United States v. Edington

UNITED STATES OF AMERICA, Plaintiff, v. 1. AMY EDINGTON, a/k/a Amy Quini

Criminal Case No. 19-cr-00174-REB-1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

May 27, 2020

Judge Robert E. Blackburn

ORDER DENYING DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C § 3582(c)(1)(A)(i) (COMPASSIONATE RELEASE)

Blackburn, J.

The matter before me is the Motion To Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Compassionate Release) [#98],¹ filed April 28, 2020, on behalf of defendant Amy Edington.² The government has filed a response ([#101], filed May 13, 2020), and Ms. Edington filed a reply under restriction ([#105], filed May 20, 2020). I have jurisdiction to consider Ms.Edington's request for sentence modification under 18 U.S.C. § 3582(c). Having considered carefully the motion, the record, and the apposite law, I deny the motion.

Pursuant to her plea agreement [#56] with the government, Ms. Edington pled guilty to one count of an eleven-count indictment for conspiracy to use, produce, or traffic in counterfeit access devices, and aiding and abetting same. She was sentenced to a term of imprisonment of twelve months plus one day.

At the time of her federal sentencing, Ms. Edington was in state custody for violations of probation in two cases pending in the district court of Pueblo County, Colorao. She was returned to state custody and was sentenced in both state cases to one-year terms of imprisonment to run concurrently with the federal sentence. Thereafter, however, Ms. Edington was not released to the federal detainer, and the United States Marshal still considered her to be in state custody. On her motion, she was released from state custody on April 17, 2020. Nevertheless, at least as of the date of the government's response to the instant motion (May 12, 2020), the state has not released Ms. Edington. She therefore has not been designated to a federal Bureau of Prisons facility and currently remains in custody in the Pueblo County Jail.

Ms. Edington seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). One of the purposes of the First Step Act was to "increas[e] the use and transparency of compassionate release," see First Step Act, 132 Stat. at 5239, by expanding the universe of persons who could seek such relief. Whereas previously, only the Director of the Bureau of Prisons could file a motion compassionate release, United States v. Gutierrez, — F.Supp.3d —, 2019 WL 1472320 at *1 (D.N.M. Apr. 3, 2019), now a defendant herself may seek such relief from the court, but only "after [she] has fullyexhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on [her] behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility," 18 U.S.C. § 3582(c)(1)(A).

Given the unique circumstances of this case, where Ms. Edington is not presently in federal custody, the government agrees that the exhaustion requirement may be waived as futile. See McCarthy v. Madigan, 503 U.S. 140, 147, 112 S.Ct. 1081, 1088, 117 L.Ed.2d 291 (1992) (administrative remedy may be inadequate "because of some doubt as to whether the agency was empowered to grant effective relief") (citation and internal quotation marks omitted); Garza v. Davis, 596 F.3d 1198, 1203 (10^th Cir. 2010) ("A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile."). See also United States v. Norris, — F.Supp.3d —, 2020 WL 2110640 at*2 (E.D.N.C. April 30, 2020) (inmate not yet transferred to federal custody satisfied exhaustion requirement). I assume without deciding that Ms. Edington has satisfied the exhaustion requirement. Thus, the only question is whether Ms. Edington meets the other requirements warranting an exercise of the court's discretion to grant compassionate release.³

The First Step Act did not change the substantive standards governing compassionate release. A proposed sentence reduction still must be "supported by: (1) extraordinary and compelling reasons; (2) applicable policy statements issued by the Sentencing Commission[;] and (3) the factors set forth in [18 U.S.C. §] 3553(a)." United States v. Willis, 382 F.Supp.3d 1185, 1187 (D.N.M. 2019) (quoting 18 U.S.C. § 3582(c)(1)(A)(i))(internal quotation marks omitted).

