Case Information
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ___________________________________
)
UNITED STATES OF AMERICA, )
)
) CRIMINAL ACTION v. ) Nо. 17-10328-WGY )
JAMES RAMIREZ, )
)
Defendant. )
___________________________________)
YOUNG, D.J. May 12, 2020
MEMORANDUM
I. ANALYSIS
A. Legal Standard
On April 24, 2020, this Court resentenced James Ramirez
under its power to grant compassionate release. See Electronic
Clerk’s Notes, ECF No. 119; Order, ECF No. 120. Ramirez is the
first prisoner to whom this Court has granted compassionate
relief since the passage of the First Step Act of 2018, Pub, L.
No. 115-391, ch. II(D) § 3582(c)(1)(A), 132 Stat 5239-5241
(2018), which grants prisoners the right to appeal denials of
compassionate relief made by the Bureau of Prisons (“BOP”). 18
U.S.C. § 3582(c)(1)(A). Prior to the passage of the First Step
Act, district courts could grant a request for compassionate
relief only upon motion of the Director of the Bureau of Prisons
(the “Director”). See United Stаtes v. Beck, 2019 U.S. Dist.
LEXIS 108542, at *11 (M.D.N.C. June 28, 2019) (citing Pub. L.
No. 98-473, ch. II(D) § 3582(c)(1)(A), 98 Stat. 1837 (1984));
Green v. Apker, No. 5:13-HC-2159,
For a defendant under 70 years of age, a court may grant compassionate release only if “extraordinary and compelling reasons warrants such a reduction,” and “such a reduction is consistent with applicable рolicy statements issued by the Sentencing Commission.” Id. A court must also consider the general sentencing factors contained in 18 U.S.C. § 3553. Id. These factors include the nature and circumstances of the offense and defendant, the necessity of the sentence to reflect the seriousness of the offense, deter other criminals, and protect the public, the kind of sentences available, and the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a).
Ramirez’s request for compassionate release is motivated in part by the COVID-19 pandemic that has spread like wildfire throughout the world, and in part by his medical vulnerability. See Def.’s Mot. Reduce Sentence Pursuant 18 U.S.C. § 3582(c)(1)(A) (“Def.’s Mot.”), ECF No 111. COVID-19 is particularly contagious in prisons because inmates are forced into close quarters without access to personal protective equipment. See Savino v. Souza, No. 20-10617-WGY, U.S. Dist. LEXIS 61775, at *5-6 (D. Mass. Apr. 8, 2020) (discussing COVID- 19 risk to detainees in ICE facility); Centers for Disease Control and Prevention, Social Distancing, Quarantine, and Isolation, https://www.cdc.gov/coronavirus/2019-ncov/prevent- getting-sick/social-distancing.html (last accessed Apr. 29, 2020) (advising people to maintain a distance of at least six feet from each other in order to reduce the spread of the disease). New York, where Ramirez is imprisoned in the Metropolitan Detention Center (MDC), Brooklyn facility, is the hardest-hit state in the United States as of the time of this writing. See Centers for Disease Control and Prevention, Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases- updates/cases-in-us.html (last accessed Apr. 30, 2020) (reporting 290,481 COVID-19 cases and 22,275 deaths in the state of New York).
The questions in Ramirez’s case are whether the risk of contracting the coronavirus, given his medical history, is the type of “extraordinary and compelling circumstance” that warrants compassionate relief, and whether this Cоurt may waive the 30-day requirement of section 3582(c)(1)(A). This Court answers both questions in the affirmative.
1. Availability of Relief under 18 U.S.C. § 3582 Ramirez’s case differs from typical requests for compassionate release prior to the passage of the First Step Act because he seeks release due in part to an external threat, the COVID-19 virus, rather than solely due to an existing internal medical condition.
