United States v. Cosse

1

UNITED STATES OF AMERICA v. JARVOR WILL COSSE

No. 1:17-CR-94-MJT

United States District Court, E.D. Texas, Beaumont Division

November 13, 2023

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHRISTINE L. STETSON UNITED STATES MAGISTRATE JUDGE.

Pending before the undersigned are Defendant's Motions for Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A) (docs. #52, #62, #65).^[1] Cosse is currently serving a 120-month sentence for violation of 21 U.S.C. § 841(a)(1) (Possession with Intent to Distribute of 500 Grams or More of a Mixture or Substance containing Methamphetamine). (Doc. #241.) The United States filed two responses to the Defendant's motions. (Docs. #57, #75.)

I. ISSUES PRESENTED

Cosse filed his first motion for compassionate release on April 14 2020. (Doc. #52.) He then filed a second motion on August 18, 2020, urging the court's review. (Doc. #62.) Cosse subsequently obtained counsel to represent him and filed an amended motion on May 3, 2021. (Doc. #65.) Cosse alleges that he suffers from medical conditions, including asthma, a lung mass, and obesity, which when coupled with the COVID-19 pandemic constitute extraordinary and compelling reasons. (Id.) He states that part of his right lung was surgically removed but that he needs additional medical attention. Cosse also asserts that he is a model prisoner with no disciplinary infractions while in custody; he is a nonviolent offender; and has only a criminal history category of I, all of which show that he is not a danger to the community. (Id.)

The Government responds stating that the Defendant's medical issues do not rise to the level of extraordinary and compelling circumstances; he is now fully vaccinated for COVID; and although he is not a risk of danger to the community, his release would not meet the objective of providing adequate deterrence for criminal behavior or punish the seriousness of the offense. (Doc. #75.)

Since the above filings, as confirmed by the U.S. Probation Department, the Bureau of Prisons (BOP) released Cosse from prison to finish his term of imprisonment on home confinement as of January 18, 2023, with a release date of October 20, 2025. He was furloughed for a medical emergency on August 2, 2023, then returned to home confinement on August 12, 2023.

Although Cosse is no longer in prison, he is still in BOP custody serving the remaining portion of his custodial sentence while on home confinement, and should he violate the terms of his home confinement, the BOP could rescind the designation and reincarcerate him. Therefore, the issue of compassionate release is not moot, and the court will consider Cosse's motion on the merits. United States v. Busby, 534 F.Supp.3d 661, 662-63 (N.D. Tex. 2021) (court granted compassionate release to defendant on home confinement modifying his 78-month sentence to time served); see also United States v. Trevino, No. 4:10-CR-83, 2021 WL 4453587, at *1 (E.D. Tex. Sept. 29, 2021) (court still considered the merits of defendant's compassionate release request where he was released but still remained under supervised release for five more years); United States v. Ohia, No. CR 13-00139-SDD-EWD, 2020 WL 5868463, at *1 (M.D. La. Oct. 1, 2020) (“Defendant's release to home confinement does not render his request for compassionate release moot.”); see United States v. Tarabein, No. 17-cr-0090-KD-B, 2021 WL 5181309, at *3 (S.D. Ala. Nov. 8, 2021) (denying compassionate release on merits while defendant released by BOP on home confinement); United States v. Mathews, No. CR 20-40029, 2021 WL 4523588, at *3 (D. S.D. Oct. 4, 2021) (same).

II. LEGAL STANDARD

Section 3582(c)(1)(A) “authorize[s] a sentence reduction where: (1) ‘extraordinary and compelling reasons warrant such a reduction,' (2) ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission,' and (3) such a reduction is appropriate ‘after considering the factors set forth in section 3553(a) to the extent that they are applicable.'” United States v. Shkambi, 993 F.3d 388, 389 (5th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A)).

Before seeking relief from the court, a defendant must first submit a request to the facility's warden where he is housed to move for compassionate release on his behalf and then either exhaust his administrative remedies or wait 30 days from the warden's receipt of his request. 18 U.S.C. § 3582(c)(1)(A); United States v. Franco, 973 F.3d 465, 467 (5th Cir. 2020). Here, the Government does not dispute that Cosse has met this requirement. Neither does this court.

