United States v. Pena

463 F.Supp.3d 118

UNITED STATES of America

v.Robert M. PENA, Defendant.

Cr. No. 16-10236-MLW

United States District Court, D. Massachusetts.

Filed May 29, 2020

Eric P. Christofferson, Brian M. LaMacchia, US Attorney's Office, Boston, MA, for United States of America.

MEMORANDUM AND ORDER

WOLF, D.J.

This Memorandum is based upon the transcript of the decision rendered orally on May 15, 2020. This Memorandum adds a summary and some citations, deletes some colloquy, and clarifies some language.

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I. SUMMARY

Defendant Robert Pena is serving a 32-month sentence for defrauding the United States government of $2,500,000. On April 21, 2020, Pena filed an Emergency Motion for Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the "Motion"). Defendant asks the court to reduce his prison sentence and permit him to serve the equivalent time on Supervised Release in home confinement in view of the risk posed to him by the Coronavirus Disease 2019 ("COVID-19") pandemic, primarily because he is 70-years old. Pena was, as ordered by the court, tested on May 15, 2020 for the virus and the result was negative. The court finds that defendant has proven he should be released now to home confinement.

Because Pena has appealed his sentence, and that appeal is pending, the court does not have jurisdiction to grant the Motion without a remand from the First Circuit. Therefore, Pena has also filed a Motion for an Indicative Ruling under Federal Rule of Criminal Procedure 37(a)(3), asking that the court state that it would grant the Motion and request that the First Circuit remand the case for that purpose. See Dkt. No. 173. The court is allowing the Motion for an Indicative Ruling.

If and when the First Circuit remands, the court will order that Pena be tested again. If Pena again tests negative, the court will grant his Motion, reduce his sentence to time-served, and order his immediate release to home confinement to serve the remainder of the equivalent of his sentence. More specifically, the court will order Pena to serve 36 months of Supervised Release, with the remainder of the 32-month prison sentence imposed to be served in home confinement as a condition of Supervised Release. Pena will, therefore, be in home confinement until January 26, 2022. As conditions of Supervised Release, Pena will be subject to electronic monitoring. He will be allowed to leave his home only for medical appointments approved by Probation, for medical emergencies reported to Probation within 24 hours, and to participate in religious observances if pre-approved by Probation, which Probation would not be authorized to allow if the United States or the government of Massachusetts is recommending against congregate religious observances. In addition, the court will continue the conditions of Supervised Release originally imposed, including the requirement that Pena pay $2,500,000 in restitution.

II. PROCEDURAL HISTORY

On April 23, 2019, Pena was sentenced to serve 32 months in prison for defrauding the United States of $2,500,000, to be followed by two years of Supervised Release. Dkt. No. 147. The court also ordered restitution in the amount of $2,500,000. Id. Pena has appealed the sentence, and that appeal is pending in the First Circuit. See Dkt. Nos. 149, 151.

Pena began serving his sentence at the satellite camp at the Federal Medical Center Devens ("FMC Devens") on October 20, 2019. See Dkt. No. 161, 171-1. Ordinarily, Pena would complete his term in custody on January 26, 2022. See Pena Decl. ¶4 (Dkt. No. 171-1).

On April 8, 2020, Pena filed a request with the Bureau of Prisons that it transfer him to home confinement, or that it file a motion requesting that the court reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the "compassionate release statute"), in view of the COVID-19 pandemic and his age, 70. See Dkt. No. 171-2. The Warden of FMC Devens, Stephen Spaulding (the "Warden"), denied Pena's request on April 22, 2020. See Dkt. No. 175-1. Pena filed the Motion on April 21, 2020. See Dkt. No. 171. He asks the court to reduce his prison sentence and permit him to serve the equivalent time in home confinement.

Because the appeal of Pena's sentence is pending in the First Circuit, the court does not now have jurisdiction to grant the Motion. Therefore, Pena also filed a Motion for an Indicative Ruling under Federal Rule of Criminal Procedure 37(a)(3), asking that the court state that it would grant the Motion and requesting that the First Circuit remand the case for that purpose. See Dkt. No. 173.