Such a request is outside the traditional grounds for
compassionate release under U.S.S.G. § 1B1.13, the policy
statement that governs motions filed by the Director under
section 3582(c)(1)(A). Beck,
n.1(D). In practice, the Bureau of Prison’s (“BOP”) criteria for release are far more restrictive than authorized by the guidelines. See Bureau of Prisons, U.S. Department of Justice, Program Statement 5050.49 (2013); Office of the Inspector General, U.S. Department of Justice, The Impact of an Aging Inmate Population on the Federal Bureau of Prisons (“Impact Study”) 41-46 (2015). [1]
District courts have debated whether, after the First Step
Act, the Director remains the sole arbiter of the catch-all
provision that allows “other” factors to be considered in
release. Compаre United States v. Cantu,
This Court has held that it may consider unlisted factors
in deciding whether extraordinary and compelling circumstances
exist because such an interpretation best comports with the
First Step Act. See United States v. Bucci,
DBH,
The policy contained in section 1B1.13 serves as “helpful
guidance on the factors that support compassionate release,
although it is not ultimately conclusive.” Id. (quoting Fox,
2. Extraordinary and Compelling Reasons Ramirez is neither the first nor the last inmate to request release in the face of the COVID-19 pandemic, so this Court first considers the extent to which the pandemic justifies releasе in general.
This Court’s ability to exercise its discretion is not
constrained by the language of section 3582(c)(1)(A). See
Cantu,
Other courts have held that the threat of COVID-19 alone is
not sufficient to allow release. For example, a court in the
Western District of Virginia denied compassionate release to an
inmate in part because he failed to show he suffered from a
mеdical condition that made him particularly susceptible to
COVID-19. See United States v. Dungee, 2020 U.S. Dist. LEXIS
59511, at *5 (W.D.V.A. Apr. 4, 2020). Similarly, in United
States v. Khawaja the district court found that the threat of
COVID-19 to an inmate with mere “breathing difficulties” did not
merit compassionate release under either the section 1B1.13
enumerated medical criteria or the catch-all provision. No. 18-
cr-127-LM,
Dist. LEXIS 51909, at *7 (N.D. Cal. Mar. 25, 2020) (applying the policy guidelines in section 1B1.13 and holding that “[g]eneral concerns about possible exposure to COVID-19 do not meet the criteria for extraordinary and compelling reasons for a reduction in sentence”). Even when prisoners have identified medical conditions that place them at heightened risk from the disease, courts have denied compassionate release absent a showing the disease existed in the particular facility. See, e.g., United States v. Feiling, No. 3:19cr112 (DJN), 2020 U.S. Dist. LEXIS 64428, at *21 (E.D. Va. Apr. 10, 2020).
These holdings reflect the clear language and intent of section 3582. COVID-19 may be an extraordinary circumstance that potentially threatens all inmates, but compassionate release is an “extraordinary” remedy. See 18 U.S.C. § 3582(c)(1)(A). Because this remedy is “extraordinary,” it should be applied only to inmates whose situation is “particularized” as defined in the policy guidelines. See Feiling, 2020 U.S.
Dist. LEXIS 64428, at *21; see also Bucci,
(granting compassionate release for the sole available caregiver of an aging parent, in accordance with section 1B1.13 cmt. n.1(C)(ii), but citing States v. Ingram, No. 2:14-cr-40, 2019 U.S. Dist. LEXIS 118304, at *4-5 (S.D. Ohio July 16, 2019) as denying compassionate relief to another inmate with a sick mother because “(m)any, if not all inmates, have aging and sick parents”). Allowing аny inmate under threat of the coronavirus to receive compassionate release would untether a judge’s discretion from the policy guidelines because it would transform an extraordinary remedy into an ordinary one. Fox, 2019 U.S. Dist. LEXIS 115388, at *7. [2]
Where particularized conditions do exist, compassionate
release is more appropriate. Since the beginning of the
coronavirus crisis, numerous courts have granted compassionate
release to inmates who suffer from serious medical conditions
that make them particularly vulnerable to the virus. See, e.g.,
United States v. Atwi, No. 18-20607,
The reasoning from Perez is instructive. In evaluating
whether to order release of an inmate recovering from surgery,
the court pointed to the guidance from section 1B1.13 that
modification of a sentence may be appropriate when “[t]he
defendant is . . . suffering from a serious physical or medical
condition . . . that substantially diminishes the ability to
provide self-care within the environment of a correctional
facility and from whiсh he or she is not expected to recover.”
