United States v. RODRIGUEZUnited States v. RODRIGUEZ
We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more.1 At this point, there is no approved cure, treatment, or vaccine to prevent it.2 People with preexisting medical conditions—like petitioner Jeremy Rodriguez—face a particularly high risk of dying or suffering severe health effects should they contract the disease.
Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio. He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release”
For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.3 One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care. That compares with 2.2% of those with no underlying conditions needing ICU treatment.”4
These statistics—which focus on the non-prison population—become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton—the place of Rodriguez‘s incarceration.5 After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”
I. DISCUSSION
Congress has not defined the term “extraordinary and compelling,” but the Sentencing Commission (“Commission“) has issued a policy statement defining the term. The policy statement lists three specific examples of “extraordinary and compelling reasons,” none of which apply to Mr. Rodriguez. U.S.S.G. § 1B1.13 cmt. n.1(A)-(C). It also provides a fourth “catchall” provision if the Director of the Bureau of Prisons determines that “there exists in the defendant‘s case an extraordinary and compelling reason other than, or in combination with, the reasons described.” Id. § 1B1.13, cmt. n.1(D). Mr. Rodriguez argues that, in light of the First Step Act, the Court is no longer bound by the policy statement. Therefore, he argues, the Court can and should exercise its discretion to determine that “extraordinary and compelling reasons” exist for his release. The government argues that Rodriguez does not meet any of the enumerated criteria in the policy statement, and that the Court cannot independently assess whether other extraordinary and compelling reasons exist that warrant a sentence reduction.
I conclude that (1) the Court may independently assess whether “extraordinary and compelling reasons” exist; (2) the COVID-19 pandemic—in combination with Mr. Rodriguez‘s underlying health conditions, proximity to his release date, and rehabilitation—constitute “extraordinary and compelling reasons” that warrant a reduction; (3) Mr. Rodriguez is not a danger to his community; and (4) the factors under
Federal courts may reduce a prisoner‘s sentence under the circumstances outlined in
The BOP rarely did so. The BOP was first authorized to file compassionate-release motions in 1984. From 1984 to 2013, an average of only 24 inmates were released each year through BOP-filed motions. Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm‘n (2016) (statement of Michael E. Horowitz, Inspector General, Dep‘t of Justice). According to a 2013 report from the Office of the Inspector General, these low numbers resulted, in part, because the BOP‘s “compassionate release program had been poorly managed and implemented inconsistently, . . . resulting in eligible inmates . . . not being considered for release, and terminally ill inmates dying before their requests were decided.” Id. The report also found that the BOP “did not have clear standards as to when compassionate release is warranted and . . . BOP staff therefore had varied and inconsistent understandings of the circumstances that warrant consideration for compassionate release.” Id.
Against this backdrop, Congress passed and President Trump signed the First Step Act in 2018, a landmark piece of criminal-justice reform legislation that “amend[ed] numerous portions of the U.S. Code to promote rehabilitation of prisoners and unwind decades of mass incarceration.” Brown, 411 F. Supp. 3d at 448 (citing Cong. Research Serv., R45558, The First
The amendment to
Congress never defined the term “extraordinary and compelling reasons,” except to state that “[r]ehabilitation . . . alone” does not suffice.
Thus, implicitly recognizing that it is impossible to package all “extraordinary and compelling” circumstances into three neat boxes, the Commission made subsections (A)-(C) non-exclusive by creating a catchall that recognized that other “compelling reasons” could exist. See United States v. Urkevich, 2019 WL 6037391, at *3 (D. Neb. Nov. 14, 2019) (noting that §1B1.13 never “suggests that [its] list [of criteria] is exclusive“); United States v. Beck, --- F. Supp. 3d ----, 2019 WL 2716505, at *8 (M.D.N.C. June 28, 2019) (“Read as a whole, the application notes suggest a flexible approach . . . [and] recognize that the examples listed in the application note do not capture all extraordinary and compelling circumstances.“).
