United States v. Kanohokula

572 F.Supp.3d 895

UNITED STATES of America, Plaintiff,

v.Paul KANOHOKULA, Jr., Defendant.

CR. NO. 11-00976 JMS (01)

United States District Court, D. Hawai‘i.

Signed November 18, 2021

Susan Cushman, Office of the United States Attorney, Honolulu, HI, for Plaintiff.

Brandon K. Flores, Law Office of Brandon K. Flores, Honolulu, HI, for Defendant.

ORDER GRANTING MOTION TO REDUCE SENTENCE (COMPASSIONATE RELEASE), ECF NO. 218

J. Michael Seabright, Chief United States District Judge

I. INTRODUCTION

Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), Defendant Paul Kanohokula, Jr. ("Defendant") moves for compassionate release from Federal Correctional Institution Herlong ("FCI Herlong"). ECF No. 218. He argues that compassionate release is warranted on the basis of (1) the length of his 168-month sentence, which he argues is grossly disproportionate relative to the sentence that now applies, given that, if sentenced today, he would not be designated a career offender and thus would not be subject to a sentence enhancement on that basis; and (2) his post-incarceration rehabilitation record. For the reasons stated below, the court ORDERS that Defendant's sentence be reduced to time served plus seven days with supervised release to follow.

II. BACKGROUND

Defendant, currently 46 years old, is incarcerated at FCI Herlong with a projected release date of September 29, 2023. See https://www.bop.gov/inmateloc/ (last visited November 18, 2021). To date, Defendant has served approximately 121 months in custody. See Presentence Investigation Report ("PSR"), ECF No. 132 at PageID ## 414, 421 (stating that Defendant has been detained since his date of arrest, September 29, 2011).

On May 31, 2012, Defendant pled guilty pursuant to a plea agreement to knowingly and intentionally conspiring to distribute and possessing with intent to distribute 50 grams or more of methamphetamine, its salts, isomers and salts of its isomers, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. ECF Nos. 68, 69; see also ECF No. 10 at PageID ## 47-48. On January 15, 2014, based on his status as a career offender, Defendant was sentenced to a term of 168 months imprisonment to be followed by a term of five years of supervised release. ECF No. 128 at PageID ## 405-06.

On June 3, 2021, Defendant submitted a request for compassionate release to FCI Herlong's warden. ECF No. 218 at PageID # 764. Defendant did not receive a response from the warden. See id. at PageID # 752. On July 9, 2021, more than thirty days after submission of his request to the warden, Defendant, proceeding pro se, filed the instant Motion. ECF No. 218.¹ The Government filed its Opposition on August 13, 2021. ECF No. 225. And on October 27, 2021, Defendant, through counsel, filed his Reply. ECF No. 234.²

Initially, the Government took the position that, if sentenced today, "the defendant is a career offender." ECF No. 225 at PageID # 792. But during a September 28, 2021 status conference, the court expressed serious doubts as to whether Defendant's prior convictions would qualify him as a career offender if he was sentenced today. ECF No. 231. The court thus requested further briefing and, on October 15, 2021, the Government filed supplemental briefing addressing the career offender status, conceding that Defendant would not be designated a career offender if sentenced today. ECF No. 233 at PageID # 841. On October 27, 2021, Defendant filed a Reply to the Government's supplemental briefing, agreeing that Defendant would not be designated a career offender if sentenced today.

The court decides the Motion without a further hearing pursuant to Local Rule 7.1(c).

III. DISCUSSION

A. Legal Standard

Defendant moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, which provides as relevant:

[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 ... after considering the factors set forth in [ 18 U.S.C.] 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[.]

Thus, the court may reduce Defendant's sentence if (1) Defendant has exhausted the required administrative remedies; (2) the court determines, after consideration of the applicable section 3553(a) factors, that Defendant has shown that "extraordinary and compelling reasons" warrant the reduction; and (3) the reduction is consistent with any applicable Sentencing Commission policy statements.

