United States v. Almashwali, 1:16-cr-00127-DAD-BAM-1

UNITED STATES OF AMERICA, Plaintiff, v. ABDULLAH ALMASHWALI, Defendant .

No. 1:16-cr-00127-DAD-BAM-1

United States District Court, E.D. California

September 20, 2021

ORDER DENYING DEFENDANT ALMASHWALI'S MOTION FOR MODIFICATION OF SENTENCE UNDER 18 U.S.C. § 3582(C)(1)(A) (DOC. NO. 144)

Pending before the court is a pro se motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) brought by defendant Abdullah Almashwali. (Doc. No. 144.) That motion is based in part on the purported risks allegedly posed to defendant by the ongoing coronavirus (“COVID-19”) pandemic. For the reasons explained below, defendant's motion will be denied.

BACKGROUND

On April 14, 2017, defendant Almashwali entered pleas of guilty to one count of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(C), 846, and two counts of distribution of heroin and the aiding and abetting of the same in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2. (Doc. Nos. 13, 106.) On July 24, 2017, the court sentenced defendant to a term of imprisonment of 78 months in the custody of the U.S. Bureau of Prisons (“BOP”) on each count, with those sentences to be served concurrently, followed by a concurrent term of supervised release of 36 months on each count, with the term of supervised released to become unsupervised if deported. (Doc. No. 118 at 2-3.) The court also imposed the mandatory $100.00 special assessment for each count. (Id. at 6.)

Defendant is currently serving his sentence at Allenwood Medium Federal Correctional Institution (“FCI Allenwood Medium”) in Allenwood, Pennsylvania. (Doc. No. 155 at 2.) As of the date of this order, and including prior jail time credits defendant Almashwali has served approximately 61 months of his 78-month sentence. (Doc. No. 155-1 at 3-4.) Accounting for good time credit, his projected release date is July 14 2022. (Doc. No. 155-1 at 2.)

On September 8, 2020, pursuant to defendant's request for counsel, the court appointed counsel to represent defendant in his seeking compassionate release. (Doc. No. 146.) On May 20, 2021, appointed counsel notified the court that no supplemental motion for compassionate release under 18 U.S.C § 3582(c)(1)(A) would be forthcoming. (Doc. No. 153.) The government filed its opposition to the pending motion on June 7, 2021. (Doc. No. 155.) To date, defendant has not filed a reply thereto.

LEGAL STANDARD

A court generally “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 824 (2010) (“‘[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment' and may not be modified by a district court except in limited circumstances.”). Those limited circumstances include compassionate release in extraordinary cases. See United States v. Holden, 452 F.Supp.3d 964, 968 (D. Or. 2020). Prior to the enactment of the First Step Act of 2018 (“the FSA”), motions for compassionate release could only be filed by the BOP. 18 U.S.C. § 3582(c)(1)(A) (2002). Under the FSA, however, imprisoned defendants may now bring their own motions for compassionate release in the district court. 18 U.S.C. § 3582(c)(1)(A) (2018).

In this regard, the FSA specifically provides that a court may

upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf^[1] or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if it finds that -

(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30

years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

18 U.S.C. § 3582(c)(1)(A)(i) and (ii).^[2]

The applicable policy statement with respect to compassionate release in the U.S. Sentencing Guidelines sets out criteria and circumstances describing “extraordinary and compelling reasons.” U.S. Sent'g Guidelines Manual (“U.S.S.G.”) § 1B1.13 (U.S. Sent'g Comm'n 2018)^[3]; see also United States v. Gonzalez, 451 F.Supp.3d 1194, 1197 (E.D. Wash. 2020) (noting that many courts have relied on U.S.S.G. § 1B1.13 to define “extraordinary and compelling reasons, ” even though that policy statement was issued before Congress passed the FSA and authorized defendants to file compassionate release motions). However, the Ninth Circuit has now held “that the current version of U.S.S.G. § 1B1.13 is not an ‘applicable policy statement[ ]' for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.” United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). “In other words, the Sentencing Commission has not yet issued a policy statement ‘applicable' to § 3582(c)(1)(A) motions filed by a defendant.” Id. The Ninth Circuit clarified that “[t]he Sentencing Commission's statements in U.S.S.G. § 1B1.13 may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.” Id. (citing United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020)).

In so holding, the Ninth Circuit joined the five other circuits who have addressed this issue and have unanimously held “that U.S.S.G. § 1B1.13 only applies to § 3582(c)(1)(A) motions filed by the BOP Director, and does not apply to § 3582(c)(1)(A) motions filed by a defendant.” Id.; see, e.g., United States v. Brooker (Zullo), 976 F.3d 228, 237 (2d Cir. 2020) (“[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release. Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court's discretion.”); United States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020) (“In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define ‘extraordinary and compelling' without consulting the policy statement § 1B1.13.”); Gunn, 980 F.3d at 1181 (“[T]he Guidelines Manual lacks an ‘applicable' policy statement covering prisoner-initiated applications for compassionate release. District judges must operate under the statutory criteria-‘extraordinary and compelling reasons'-subject to deferential appellate review.”); United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020) (“In short, we agree with the Second Circuit and the emerging consensus in the district courts: There is as of now no ‘applicable' policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.'”) (citation omitted); United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021) (“We therefore agree with the district court that under the second part of § 3582(c)(1)(A)'s test, its finding that extraordinary and compelling reasons warranted a reduction in Maumau's case was not constrained by the Sentencing Commission's existing policy statement, U.S.S.G. § 1B1.13.”).

In the past, when moving for relief under 18 U.S.C. § 3582(c), it was recognized that the defendant bore the initial burden of demonstrating that a sentence reduction was warranted. See United States v. Sprague, 135 F.3d 1301, 1306-07 (9th Cir. 1998). Although the Ninth Circuit has not specifically addressed the question of which party bears the burden in the context of a motion for compassionate release brought pursuant to § 3582(c) as amended by the FSA, district courts to have done so agree that the burden remains with the defendant. See, e.g., United States v. Greenhut, No. 2:18-cr-00048-CAS, 2020 WL 509385, *1 (C.D. Cal. Jan. 31, 2020); United States v. Van Sickle, No. 18-cr-0250-JLR, 2020 WL 2219496, *3 (W.D. Wash. May 7, 2020).

ANALYSIS

As district courts have summarized, in analyzing whether a defendant is entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), the court must determine whether a defendant has satisfied three requirements:

First, as a threshold matter, the statute requires defendants to exhaust administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Second, a district court may grant compassionate release only if “extraordinary and compelling reasons warrant such a reduction” and “that such reduction is consistent with applicable policy statements issued by the Sentencing Commission. Id. Third, the district court must also consider “the factors set forth in Section 3553(a) to the extent that they are applicable.” Id.

United States v. Rodriguez, 424 F.Supp.3d 674, 680 (N.D. Cal. 2019); see also United States v Ramirez-Suarez, No. 16-cr-00124-LHK-4, 2020 WL 3869181 at *2 (N.D. Cal. July 9, 2020); United States v. Parker, 461 F.Supp.3d 966, 970 (C.D. Cal. 2020); ...