Accordingly, a majority of district courts have concluded that the “old policy statement provides helpful guidance, [but] . . . does not constrain [a court‘s] independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under
A smaller number of courts have concluded that the Sentencing Commission‘s policy statement prevents district courts from considering any “extraordinary and compelling reasons” outside of those listed in subsections (A)-(C) of the policy statement. See, e.g., United States v. Lynn, 2019 WL 3805349, at *2-*5 (S.D. Ala. Aug. 12, 2019); United States v. Shields, 2019 WL 2359231, at *4 (N.D. Cal. June 4, 2019); United States v. Willingham, 2019 WL 6733028, at *2 (S.D. Ga. Dec. 10, 2019). The government urges this Court to follow these minority decisions.
The conclusion reached by the majority of courts is more persuasive. It is true that
There is no policy statement applicable to motions for compassionate release filed by defendants under the First Step Act. By its terms, the old policy statement applies to motions filed by the [BOP] Director and makes no mention of motions filed by defendants. . . . The Sentencing Commission has not amended or updated the old policy statement since the First Step Act was enacted, nor has it adopted a new policy statement applicable to motions filed by defendants.
Minority cases like Lynn attempt to refute this point by minimizing the impact of the First Step Act‘s changes. See Lynn, 2019 WL 3805349, at *4 n.5 (“While Section 1B1.13 and application note 4 reference motions brought by BOP, this merely restates the restriction on proper movants [that existed] prior to the [First Step] Act . . . .“). The First Step Act, however, significantly altered the landscape of compassionate-release motions and created a procedural gap that the Sentencing Commission‘s policy statement never had a chance to address.
When the Commission wrote its policy statement, a motion could reach the court only through the BOP. By providing the catchall provision, the Commission recognized that it may be impossible to definitively predict what reasons may qualify as “extraordinary and
Under the First Step Act, however, it is possible for inmates to file compassionate-release motions—under the 30-day lapse provision—when their warden never responds to their request for relief. Thus, Congress specifically envisioned situations where inmates could file direct motions in cases where nobody in the BOP ever decided whether the motion qualified for relief under the catchall provision that the Commission originally sought to apply to all motions.
It would be a strange remedy indeed if Congress provided that prisoners whose wardens failed to respond in such a situation could only take advantage of the thirty-day lapse provision by accepting a pared-down standard of review that omitted the flexible catchall standard. But under the minority view, that is exactly what would happen: prisoners in this situation would never have the chance for the BOP to assess their claim under the catchall provision and would never get the chance for this kind of flexible review in the district court, since under the minority view, the court would be constrained to the specific criteria in subsections (A)-(C) of the policy statement.10 This would have the perverse effect of penalizing prisoners who take advantage of
That would be antithetical to the First Step Act. The First Step Act—and the critical 30-day lapse route it provided—directly responded to a compassionate-release system so plagued by delay that prisoners sometimes died while waiting for the BOP to make a decision. Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm‘n (2016) (statement of Michael E. Horowitz, Inspector General, Dep‘t of Justice); see also 164 Cong. Rec. S7314-02, 2018 WL 6350790 (Dec. 5, 2018) (statement of Senator Cardin, co-sponsor of First Step Act) (“[T]he bill expands compassionate release . . . and expedites compassionate release applications.“). Under the minority view, Congress would have created a two-tiered system that poses a Sophie‘s Choice to prisoners with unresponsive wardens: (1) opt for quicker relief at the cost of a disadvantageous standard with no catchall; or (2) endure delay—and, possibly, complete inaction—to retain a more flexible standard. Congress sought to help, not hinder, these sorts of prisoners, and clearly did not intend to create this outcome. Nothing in the text of the old policy statement calls for it, since that statement expressly limits itself to motions filed by the BOP and was written before this situation was even possible to envision.
