United States v. Bays

UNITED STATES OF AMERICA, Plaintiff, v. CLINTON DEWITT BAYS, Defendant.

Case No. 1:18-cr-00390-DCN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

February 3, 2021

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Pending before the Court is Defendant Clinton Dewitt Bays's Motion for Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A). Dkt. 43. The Government has filed an opposition to Bays's Motion. Dkt. 46. Bays filed a reply and the matter is ripe for the Court's consideration. Dkts. 47, 48.

Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). Upon review, and for the reasons set forth below, the Court DENIES the Motion.

II. BACKGROUND

On February 19, 2020, after pleading guilty to Distributing Methamphetamine, the Court sentenced Bays to 96 months incarceration, followed by 5 years of supervised release. Dkt. 38. Bays is currently incarcerated at Federal Correctional Institution ("FCI") Sheridan, in Sheridan, Oregon.

Bays requested a transfer to home confinement from the Bureau of Prisons ("BOP"), but his request was denied. Dkt. 43-1, at 4. On April 14, 2020, Bays submitted a request for compassionate release to the Warden at FCI-Sheridan. Bays waited the requisite 30 days and then filed the instant Motion. Id.

Bays filed his Motion for Compassionate Release with the Court on July 16, 2020. Dkt. 43. He cited to his underlying health conditions, in conjunction with the COVID-19 pandemic, as reasons justifying his release.

III. LEGAL STANDARD

Bays seeks compassionate release under the First Step Act ("FSA"), newly amended 18 U.S.C. § 3582(c)(1)(A), which allows a court to modify a sentence under certain circumstances.¹ In order to grant compassionate release, a district court must, as a threshold matter, determine whether a defendant has exhausted his or her administrative remedies. Id. Next, a district court may grant compassionate release only if "extraordinary and compelling reasons warrant such a reduction," and the reduction is "consistent withapplicable policy statements" issued by the U.S. Sentencing Commission.² Id. If the latter criteria are met, the district court must then consider the sentencing factors set forth in 18 U.S.C. § 3553(a) to the extent they are applicable. Id.; United States v. Rodriguez, 424 F. Supp. 3d 674, 680 (N.D. Cal. 2019).

IV. DISCUSSION

Bays has asked the Court for compassionate release and has proposed multiple conditions, including home confinement, that could be placed upon his release. Dkt. 43-1, at 16-17. As 18 U.S.C. § 3582(c)(1)(A) only gives the Court the authority to "reduce the term of imprisonment (and . . . impose a term of probation or supervised release)," the Court will not consider Bays's request for home confinement. United States v. Williams, 458 F. Supp. 3d 939, 944 (W.D. Tenn. 2020) ("The Court does not have authority under 18 U.S.C. § 3582(c)(1)(A) to place a prisoner in home confinement."). See also Miller v. United States, No. 16-cr-2022, 452 F.Supp.3d 1062, 1064-65 (E.D. Mich. Apr. 9, 2020) (collecting cases)).

A. Exhaustion of Administrative Remedies

The FSA allows a motion for modification to be made by either the Director of the BOP, or by a 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 or the lapse of 30days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier[.]" 18 U.S.C. § 3582(c)(1)(A). In addition, "[e]xhaustion occurs when the BOP denies a defendant's [motion for compassionate release]." United States v. Mondaca, No. 89-cr-0655 DMS, 2020 WL 1029024, at *2 (S.D. Cal. March 3, 2020).

Bays submitted his request for compassionate release with the Warden of FCI-Sheridan on April 14, 2020. While Bays never heard back from the Warden, because he filed this motion with the Court on July 16, 2020—more than 30 days after submitting his request to the Warden—the Court finds that he has exhausted his administrative remedies.

B. Extraordinary and Compelling Reasons

Having determined that Bays exhausted his administrative remedies, the Court must next consider whether "extraordinary and compelling reasons" warrant a permanent reduction in Bays's sentence, and whether "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A)(i). Bays bears the burden of establishing that compelling and extraordinary reasons exist to justify compassionate release. United States v. Holden, 3:13-cr-0044-BR, 2020 WL 1673440, at 3 (D. Or. Apr. 6, 2020).

