United States v. Nosair

UNITED STATES OF AMERICA, v. EL SAYYID NOSAIR, Defendant.

No. 93-cr-181 (PKC)

United States District Court, S.D. New York

April 13, 2022

ORDER

P KEVIN CASTEL UNITED STATES DISTRICT JUDGE

El Sayyid Nosair, who represents himself pro se, moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (Docket # 1205, 1206.) For the reasons that will be explained, the Court concludes that Nosair has not demonstrated extraordinary and compelling circumstances that warrant a reduction of his sentence. Separately, the factors set forth at 18 U.S.C. § 3553(a) weigh strongly against his application. The motion will therefore be denied.

At the conclusion of a nine-month trial in 1995, a jury found Nosair guilty of eight charges related to his participation in a terrorism conspiracy led by Sheik Omar Abdel Rahman. Nosair was convicted of seditious conspiracy to wage war against the United States and forcibly oppose its authority under 18 U.S.C. § 2384 (Count One), murder and attempted murder in aid of racketeering under 18 U.S.C. § 1959 (Counts Seven, Eight and Nine), attempted murder of a federal officer under 18 U.S.C. § 1114 (Count Ten), use of a firearm during and in relation to a crime of violence under 18 U.S.C § 924(c) (Counts Eleven, Twelve and Thirteen) and possessing a firearm with an obliterated serial number under 18 U.S.C. § 922(k) (Count Fourteen). On Count Seven, the jury found Nosair guilty of murdering Meir Kahane, a rabbi and former member of Israel's parliament, at a midtown hotel on December 5, 1990. At trial, the government offered evidence that while in state custody, Nosair encouraged co-conspirators to commit acts of violence, and consulted with the perpetrators of the February 26, 1993 bombing of the World Trade Center in the weeks prior to the attack.

Then-Judge Michael B. Mukasey sentenced Nosair principally to a term of life imprisonment plus 15 years. Nosair asserts that a sentencing reduction is warranted because he faces a heightened risk of adverse health outcomes if he contracts Covid-19.^[1]

Section 3582(c)(1)(A) of title 18 provides that “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, ” a court may reduce such defendant's sentence if it finds that “extraordinary and compelling circumstances warrant such a reduction.” 18 U.S.C.§ 3582(c)(1)(A)(i). The Court has broad discretion in reviewing the motion and may consider all circumstances in combination or in isolation. See United States v. Brooker, 976 F.3d 228, 237-38 (2d Cir. 2020).

“[Extraordinary and compelling reasons are necessary - but not sufficient - for a defendant to obtain relief under § 3582(c)(1)(A)” because “a district court must also consider ‘the factors set forth in section 3553(a)' before granting relief.” United States v. Jones, 17 F.4th 371, 374 (2d Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A)). An application is properly denied if the applicant demonstrates extraordinary and compelling reasons for release but the factors of 18 U.S.C. § 3553(a) weigh against the application. Jones, 17 F.4th at 374-75; see also United States v. Keitt, 21 F.4th 67, 69 (2d Cir. 2021) (“when a district court denies a defendant's motion under § 3582(c)(1)(A) in sole reliance on the applicable § 3553(a) sentencing factors, it need not also determine whether the defendant has shown extraordinary and compelling reasons that might (in other circumstances) justify a sentence reduction.”).

Bureau of Prisons records reflect that on or about April 22, 2020, Nosair submitted a request to the warden of his facility for a reduction in his sentence pursuant to section 3582(c)(1)(A). (Gov't Mem. Ex. 1.) His request was denied, as was his internal appeal. (Id.) There is no dispute that he administratively exhausted his application before he filed this motion on September 15, 2021. (Docket # 1205.) See Keitt, 21 F.4th at 71 (describing exhaustion requirement).

Nosair urges that extraordinary and compelling circumstances warrant a reduction in his sentence “based on his medical conditions in light of the COVID-19 and Delta virus outbreak.” (Nosair Mem. at 6.) He elaborates:

Petitioner “currenly” [sic] has: Hyperlipidemia, Nuclear cataract, Astigmatism, Abnormal pupillary function, Asthma, Myobia, Hypertension, Allergic rhinitis, Acute optical periodontitis of pulpal origin, Periapical abscess with sinus, Acute gingivitis, plaque induced, Fractured dental restorative material with loss of material, Dermatitis, polyosteoarthritis, Other bursitis of hip, Plantar fascial fibromatosis, Neuralgia and neuritis, Pain in foot, Enlarged prostate with lower urinary tract symptoms, Edema, jaw pain, Prediabetes, injury of shoulder and upper arm, pain in Knees, Hip, Pain in joint, pelvic region and thigh, lower backpain, lumbago, spasm of muscle, Nerve pain, neuralgia neuritis, conjunctivitis, Otitis media, acute phariginitis, Dizziness and giddinis [sic] ....