Adopting the minority view, then, would undermine the purpose of the First Step Act and create an inconsistent and shifting definition of the term “extraordinary and compelling.” Because the Sentencing Commission has not issued a policy statement addressing post-First Step Act procedures, it certainly has not mandated that courts take such an approach. Accordingly, as a result of the First Step Act, there is simply a procedural gap that the Sentencing Commission—currently lacking a quorum and unable to act—has not yet had the chance to fill. Nothing in
Therefore, this Court has discretion to assess whether Mr. Rodriguez presents “extraordinary and compelling reasons” for his release outside of those listed in the non-exclusive criteria of subsections (A)-(C) of the old policy statement.12 Of course, this policy statement remains informative in guiding my determination. See, e.g., Fox, 2019 WL 3046086, at *3 (“[T]he Commission‘s existing policy statement provides helpful guidance on the factors that support compassionate release, although it is not ultimately conclusive . . . .“); Beck, 2019 WL 2716505, at *7 (“While the old policy statement provides helpful guidance, it does not constrain the Court‘s independent assessment . . . .“); United States v. Lisi, 2020 WL 881994, at *3 (S.D.N.Y. Feb. 24, 2020) (“[T]he Court may independently evaluate whether [defendant] has
B. Extraordinary and compelling reasons exist here
Mr. Rodriguez‘s circumstances—particularly the outbreak of COVID-19 and his underlying medical conditions that place him at a high risk should he contract the disease—present “extraordinary and compelling reasons” to reduce his sentence. Black‘s Law Dictionary defines “extraordinary” as “[b]eyond what is usual, customary, regular, or common.” Extraordinary, Black‘s Law Dictionary (11th ed. 2019). It defines “compelling need” as a “need so great that irreparable harm or injustice would result if it is not met.” Compelling Need, Black‘s Law Dictionary (11th ed. 2019).
Mr. Rodriguez has shown extraordinary and compelling reasons to reduce his sentence. First, he suffers from underlying health conditions that render him especially vulnerable to COVID-19. Second, prison is a particularly dangerous place for Mr. Rodriguez at this moment. Third, he has served almost all of his sentence and has shown commendable rehabilitation while in prison. None of these reasons alone is extraordinary and compelling. Taken together, however, they constitute reasons for reducing his sentence “[b]eyond what is usual, customary, regular, or common,” and reasons “so great that irreparable harm or injustice would result if [the relief] is not [granted].” Extraordinary, Black‘s Law Dictionary (11th ed. 2019); Compelling Need, Black‘s Law Dictionary (11th ed. 2019).
i. Mr. Rodriguez‘s Health Conditions Make Him Especially Vulnerable to COVID-19
Mr. Rodriguez‘s health conditions put him at high risk of grave illness or death if he gets infected with coronavirus. Dr. Cameron Baston, Assistant Professor of Clinical Medicine at the University of Pennsylvania Perelman School of Medicine, reviewed Mr. Rodriguez‘s medical
Preliminary research has borne out Dr. Baston‘s professional opinion. An early World Health Organization report on COVID-19 found that “[i]ndividuals at highest risk for severe disease and death include people . . . with underlying conditions such as hypertension [and] diabetes.”13 While the preliminary overall fatality rate in the report was 3.8%, the fatality rate for people with diabetes was 9.2%.14 The fatality rate for people with hypertension was 8.4%.15 The
The government argues that Mr. Rodriguez‘s “conditions are not unusual” and notes that the BOP classifies him in its lowest medical care level, for “inmates who are generally healthy with limited needs for clinician evaluation and monitoring.” Resp. in Opp‘n to Mot. Reduce Sentence 8-9, ECF No. 129 (“Resp. Br.“). In the absence of a deadly pandemic that is deadlier to those with Mr. Rodriguez‘s underlying conditions, these conditions would not constitute “extraordinary and compelling reasons.” It is the confluence of COVID-19 and Mr. Rodriguez‘s health conditions that makes this circumstance extraordinary and compelling.
ii. Mr. Rodriguez Cannot Adequately Protect Himself Against Infection in Prison
Given Mr. Rodriguez‘s vulnerability to COVID-19, prison is a particularly dangerous place for him. COVID-19 is now inside FCI Elkton. Many of the recommended measures to prevent infection are impossible or unfeasible in prison. The government‘s assurances that the BOP‘s “extraordinary actions” can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease at the facility where Mr. Rodriguez is housed. See Resp. Br. 10. Indeed, Congress and the Department of Justice are increasingly recognizing the danger of COVID-19 outbreaks in prison and encouraging steps to release some inmates. See infra at 18.
Detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care. People live in close quarters and are also subject to security measures which prohibit successful “social distancing” that is needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. The crowded conditions, in both sleeping areas and social areas, and the shared objects (bathrooms, sinks, etc.) will facilitate transmission.