Section 3582(c)(1)(A) does not define the “extraordinary and compelling reasons” that may merit compassionate release. The Sentencing Commission, however, has the authority to “promulgate general policy statements ... that describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” United States v. Williams, No. 3:18-CR-0291-B-2, 2021 WL 1865005, at *2 (N.D. Tex. May 10, 2021) (quoting Shkambi, 993 F.3d at 391). On November 1, 2023, the Sentencing Commission issued an amended policy statement, U.S.S.G. § 1B1.13, setting forth the circumstances that are considered “extraordinary and compelling reasons.” These include the defendant's medical circumstances, age, family circumstances, whether the defendant is a victim of abuse, “other reasons,” and whether he is serving an unusually long sentence. See U.S.S.G. § 1B1.13(b). As of November 1, 2023, policy statement 1B1.13 applies to motions filed by the Director of the BOP and motions filed by the defendant himself. U.S.S.G. § 1B1.13(a).

III. ANALYSIS

A. Exhaustion of Administrative Remedies

As stated above, a request for compassionate relief must first be presented to the BOP for consideration. After 30 days have passed or the defendant has exhausted all administrative rights to appeal the BOP's failure to move on his behalf, a defendant may ask a court for a sentence reduction under section 3582(c)(1)(A). Here, the Government concedes that the Defendant has exhausted his remedies. Therefore, the Defendant has satisfied his administrative exhaustion requirement.

B. Extraordinary and Compelling

1. Medical Conditions

Extraordinary and compelling reasons exist regarding a defendant's medical condition when the defendant is “suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory)” or when a defendant is “suffering from a serious physical or medical condition,” “suffering from a serious functional or cognitive impairment,” or “experiencing deteriorating physical or mental health because of the aging process, 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.” U.S.S.G. § 1B1.13. In addition, a defendant may seek release if he is suffering from a medical condition that requires long term or specialized medical care that is not being provided. Id. Lastly, extraordinary and compelling reasons exist if the facility where the defendant is housed is affected or at imminent risk of being affected by an ongoing outbreak of an infectious disease or public health emergency and the defendant is at an increased risk of suffering severe medical complications or death and such risk cannot be adequately mitigated in a timely manner. Id.

Courts that have granted compassionate release based on a prisoner's health problems “largely have done so for defendants who had already served the lion's share of their sentences and presented multiple, severe, health concerns.” Thompson, 984 F.3d 431, 434-35 (5th Cir. 2021). Thus, “compassionate release due to a medical condition is an extraordinary and rare event.” White v. United States, 378 F.Supp.3d 784, 787 (W.D. Mo. 2019). The Government believes that the Defendant has failed to meet this exacting standard.

As stated above, Defendant's medical records indicate that he has a paraganglioma tumor on his right lung with partial surgical removal of his right lung, asthma, and is obese. (Doc. #66-1.) With regard to Cosse's conditions of obesity and asthma, courts do not generally find them extraordinary and compelling meriting release.

According to the CDC, 42.5% of the adult population in the United States is obese and 73.6% is overweight. Due to its prevalence, obesity cannot be deemed “extraordinary” in order to merit compassionate release. See United States v. Harmon, 834 Fed.Appx. 101, 101 (5th Cir. 2021) (affirming denial of compassionate release to a 52-year-old woman who was obese with a BMI of 36); United States v. Grant, No. 16-00172-01, 2021 WL 149308, at *4 (W.D. La. Jan. 15, 2021) (noting that “while obesity is an underlying medical condition that poses increased risk of severe illness from COVID-19, courts have found that obesity-alone or even paired with other medical conditions-does not provide adequate grounds for compassionate release”); United States v. Sentimore, No. 04-382, 2020 WL 7630778, at *2 (E.D. La. Dec. 22, 2020) (finding that defendant's morbid obesity did not rise to the level of an extraordinary and compelling circumstance that would justify his early release); United States v. Gordon, No. 15-20609, 2020 WL 3971013, at *3 (E.D. Mich. July 14, 2020) (denying compassionate release to an obese defendant, reasoning that because “42.4% of American adults are obese and [an] additional 32% are overweight,” obesity “is not a condition so [extraordinary] that injustice would result if the relief is not granted”)

In addition, according to the CDC, 20.4 million adults in the United States, 7.7% of the adult...