The United States Sentencing Commission's policy statement, United States Sentencing Guideline ("Guideline") § 1B1.13, was promulgated before the First Step Act provided defendants the ability to file motions for compassionate release on their own behalf (and, without a quorum, the Sentencing Commission has been unable to amend the Guidelines post-First Step Act). The Ninth Circuit has therefore determined that the Guidelines lack any policy statement "applicable" to a defendant-filed motion for compassionate release. United States v. Aruda , 993 F.3d 797, 802 (9th Cir. 2021). This court is thus empowered to consider any extraordinary and compelling reason that warrants a sentence reduction. In making this determination, "[t]he Sentencing Commission's statements in [ § 1B1.13 ] may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding." Id.

B. Exhaustion of Administrative Remedies

On June 3, 2021, Defendant submitted a request to FCI Herlong's warden stating two bases for compassionate release: (1) "a lengthy sentence"; and (2) an "excellent" prison conduct record that includes continuous programming, work in the prison commissary, and achievement of his high school equivalency degree. ECF No. 218 at PageID # 764. More than thirty days after his submission of that request—and having not received a response from the warden—Defendant filed the instant Motion.³ See id. at PageID # 752. For purposes of this Motion, Defendant has exhausted his administrative remedies as to these two bases. See ECF No. 225 at PageID ## 787-88.

But Defendant's Motion includes another basis for compassionate release: the risks he faces while incarcerated at FCI Herlong during the COVID-19 pandemic, which were "exacerbated by ... [his] obesity and asthma," medical conditions that place him at increased risk should he contract COVID-19. ECF No. 218 at PageID ## 760-61. Because his request to FCI Herlong's warden did not include this additional basis, the Government argues that Defendant failed to exhaust administrative remedies with respect to "any medical or physical condition, or his susceptibility to COVID-19 while he is incarcerated." ECF No. 225 at PageID ## 789-90. The court agrees.

To satisfy the exhaustion requirement, a defendant's request to the Bureau of Prisons ("BOP") must explain the basis for the relief sought. See 28 C.F.R. § 571.61(a)(1) (at minimum, an inmate's compassionate release request to BOP must contain "[t]he extraordinary or compelling circumstances that the inmate believes warrant consideration"); see also, e.g., United States v. Burdette , 2020 WL 6375535, at *2 (E.D. Mich. Oct. 30, 2020). Stated differently, if the basis for compassionate release is not presented to the BOP, the BOP has no ability to address the request on its merits, meaning the prisoner's claim cannot be exhausted. Id. ; see also United States v. Mogavero , 2020 WL 1853754, at *2 (D. Nev. Apr. 13, 2020) ("Proper exhaustion necessarily requires the inmate to present the same factual basis for the compassionate-release request to the warden.").

That said, the exhaustion requirement should not be applied in an overly technical manner. See United States v. Knight , 2020 WL 4059886, at *2 (M.D. N.C. July 20, 2020) ("The exhaustion requirement should not be applied hyper-technically, and the request to the warden need not be identical in detail or specificity to the motion made in court."). Instead, recognizing that BOP inmates are not trained in the law, exhaustion only requires that an inmate place the BOP on notice of the general basis for relief. See, e.g., United States v. Clutts , 2020 WL 6531915, at *4 (N.D. Iowa Nov. 5, 2020) ("[I]t is sufficient for a defendant to alert the BOP of the general grounds they assert for relief so long as the BOP has the information necessary to investigate such grounds.").

But here, Defendant did not assert as a basis for compassionate release the risks he faces due to the COVID-19 pandemic while confined at FCI Herlong. See ECF No. 218 at PageID # 764. In fact, Defendant's June 3, 2021 request to the warden did not mention the COVID-19 pandemic or his conditions of confinement at all. See, e.g., Mogavero , 2020 WL 1853754, at *2 (finding, where a defendant's request to the warden specified a cancer diagnosis but "did not mention COVID-19 concerns," defendant's motion before the court "failed to properly exhaust the administrative process" because it was based "not merely her cancer diagnosis" but "on cancer plus COVID-19 exposure risks"); United States v. Douglas , 2020 WL 5816244, at *2 (D.D.C. Sept. 30, 2020) ("[M]ost courts to consider the issue have concluded that for a petitioner's request to the warden to exhaust administrative remedies in accordance with § 3582(c)(1)(A), the request must be premised on the same facts alleged in the corresponding motion filed with the court.") (internal quotation marks and brackets omitted) (collecting cases); Knight , ...