United States v. Fisher

500 F.Supp.3d 4

UNITED STATES of America,

v.Robert Lee FISHER, Defendant.

6:18-CR-06015 EAW

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

Signed November 13, 2020

Richard A. Resnick, Sean C. Eldridge, U.S. Attorney's Office, Rochester, NY, for United States of America.

John F. Speranza, Rochester, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

Pending before the Court is a motion filed by defendant Robert Lee Fisher (hereinafter "Fisher") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 283). For the reasons set forth below, Fisher's motion is denied.

On April 19, 2019, Fisher pleaded guilty to conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349. (Dkt. 207). Fisher's criminal conduct related to a multimillion dollar fraud scheme against Xerox Corporation ("Xerox"). The Court calculated an offense level of 24 and a criminal history category of II, resulting in a recommended incarceration sentence under the Sentencing Guidelines of 57 to 71 months. (See Dkt. 256 at ¶ 112). On August 28, 2019, the Court imposed a sentence that varied from the recommendation under the Guidelines, sentencing Fisher to 18 months in prison and three years supervised release. (Dkt. 262; Dkt. 263). Fisher was also ordered to pay restitution to Xerox in the amount of $3,809,028.27. (Id. ). Fisher is currently housed at Federal Correctional Institution Coleman Low ("FCI Coleman") in Sumterville, Florida, and his projected release date is January 9, 2021. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Nov. 12, 2020).

On October 12, 2020, Fisher filed the pending motion for compassionate release. (Dkt. 283). In support of the motion, which Fisher characterizes as an "emergency," he contends that his age and the threat of COVID-19 justify reducing the remainder of his sentence to time served with a condition of home confinement equivalent to the remainder of his prison sentence. (Id. at 2). Specifically, Fisher cites to his age (80 years old) and while admitting that he is in relatively good health, he also cites to a bicep muscle tear occurring earlier this year. (Id. at 3-4). According to a Bureau of Prisons ("BOP") website, FCI Coleman has 22 inmates who have tested positive for COVID-19, 21 staff who have tested positive, one inmate death, one staff death, 206 inmates who have recovered, and 11 staff who have recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Nov. 12, 2020). That same website notes that 1,033 tests have been administered to inmates at the facility, with 718 inmates with pending tests. Id. In other words, the figure of 22 inmates with positive COVID-19 tests could significantly understate the severity of any outbreak at the facility given the number of pending tests.

The government filed a response in opposition on October 27, 2020, attaching Fisher's medical records and contending that while he is 80 years old, his medical condition does not justify his early release. (Dkt. 285 at 5). The government further contends that the BOP is adequately managing the COVID-19 pandemic. (Id. at 5-6). Further, the government argues that the § 3553(a) factors do not support Fisher's release. (Id. at 7).

Relief is appropriate pursuant to 18 U.S.C. § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term; and (4) the reduction in the prison sentence is consistent with the Sentencing Commission's policy statements.

The government has not opposed Fisher's application on exhaustion grounds.¹ Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.

The Court recognizes that Fisher's age may place him at increased risk for COVID-19, and the Court further recognizes that it is particularly difficult to utilize the tools necessary to prevent the spread of this virus in a prison setting. However, Fisher's...