Dist. LEXIS 54401, at *8-9 (holding that a defendant’s compromised immune system in the context of the pandemic “diminishes his ability to provide self-care within the environment of the [facility].”)
This Court follows Perez and Campagna in holding that
compassionate releasе can be available to inmates who show they
suffer from serious medical conditions that diminish their
ability to provide self-care in the environment of a facility.
The BOP acknowledges that many patients with a severe case of
the disease will be debilitated to the point that they are
incapable of self-care. See United States v. Gotti, No. 02-CR
743-07,
Many of the inmates to whom other courts have granted
compassionate release would not qualify as having “serious”
conditions under the definitions provided by the BOP, but this
is not an obstacle. See PS 50.50, at 4-5 (allowing for
compassionate release for inmates who have a terminal illness,
defined as one with a life expectanсy less than 18 months, or a
debilitating medical condition, defined as incurable,
progressive, and from which they will not recover). Courts are
not completely constrained by the guidelines; we are free to
consider other factors such as the risk of inmates developing a
serious condition. See Atwi,
Thus, this Court rules that compassionate release may be available for those at a particularly high risk from the coronavirus, provided their release is otherwise appropriate under the section 3553 factors. See 18 U.S.C. § 3582(c)(1)(A).
This approach is grounded in the language of the section 1B1.13 policy guidance, as it applies only to those inmates who can make a particularized showing of both individual susceptibility to the virus and a high risk of contracting it due to the conditions in their facility. See United States v. Edwards, No. adults hospitalized in the U.S. for treatment of COVID during the month of March had underlying medical conditions).
[6] Jeremy Gold et al., Characteristics and Clinical Outcomes of Adult Patients Hospitalized with COVID-19 — Georgia, March 2020, 69 Morbidity & Mоrtality Weekly Report 1, 3-4 (Apr. 29, 2000) (finding also that case fatality rates for hospitalized patients in the sample was 3.7% for those 18-49 years of age, 9.8% for those 50-64 years of age, and 35.6% for those older than 65).
The Court observes that all of the above data is preliminary. Epidemiological studies, particularly in the current crisis, are subject to numerous confounding factors such as the availability of underlying data and the makeup of available samples. Additionally, all these studies were able to draw data only from March or earlier.
6:17-CR-00003,
3. The Exhaustion Requirement
Prior to the hearing at which this Court resentenced
Ramirez, ECF No. 119, the government argued that the Court
lacked the ability to order compassionate relief because Ramirez
had not satisfied the mandatory 30-day requirement of section
3582(c)(1)(A). Opp’n United States Def.’s Emergency Mot. Reduce
Sentence (“Gov’t’s Opp’n”) 2, ECF No. 113. The government
points out that Ramirez filed his motion eleven days after
submitting his request to the Warden of the MDC, and thаt
section 3582(c)(1)(a) plainly states that a Court may consider a
defendant’s motion only if the defendant has fully exhausted all
administrative appeals, or upon the lapse of 30 days from the
receipt of the request by the warden, whichever is earlier. Id.
at 3. The government further argues that this Court does not
have the “inherent authority” to modify a sentence, for that
authority is granted by section 3582, and the language of the
statute does not allow for an exception to the exhaustion
requirement. Id. at 3-5 (quoting United States v. Cunningham,
a. Subject Matter Jurisdiction
Though the government mentions the issue only in passing,
as a threshold matter this Court must decide whether the
exhaustion requirement is jurisdictional. See id. at 4 (citing
United States v. Lepore,
2004) (“Whereas judicially imposed exhaustion requirements are
prudential and subject to a number of exceptions, statutory
requirements are jurisdictional, and absent statutory
specification, are subject to very few exceptions.”). Federal
courts are courts of limited jurisdiction and must ascertain
whether they have subject matter jurisdiction in order to
consider a case. See Cusumano v. Microsoft Corp.,
154, 161 (2010). If the exhaustion requirement is jurisdictional it cannot be waived because “[s]ubject-matter jurisdiction can never be waived or forfeited.” Gonzalez v.
