United States v. Britton

473 F.Supp.3d 14

UNITED STATES of America

v.Shariff BRITTON

Criminal No. 18-cr-108-LM

United States District Court, D. New Hampshire.

Signed May 12, 2020

Cam T. Le, Shane Kelbley, US Attorney's Office, Concord, NH,, for United States of America.

ORDER

Landya McCafferty, United States District Judge

Defendant, Shariff Britton, is currently serving a 60-month term of imprisonment for one count of possession with intent to distribute a controlled substance. Due to the threat to his health posed by the potential spread of COVID-19 in the prison facility where he is currently housed, defendant moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Doc. no. 16. The government objects. The court held a telephonic hearing on defendant's motion on May 11, 2020.

STANDARD OF REVIEW

A court may grant so-called "compassionate release" to a defendant under 18 U.S.C. § 3582(c)(1)(A). 18 U.S.C. § 3582(c)(1)(A) provides, in relevant part, that:

[T]he 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.

18 U.S.C. § 3582(c)(1)(A) ; see also U.S.S.G. § 1B1.13 (sentencing guidelines policy statement on compassionate release). Under this statute, a district court may properly consider a motion for compassionate release under three circumstances: (1) the motion is filed by the Director of the Bureau of Prisons ("BOP"); (2) the motion is filed by defendant after he exhausts all his administrative rights to appeal BOP's refusal to bring a motion on his behalf; or (3) the motion is filed by defendant 30 days after defendant requested BOP to petition for compassionate release on his behalf. 18 U.S.C. § 3582(c)(1)(A). For the purposes of this order, the court will refer to the two alternative avenues for a defendant to petition the court directly for compassionate release (exhaust administrative rights to appeal or wait 30 days after request to BOP) as the statute's "exhaustion requirement."

Once a motion for compassionate release is properly before the court, the court must then determine if defendant is eligible for release. The statutory language quoted above requires that defendant show that "extraordinary and compelling reasons warrant" a reduction in his sentence, that the court consider the factors set forth in 18 U.S.C. § 3553(a) to the extent applicable, and that the reduction be "consistent" with the Sentencing Commission's applicable policy statements. 18 U.S.C. § 3582(c)(1)(A). The Sentencing Commission's policy statement regarding compassionate release adds the requirement that the court find that "[t]he defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)." U.S.S.G. § 1B1.13(2).

In short, a court may reduce a term of imprisonment under the compassionate release provision if it: (1) finds that extraordinary and compelling reasons warrant the reduction; (2) finds that the defendant will not be a danger to the safety of any other person or the community; and (3) considers the sentencing factors outlined in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A) ; U.S.S.G. § 1B1.13 ; see also United States v. Sapp, No. 14-CR-20520, 2020 WL 515935, at *2 (E.D. Mich. Jan. 31, 2020) ; United States v. Willis, 382 F. Supp. 3d 1185, 1187 (D.N.M. 2019). The defendant has the burden of showing that he or she is entitled to a sentence reduction. United States v. Ebbers, 432 F.Supp.3d 421, 426-27 (S.D.N.Y. 2020). And the court has "broad discretion in deciding whether to grant or deny a motion for sentence reduction." United States v. Paul Gileno, 448 F.Supp.3d 183, 186 (D. Conn. 2020) (internal quotation marks omitted).

BACKGROUND

In July 2019, defendant was arrested for possessing with intent to distribute a controlled substance (cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II). He stipulated to detention pending trial and was recommended for participation in the Therapeutic Community Program at the Strafford County House of Corrections. On September 5, 2019, defendant pleaded guilty to the charge. On December 17, 2019, this court sentenced defendant to a term of imprisonment of 60 months and four years of supervised release.

After sentencing, defendant was medically cleared by the Strafford County House of Corrections for transfer to another facility. Defendant was eventually transferred to the Metropolitan Detention Center ("MDC") Brooklyn, but it is unclear precisely when that transfer occurred.¹ Defendant was moved to MDC Brooklyn as a transit point on the way to his ultimate destination—a federal prison in Pennsylvania.

