United States v. Pratchard

United States of America, Plaintiff, v. Josh Joel Pratchard, Defendant.

No. CR 18-1256-TUC-CKJ

United States District Court, D. Arizona

April 19, 2022

ORDER

CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.

Pending before the Court is the Motion for Sentence Reduction (Doc 103) filed by Joshua Joel Pratchard ("Pratchard"). The government has filed a response (Doc. 111), Pratchard has filed a reply (Doc. 120), and the government has filed a sur-reply (Doc. 126). While the parties' briefs have been filed under seal because of private information, the Court finds it appropriate to publicly issue this Order. The Court will specify some of Pratchard's medical conditions, but will not go into detail.

Background

Pratchard pleaded guilty to the 13 count Superseding Indictment, which charged four counts of Possession of a Firearm by a Convicted Felon (counts 1, 3, 5, 6) two counts of Transferring a Firearm to an Out-of-State Resident (counts 2, 4), four counts of Possession of an Unregistered Firearm (counts 7, 9 11, 12), two counts of Transfer of a Firearm in Violation of National Firearms Act (counts 8, 10), one count of Possession of Body Armor by a Violent Felon (count 13), and a forfeiture allegation. The offenses in this case occurred after Pratchard had at least two convictions of either a crime of violence or controlled substance offense: an Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C § 113(a)(6), U.S. District Court, Northern District of California, Docket 3:08-cr-00553-MMC-1, a crime of violence, and Wrongful Distribution and Use of Ecstasy in violation of United States Code of Military Justice Article 112a, United States Marine Corps, San Diego, California, Docket No.: 200301258, a controlled substance offense.

During the August 27, 2019, sentencing hearing, the Possession of Body Armor by a Violent Felon was dismissed. Additionally, Pratchard's medical condition and history of addiction was discussed both in sentencing documents and at the hearing. This Court sentenced Pratchard, within the guideline range, to the custody of the Bureau of Prisons for a term of seventy-five (75) months with credit for time served on Counts 1, 3, 5, 6, 7, 9, 11, and 12 and sixty (60) months with credit for time served on Counts 2 and 4. The term of seventy-five (75) months imprisonment was run concurrently with the term of sixty (60) months imprisonment. Pratchard was also ordered to be placed on a five (5) year term of probation on counts 8 and 10 and a concurrent three (3) year term of supervised release following his release from imprisonment. Additionally, firearms, silencers, and ammunition were ordered forfeited.

Pratchard submitted an administrative request with the BOP for compassionate release, referencing that he had contracted COVID-19 and that should he contract it again, he would be at an elevated risk because of his medical condition.^[1] Motion (Doc. 103, p. 2, Ex. A). Although not specifically stated, it is implied the BOP denied the administrative request for compassionate release. The government confirms this denial. Response (Doc. 111, Ex. E).

The government asserts that, while Pratchard's diagnosis of hypertension may or may not place him at an elevated risk and could arguably present an extraordinary and compelling reason warranting compassionate release, the majority of Pratchard's diagnosed conditions do not. The government also points out that, because Pratchard contracted and recovered from COVID-19, he is now at a lower risk of serious illness should he be reinfected. Further, because Pratchard is fully vaccinated, his medical condition does not present an extraordinary and compelling reason warranting compassionate release.

Pratchard is a 41 year old male who is housed at FCI Lompoc. He has an anticipated release date of September 29, 2023. On December 10, 2020, following a review of this case pursuant to General Order 20-28, the Federal Public Defender requested appointment of counsel for a potential claim to a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Counsel was appointed to assist Pratchard and, on May 26, 2021, a Motion for Sentence Reduction (Doc. 103) was filed. Documentation submitted by Pratchard establishes he suffers from both physical and mental conditions and uses multiple medications. Motion (Doc. 103, Exs. B, C, D). A response (Doc. 111), a Reply (Doc. 120), and a Sur-Reply (Doc. 126) have been filed. A Notice of Supplemental Authority (Doc. 127) and a Response to the Notice of Supplemental Authority (Doc. 128) have also been filed.

