United States v. Khawaja

560 F.Supp.3d 556

UNITED STATES of America

v.Ahmad KHAWAJA

Criminal No. 18-cr-127-LM

United States District Court, D. New Hampshire.

Signed September 16, 2020

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

ORDER

Landya McCafferty, United States District Judge

Ahmad Khawaja renews his motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), arguing that his underlying health conditions combined with the threat of contracting COVID-19 while incarcerated at the Federal Correctional Institution ("FCI") Danbury warrant his release. The court previously denied without prejudice defendant's motion for compassionate release because defendant had not exhausted his administrative remedies and had failed to demonstrate through medical records or other proof that he has a medical condition that puts him at higher risk of experiencing severe illness should he contract COVID-19. Defendant has submitted medical records in support of his renewed motion. The government concedes that defendant has exhausted his administrative remedies but objects to his release. The court held a video hearing on defendant's renewed motion on July 22, 2020, at which defendant and his mother, Susan Bedard, testified.

STANDARD OF REVIEW

A court may grant so-called "compassionate release" to a defendant under 18 U.S.C. § 3582(c)(1)(A). The statute provides, in relevant part, that:

[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) ; see also U.S.S.G. § 1B1.13 (sentencing guidelines policy statement on compassionate release).

Where, as here, a motion for compassionate release is properly before the court, the court must determine if defendant is eligible for release. The statutory language quoted above requires that defendant show that "extraordinary and compelling reasons warrant" a reduction in his sentence, that the court consider the factors set forth in 18 U.S.C. § 3553(a) to the extent applicable, and that the reduction be "consistent" with the Sentencing Commission's applicable policy statements. 18 U.S.C. § 3582(c)(1)(A). The Sentencing Commission's policy statement regarding compassionate release mirrors the statutory language and adds the requirement that the court find that "the 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)." U.S.S.G. § 1B1.13(2). A defendant's dangerousness is a paramount concern as a court weighs the decision to grant a defendant early release. See United States v. Bradshaw, No. 1:15-CR-422, 2019 WL 7605447, at *3 (M.D.N.C. Sept. 12, 2019) (explaining overlap between dangerousness requirement in compassionate release policy statement and § 3553(a) requirement that court consider the need to protect the public).

In short, a court may reduce a term of imprisonment under the compassionate release provision if it: (1) finds that extraordinary and compelling reasons warrant the reduction; (2) finds that the defendant will not pose a danger to the safety of any other person in the community; and (3) considers the sentencing factors outlined in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A) ; U.S.S.G. § 1B1.13 ; see also United States v. Rasberry, No. 2:15-CR-00127-JDL, 2020 WL 3977614, at *1 (D. Me. July 14, 2020) ; United States v. Hilow, No. 15-CR-170-JD, 2020 WL 2851086, at *1 (D.N.H. June 2, 2020). The defendant bears the burden of showing that he is entitled to a sentence reduction. Hilow, 2020 WL 2851086, at *3. And the court has "broad discretion in deciding whether to grant or deny a motion for sentence reduction." United States v. Britton, 473 F.Supp.3d 14, 16 (D.N.H. 2020) (internal quotation marks omitted).

BACKGROUND

On July 12, 2018, defendant was arrested for importation of a controlled substance (MDMA). Magistrate Judge Johnstone ordered defendant detained pending placement in a residential drug treatment program. On July 25, 2018, defendant was released on pretrial supervision with conditions, including successful completion of an inpatient substance abuse treatment program.

On May 2, 2019, defendant pleaded guilty to one count of importation of a controlled substance (MDMA) in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3). On January 3, 2020, the court sentenced defendant to 30 months of imprisonment and recommended that he participate in the Residential Drug Abuse Program ("RDAP") while incarcerated. On February 20, 2020, defendant self-surrendered to FCI Danbury in Connecticut where he remains incarcerated.

On April 9, 2020, defendant moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A) based on the threat to his health posed by the spread of COVID-19 in prisons and his breathing difficulties. He argued that the court could excuse the statutory requirement of exhaustion of administrative remedies under certain circumstances. The court concluded that, even assuming without deciding that it had the power to excuse the exhaustion requirement under certain circumstances, defendant had not shown that his case presented such circumstances. The court reasoned that excusal of the exhaustion requirement was not warranted because defendant had not submitted sufficient proof that he suffers from a medical condition that places him in a high-risk category under the Centers for Disease Control and Prevention ("CDC") guidelines. Specifically, although defendant alleged that his primary care physician had prescribed him an inhaler for "breathing difficulties" prior to his incarceration, he did not offer any medical records supporting that contention. Defendant also admitted that his physician had not diagnosed the source of his breathing difficulties. For these reasons, the court found that excusal of the exhaustion requirement was not justified.

Alternatively, the court found that even if it excused the exhaustion requirement, defendant had still failed to demonstrate an extraordinary and compelling reason supporting his release. That conclusion was based on the same reason the court declined to excuse the exhaustion requirement: defendant offered inadequate proof of a medical condition putting him at substantial risk of experiencing severe illness from COVID-19. The court therefore denied defendant's motion without prejudice.¹

On June 12, 2020, defendant renewed his motion for compassionate release and submitted medical records in support of that motion—records from before and during his incarceration. The government concedes that defendant has exhausted his administrative remedies since his prior motion. As to the merits of the motion, however, the government argues that defendant has not established an extraordinary and compelling reason and that the sentencing factors do not support his release.

DISCUSSION

I. Extraordinary and Compelling Reasons

There are four categories of "extraordinary and compelling reasons" that justify a sentence reduction in the Commentary to the Sentencing Guidelines Policy Statement regarding compassionate release: defendant's medical condition; defendant's age; defendant's family circumstances; and a catchall category. U.S.S.G. § 1B1.13, App. Note 1. Under the policy statement, a medical condition constitutes an "extraordinary and compelling reason" if defendant is suffering from a terminal illness, or has a serious physical or medical condition, cognitive impairment, or deteriorating physical or mental health due to age "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, App. Note 1(A)(i)-(ii). Under the "catchall" category, a defendant can establish an extraordinary and compelling reason by establishing either (a) a compelling reason for release other than his medical condition, age, or family circumstances, or (b) a reason that in combination with his medical condition, age, or family circumstances constitutes an extraordinary and compelling reason. See U.S.S.G. § 1B1.13, App. Note 1(D).

In the context of the current 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 warranting release. 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 prisoner 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) (collecting cases in support); see also, e.g., United States v. Rich, 471 F.Supp.3d 441, 445–48 (D.N.H. 2020) (finding that defendant's documented history of bronchitis, reactive airway disease, and smoking combined with current outbreak at the prison constituted extraordinary and compelling reason).

In determining whether a prisoner is at a particularly high risk of...