UNITED STATES OF AMERICA, Plaintiff, v. FARID FATA, Defendant.
Case No. 13-cr-20600
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
July 10, 2020
Paul D. Borman, United States District Judge
18 U.S.C. § 3582(c)(1)(A) (ECF NO. 265)
This matter is before the Court on Defendant Farid Fata‘s motion for reduction of sentence pursuant to
Fata was an oncologist/hematologist, and most of the charges against him relate to his knowing administration of chemotherapy and other unnecessary cancer-fighting treatments and diagnostic testing, such as PET scans, to hundreds of patients/victims who either did not have cancer or did not need the cancer treatments,
In the present motion, Fata seeks compassionate release pursuant to
I. BACKGROUND
Defendant Fata was a doctor who intentionally misdiagnosed hundreds of his patients with cancer and other illnesses they did not have, and then administered unnecessary and invasive treatments and tests, including aggressive chemotherapy, unnecessary “supportive” treatments and intravenous iron, and unnecessary PET scans involving the injection of radioactive materials. Fata pleaded guilty to sixteen counts — thirteen counts of health care fraud, one count of conspiracy to pay and receive kickbacks, and two counts of promotional money laundering. (ECF No. 111.) He did not plead pursuant to a
On May 22, 2018, Fata filed a
On November 22, 2019, Fata wrote to the Warden at FCI-Williamsburg, South Carolina, seeking compassionate release or reduction in his sentence in light of his health conditions. (ECF No. 265-1, PgID 3951-54.) The Warden responded on February 20, 2020, denying the request. (ECF No. 265-2, PgID 3956.)
On May 5, 2020, Fata filed this motion for reduction of sentence pursuant to
The Government argued in its response, in part, that Fata did not exhaust his administrative remedies because he had only requested compassionate release in 2019 for non-COVID-19 related reasons. (ECF No. 265 at pp. 14-18, PgID 4022-26.) The Warden had denied his request. This Court entered an Order on June 11, 2020, rejecting the Government‘s argument, declining to strike Fata‘s Motion as premature, finding that his 2019 request to the Warden satisfied the exhaustion
II. LEGAL STANDARD
Ordinarily, a district court “may not modify a term of imprisonment once it has been imposed.”
The Sentencing Commission Commentary to
Application Note 4 to Guideline 1B1.13 states in pertinent part:
The court is in a unique position to determine whether the circumstances warrant a reduction (and, if so, the amount of the reduction), after considering the factors set forth in
18 U.S.C. § 3553(a) and the criteria set forth in this policy statement....
Title
- the nature and circumstances of the offense and the history and characteristics of the defendant;
- the need for the sentence imposed —
- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- (B) to afford adequate deterrence to criminal conduct;
- (C) to protect the public from further crimes of the defendant; and
- (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
- the kinds of sentences available;
- the kinds of sentence and the sentencing range established ...
- any pertinent policy statement ...
- the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- the need to provide restitution to any victims of the offense.
“[D]istrict courts have ‘broad discretion to determine what sentence will serve
III. ANALYSIS
The Court must consider whether Fata meets the statutorily-mandated criteria for compassionate release set forth in
A. Extraordinary and Compelling Reasons
There must be an extraordinary and compelling reason for the Court to modify Fata‘s sentence under
Fata relies on his age and medical condition as well as “the recent outbreak of COVID-19 within the BOP institutions” as constituting extraordinary and compelling reasons justifying modification of his sentence. (ECF No. 265 at pp. 7-8, PgID 3943-44.) He contends that “[w]ith [his] medical conditions and age, contracting COVID-19 could very well prove to be fatal.” (Id.) The Government argues that Fata‘s medical condition and age do not warrant the relief Fata seeks, and that Fata‘s speculation that his place of incarceration places him at risk for COVID-19 is not enough to satisfy
First, Fata is not eligible for release based on his age. The Commentary and application notes for
Second, the Court has considered the medical records submitted to the Court and concludes that Fata is not entitled to release based on his medical condition. The medical condition of a defendant serves as an “extraordinary and compelling” reason for compassionate release only if the condition is a “terminal illness” with an end of life trajectory, or the condition “substantially diminishes the ability of the defendant to provide self-care” and the defendant “is not expected to recover” from the condition.