The court conducted hearings on the Motion on May 6 and 13, 2020. Warden Spaulding testified at the May 13, 2020 hearing.

III. LEGAL STANDARD

Prior to the enactment of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018), a court had the authority to order the compassionate release of a prisoner only if the Bureau of Prisons filed a motion requesting a reduction in sentence. The United States Sentencing Commission had found, based on reports from the Office of the Inspector General of the Department of Justice, among other things, that the Bureau of Prisons had been too restrictive in making compassionate release motions. See United States v. DiMasi, 220 F. Supp. 3d 173, 181-82 (D. Mass. 2016) ; Department of Justice, Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release Program, at 11 (April 2013); Department of Justice, Office of the Inspector General, The Impact of an Aging Inmate Population on the Federal Bureau of Prisons, at 51 (May 2015). Therefore, in 2016, the Sentencing Commission revised U.S.S.G. § 1B1.13 to encourage the Bureau of Prisons to file motions for compassionate release more frequently. This was in part because the Sentencing Commission found that, while only the Director of the Bureau of Prisons had the statutory authority to file a motion for compassionate release, the court is in a unique position to assess whether extraordinary and compelling circumstances exist and whether a reduction is warranted and, if so, the amount of the reduction. See 81 Fed. Reg. 27,261, at 27,264 (May 5, 2016); DiMasi, 220 F. Supp. 3d at 181-82.

In essence, the Sentencing Commission encouraged the Bureau of Prisons to be more liberal in creating opportunities for judges to consider whether compassionate release is justified, and reminded judges of their statutory obligation to consider the 18 U.S.C. § 3553(a) factors and the Commission's guidance in making such decisions. DiMasi, 220 F. Supp. 3d at 182.

In December 2018, the First Step Act modified the compassionate release statute to authorize a prisoner to file a motion for a reduction of sentence if the Bureau of Prisons has not granted his request to do so within a certain period of time. The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A)(i), now states in pertinent 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.

IV. THE FACTS

President Donald J. Trump has declared a national emergency due to the COVID-19 pandemic. Because there is no vaccine to prevent COVID-19 and because COVID-19 may be spread by infected but asymptomatic individuals, the Centers for Disease Control and Prevention (the "CDC") has advised members of the public to wash their hands often, avoid close contact -- i.e., being within less than six feet of other people ("social distancing") -- wear a face covering when around others, and regularly clean and disinfect frequently touched surfaces. See CDC, Coronavirus Disease 2019 (COVID-19): Protect Yourself, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

The CDC has also advised that these measures are particularly important for individuals over 65-years old because they, among other groups, are at higher risk for developing more serious complications from COVID-19, including death. See CDC, Coronavirus Disease 2019 (COVID-19): Protect Yourself, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.

The CDC's view is supported by data from throughout the United States and in Massachusetts. As of May 12, 2020, the CDC reported that of the 37,300 deaths in the nation attributed to COVID-19 for which it had information concerning the decedent's age, 29,655 (79.5%) were individuals aged 65 or older. In Massachusetts, as of May 12, 2020, 4,357, or 85.3%, of the 5,108 deaths attributed to COVID-19, were people aged 70 or older. See Dkt. No. 196, ¶¶1, 2. The CDC estimates that, if infected, a person between 65 and 84-years old faces a 31 to 59% chance of hospitalization, an 11 to 31% chance of admission to an intensive care unit, and a 4 to 11% chance of dying. See Dkt. No. 171, at n.7.

According to the Massachusetts Department of Public Health, almost all of the individuals who have died from COVID-19 in Massachusetts had some preexisting condition. See Mass. Dep't of Pub. Health COVID-19 Dashboard, at 13 (May 12, 2020), https://www.mass.gov/doc/covid-19-dashboard-may-12-2020/download. The CDC defines severe obesity as a condition that puts a person at higher risk of severe illness from COVID-19. Severe obesity is defined as...