Regarding the first condition, Congress directed the Sentencing Commission to "describe what should be considered extraordinary and compelling reasons for sentence reduction." 28 U.S.C. § 994(t). In response, the Commission issued USSG §1.B1.13. Under this policy statement, the court may reduce a term of imprisonment "if, after considering the factors set forth in 18 U.S.C. § 3553(a)," it determines that "[e]xtraordinary and compelling reasons warrant the reduction" and 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)." USSG §§1B1.13(1)(A) & (2).⁴

The policy statement sets forth specific examples of circumstances which may be considered extraordinary and compelling, including the defendant's terminal illness ordebilitating medical condition, advanced age, or compelling family circumstances such as the death or incapacitation of the sole caregiver for the defendant's minor children. None of these categories apply to Ms. Edington. Instead, she relies on the catch-all provision of the policy statement, by which compassionate release may be warranted for "an extraordinary and compelling reason other than, or in combination with, the reasons described in" the other subdivisions. USSG §1B1.13, cmt. n.1(D).⁵

The existence of the COVID-19 pandemic no doubt can be described as "extraordinary" insofar as it is "[b]eyond what is usual, customary, regular, or common." United States v. Rodriguez, — F.Supp.3d —, 2020 WL 1627331 at *7 (E.D. Pa. April 1, 2020) (quoting Black's Law Dictionary, Extraordinary (11^th ed. 2019)) (internal quotation marks omitted). However, because the apposite test is stated in the conjunctive, the dangers presented by the pandemic - which impact us all, worldwide - also must be "compelling" in Ms. Edington's particular circumstances. See United States v. Raia, 954 F.3d 594, 597 (3^rd Cir. 2020) ("[T]he mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release." ).⁶ A need is "compelling" when it is "so great that irreparableharm or injustice would result if it is not met." Rodriguez, 2020 WL 1627331 at *7 (quoting Black's Law Dictionary, Compelling Need (11^th ed. 2019)) (internal quotation marks omitted).

Ms. Edington claims she suffers from asthma and high blood pressure and that these conditions present compelling reasons for her release. People with moderate to severe asthma and those with pulmonary hypertension are at higher risk of developing severe illness from COVID-19. (See Centers for Disease Control and Prevention, Groups at Higher Risk for Severe Illness (available at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html#serious-heart-conditions) (last accessed May 26, 2020). After the government pointed out her failure to substantiate these claims, Ms. Edington belatedly produced evidence that she has been prescribed medication for high blood pressure. (See Def. Reply App., Exh. A.) Her claim that she suffers from asthma is wholly unsubstantiated, however, and indeed, the drug Ms. Edington has been prescribed for hypertension, propranolol, is contraindicated for people with asthma. See Drugs.com, Propanolol, Before Taking This Medicine (available at: https://www.drugs.com/propranolol.html) (last accessed May 26, 2020).⁷

It is Ms. Edington's burden to prove that her medical conditions create extraordinary and compelling reasons warranting a sentence reduction. United States v. Ng Lap Seng, 2020 WL 2301202 at *3 (S.D.N.Y. May 8, 2020). See also UnitedStates v. Jones, 836 F.3d 896, 899 (8^th Cir. 2016) ("It is the defendant's burden to establish that [s]he warrants a § 3582(c)(2) reduction."); United States v. Butler, 970 F.2d 1017, 1026 (2^nd Cir.) ("A party with an affirmative goal and presumptive access to proof on a given issue normally has the burden of proof as to that issue."), cert. denied, 113 S.Ct. 480 (1992). While Ms. Edington may suffer from high blood pressure, there is nothing in the record to suggest this condition is not controlled on medication.⁸ Moreover, at 38 years old, Ms. Edington is not in a high risk age category, and she has no other proven risk factors or comorbidities that might further increase her risk of developing serious illness from COVID-19.⁹

Nevertheless, and granting that Ms. Edington is at slightly higher risk of serious illness from COVID-19 due to her underlying medical conditions, I still would find a sentence reduction to be unwarranted in this case. For even if all other preconditions to consideration of a sentence reduction were satisfied, Ms. Edington still would be required to establish both that she does not present "a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)," and that the factorsset forth in 18 U.S.C. § 3553(a) warrant a sentence reduction. USSG §§1B1.13(1)(A) & (2).

With respect to determining whether Ms. Edington presents a danger to the community,¹⁰ while it is true that her offenses are not crimes of violence and do not involve narcotics,¹¹ the concept of what constitutes a danger to the community "may, at least in some cases, encompass pecuniary or economic harm." United States v. Reynolds, 956 F.2d 192, 192 (9^th Cir.1992). See also United States v. Provenzano, 605 F.2d 85, 95 (3^rd Cir. 1979) ("[C]ourts are not confined in such cases to considering only harms involving an aura of violence. . . . [A] defendant's propensity to commit crime...