In his motion, Fata summarily contends that he:
suffers from the following comorbidities: Type-2 diabetes with diabetic neuropathy and vision complications; immune-compromised with persistent low white blood cell count and low neutrophil count; gastro-intestinal bleeding and esophageal acid reflux with a history of H.
Pylori gastritis; and mild cognitive impairment/early dementia. Fata is currently prescribed and taking duloxetine, metformin, atorvastatin and omeprazole.
(ECF No. 265 at p. 7, PgID 3943, citing Ex. C, ECF No. 266 (medical records filed under seal).) Fata has not established his qualification to be categorized as suffering from a terminal illness or a substantially diminished ability to provide self-care. Certainly he has not established an inability to recover from his conditions, as required by
The Government‘s response in opposition asserts that “there is no evidence in the [BOP] medical records ... that [Fata‘s] health conditions rise to the level of a terminal illness or a condition that ‘substantially diminishes’ his ability to provide self-care within his correctional facility.” (ECF No. 272 at p. 20, PgID 4028.) The Government contends that Fata‘s prison medical records, attached as sealed exhibits to its Response, establish that each of Fata‘s complained-of ailments “are either exaggerated, mild, or managed.” (ECF No. 272 at pp. 20-22, PgID 4028-30, citing Fata‘s BOP medical records at Exhibits 1-5 (filed under seal).) The Court attaches the Government‘s single-spaced discussion that quotes in part from Fata‘s medical records, as a sealed exhibit to this Opinion. (Attachment No. 1, filed under seal.)
The Government notes that the Warden at FCI-Williamsburg similarly wrote in denying Fata‘s request for release that:
...medical staff have determined that you do not meet the criteria under Debilitated Medical Condition. The medical evaluation concluded that
you are not capable of only limited self-care nor confined to a bed or chair for more than 50 percent of waking hours.
The evaluation concluded that all of your conditions are well-controlled through medication. Additionally, you are capable of performing activities of daily living (ADL) without assistance and are capable of carrying out self-care.
(ECF No. 272 at pp. 22-23, PgID 4030-31, citing ECF 265-2 (Response to Inmate Request to Staff).)
The Court has reviewed all of the medical record evidence provided by Fata and the Government, and concludes that Fata‘s medical condition does not constitute an “extraordinary and compelling” reason for compassionate release because none of Plaintiff‘s conditions the rise to the level of a “terminal illness” or a condition that “substantially diminishes” his ability to provide self-care within his correctional facility. While Fata‘s Type-2 Diabetes is well-documented, his medical records also reflect that his condition is generally “well controlled” with medication and diet, and without insulin. (See, e.g., ECF No. 266, PgID 3968, 3975, 3980-81, 3983-85, 3987-88.; ECF No. 273-1 at PgID 4090, 4093, 4143, 4159; ECF No. 273-5 (all filed under seal).)
The records document Fata‘s complaints of foot pain, “decreased sensation,” “burning,” or neuropathy associated with his diabetes diagnosis, but he reported that medication is generally effective, “of benefit,” “helpful,” and “a Godsend.” (ECF No. 266 at PgID 3969, 3975, 3988, 3990, 3994; ECF No. 273-1 at PgID 4048, 4074,
Contrary to Fata‘s assertion of “vision complications,” the medical records consistently note a finding of “no retinopathy” and that his eyes were within “normal limits.” (ECF No. 266 at PgID 3971, 3973-74; ECF No. 273-1 at PgID 4044, 4129-31; ECF No. 273-2 at PgID 4212, 4219-21 (all filed under seal).)
While the records do contain periodic testing showing low white blood cell and/or low neutrophil counts, there is no finding, notation or other indication in the medical record that Plaintiff is “immune-compromised” other than by his diabetes. (ECF No. 266 at PgID 3979-80, 3982, 3986-87, 4000; ECF No. 273-1 at PgID 4164 (all filed under seal).)
