United States v. Callahan

488 F.Supp.3d 10

UNITED STATES of America,

v.Brian CALLAHAN, Defendant.

13-CR-453 (GRB)

United States District Court, E.D. New York.

Signed September 23, 2020

Christopher Charles Caffarone, Central Islip, NY, Winston M. Paes, Karin K. Orenstein, Brian D. Morris, United States Attorneys Office, Brooklyn, NY, for United States of America.

Amy Lynn Walsh, Morvillo LLP, Ellen M. Murphy, Morvillo, Abramowitz, Grand, Lason, Anello & Bohrer, P.C., Mark Elliot Cuccaro, Sher Tremonte LLP, Michael Tremonte, Roland G. Riopelle, Sercarz & Riopelle LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER

GARY R. BROWN, United States District Judge:

Pending before the Court is a motion by the defendant, Brian Callahan, for a compassionate release primarily based upon a claim that certain ailments – particularly, a condition known as Dupytren's Syndrome, or a variant known as Dupytren's Contracture – renders him more likely to contract COVID-19 while incarcerated. This application, filed approximately 30 months into a 144-month sentence, fails to meet the standards for such release, and is therefore denied.

In this case, Judge Spatt, a most careful jurist, dutifully and diligently considered and applied the 18 U.S.C. § 3553(a) sentencing factors. Judge Spatt, agreeing with the Government that the estimate by the Probation Department of a sentencing range of 292 to 365 months was inappropriate, determined the correct guideline range to be 151 to 188 months. DE 181; Tr. 62. Characterizing the offense at issue as "a major fraud, one of the worst," Tr. 63, Judge Spatt carefully crafted a sentence intended to reflect the "very serious" nature of the offense, noting that the defendant's conduct, specifically "cheating and stealing and lying," required a consequence that would promote respect for the law, as well as contemplate specific and general deterrence and therefore protect the public. Tr. 64. Judge Spatt carefully noted the "disturb[ing]" nature of one claim, made by the defendant and/or his counsel, that his acts were the result of a "mistake," observing:

This was not a mistake. This was a decided, intention criminal act and acts. No mistake here. That word doesn't belong in this sentencing. The defendant took more than a hundred million dollars from investors and used these monies to pay redemptions to other investors, his own personal use, and buying this resort. to these investors for more than seven years.

Tr. 65. Notwithstanding these significant findings, Judge Spatt was careful to balance certain positive contributions by defendant. Tr. 65-66. In the end, despite the gravity of defendant's wrongs, Judge Spatt imposed a term of incarceration of 144 months, a sentence below the applicable Guidelines range. In the plea agreement governing Callahan's guilty plea, he "waived his right to appeal if he received a sentence of imprisonment of 327 months or below." DE 216 at 3.

To put this in context, this motion is not Mr. Callahan's first attempt to challenge the sentence imposed. Initially, he appealed the sentence to the Second Circuit; the appeal, barred by the plea agreement herein, was dismissed. DE 188. Next, the defendant filed a Section 2255 petition, arguing, among other things, that the prosecution improperly changed its theory at the 11^th hour and substantially increased the Guidelines range, and the defendant further sought recusal of Judge Spatt from the case. DE 196. In June 2019, defendant followed up with a motion to disqualify the United States Attorney's Office, a second request to disqualify Judge Spatt and another demand for immediate release. DE 206-1.

On July 31, 2019, Judge Spatt rejected the motion for recusal. DE 216. In January 2020, Judge Spatt rejected Callahan's Section 2255 petition for recusal in a carefully considered, 31-page decision. DE 226. As part of that determination, Judge Spatt observed the following about the sentencing herein:

After hearing extensive arguments from defense counsel and the Government regarding the appropriate loss calculation, the Court rejected Callahan's argument and agreed with the Government and Probation that Callahan caused $19.7 million in loss. The Court then permitted Callahan's father, his wife, a family friend, defense counsel, Callahan, the Government and several victims to be heard regarding the appropriate sentence to be imposed. The Court examined each of the factors set forth in 18 U.S.C. § 3553(a), and sentenced Callahan to 144 months incarceration—a variance below the applicable advisory Guidelines range of 151 to 188 months.

