COVID-19.” But based on the abuse of discretion standard, the definition of acute vulnerability, and the record before us, we have no basis to disturb the trial court‘s conclusion that
Dr. Mohareb concluded that Mr. Stringer‘s comorbidities of age, diabetes, obesity, high blood pressure, and high cholesterol put Mr. Stringer at a “higher risk” of “severe complications if he were to acquire COVID-19.” But the trial court determined that Dr. Mohareb “did not define that term in any way except in relation to people without comorbidities or who are not incarcerated.” Consider:
- When asked about the “significance of Mr. Stringer‘s age” for Mr. Stringer‘s COVID-19 risks, Dr. Mohareb explained that Mr. Stringer was at “higher risk . . . by virtue of being incarcerated,” and by virtue of the way in which “someone who has long-term incarceration kind of behaves like an older person in terms of his health.”
- When asked about the “significance of diabetes,” Dr. Mohareb explained that “[i]t seems that people who have diabetes are at higher risk of complications from COVID-19.”
- When asked about Mr. Stringer‘s “high blood pressure,” “high cholesterol,” and “high body mass index,” Dr. Mohareb replied that “all of those put him at higher risk of developing severe lung disease, severe complications if he were to acquire COVID-19.”
These explanations—framed only in terms of Mr. Stringer‘s “higher risk” and higher “likelihood” of contracting COVID-19—make it difficult to conclude that Mr. Stringer‘s risk amounted to a “more than an ‘above-average’ risk, as compared to the general population.” See Facon, 288 A.3d at 336 (quoting Autrey, 264 A.3d at 659 n.13).
We acknowledge that Mr. Stringer faces risk: he bears comorbidities, as the trial court concluded, that make him “more vulnerable” if he contracts COVID-19. And Dr. Mohareb explained that each risk factor functions “independent of one another, meaning that someone who has . . . two of those risk factors [is] at higher risk than if they were to have just one of those risk factors.” But, as Dr. Mohareb replied when asked specifically about the significance of high blood pressure: “A risk factor doesn‘t mean that everyone who has those conditions will necessarily have severe disease. It just means . . . their likelihood of developing severe disease would be higher than someone who did not have them.”
This is not a box-checking exercise. A movant for compassionate release must explain why their particular likelihood of developing COVID-19 rises past “heightened” and to a level that falls under the “serious, urgent, and demanding attention” language first introduced in Autrey. See 264 A.3d at 659 n.13 (quoting Acute, Webster‘s Third New International Dictionary Unabridged 23 (2020)). Our conclusion about whether Mr. Stringer provided a sufficient explanation might differ if Mr. Stringer had shown why his particular combination of comorbidities could make his vaccination less effective or lead to a higher likelihood of a breakthrough infection. See id. at 658 (noting that courts may consider whether an incarcerated person‘s “medical conditions continue to render [them] acutely vulnerable to severe illness or death despite receiving some benefit from the vaccine, which may implicate vaccine efficacy data for certain subpopulations“). But, like the movant in Autrey, Mr. Stringer has not presented “evidence to the contrary” to show why his vaccination does not “substantially mitigat[e] his risk.” See id. at 659.
To be sure, Mr. Stringer introduced evidence that, in general, people who have
We therefore conclude that the trial court acted within its discretion when it determined that Mr. Stringer‘s risk from COVID-19—while higher “than other vaccinated persons without his medical conditions“—could not “be termed ‘urgent,’ ‘nearly a crisis,’ or ‘critical.‘”
IV. Conclusion
We affirm the trial court‘s order denying Mr. Stringer‘s motion for compassionate release.
So ordered.
Notes
310 A.3d at 613.may likewise be eligible for release if (1) they had a compelling reason to refuse the vaccine, such as an inability to benefit from it or if the vaccine itself posed a meaningful risk to them, or (2) they would remain acutely vulnerable to severe medical complications or death as a result of COVID-19 even had they vaccinated.