United States v. Kirschner

472 F.Supp.3d 482

UNITED STATES of America, Plaintiff,

v.Thomas KIRSCHNER, Defendant.

No. 1:10-cr-00203-JPH-MJD

United States District Court, S.D. Indiana, Indianapolis Division.

Signed July 15, 2020

Steven D. DeBrota, United States Attorney's Office, Indianapolis, IN, for Plaintiff.

Bruce D. Brattain, Mario Garcia, Brattain & Minnix, Indianapolis, IN, for Defendant.

ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE

James Patrick Hanlon, United States District Judge

Thomas Kirschner, an inmate at FCI Milan, filed an emergency motion for compassionate release. Dkt. [63]. Mr. Kirschner suffers from underlying health conditions that increase his risk of severe illness from COVID-19. He has served most of his 124-month sentence and his scheduled release date—as determined by the BOP—is rapidly approaching. Releasing Mr. Kirschner from the BOP seven months before his scheduled release date does not present a danger to the public, nor would it undermine the goals of federal sentencing law as set forth in 18 U.S.C. § 3553(a). Due to existence of extraordinary and compelling reasons for compassionate release, the motion is granted .

I. Background

Mr. Kirschner pleaded guilty to one count of conspiracy to advertise child pornography, in violation of 18 U.S.C. §§ 2251(d)(1)(A) and (e), and one count of conspiracy to distribute child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). Dkt. 55. His criminal conduct is summarized in the Stipulated Factual Basis used for the change of plea and sentencing hearing, dkt. 53, and recited in the United States’ Response in Opposition to Mr. Kirschner's motion for compassionate release, dkt. 75.

Pursuant to the Plea Agreement, the Court sentenced Mr. Kirschner to 124 months’ imprisonment at the Bureau of Prisons ("BOP") followed by supervised release for life. Dkt. 55, pp. 2-3. Mr. Kirschner has served 97 months of the sentence imposed and is scheduled to be released on February 17, 2021, after having served about 104 months of the 124-month sentence.

While incarcerated, Mr. Kirschner "has not received any incident reports and is not considered a management problem." Dkt. 73-4, p. 2. He has "completed numerous Release Preparation classes" including "the Electrical Apprenticeship Program (9500 hours)." Id. Mr. Kirschner "graduated from Jackson College on June 11, 2019, with an Associates of Applied Science in Business Administration and Associates in General Studies." Id. He is currently working toward a third associate degree in arts. Id. Upon his release, Mr. Kirschner plans to live with his sister in Wilmington, North Carolina. Id. Mr. Kirschner reports that the United States Probation Office has approved his sister's home and has approved his proposed move to North Carolina. Dkt. 73, p. 15.

At FCI Milan, 80 inmates have recovered from COVID-19, three inmates have died from it, and 13 inmates currently have COVID-19.¹ Of the 1,308 inmates at FCI Milan, 214 inmates have been tested for COVID-19.² According to Mr. Kirschner, and undisputed by the government, at least four individuals were removed from the high-risk unit due to positive COVID-19 test results on June 22, 2020. Dkt. 77, p. 6.

Mr. Kirschner has chronic obstructive pulmonary disorder ("COPD"), hypertension and obesity. Dkt. 73-1. He reports rescue inhaler use of Albuterol approximately four times per week as a result of symptoms related to COPD. Dkt. 75-10, pp. 3, 30. According to the CDC, an individual with COPD is at an increased risk of "severe illness from COVID-19." The CDC has also advised that individuals with hypertension may be at an increased risk of severe illness from COVID-19.³ The CDC does not differentiate between mild, moderate, or severe forms of these conditions, nor does it exclude from the at-risk group individuals whose conditions are managed with medication.

Cold weather can exacerbate COPD.⁴ Dkt. 75, p. 23 n. 9. According to the Johns Hopkins study cited by the United States, "during the winter season, colder outdoor temperatures were associated with increased respiratory symptoms, increased rescue inhaler use and decreased lung function in former smokers with COPD." Id. This study supports "findings of larger epidemiological studies that demonstrate a higher rate of COPD exacerbations in winter months, suggesting that exacerbations may be triggered by cold temperatures." Id. From this, it is reasonable to infer that Mr. Kirschner's COPD symptoms may become more severe this fall and winter at FCI Milan due to Michigan's cold winter climate.

