United States v. Cosgrove, CASE NO. CR15-230-RSM

454 F.Supp.3d 1063

UNITED STATES of America, Plaintiff,

v.Terrance L. COSGROVE, Defendant.

CASE NO. CR15-230-RSM

United States District Court, W.D. Washington, at Seattle.

Signed April 15, 2020

Francis Franze-Nakamura, Richard Edward Cohen, US Attorney's Office, Seattle, WA, for Plaintiff.

ORDER GRANTING DEFENDANT'S MOTION FOR RECONSIDERATION

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter comes before the Court on Defendant Terrance L. Cosgrove's Motion for Reconsideration, Dkt. #91, requesting reconsideration of this Court's March 24, 2020 order denying compassionate release pursuant to 18 U.S.C. § 3582(c)(1). Dkt. #90. The Court finds oral argument unnecessary to rule on this motion. Having considered the Motion, the Government's Response, Dkt. #94, all submissions filed in support thereof, and the remainder of the record, the Court GRANTS Mr. Cosgrove's Motion for Reconsideration of its previous order denying compassionate release.

II. BACKGROUND

A full summary of this case is not necessary given this Court's previous order on Mr. Cosgrove's original motion for compassionate release under 18 U.S.C. § 3582(c)(1). See Dkt. #90. Mr. Cosgrove is a 70-year-old man who previously worked as a businessman and investor in the commercial fishing industry. The Government charged Mr. Cosgrove with mail fraud, 18 U.S.C. § 1341, and two counts of wire fraud, 18 U.S.C. § 1343, in relation to a criminal scheme that defrauded three groups of victims. These victims included his business partners, the widow and children of his best friend, and the wife and children of another friend. Id. at 1-2. The Government estimated that Mr. Cosgrove's scheme resulted in "millions of dollars" stolen from his victims. Id. at 2.

On December 7, 2016, Mr. Cosgrove pleaded guilty to all counts. The Court sentenced Mr. Cosgrove on May 9, 2017, imposing a 60-month period of confinement that was below the sentencing guideline range of 78 to 97 months. In imposing the 60-month sentence, the Court took into account "Mr. Cosgrove's age, health, family situation, and the ‘abominable breach of trust’ involved in his case." Id. at 2 (citing Dkt. #53 at 17). The presentence report informed the Court of Mr. Cosgrove's extensive medical history: a liver transplant in September 2015 after a diagnosis of end-stage liver disease; three separate heart attacks ; hospitalization for bowel obstruction ; diagnosis of squamous cell carcinoma on his face and scalp; and diagnosis of moderate degenerative disc disease. Id. (citing Dkt. #79 at 2).

On October 16, 2017, Mr. Cosgrove self-reported to the Federal Correctional Institution at Terminal Island with a projected release date of January 17, 2022. Id. Mr. Cosgrove filed a request with the Bureau of Prisons ("BOP") staff for a reduction in his sentence, which the BOP denied on December 4, 2019. On December 23, 2019, Mr. Cosgrove moved this Court to grant compassionate release pursuant to 18 U.S.C. § 3582(c)(1). Dkt. #71. After Mr. Cosgrove obtained counsel and filed supplemental authority in support of his motion, the Court denied his motion on March 24, 2020. Dkt. #90. However, the Court noted that it "would consider a renewed motion from Mr. Cosgrove if additional guidance is issued by the Department of Justice or the BOP about treating COVID-19 as an extraordinary and compelling circumstance under the First Step Act." Id. at 5-6, n.3.

Since the Court's March 24, 2020 order, public understanding of the virus and its corresponding risks to inmates and staff at BOP facilities have evolved. The U.S. Centers for Disease Control and Prevention has continued to update its guidance on the coronavirus, advising that certain populations are at heightened risk of severe complications and/or death if they contract COVID-19. These populations include individuals over the age of 65 and those with chronic medical conditions, including serious heart conditions, liver disease, and immunocompromised patients. See U.S. Ctrs. for Disease Control and Prevention, Coronavirus Disease 2019-COVID , People who are at higher risk for severe illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last reviewed April 14, 2020) ("CDC Guidelines").

