United States v. Ihejiere

560 F.Supp.3d 488

UNITED STATES of America

v.Chinedu IHEJIERE

Criminal No. 19-cr-077-LM-1

United States District Court, D. New Hampshire.

Signed September 9, 2021

Matthew Hunter, Assistant US Attorney, US Attorney's Office, Concord, NH, for United States of America.

ORDER

Landya McCafferty, United States District Judge

The defendant, Chinedu Ihejiere, moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). See doc. nos. 34 and 38. Ihejiere argues that his medical conditions—in particular his kidney transplant and subsequent immunosuppressant medications—give rise to an extraordinary and compelling reason for a sentence reduction because they place him at high risk of severe illness should he contract COVID-19. The government assents to Ihejiere's motion. See doc. no. 40. The court held an uncontested hearing via video on Ihejiere's motion on September 7, 2021. For the reasons explained below, Ihejiere's motion is granted.

STANDARD OF REVIEW

A court may grant a sentence reduction, otherwise known as "compassionate release," under 18 U.S.C. § 3582(c)(1)(A). That statute provides in relevant part:

[T]he 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;

...

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(1)(A).

Where a prisoner properly files a motion for compassionate release, the statute imposes two requirements before the court may grant his motion. First, there must be "extraordinary and compelling reasons" for a sentence reduction. 18 U.S.C. § 3582(c)(1)(A). At this step, the court has " ‘broad discretion to determine what constitutes an extraordinary and compelling reason under § 3582(c)(1)(A) ’ and may consider ‘any’ of the defendant's reasons for release," regardless of whether those reasons are consistent with the Sentencing Commission's policy statement on compassionate release. United States v. Fields, 554 F. Supp. 3d 324, 331–32, 2021 WL 3518832, at *6 (D.N.H. Aug. 9, 2021) (quoting United States v. Trenkler, No. CR 92-10369 WES, 537 F.Supp.3d 91, 100–01, (D. Mass. May 6, 2021) ).¹ Second, the court must "consider[ ] the factors set forth in section 3553(a) to the extent they are applicable." 18 U.S.C. § 3582(c)(1)(A). The defendant bears the burden of showing he is entitled to a sentence reduction. Trenkler, 537 F.Supp.3d at 100–01, United States v. Hilow, No. 15-CR-170-JD, 2020 WL 2851086, at *3 (D.N.H. June 2, 2020).

BACKGROUND

Ihejiere pled guilty to Conspiracy to Commit Bank Fraud under 18 U.S.C. §§ 1349 and 1344, following a scheme where he defrauded individuals of over $69,000. He has accepted responsibility for his crime and exhibited remorse.

On January 3, 2020, the court sentenced Ihejiere to 25 months’ incarceration followed by three years of supervised release. Ihejiere's self-surrender date was delayed as the Bureau of Prisons ("BOP") attempted to find space for him in an appropriate facility (given his medical conditions). During this delay, the COVID-19 pandemic began. Ihejiere began his period of incarceration at FMC Devens on June 30, 2020, and his release date is April 7, 2022. Accounting for good time credit, he is eligible for home detention in approximately 4 months (on January 22, 2022) and has served 65 percent of his sentence.

Ihejiere has a lengthy history of criminal charges for fraudulent behavior. However, before sentencing the probation officer found that Ihejiere made a satisfactory adjustment to supervision with no issues of non-compliance, "clearly demonstrated acceptance of responsibility for the offense," and was a low risk for recidivism. Doc. no. 19.

While incarcerated, Ihejiere tested positive for COVID-19 and he reported "mild symptoms." He is now fully vaccinated. He has had no disciplinary infractions. He complied with the law while on release prior to his incarceration and has had no disciplinary issues while in prison.

DISCUSSION

As a threshold matter, BOP denied Ihejiere's request for a sentence reduction on July 19, 2021, so he has exhausted his administrative remedies and his motion is properly before the court. See 18 U.S.C. § 3582(c)(1)(A). The court now considers: (1) whether there are extraordinary and compelling reasons for a sentence reduction; and (2) whether early release would be consistent with applicable sentencing factors under § 3553(a). Id.