Thaler,
The First Circuit has not yet ruled whether section 3582 is
jurisdictional. See United States v. Lugo, No. 2:19-cr-00056-
JAW,
1, 18-137-3, 18-142,
This Court joins Judge Talwani in holding that the
exhaustion requirement of section 3582(c)(1)(a) is not
jurisdictional. The legislature often includes clear
jurisdictional limits in a statute, but “when Congress does not
rank a statutory limitation on coverage as jurisdictional,
courts should treat the restriction as nonjurisdictional in
character.” Arbaugh v. Y & H Corp.,
The language of section 3582(c)(1)(a) does not contain the
“sweeping and direct language that would indicate a
jurisdictional bar rather than a mere codification of
administrative exhaustion requirements.” Casanova v. Dubois,
Additionally, the Seventh Circuit in Taylor notes that the
Supreme Court has considered a parallel issue, whether section
3582(c)(2) (which governs a defendant’s petition to reduce his
sentence when the guidelines were lowered after his sentencing)
was available to a defendant who had entered a binding plea
agreement, and none of the Justices made mention of a
jurisdictional requirement in the statute in their opinions.
Id. (citing Freeman v. United States,
Thus, this Court is confident there is no binding precedent that dictates it does not have subject matter jurisdiction over Ramirez’s case. In the absence of clear language to the contrary in section 3582, it rules that it has subject matter jurisdiction despite the lack of exhaustion.
b. Waiver of the Thirty-Day Requirement Even if section 3582 is not jurisdictional, it does bar judicial review when a defеndant has not exhausted his administrative rights, or when 30 days have not elapsed since the submission of the petition to the prison warden. See 3582(c)(1)(a). Ramirez argues this Court should nonetheless waive the 30-day requirement because of the urgent threat of the coronavirus. Def.’s Mot. 24. The Court holds it has the discretion to waive the requirement and does so in these extraordinary circumstances.
Waiver of the exhaustion requirement is not unprecedented during this time of crisis. Some district courts have waived the requirement, even for those defendants with significant amounts of time left on their sentence. See Soto, 2020 U.S.
Dist. LEXIS 67912; United States v. Zukerman, No. 16-cr-194,
The language of the statute appears at first to be “clear
and mandatory” in requiring exhaustion. Id. at *8. The
government correctly points out that the statute does not
contain language softening the exhaustion requirement, as is
found in the Prison Litigation Reform Act (“PLRA”). Gov’t’s.
Opp’n 5 n.1 (citing Ross v. Blake,
Yet there are narrow circumstances where a seemingly clear
statutory exhaustion requirement is subject to these “few
exceptions.” Lepore,
Judge Rakoff’s analysis in Haney is helpful in determining this congressional intent. Judge Rakoff notes that section 3582 does not contain a traditional exhaustion requirement (such as full litigation of a claim before the agency), but instead requires defendants “either to exhaust administrative remedies or simply to wait 30 days” before filing a motion. Id. at *8 (emphasis in original). Judge Rakoff explains that the 30-day requirement is far shorter than the exhaustion requirement of other statutes designed to force a petitioner to go through full agency review, and that this short timeline therefore reflects congressional intent to provide a “meaningful and prompt judicial determination” when the BOP does not or cannot provide that prompt determination. Id. at *9 (quoting United States v.
Russo, No. 16-cr-441 (LJL),
The leading case that would potentially contradict this
analysis is Ross, in which the Supreme Court, while examining
the PLRA, held that it did not contain an exception to
exhaustion for “special circumstances.”