In response to public health officials' warnings about the spread of COVID-19 and the risk of severe complications in certain populations, all levels of government have implemented widespread "social distancing" measures. See, e.g. , W.D. Wash. Gen. Order No. 07-20 (April 14, 2020) (continuing all in-person proceedings scheduled to occur before July 1, 2020). On March 26, 2020, the U.S. Attorney General issued guidance to the Director of the BOP for transferring certain at-risk inmates to home confinement, including those who are non-violent and pose minimal likelihood of recidivism. Dkt. #91-1 at 1. In this memorandum, the U.S. Attorney General listed age and vulnerability of the inmate based on the CDC Guidelines as discretionary factors for the BOP to consider. On March 28, 2020, the BOP reported the first COVID-19-related death of an inmate in custody: a 49-year-old inmate in Louisiana with long term medical conditions identified as risk factors. Press Release, Bureau of Prisons, Inmate Death at FCI Oakdale I (Mar. 28, 2020), https://www.bop.gov/resources/news/pdfs/20200328_press_release_oak_death.pdf. As of April 14, 2020, there have been fourteen federal inmate deaths. See Federal Bureau of Prisons, Covid-19 Cases, https://www.bop.gov/coronavirus/index.jsp (last visited April 14, 2020).

The conditions at Terminal Island FCI, where Mr. Cosgrove is confined, have also changed rapidly. At the time of the Government's April 10, 2020 Response, no inmates or staff at Terminal Island had tested positive for COVID-19. See Dkt. #94 at 8. However, BOP's website now reports that eight individuals—six inmates and two staff members—have tested positive at the facility. See Federal Bureau of Prisons, Covid-19 Cases, https://www.bop.gov/coronavirus/index.jsp (last visited April 14, 2020).

Mr. Cosgrove filed the instant motion for reconsideration on April 1, 2020—twelve days after the Court denied his original motion. Dkt. #91. The Government filed its Response on April 10, 2020, opposing Mr. Cosgrove's motion. Dkt. #94.

III. DISCUSSION

A. Legal Standards

1. Motions for Reconsideration

Motions for reconsideration are generally disfavored. See Local Rules W.D. Wash. LCR 12(b)(13)(A). "The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence." Id.

Here, the evolving COVID-19 crisis has presented new evidence not previously available to parties or the Court at the time of Mr. Cosgrove's original motion. Indeed, in denying Mr. Cosgrove's request for relief, the Court acknowledged that BOP's representations regarding its ability to provide medical care for Mr. Cosgrove were made prior to the COVID-19 outbreak. See Dkt. #90 at 5, n.3. The Court specifically noted that the question of whether BOP could adequately care for Mr. Cosgrove in light of the COVID-19 crisis "has not been substantially briefed by the parties and is not before the Court at this time...." The Court finds that new information on the COVID-19 health crisis has become available in the weeks following its previous order.

2. Compassionate Release under the First Step Act

Pursuant to 18 U.S.C. § 3582(b), a judgment of conviction that includes a sentence of imprisonment "constitutes a final judgment and may not be modified by a district court except in limited circumstances." Dillon v. United States , 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (internal quotations omitted). Those limited circumstances are provided under 18 U.S.C. § 3582(c)(1)(A)(i). Effective December 21, 2018, the First Step Act of 2018 amended Section 3582(c)(1)(A) by adding a provision that allows prisoners to directly petition a district court for compassionate release:

(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; 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) (italics reflecting amendment under First Step Act). Accordingly, a court may reduce a sentence upon motion of a defendant provided that: (1) the inmate has either exhausted his or her administrative appeal rights of BOP's failure to bring such a motion on the inmate's behalf or has waited until 30 days after the applicable warden has received such a request; (2) the inmate has established "extraordinary and compelling reasons" for the requested sentence reduction; and (3) the reduction is consistent with the Sentencing Commission's policy statement. S...