I. Extraordinary and Compelling Reasons

In the context of the COVID-19 pandemic, courts have held that a generalized risk of infection by the virus is not, by itself, sufficient to constitute an extraordinary and compelling reason for a sentence reduction. See United States v. Ramirez, 459 F. Supp. 3d 333, 337-38 (D. Mass. 2020) (collecting cases). "On the other hand, a combination of health and age factors that put a prisoner at a substantially higher risk due to COVID-19 along with a documented risk of the disease in the facility where the defendant is incarcerated may demonstrate extraordinary and compelling reasons to reduce the prisoner's sentence." United States v. Bischoff, 460 F. Supp. 3d 122, 125 (D.N.H. 2020).

When determining whether a defendant is at a particularly high risk of experiencing a severe illness from COVID-19, courts have generally looked to the CDC guidelines. See, e.g., United States v. Patten, Crim. No. 18-cr-073-LM-1, 2021 WL 275444, at *3 (D.N.H. Jan. 27, 2021). Based on information known at this time, the CDC has identified certain underlying medical conditions that increase or may increase the risk of suffering a severe case of COVID-19.² The CDC states that persons who have had a solid organ transplant are more likely to get severely ill from COVID-19.³ Additionally, persons with a weakened immune system from prolonged use of corticosteroids, persons who are obese, and persons who have hypertension can be more likely to become severely ill from COVID-19.⁴

Ihejiere suffers from all these conditions: solid organ transplant, weakened immune system, obesity, and hypertension. The government's medical expert, Dr. Muir, confirmed that, according to CDC recommendations, there is a high risk that Ihejiere will suffer adverse consequences if he contracts COVID-19.⁵

Courts have found that solid organ transplants are an extraordinary and compelling reason for release, even if a defendant has previously been infected with COVID-19 and is now vaccinated. For example, Judge Settle in the Western District of Washington released a vaccinated defendant who had contracted COVID-19 because his kidney transplant and associated immunosuppressant medication (along with other health factors) made him vulnerable to severe illness from COVID-19. See United States v. Sandoval, No. CR14-5105 BHS, 2021 WL 673566, at *5 (W.D. Wash. Feb. 22, 2021) ; see also United States v. Cosgrove, 454 F. Supp. 3d 1063, 1063 (W.D. Wash. 2020) (granting motion for compassionate release for a transplant recipient); United States v. Salley, No. CR 19-688, 2020 WL 7024253, at *11 (E.D. Pa. Nov. 30, 2020) (granting compassionate release to a pretrial detainee with a kidney transplant ). Further, courts have granted compassionate release to partially vaccinated prisoners based on their particular medical vulnerabilities. See, e.g., United States v. Kafi, No. 17-20432, 2021 WL 2292319, at *1 (E.D. Mich. June 4, 2021) (releasing partially vaccinated defendant with type two diabetes, Hyperlipidemia, and neurocognitive disorders including dementia ); United States v. Parish, No. CR 2:07-0578-RMG, 2021 WL 1152960, at *1 (D.S.C. Mar. 17, 2021) (releasing partially vaccinated defendant who had survived COVID-19 and suffered from diabetes, obesity, hypertension, atrial fibrillation, chronic kidney disease, and coronary artery disease ).

Although Ihejiere has had COVID-19 and is fully vaccinated, Ihejiere argues that he should be treated as unvaccinated because many transplant recipients may not get antibody protection from vaccination.⁶ After two vaccine doses, "[f]orty-six percent of transplant patients have had no evidence whatsoever that they had an antibody response to the vaccine."⁷ The fact that Ihejiere voluntarily agreed to be vaccinated is laudable and is evidence that he makes responsible decisions with respect to his own medical care and with respect to the safety of others around him.

Accordingly, the court finds that Ihejiere has shown an extraordinary and compelling reason for release because his medical conditions, in particular his kidney transplant and subsequent immunosuppressant medications, place him at high risk of severe illness should he contract COVID-19. The government agrees that Ihejiere has shown an extraordinary and compelling reason for release.

II. Sentencing Factors

The court must next consider whether a sentence reduction would be consistent with applicable sentencing factors outlined in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A). The applicable § 3553(a) factors include the nature and circumstances of a defendant's offense, their personal history and characteristics, and considerations such as promoting respect for the law, providing just punishment, affording adequate deterrence, providing protection to the public from further crimes of the defendant, and providing the defendant with needed training, medical care,...