Estrella, No. 2:15-cr-00032 (D. Me. Oct. 15, 2019), ECF No. 23 (response after 57 days); Mot. Reduce Sentence re: First Step Act 1, 4, Fox, No. 2:14-03 (D. Me. May 10, 2019) (no response within 38 days).
[9] The relevant language from the PLRA is as follows: “No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e.
[10] The exception under the PLRA, the Supreme Court noted, is
when a remedy is not “available,”
rules —- and courts have a role in creating exceptions only if Congress wants them to.”). In section 3582(c)(1)(a), in contrast, the exhaustion requirement of the statute indicates a desire on the part of Congress to accelerate review rather than hinder it, so Ross would not preclude applying an exception.
The COVID-19 crisis is the kind of situation where an
exception to the exhaustion requirement applies. The First
Circuit has held that a court may waive an exhaustion
requirement “where a resort to the agency would be futile
because the challenge is one that the agency has no power to
resolve in the applicant’s favor.” Sousa,
This Court therefore has the discretion to waive the 30-day exhaustion requirement contained in section 3582(c)(1)(a) and does so for Ramirez.
II. THE PRESENT CASE
James Ramirez is a 57-year-old man suffering from diabetes with nephropathy, hypertension, and high cholesterol. Def.’s Mot. 1. At the time of resentencing he had served 43 months of his 66-month sentence for distribution of fentanyl. Id. at 1- 2. He has no history of violence and his criminal history score is I. See Statement of Reasons, ECF No. 110. When he submitted his application for compassionate release, two prisoners and nine staff had already tested positive for coronavirus at MDC Brooklyn. Def.’s Mot. 1.
III. CONCLUSION
Applying the analysis above to the undisputed facts of this case, this Court granted compassionate release with an extended period of supervised release and strict conditions.
BY THE COURT.
/s/ William G. Young WILLIAM G. YOUNG DISTRICT JUDGE
Notes
[1] The Office of the Inspector General found in 2013 that the BOP was granting release only to inmates with less than 12 months to live. Impact Study 41. In response to this finding, the Attorney General instituted the new internal guidelines contained in Program Statement 5050.49 that allowed the Director to request relief for inmates over the age of 65 with chronic or serious medical conditions who have served at least 50% of their sentence. Id. at 43.
[2] Inmates ineligible for compassionate release, fearing
infection from the coronavirus, may still have recourse to
challenge their confinement if conditions in their facility
create a substantial risk of serious harm from the virus, and
the ineffectiveness of the response from prison officials rises
to the level of deliberate indifference. See, e.g., Estelle v.
Gamble,
[3] See Centers for Disease Control and Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (Apr. 3, 2020) (available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance- management-patients.html) (reporting statistics indicating a hospitalization rate of 19% for those with a preexisting condition, that the median hospital stay for recovered patients was 10-13 days, and that 26-32% of those hospitalized were admitted to the ICU).
[4] CDC COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronаvirus Disease 2019 — United States, February 12–March 28, 2020, 69(13) Morbidity & Mortality Weekly Report 382, 383 (Apr. 3, 2020) (finding that hospitalization rates were 27.3-29.8% for those with preexisting conditions versus 7.2-7.8% for those without, and that ICU admission rate was 13.3-14.5% for the first group versus 2.2-2.4% for the second).
[5] Shikha Garg et al., Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory- Confirmed Coronavirus Disease 2019, 69(15) Morbidity & Mortality Weekly Report 458, 459 (Apr. 8, 2020) (reporting that 89.3% of
[7] Lugo notes that the First Circuit has approvingly quoted
language from the Seventh Circuit that implies section 3582 may
be jurisdictional, but this quotation was dicta in a decision
addressing the jurisdictional nature of Federal Rules of
Criminal Procedure 35, not section 3582. 2020 U.S. Dist. LEXIS
63673, at *7-8 (citing United States v. Griffin,
[8] This Court conducted a survey on LexisNexis of cases in the First Circuit dealing with compassionate release under the