(Nosair Mem. at 7; emphasis in original.) Nosair notes that among these conditions, hyperlipidemia, asthma and hypertension place him at heightened risk of adverse health outcomes if he contracts Covid-19. (Id.) Nosair is currently 66 years old.^[2] The CDC advises that persons with certain health conditions are more likely to become hospitalized, need intensive care or die if they contract Covid-19, and these risks increase if the person is older than 65.^[3]These health conditions include moderate or severe asthma and hypertension. Hyperlipidemia, or high cholesterol, is not recognized by the CDC as presenting a heightened risk of adverse health outcomes, and the Court is unaware of any official public-health guidance that suggests a person with high cholesterol levels faces a heightened risk from Covid-19.

Nosair received two doses of the Moderna Covid-19 vaccine in January and February 2021. (Gov't Response Ex. 6.) He has tested negative for Covid-19 four times. (Id.) “‘[C]ourts in this circuit have found that vaccination mitigates the risk an inmate faces from COVID-19 to the point that . . . he does not face an extraordinary risk from COVID-19.'” United States v. Torres, 2021 WL 1687502, at *3 (S.D.N.Y. Apr. 28, 2021) (Berman, J.) (quoting United States v. Kosic, 2021 WL 1026498, at *3 (S.D.N.Y. Mar. 17, 2021) (Crotty, J.))

BOP medical records indicate that Nosair's health conditions are being managed with treatment. While the CDC advises that a person with moderate or severe asthma is at increased risk of adverse health outcomes caused by Covid-19, there is no indication of the severity of Nosair's asthma. Nosair uses the prescription inhalers albuterol and mometasone furoate to control his asthma. (Gov't Mem. Ex. 3.) In a September 2021 clinic visit, Nosair's respiratory function was classified as normal, despite his inconsistent use of inhalers. (Gov't Mem. Ex. 5.) As to Nosair's hypertension, medical records reflect that his blood pressure readings over the previous year have ranged from slightly high to normal. (Gov't Mem. Ex. 4.) To the extent that Nosair suffers from hyperlipidemia or high cholesterol, he takes prescription atorvastatin and hydrochlorothiazide. (Gov't Mem. Ex. 3.) The other ailments cataloged in Nosair's motion - including dental, vision, skin and joint conditions - are not recognized as presenting heightened risks in connection with Covid-19. Nosair's health conditions do not amount to extraordinary and compelling circumstances.

The BOP's website indicates that there currently are no confirmed positive cases of Covid-19 among inmates or staff at USP Big Sandy, where Nosair is housed.^[4] Historically, 1154 inmates at Big Sandy were tested for Covid-19, with 360 positive cases. At Big Sandy, 219 staff members have completed a Covid-19 vaccination series, as have 1, 007 inmates.

The Court concludes that Nosair has not identified extraordinary and compelling circumstances that warrant a reduction of his sentence under section 3582(c)(1)(A). He has been vaccinated against Covid-19, and BOP medical records indicate that his asthma and hypertension are managed by medication. His vaccination status, the vaccination status of the staff and inmate population at Big Sandy, and the fact that there are currently no confirmed positive cases at the facility also weigh against his application. In light of his manageable health conditions, his vaccination status and the widespread vaccine administration to Big Sandy's inmates and employees, Nosair has not demonstrated that any risk he faces from Covid-19 rises to the level of extraordinary and compelling circumstances that warrant a sentencing reduction.

Nosair's motion will separately be denied based on the factors of section 3553(a), which requires a court to weigh the nature and circumstances of the offense, defendant's history and characteristics, the need for the sentence to reflect the seriousness of the offense, promote respect for law, provide for just punishment, promote deterrence, protect the public, and effectively provide the defendant with correctional treatment and care. 18 U.S.C. § 3553(a).

The government's memorandum in opposition recounts in detail the trial evidence going toward Nosair's guilt and the nature and circumstances of his offenses. (Gov't Mem. at 2- 24.) The government offered evidence that Nosair killed Kahane with a gunshot to the head on December 5, 1990, after Kahane gave a lecture at the Marriott East Side Hotel in Manhattan. Nosair then shot two other individuals who attempted to stop or detain him: a seventy-year-old man...