First Step Act

The First Step Act went into effect on December 21, 2018. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Prior to the passage of the First Step Act, only the Director of the BOP could file a motion for compassionate release. Section 603(b) of the First Step Act modified 18 U.S.C. § 3582(c)(1)(A) with the intent of "increasing the use and transparency of compassionate release." Pub. L. No. 115-391, 132 Stat. 5194, at *5239 (capitalization omitted). That section now provides that a sentencing court may modify a sentence either upon a motion of the Director of the BOP "or upon motion of the defendant after [he] has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility . . ." 18 U.S.C. § 3582(c)(1)(A).

The Act provides that a sentence may be reduced for "extraordinary and compelling reasons." Additionally, district courts are granted broad discretion in determining whether to grant relief. US v. Parker, No. 2:98-CR-00749-CAS-1, 2020 WL 2572525, at *4 (C.D. Cal. May 21, 2020), citation omitted.

Exhaustion of Remedies

The statute clearly imposes an administrative exhaustion requirement before seeking review by a district court. See e.g., United States v. Weidenhamer, No. CR1601072001 PHXROS, 2019 WL 6050264, at *1 (D. Ariz. Nov. 8, 2019). In this case, Pratchard submitted a request for compassionate release to the warden and the request was denied. As the government has conceded Pratchard has exhausted his administrative remedies, Response (Doc. 111, p. 9), the Court finds Pratchard has exhausted his administrative remedies. See e.g. United States v. Spears, 98-cr-208 (D. Ore. Sept. 30, 2019); United States v. Robinson, 16-cr-5307 (W.D. Wash. July 8, 2019).

Request for Compassionate Release

Pratchard cites his vulnerability to COVID-19 based on his health problems as extraordinary and compelling reasons for a sentence reduction. The Center for Disease Control and Prevention ("CDC") indicates Pratchard's hypertension could "possibly . . . make [him] more likely to get very sick from COVID-19." Coronavirus People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/ need-extra-precautions/people-with-medical-conditions.html.^[2] Indeed, having "hypertension . . . may increase your risk of severe illness from COVID-19." https://www.cdc.gov/ coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions. html#serious-heart- conditions. For purposes of this Order, the Court finds Pratchard's medical condition may make him more likely to get very sick from COVID-19 should he be reinfected. However, the Court also considers that the CDC has also stated that nearly half of adults in the United States suffer have hypertension, with the prevalence being higher among men than women; further, more than 54% of persons between the age of 40-59 suffer from hypertension. Hypertenion Prevalence Among Adults Aged 18 and Over: United States, 2017-2018, https://www.cdc.gov/nchs/products/databriefs/db364.htm (last accessed 4/12/22). In other words, Pratchard's condition is not extraordinary.

In his Reply, Pratchard expands on his assertion that he has a heart condition and lung tissue damage. While he acknowledges the documentation does not support his assertion that he suffers from a heart condition, Pratchard asserts the medical staff is unreasonably refusing to perform appropriate tests. Pratchard has submitted a letter drafted by him on October 8, 2021, documenting the delay in receiving a response to his health complaints and asserting he is not receiving the medical care he needs. Reply (Doc. 120, Ex. B, pp. 1-2). Additionally, the documentation does support Pratchard's assertion that, following his COVID-19 infection, nodules appeared on Pratchard's lungs. Pratchard asserts the conditions frighten him and threaten his life.

Pratchard's medical records indicate he has received tests regarding the heart condition. Reply (Doc. 120, Ex. A, pp. 23, 26, 27). However, the documentation does not establish that any follow-up concerning the nodules on Pratchard's lungs was ever conducted. Further, Pratchard points to a class action regarding medical treatment and COVID-19 protocols at FCI Lompoc, as well as inspection reports ordered by the United States District Court for the Central District of California which discuss deficiencies of COVID-19 protocols at FCI Lompoc.

The government asserts Pratchard raises new arguments in his Reply. However, Pratchard's original motion did reference cardiovascular conditions and that they may be caused by COVID-19. When read in conjunction with Pratchard's administrative request for compassionate release, it appears Pratchard may have also been attempting to raise these conditions in his original Motion. The government also asserts Pratchard's new arguments regarding adequate care at the facility are more appropriately brought in a civil suit.

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