Before passage of the FSA, the Sentencing Commission limited "extraordinary and compelling reasons" to four scenarios: (A) medical conditions of the defendant; (B) age of the defendant; (C) certain family circumstances; and (D) as determined by the Director of the BOP, other extraordinary and compelling reasons that exist either separately or in combination with the previously described categories. U.S.S.G. § 1B1.13 Application Note 1.

However, the Sentencing Commission "never harmonized its policy statements with the FSA." Rodriguez, 424 F. Supp. 3d at 680 (quoting United States v. Brown, 411 F. Supp. 3d 446, 449 (S.D. Iowa 2019)). "Rather, the outdated policy statements still assume compassionate release 'may be granted only upon motion by the Director of the Bureau of Prisons.'" Brown, 411 F. Supp. 3d at 449 (quoting U.S.S.G. § 1B1.13 Application Note 1). Because this is no longer the law with the FSA, which allows defendants to seek relief directly from the court, this "leaves district courts in a conundrum." Id. (explaining that Congress now allows district courts to grant petitions "consistent with the applicable policy statements" from the Sentencing Commission, although the Sentencing Commission "has not made the policy statements for the old regime applicable to the new one").

A growing number of district courts have concluded that, in the absence of applicable policy statements, courts "can determine whether any extraordinary and compelling reasons other than those delineated in [U.S.S.G. § 1B1.13] warrant compassionate release." Rodriguez, 411 F. Supp. 3d at 682 (collecting cases). However, other courts have concluded "a judge may not stray beyond the specific instances listed in [U.S.S.G. § 1B1.13]." Mondaca, 2020 WL 1029024, at *3 (citations omitted); see also United States v. Ebbers, 432 F. Supp. 3d 421, 427 (S.D.N.Y. 2020) (stating U.S.S.G. § 1B1.13's descriptions of extraordinary and compelling reasons "remain current, even if references to the identity of the moving party are not").

The Court need not decide the issue, however, because Bays suggests one of the specific scenarios set out in the Sentencing Commission's policy statement applies in this case. Brown, 411 F. Supp. 3d at 451 (district courts "still must act in harmony with anysentencing policy guidelines that remain applicable and the § 3553(a) factors"). Here, Bays seeks compassionate release under the "medical condition" scenario in subdivision (A) of U.S.S.G. 1B1.13, Application Note 1.³ Bays argues that his age, hypertension, and other health issues, in conjunction with the COVID-19 pandemic, constitute extraordinary and compelling reasons warranting his release.

Some of the other health issues that Bays alleges (his previous internal bleeding and episodes of AFib, his need for knee replacements and dentures, and his current Deep Vein Thrombosis, unrepaired double hernia, and unremoved cataracts) are not recognized by the Center for Disease Control and Prevention ("CDC") as even potentially increasing the risk of contracting a severe case of COVID-19. As such, the Court will only consider his ageand hypertension in conjunction with the COVID-19 pandemic. Dkt. 43-1, at 2.

Bays's hypertension may place him at a higher risk of contracting a severe case of COVID-19. The CDC lists hypertension as an underlying health condition which indicates individuals might be at an increased risk of contracting a severe case of COVID-19, but it is not on the CDC's list of confirmed health conditions that actually increases risk.⁴ Hypertension as an underlying condition that may increase risk of contracting a severe case of COVID-19 is not sufficient, in itself, to be considered extraordinary and compelling enough to warrant a reduction.

However, Bays also claims that his age places him at a higher risk of contracting a severe case of COVID-19 and that he is "experiencing deteriorating physical . . . health because of the aging process, that substantially diminishes [his] ability . . . to provide self-care[.]" Dkt. 47, at 9. Bays is 79 years old. Risk for severe illness from COVID-19 increases with age and individuals age 75-84 are eight times more likely to require hospitalization and 220 times more likely to die from COVID-19 than those age 18-29.⁵ While Bays has failed to provide any proof of diminished physical or mental capability due to aging that is harming his ability to provide self-care, there is no doubt that Bays's age places him at greater risk of contracting a severe case of COVID-19.

That said, the Government contends that Bays would not be at less risk if released into the community. Currently, FCI-Sheridan has reported 80 total cases of COVID-19 among inmates after administering 1,234 tests.⁶ There are only 14 active cases among inmates at the time of this opinion. This is a relatively low number of cases, especially considering FCI-Sheridan has 1,440 inmates and has administered a significant number of tests for that population size.⁷ The Government argues that Ada County—where Bays would reside if...