Defendant was destined for the Pennsylvania facility due to his need for specific medical testing and treatment available there, including a colonoscopy. Defendant requires testing and treatment in relation to several underlying health conditions: Crohn's disease, gastro-esophageal reflux disease ("GERD"), and eustachian tube dysfunction.² Now, because of transfer restrictions implemented in response to the COVID-19 pandemic, defendant is stuck at MDC Brooklyn without access to the medical testing and treatment he needs. He contends that his inability to access this treatment is causing him excruciating stomach pain, increased defecation, and fatigue. Defendant also alleges that he experiences heart or chest pains or palpitations for which he claims he needs further testing.

On April 15, 2020, defendant told his attorney that he would be filing a request for compassionate release with BOP that day. Defendant has offered no proof of that submission, and the government was not able to acquire proof of the request from BOP. Nevertheless, on April 18, defendant's counsel filed a formal request for his compassionate release or for home confinement. Doc. no. 16-3. BOP denied that request on April 23. See doc. no. 21-1. It stated that defendant was not eligible for home confinement because he is a "holdover inmate" (i.e. he is not there permanently but in transit to another facility) and denied his compassionate release request because his medical conditions did not qualify as an extraordinary or compelling reason for release. See id.

On April 27, defendant filed the instant motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). He asserts that he is eligible for compassionate release because his risk of contracting COVID-19 is high due to the unsafe conditions at MDC Brooklyn and his co-occurring chronic health conditions put him at heightened risk for severe illness if he does catch the virus. There is no indication in the record that defendant has appealed BOP's denial of his compassionate release request or otherwise exhausted his administrative appeals.³ And 30 days have not yet passed since his April 18 request.⁴ Defendant argues that he need not wait for those 30 days to pass before petitioning the court directly because the exhaustion requirement of the compassionate release statute can be excused on the basis of equitable exceptions such as irreparable harm, futility, or urgent circumstances, which he says are present here. The government objects, arguing that the statutory exhaustion requirement is mandatory and therefore cannot be excused.

DISCUSSION

Over the last two months, federal courts have confronted a tidal wave of compassionate release requests by inmates based on the threat posed by the presence of the highly contagious COVID-19 virus in the close quarters of the prison environment. Courts addressing the issue of whether the exhaustion requirement of 18 U.S.C. § 3582(c)(1)(A) is excusable in the context of this global pandemic have diverged: some have held the exhaustion requirement mandatory, while others have held that it is subject to equitable exceptions. Compare, e.g., United States v. Lugo, No. 2:19-CR-00056-JAW, 2020 WL 1821010, at *4-5 (D. Me. Apr. 10, 2020) (holding that statutory exhaustion requirement is mandatory and describing split of authority), with United States v. Scparta, No. 18-CR-578 (AJN), ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 1910481, at *7-8 (S.D.N.Y. Apr. 20, 2020) (holding that exhaustion requirement is subject to equitable exceptions). After careful and thorough consideration, the court agrees with the apparent majority of courts that have reached the unfortunate conclusion that the exhaustion requirement of the compassionate release statute constitutes a mandatory claim-processing rule that is not subject to equitable exceptions.

I. Jurisdictional Requirement or Claim-Processing Rule

As a threshold matter, defendant argues that § 3582(c)(1)(A) ’s exhaustion requirement is non-jurisdictional: that is, failure to comply with the exhaustion requirement does not divest the court of jurisdiction. Instead, defendant contends that the exhaustion requirement is a nonmandatory claim-processing rule. The government does not dispute that the exhaustion requirement is non-jurisdictional but asserts that it is a mandatory claim-processing rule that has not been met here.

A jurisdictional rule is one that "governs a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction," while a claim-processing rule is one that "seek[s] to promote the orderly progress of...