United States v. Bolze

UNITED STATES OF AMERICA, Plaintiff, v. DENNIS R. BOLZE, Defendant.

No. 3:09-CR-093-TAV-CCS-1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

October 20, 2020

MEMORANDUM OPINION AND ORDER

Defendant believes himself entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A) [Doc. 177]. The government essentially waives the threshold question of exhaustion [Doc. 193], permitting the Court to consider defendant's request on the merits. However, defendant's circumstances do not present extraordinary and compelling reasons for a sentence reduction under § 3582(c)(1)(A)(i), and even if they did, the sentencing factors set forth in 18 U.S.C. § 3553(a) militate against granting defendant's motion, so the Court must DENY it.

Also before the Court are numerous other pro se motions. For the reasons discussed herein, defendant's motion to appoint counsel [Doc. 175] is DENIED as moot; defendant's motion to proceed in forma pauperis [Doc. 176] is DENIED as moot; defendant's motion to order the government to produce certain documents [Doc. 181] is DENIED; defendant's motion for a ruling on his compassionate release motion [Doc. 183] is DENIED as moot; defendant's motion to supplement [Doc. 187] is GRANTED; defendant's motion to order the government to respond [Doc. 196] is DENIED as moot; and defendant's motion for relief from judgment [Doc. 197] is DENIED as moot.

I. Background¹

On November 10, 2009, defendant pled guilty to three (3) counts of wire fraud, in violation of 18 U.S.C. § 1343, and three (3) counts of money laundering, in violation of 18 U.S.C. § 1957 [Docs. 42, 43]. After conducting "an exhaustive analysis of the 18 U.S.C. § 3553(a) factors," United States v. Bolze, 44 F. App'x 889, 890-91 (6th Cir. 2012), the Court sentenced defendant to 327 months' imprisonment [Doc. 94], which he is currently serving at FCI Coleman Low.

According to the Bureau of Prisons, as of October 7, 2020, FCI Coleman Low currently has two (2) confirmed active COVID-19 cases amongst the inmates and twenty-three (23) amongst the staff. COVID-19 Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Oct. 7, 2020). One (1) inmate and one (1) member of the staff have died from the disease, while 217 inmates and eight (8) staff members have recovered. Id.

Defendant is seventy-one (71) years old and suffers from various medical conditions. According to a recent BOP medical report provided by the government [Doc. 201], defendant currently suffers from hyperlipidemia, essential hypertension, gout,and chronic kidney disease, stage 3 (moderate). Medical records provided by defendant [Doc. 170 p. 12-43; Doc. 178-1 p. 5] also indicate that defendant has a history of, inter alia, pulmonary hypertension and cardiomyopathy.

On April 7, 2020, defendant sent a request for compassionate release to the warden of FCI Coleman Low, citing the risk to his health posed by the COVID-19 pandemic in light of his age and various medical conditions as the basis for his request [Doc. 164 p. 30-38]. The warden, finding defendant's "concern about being potentially exposed to, or possibly contracting COVID-19 does not currently warrant an early release from [his] sentence," denied defendant's request on April 10, 2020, three (3) days after receipt of the request [Doc. 166 p. 7].

On April 17, 2020, just ten (10) days after defendant's request to the warden, defendant filed his initial motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) [Doc. 164]. Finding that defendant failed to exhaust his administrative rights—and that even if he had, he failed to present extraordinary and compelling reasons for a sentence reduction under § 3582(c)(1)(A)(i)—the Court denied the motion [Doc. 172]. United States v. Bolze, No. 3:09-cr-093, 2020 WL 2521273, at *1 (E.D. Tenn. May 13, 2020).

Then, on June 25, sixty-nine (69) days after defendant's request to the warden, defendant filed the instant motion requesting that the Court grant him compassionaterelease [Doc. 177].² The government has responded in opposition [Doc. 193]. The matter is now ripe for resolution.