Mr. Kirschner filed a request for a reduction in sentence with the warden of FCI Milan. That request was denied, and more than 30 days have passed since the date of his request. There is no dispute that Mr. Kirschner has exhausted administrative remedies as required by 18 U.S.C. § 3582(c)(1)(A) and his motion is properly before the Court for resolution.

II. Discussion

A. Applicable Law

The general rule is that sentences imposed in federal criminal cases are final and may not be modified. 18 U.S.C. § 3582(c). Under one exception to this rule, a court may reduce a sentence upon finding there are "extraordinary and compelling reasons" that warrant a reduction. 18 U.S.C. § 3582(c)(1)(A)(i). Before the First Step Act, only the Director of the BOP could file a motion for compassionate release. Now, a defendant is also permitted to file such a motion after exhausting administrative remedies. See First Step Act of 2018, Pub. L.N. 115-391, 132 Stat. 5194, 5239 (2018). The amended version of the statute states:

[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)(i).

Congress directed the Sentencing Commission to "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). In response, the Sentencing Commission promulgated a policy statement regarding compassionate release under § 3582(c). U.S.S.G. § 1B1.13.

Section 1B1.13 sets forth the following considerations. First, whether "[e]xtraordinary and compelling reasons warrant the reduction" and whether the reduction is otherwise "consistent with this policy statement." U.S.S.G. § 1B1.13(1)(A), (3). Second, whether the defendant is "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). Finally, consideration of the § 3553(a) factors, "to the extent they are applicable." U.S.S.G. § 1B1.13.

III. Analysis

Mr. Kirschner argues that his underlying health conditions and increased risk of severe illness or death from COVID-19 create an "extraordinary and compelling reason" justifying compassionate release. Dkt. 73, pp. 10-13. He further argues that his early release would not create a danger to the community or be inconsistent with the sentencing factors in 18 U.S.C. § 3553. Id. at 13-15.

In response, the Government contends that Mr. Kirschner is not at an increased risk of serious illness or death because his conditions are being effectively managed by medications. Dkt. 75, pp. 28-34. While the Government does not contend that Mr. Kirschner's early release would present a danger to the community, it argues that his early release would be inconsistent with the goals of sentencing under 18 U.S.C. § 3553(a). Id. at 35-36.

1. Extraordinary and Compelling Reasons

The Court may grant Mr. Kirschner relief if it determines that "extraordinary and compelling reasons" warrant a reduction in his sentence. 18 U.S.C. § 3582(c)(1)(A). The Court concludes that Mr. Kirschner has shown that extraordinary and compelling reasons exist in this case. Mr. Kirschner suffers from at least one condition—COPD—identified by the CDC as creating increased risk of severe illness if he were to become infected with COVID-19. The Government argues that Mr. Kirschner does not fit the CDC's criteria for individuals at an increased risk of severe illness because his COPD and hypertension have been effectively managed through medication. But the CDC Guidelines make no such distinction: "People of any age with the following conditions are at increased risk of severe illness from COVID-19: COPD (chronic obstructive pulmonary disease ) ... Obesity (body mass index [BMI] of 30 or higher)."⁵

The Government further argues that Mr. Kirschner's obesity is not a risk factor because his BMI—which has ranged from 26.5 to 35.9—is under 40. Dkt. 75, p. 17; 24. But the CDC Guidelines define obesity for purposes of increased risk of severe illness from COVID-19 as BMI of 30 or higher and Mr. Kirschner recently had a BMI of 29.9.⁶ Dkt. 75-10, p. 5. His risk of experiencing severe symptoms from COVID-19 is increased by the fact that he is on the cusp of having another condition (obesity ) and is further exacerbated by hypertension.

Considering the unique facts presented in this case—Mr. Kirschner's combined underlying health conditions, the CDC guidelines regarding individuals at an increased risk of severe illness from COVID-19, the conditions at FCI Milan, that Mr. Kirschner has served the vast majority of his sentence, Mr. Kirschner's conduct while...