United States v. Ben-Yhwh

453 F.Supp.3d 1324

UNITED STATES of America, Plaintiff,

v.Yahoshua BEN-YHWH, Defendant.

CR. NO. 15-00830 LEK

United States District Court, D. Hawai‘i.

Signed April 13, 2020

Tony R. Roberts, Office of the United States Attorney Special Assistant US Attorney, Honolulu, HI, for Plaintiff.

William A. Harrison, Harrison & Matsuoka, Honolulu, HI, for Defendant.

AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S EMERGENCY MOTION TO MODIFY SENTENCE, FILED MARCH 23, 2020 [DKT. NO. 197]

Leslie E. Kobayashi, United States District Judge

The Order Granting in Part and Denying in Part Defendant's Emergency Motion to Modify Sentence, filed March 23, 2020 filed on April 10, 2020 ("Order") (dkt. no. 205) is hereby WITHDRAWN, and this Amended Order Granting in Part and Denying in Part Defendant's Emergency Motion to Modify Sentence, filed March 23, 2020 is entered in its stead. Specifically, the Order is AMENDED to reflect that the Court hereby GRANTS IN PART Defendant Yahoshua Ben-Yhwh's ("Ben-Yhwh") Emergency Motion to Modify Sentence ("Motion"), filed 3/23/20 (dkt. no. 197)¹ to the extent that: Ben-Yhwh's sentence is reduced to TIME SERVED, effectively immediately; Ben-Yhwh shall be IMMEDIATELY RELEASED from Bureau of Prisons ("BOP") custody; as a condition of supervised release, Ben-Yhwh shall be placed on home confinement for a period of home confinement equal to the remaining term of his original sentence of incarceration which shall be followed by four years of supervised release; upon release from custody, Ben-Yhwh shall remain in self-quarantine for a period of time not less than 14 days after release; Ben-Yhwh is to report by telephone to the United States Probation Office, District of Hawai'i (or the federal judicial district in which he intends to reside) within 48 hours of his release from custody; and Ben-Yhwh shall abide by all of the special and general conditions of supervised release as set forth more fully in the Amended Judgment. The Motion is DENIED in all other respects.

Ben-Yhwh moves to reduce his sentence pursuant to the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i) ; specifically "to modify [his] term of imprisonment to time served and to impose a special condition that [he] serve a period of home confinement on supervised release." Id. Plaintiff United States of America ("the Government") opposes the Emergency Motion. See Government's Response ("Response"), filed 4/6/20 (dkt. no. 203). The United States Probation Office ("USPO") recommends against it as well. See Letter to the Court from United States Probation Office, filed 3/27/20 (dkt. no. 200). The Government and USPO raise the problem that Ben-Yhwh has not first exhausted his administrative remedies as mandated by the controlling statute.²

For the reasons stated below, Ben-Yhwh's Emergency Motion is GRANTED only to the extent that his sentence is modified in that his remaining term of imprisonment is replaced by an equal period of home confinement, and is DENIED in that his sentence, including supervised release conditions, otherwise remains in place.

BACKGROUND

This matter from its onset has been a complicated and long ordeal because of Ben-Yhwh's psychiatric and medical conditions. A Criminal Complaint was filed on February 13, 2014 against Ben-Yhwh and others, and which charged possession with the intent to distribute cocaine. [Dkt. no. 1.] After being initially detained, Ben-Yhwh was ordered released with conditions on March 24, 2014. [Minutes, filed 3/24/14 (dkt. no. 24).] A Motion for Psychiatric Examination was made on June 1, 2014. [Dkt. no. 37.] Many conferences were held regarding Ben-Yhwh's competency. The parties agreed to commit Ben-Yhwh to the custody of the Federal Bureau of Prisons ("BOP") for a competency examination. [Stipulation and Order to Commit Defendant to Metropolitan Detention Center in Los Angeles for Examination of Competency, filed 5/21/15 (dkt. no. 73).] While Ben-Yhwh was found competent to stand trial, his mental capacity continued to be questioned. [Minutes, filed 11/2/15 (dkt. no. 93) (status conference regarding competency); Stipulation and Order Approving Psychiatric Examination of Yahoshua Ben-Yhwh, filed 2/2/16 (dkt. no. 106).] A two-count Indictment was filed on November 18, 2015. [Dkt. no. 96.]