II. Legal Standard

A court generally lacks "the authority to change or modify [a sentence, once imposed,] unless such authority is expressly granted by statute." United States v. Thompson, 714 F.3d 946, 948 (6th Cir. 2013) (citing United States v. Curry, 606 F.3d 323, 326 (6th Cir. 2010)). The First Step Act of 2018 amended § 3582(c)(1)(A) to modify one such exception. First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018). Prior to the First Step Act, a district court could grant relief under § 3582(c)(1)(A) only on motion of the Director of the Bureau of Prisons. Now a court may modify a defendant's sentence upon a motion by a defendant if the defendant has exhausted all administrativerights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or after the lapse of thirty (30) days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier. § 3582(c)(1)(A). If the defendant surmounts this preliminary hurdle, the Court may grant a sentence reduction "after considering the factors set forth in section 3553(a) to the extent that they are applicable" if it finds:

(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 . . . .

Id. Defendant apparently requests relief under § 3582(c)(1)(A)(i).

III. Analysis

The Court will first consider defendant's motion for compassionate release [Doc. 177] and arguments set forth in his various other filings related thereto [e.g., Docs. 178, 187-1, 198] before ruling on various other pro se motions by defendant [Docs. 175, 176, 181, 183, 187, 195, 197].

A. Section 3582(c)(1)(A)'s Preliminary Threshold to Relief: Exhaustion

The Court examines first whether defendant has satisfied § 3582(c)(1)(A)'s exhaustion requirement,³ which is a mandatory prerequisite to consideration of a compassionate release request on the merits. United States v. Alam, 960 F.3d 831, 833-34 (6th Cir. 2020). "When 'properly invoked,' mandatory claim-processing rules 'must be enforced.'" Id. at 834 (quoting Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017)). The only exceptions to such a mandatory claim-processing rule are waiver and forfeiture. Id. (citing United States v. Cotton, 535 U.S. 625, 630 (2002)).

As the Court has noted, the exhaustion requirement in § 3582(c)(1)(A) provides that before the Court may reduce a term of imprisonment pursuant to that section on a motion by the defendant either (1) the defendant must have "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf" or (2) thirty (30) days must have lapsed since "the receipt of such a request by the warden of defendant's facility." § 3582(c)(1)(A).

First, as the Court previously determined in denying defendant's prior motion for compassionate release, defendant has not fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on his behalf. Bolze, 2020 WL 2521273, at *2. Defendant could have and apparently did not appeal the warden's denial,28 C.F.R. § 571.63(a), and only a determination by the General Counsel or the Director of the Bureau of Prisons constitutes a "final administrative decision" satisfying § 3582(c)(1)(A)'s requirement that defendant "fully exhaust[] all administrative rights to appeal." § 571.63(b)-(c); see also 18 U.S.C. § 3582(c)(1)(A). Accordingly, defendant has not fully exhausted his administrative rights.

Second, although the Court reads § 3582(c)(1)(A) to require a defendant to "fully exhaust[] all administrative rights" if the warden responds to a defendant's compassionate release request within thirty (30) days, see Bolze, 2020 WL 2521273, at *3 (citing United States v. Godofsky, No. 5:16-59-1, 2020 WL 2188047, at *1-2 (E.D. Ky. May 6, 2020), and United States v. Flenory, No. 05-80955, 2020 WL 2124618, at *3 (E.D. Mich. May 5, 2020)); accord United States v. Haas, No. 6:17-cr-037, 2020 WL 4593206, at *5 (E.D. Ky Aug, 7, 2020), the Court has acknowledged reasonable minds may disagree as to whether a motion automatically ripens after the passage of thirty (30) days from a defendant's request to the warden. Bolze, 2020 WL 2521273, at *3 n.3. And, although the Sixth Circuit has yet to encounter the issue presented here, it implied that it would read § 3582(c)(1)(A) to allow a defendant to file a motion after thirty (30) days had passed from the filing of a request with the warden, regardless of whether the warden had responded and regardless of the appeal status of a denial by the warden. Alam, 960 F.3d at 834 ("Prisoners who seek compassionate release have the option to take their claim to federal court within 30 days, no matter the appeals available to them.").

Applying these two interpretations of the thirty-day prong of the exhaustion requirement to the facts in this case leads to different conclusions. Interpreting the provision as this Court did in denying defendant's initial motion, Bolze, 2020 WL 2521273, at *3, the fact that defendant's April 7th request was denied by the warden on April 10, just three (3) days later and thus well within the thirty-day window, eliminates the lapse of thirty (30) days as a path to judicial review, requiring that defendant instead fully exhaust his administrative rights....