Amon Decl. ¶ 20, Def. Reply Br. Ex. A, ECF No. 134-1. Some jails and prisons have already become COVID-19 hotspots. For instance, the infection rate in New York City jails is far outpacing the infection rate in the city as a whole.18 FCI Oakdale, a BOP facility in Louisiana, recently “exploded with coronavirus” cases, leading to the death of an inmate and positive test
The BOP cannot adequately protect Mr. Rodriguez from infection, especially in light of his vulnerability and the presence of COVID-19 in FCI Elkton.
The BOP‘s containment measures have already proven insufficient to prevent the spread of COVID-19. As of March 26, the BOP reported eighteen known cases of COVID-19 among inmates and staff.21 Just four days later, the BOP reported fifty-two cases, an inmate had died, and COVID-19 had reached FCI Elkton.22 The BOP‘s reported cases are rapidly growing and almost certainly underestimate the true number of infections. For instance, as of March 29, the BOP only listed eight COVID-19 cases at FCI Oakdale, while the Washington Post reported thirty-one.23 Testing is also scarce throughout the country.24 Within the BOP, not all inmates with symptoms are being tested or quarantined.25 Further, the BOP‘s protocols for screening inmates and staff depend on documented risk of exposure. Preliminary research indicates that
The situation at FCI Elkton in particular is alarming. The first cases of COVID-19 appeared there after the government assured the Court that the BOP was taking aggressive action to contain the disease. Elkton is filled to capacity and appears to have few tests.27 Mr. Rodriguez represents that inmates at Elkton do not have adequate soap or disinfectant, are still housed together in large groups, and share a thermometer without sanitization, against critical public health recommendations. Reply Br. 1. These representations are consistent with reports of conditions in federal prisons, including at Elkton.28 At Elkton, prisoners themselves are responsible for cleaning and sanitation.29
Recognizing the risk of COVID-19 outbreaks in prisons, Congress, the President, and the Department of Justice have begun encouraging steps to release some prisoners to safer home environments. The coronavirus relief bill enacted on March 27 allows the Attorney General to
iii. Mr. Rodriguez is Close to His Release Date and has Demonstrated Rehabilitation
Mr. Rodriguez has served the vast majority of his sentence, seventeen years. He is a year and a half away from his release date, assuming continued good behavior. He is a year away from eligibility for home confinement. Keeping him in prison for one more year makes a marginal difference to his punishment. But the difference to his health could be profound. That is why being so close to his release date in a long sentence adds to the extraordinary and compelling reasons to reduce his punishment.
The government objects that rehabilitation is not an appropriate basis for granting compassionate release. It cites Congress‘s directive to the Sentencing Commission that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”
C. Mr. Rodriguez is not a danger to others or the community
The Commission‘s policy statement, which provides helpful guidance, provides for granting a sentence reduction only if “[t]he defendant is not a danger to the safety of any other person or to the community, as provided in
Mr. Rodriguez is not a danger to the safety of others or to the community under the factors listed in in
Mr. Rodriguez‘s criminal history involves a series of convictions for drug dealing as well as the firearm offenses in this case. While this history is serious, I find that Mr. Rodriguez does not pose a danger to others. Nothing in his record suggests that he has been violent. The firearms charges related to a gun Mr. Rodriguez disclosed to police officers when they were executing a
I also find that Mr. Rodriguez is not a danger to the community during this pandemic because he has a home to return to—where he can self-quarantine—and an adequate reentry plan, as verified by the Probation Office.
D. The sentence reduction is consistent with the Section 3553(a) factors
Finally, the Court must “consider[] the [sentencing] factors set forth in section 3553(a) to the extent that they are applicable.”
- the nature and circumstances of the offense and the history and characteristics of the defendant;
- the need for the sentence imposed--
- to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- to afford adequate deterrence to criminal conduct;
- to protect the public from further crimes of the defendant; and
- to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
- . . . [and]
- the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[.]
The second factor is the need for the sentence imposed to serve the enumerated purposes of punishment.
The final relevant factor is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
II. CONCLUSION
Mr. Rodriguez has now served the lion‘s share of his sentence. But his sentence did not include incurring a great and unforeseen risk of severe illness or death. For this reason, I will
S/ANITA B. BRODY, J.
ANITA B. BRODY, J.
Copies VIA ECF on 04/01/2020