The medical records document testing showing blood in his stool in 2019, but also that Fata complained of constipation and “reports [he was] told [he] has internal hemorrhoids,” and the records conclude that “blood in stool most likely internal hemorrhoid considering NL colonoscopy in 2016,” and a follow-up colonoscopy was “disapproved.” (ECF No. 266, PgID 3978, 3988; ECF No. 273-1 at PgID 4063, 4088, 4121; ECF Nos. 273-3 and 273-4 (all filed under seal).) The records also show a past diagnosis of GERD/reflux, that Fata was prescribed omeprazole and he
Finally, while Fata complained in November 2019 of “progressively noticing that [he] forget[s] to remember words in the thread of [his] thought” and forgets where he places his ID, a Mini-Mental State Exam administered that same month showed Fata had “mild cognitive impairment” but that his physical examination was otherwise “normal and no disturbances of consciousness [were] noted.” (ECF No. 266 at PgID 3994; ECF No. 273-1 at PgID 4175, 4182 (all filed under seal).) There is no finding of “early dementia” or other similar finding in the medical records.
A review of Fata‘s medical records thus indicates an overall positive outlook, and his medical condition has been described as “doing fairly well,” “compliant with all meds, diet & exercise, as much as possible,” and “appears well.” (See, e.g., ECF No. 266 at PgID 3990; ECF No. 273-1 at PgID 4074 (all filed under seal).) He is receiving medical care for all of his conditions, and his medical condition simply does not constitute an “extraordinary and compelling” reason justifying compassionate release under
In his reply brief, Fata argues that he is entitled to relief for “other reasons” under
The outbreak of COVID-19 does not change the Court‘s analysis. As the Third Circuit explained, “the 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.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). Rather, “compassionate release motions amid the COVID-19 pandemic have required a ‘fact-intensive’ inquiry ... made in the ‘unique circumstances’ and ‘context’ of each individual defendant.” See United States v. Brady, 2020 WL 2512100, at *3 (S.D.N.Y. May 15, 2020). In Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020), the Sixth Circuit noted that the actions of the BOP to reduce the COVID-19 risk demonstrates the opposite of the disregard of a serious health risk. The Sixth Circuit further noted that “the BOP has not shown ... deliberate indifference.” Id. at 843.
The BOP has taken substantial precautions throughout the federal prison system to mitigate the spread of COVID-19. See Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (finding that the BOP reasonably responded the risk posed by COVID-19 by implementing a six-phase action plan to reduce the risk of COVID-19 spread, taking preventative measures including screening for symptoms, educating staff and inmates, quarantining new inmates, implementing regular cleaning, providing masks, and expanding testing).
Fata is not at high risk for contracting COVID-19 at his current place of incarceration, and his generalization regarding COVID-19 in the federal prison
Further,
B. Factors Under 18 U.S.C. § 3553(a)
The Court, considering the sentencing factors under
The Court concludes that ordering Fata to be released after only serving less than five years of his 45-year sentence, would not serve
As the district court explained, it considered “the length of time served only as a barometer to measure whether granting defendant early release would” advance the “relevant
§ 3553(a) factors, which the statute directs the [c]ourt to consider ‘to the extent they are applicable.‘” So the district court did not use the percentage of time served to make any hard-and-fast rules about when early release is appropriate. Instead, it appropriately considered whether release would serve§ 3553(a) ‘s purposes given the minimal amount of time that Kinkaid served.Nor was the district court‘s focus on the amount of time served misplaced. District courts routinely weigh whether a certain amount of time is “sufficient, but not greater than necessary,” to serve
§ 3553(a) ‘s purposes. That‘s what happens at sentencing. A district court may use that same calculus when deciding whether to grant a motion for compassionate release.
(internal record citation omitted).
IV. CONCLUSION
The Court concludes that Defendant Fata is not an appropriate candidate for the extraordinary remedy of compassionate release. While the Court recognizes Fata‘s concern that he may be exposed to the COVID-19 virus, that concern does not create an “extraordinary and compelling” reason for a compassionate release sentence reduction that would have the effect of reducing his prison term by almost 40 years. Fata‘s underlying criminal conduct demonstrates a total lack of compassion for his many victims over the years. Fata‘s claims do not establish “extraordinary and compelling” reasons warranting a reduction of his term of
IT IS SO ORDERED.
Dated: July 10, 2020
s/Paul D. Borman
Paul D. Borman
United States District Judge