Id. at 5. Despite Callahan's claims (and those of his codefendant), Judge Spatt determined, following a detailed analysis, that "the Government's estimated fraud loss is entirely consistent with the Defendants’ plea agreements." Id. at 6. Judge Spatt found that the defendant's argument that he was entitled to a $0 loss figure was "confused, at best, and misleading, at worst." Id. at 9. Callahan moved for a certificate of appealability; on September 14, 2020, the Second Circuit denied that motion and dismissed the appeal, noting that Callahan had not "made a substantial showing of the denial of a constitutional right." DE 243.

This motion follows.

Standard for Review of a Compassionate Release Motion

As Judge Brodie recently observed:

"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti, 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). Section 3582(c)(1)(A)(i) "empowers a court to reduce a defendant's term of imprisonment if it finds that ‘extraordinary and compelling reasons warrant such a reduction.’ " United States v. Ebbers , 432 F. Supp. 3d 421, 422 (S.D.N.Y. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i) ). "Prior to the enactment of the FIRST STEP Act, only the Director of the BOP could file a motion for compassionate release," but "[t]he FIRST STEP Act amended this provision to permit an inmate to file a motion in federal court seeking compassionate release." United States v. Haney , 454 F. Supp. 3d. 316, ––––, No. 19-CR-541, 2020 WL 1821988, at *1 (S.D.N.Y. Apr. 13, 2020) ; see alsoEbbers , 432 F. Supp. 3d at 423 ("The First Step Act created an independent avenue for defendants to seek relief from the federal courts.").

Under section 3582(c), and as relevant here, courts may modify a previously imposed sentence where:

(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 ... 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; 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)-(ii).

United States v. Kissi , No. 13-CR-51 (MKB), ––– F.Supp.3d ––––, ––––, 2020 WL 3723055, at *3 (E.D.N.Y. June 26, 2020).

As an initial matter, the Government concedes that the motion is ripe because Callahan filed the motion more than 30 days after filing an application with the warden. 18 U.S.C. § 3582(c)(1)(A). Beyond that, though, considering the clear statutory language of § 3582, as further explicated in the Advisory Note to U.S.S.G. § 1B1.13, it appears that none of the circumstances articulated by defendant satisfy the threshold requirements of extraordinary circumstances. To be clear, defendant is not suffering from a terminal illness, does not meet the age and service requirements, and is not facing extraordinary family circumstances, as described in subsections (A)(i), (B) and (C) of the Advisory Note to U.S.S.G. § 1B1.13(A)(i). Defendant attempts to qualify for compassionate release under Advisory Note § 1B1.13(A)(ii)(I), which potentially authorizes release where "defendant is ... suffering from a serious physical or medical condition, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." None of the articulated bases for the motion even come close to satisfying this high standard.

a. Risk of Contracting COVID-19

Initially, defendant filed this application as an "emergency order", asserting that conditions at MDC combined with the defendant's particularized "vulnerability to COVID-19" formed the basis for an immediate release to home confinement. DE 234. With respect to the care and conditions at MDC, defendant largely relied upon reports filed by Dr. Homer Venters (the "Venters Reports") in Chunn v. Edge , 20-CV-1590 (RPK), a class action brought by MDC inmates concerning conditions relating to medical care at that facility in the face of the pandemic. Id. Since the filing of that motion, my colleague, Judge Kovner, has issued a comprehensive decision in that matter. Chunn v. Edge , No. 20-CV-1590 (RPK), ––– F.Supp.3d ––––, ––––, 2020 WL 3055669, at *13 (E.D.N.Y. June 9, 2020) (denying preliminary injunctive relief).

In that decision, Judge Kovner documented numerous issues with the Venters Reports, including conclusions unsupported by evidence and/or contrary to existing scientific guidance. See id. (noting that Venters’ opinion that all inmates should be equipped with N-95...