Ultimately, Ben-Yhwh entered a guilty plea on August 28, 2017 to Count 1, attempting to possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. [Minutes, filed 8/28/17 (dkt. no. 142); Indictment at 2.] On February 28, 2019, the Court sentenced him to 60 months of incarceration, followed by four years of supervised release. [Minutes (dkt. no. 180).] This was a mandatory minimum sentence required by statute and with which the Court disagreed because a long period of incarceration was unwarranted and cruel due to the serious medical and psychiatric conditions suffered by Ben-Yhwh and his compliance with release conditions for over five years. Ben-Yhwh was permitted to surrender to BOP Medical Center for Federal Prisoners, Springfield, Missouri on August 5, 2019. [Stipulation and Order Modifying Conditions of Pretrial Release, filed 7/3/19 (dkt. no. 195), 2.]

Ben-Yhwh is 73 years old and "suffers from a mental illness as well as other physical ailments including Parkinson's Disease, cardiac problems, asthma, high blood pressure, diabetes, high cholesterol, arthritis and glaucoma." [Emergency Motion, Decl. of Raymond Davidson, M.D., dated 3/23/20 (dkt. no. 197-3) ("Davidson Decl.") at ¶ 3.] In short, he is the "classic example" of the elderly patient who will "rapidly critically deteriorate" if infected by COVID-19 and is "at the extreme risk of expiring from the disease." [Id. at ¶ 6.] There is no dispute that COVID-19 has infected some of the BOP population - currently "there are 197 reported cases of COVID-19 within the BOP nationwide (138 inmates and 59 BOP personnel), amongst an inmate population of over 175,000...." [Government's Opposition at 6 (citation omitted).]

The Government opposes Ben-Yhwh's Emergency Motion and argues that (1) "[t]o present such a request to this Court, he must first exhaust the prescribed administrative procedures"; [id. at 1;] and (2) although COVID-19 is a serious concern, BOP has undertaken substantial action to mitigate the risk of COVID-19, and the possibility of COVID-19 spreading to Ben-Yhwh's prison does not independently justify compassionate release.

DISCUSSION

Generally, courts have limited power to modify terms of imprisonment after a defendant has been sentenced. See generally 18 U.S.C. § 3582. As amended by the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i) authorizes an exception to that general rule and permits modification of a sentence:

(c) Modification of an imposed term of imprisonment.--The court may not modify a term of imprisonment once it has been imposed except that--

(1) in any case--

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf 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 section 3553(a) to the extent that they are applicable, if it finds that--

(i) extraordinary and compelling reasons warrant such a reduction ...

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

Thus, Ben-Yhwh is required to demonstrate both exhaustion of administrative remedies and that "extraordinary and compelling reasons" exist to warrant sentence reduction.

I. EXHAUSTION

Section 3582(c)(1)(A) imposes "a statutory exhaustion requirement" that "must be ‘strictly enforced.’ " United States v. Monzon, 99cr157 (DLC), 2020 WL 550220, at *2 (S.D.N.Y. Feb. 4, 2020) (alteration omitted) (quoting Theodoropoulos v. I.N.S., 358 F.3d 162, 172 (2d Cir. 2004) ). This requirement, however, may be waived:

However, as courts in this Circuit have held, the requirement of completing the administrative process may be waived "if one of the recognized exceptions to exhaustion applies." United States v. Perez, No. 17-CR-513-3 , (S.D.N.Y. Apr. 1, 2020) ; see also United States v. Colvin, No. 19-CR-179, 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020) ("[I]n light of the urgency of [d]efendant's request, the likelihood that she cannot exhaust her administrative appeals during her remaining eleven days of imprisonment, and the potential for serious health consequences, the [c]ourt waives the exhaustion requirement of Section 3582(c)(1)(A)."); United States v. Zukerman, No. 16-CR-194, 2020 WL 1659880, at *2 (S.D.N.Y. Apr. 3, 2020).

United States v. McCarthy, CRIM. CASE NO. 3:17-CR-0230 (JCH), 2020 WL 1698732, at *3 (D. Conn. Apr. 8, 2020) (alterations in McCarthy ).

The exhaustion requirement is therefore not absolute, but there must be a justification for waiving it:

"Even where exhaustion is seemingly mandated by statute ..., the requirement is not absolute." Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019). There are generally three bases for waiver of an exhaustion requirement. SeePerez , (discussing exceptions to statutory exhaustion in context of motion for compassionate release during COVID-19 pandemic).

"First, exhaustion may be unnecessary where it would be futile, either because agency decisionmakers are biased or because the agency has already determined the issue." Washington, 925 F.3d at 118. "[U]ndue delay, if it in fact results in catastrophic health consequences, could

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