United States v. Provost

474 F.Supp.3d 819

UNITED STATES of America

v.Kali Rose PROVOST, Defendant.

Case No. 3:18cr42

United States District Court, E.D. Virginia, Richmond Division.

Signed July 24, 2020

Olivia L. Norman, United States Attorney's Office, Jessica Diane Aber, US Attorney Office, Richmond, VA, for United States of America.

MEMORANDUM OPINION

M. Hannah Lauck, United States District Judge

This matter comes before the Court on Defendant Kali Rose Provost's Motion for Compassionate Release (the "Motion"). (ECF. No. 23.) Provost asks the Court for two forms of relief: (1) to grant compassionate release because "the global COVID-19 pandemic combined with Ms. Provost's medical conditions present an ‘extraordinary and compelling reason’ " for release or, in the alternative, (2) to "issue a non-binding recommendation that [the Bureau of Prisons] transfer her to home confinement." (Mot. 1, ECF No. 23.) The United States responded, conceding that Provost's "medical conditions constitute ‘extraordinary and compelling reasons’ for compassionate release," but arguing that the Court should deny the Motion because "the factors under 18 U.S.C. § 3553(a)^{[1 ]} weigh strongly against early release" (the "Opposition"). (Opp'n 1, ECF No. 32.) The United States does not address Provost's alternative request for the Court to issue a nonbinding recommendation. (See generally Opp'n.) On July 15, 2020, Provost replied to the United States’ response in opposition (the "Reply"). (Reply, ECF No. 33.)

This matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons that follow, the Court will grant the Motion for Compassionate Release and impose an additional twenty-four months of supervised release, for a total supervised release term of sixty months with a twelve month period of home confinement.

I. Background

On April 3, 2018, the United States indicted Provost with knowingly, intentionally, and unlawfully possessing Oxycodone and Oxymorphone with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C) ("Count One"). (Indictment 1, ECF No. 7.) On June 4, 2018, Provost pled guilty to Count One before this Court and entered into a plea agreement with the United States. (Plea Agreement, ECF No. 11.) The Statement of Facts further explained that Provost "distributed" some of her prescribed Oxymorphone pills to her friend, and, within hours, "[h]er friend died ... of Oxymorphone toxicity." (Statement of Facts 1-2, ECF No. 12.) In the Plea Agreement, the Parties recommended to the Court that Provost should serve ten years in prison for her offense:

"jointly recommend[ing] to the Court a sentence of 10 years’ imprisonment ... [and] that this joint recommendation is a compromise between [Count One] and the charge of distribution of Oxymorphone resulting in death, which carries a minimum mandatory term of 20 years’ imprisonment ...."

(Plea Agreement 3, ECF No. 11.)

The Presentence Report ("PSR") calculated a total offense level of eight, a criminal history category of one, and a sentencing guidelines range of zero to six months of imprisonment and three years of supervised release. (PSR ¶¶ 89–90, ECF No. 15.) Probation Officer Simon nevertheless recognized the provisions set forth in the Plea Agreement and considered "the recommended sentence of 120 months[’] imprisonment ... justifiable." (Id. ¶ 91, ECF No. 15.) The PSR also noted Provost's substantial medical history. (See id. ¶¶ 60–65.) Provost reported suffering from several health conditions, including asthma, fibromyalgia, a heart murmur, hydrosyringomyelia, and pleural empyema as a result of pneumonia. (Id. ¶¶ 61–64.) Hydrosyringomyelia, a slowly progressive syndrome, "causes crevices in her spinal cord that fill with excess spinal fluid and cause disc compression which results in moderate to severe pain." (Id. ¶ 61.)

On September 21, 2018, the Court imposed a sentence of seventy-two months of imprisonment and three years of supervised release. (J. 2, ECF No. 21.) Provost currently serves her sentence at FMC Carswell. (Mot. 2.) Provost has served approximately twenty-seven months of her seventy-two-month sentence. (Reply 11.) The Bureau of Prisons calculates her release date as April 29, 2023. (Opp'n 3.)

On April 22, 2020, Provost "applied [to the Bureau of Prisons] for release under Compassionate Release." (Id. ); (see Mot. Exhibit 6, "Email Request & Response Letter" 1, ECF No. 23-5). On April 27, 2020, "the warden denied her request" because Provost's "concern about being potentially exposed to, or possibly contracting, COVID-19 does not currently warrant an early release from [her] sentence."

(Mot. 3); (Email Request & Response Letter 2.)

On June 18, 2020, Provost filed the instant Motion asking the Court to either grant compassionate release or issue a nonbinding recommendation to the Bureau of Prisons that Provost should serve the remainder of her sentence on home confinement. (Mot. 1.) On July 3, 2020, the United States filed a response opposing compassionate release. (See generally Opp'n.) On July 15, 2020, Provost filed a reply, asking the Court to "order her immediate compassionate release." (Reply 11, ECF No. 33.) The Reply did not mention her second request that this Court issue a nonbinding recommendation. (See generally Reply.)

The Court now considers the pending Motion. For the reasons articulated below, the Court will grant Provost's first request after finding that the circumstances unique to this case warrant compassionate release. In doing so, granting compassionate relief renders moot Provost's second request for the Court to "issue [to the BOP] a non-binding recommendation" for home confinement. (Mot. 18.) Thus, the Court will not address the second requested form of relief further.

II. The COVID-19 Pandemic Has Led Inmates to Seek Compassionate Release from Prison to Avoid Serious Illness or Death

In March 2020, the World Health Organization declared COVID-19 a worldwide pandemic. World Health Organization, Timeline of WHO's response to COVID-19 , https://www.who.int/news-room/detail/29-06-2020-covidtimeline (last visited July 13, 2020). Following this declaration, individuals incarcerated within the Bureau of Prisons, including Provost, began petitioning courts around the country for compassionate release under the First Step Act, citing individual risk factors as they relate to COVID-19. (Mot. 9.)

The Bureau of Prisons ("BOP") currently has "4,353 federal inmates and 397 BOP staff who have confirmed positive test results for COVID-19 nationwide." Fed. Bureau of Prisons, COVID-19 Cases , https://www.bop.gov/coronavirus/ (last visited July 24, 2020). The BOP reports that "5,676 inmates and 648 staff members have recovered[, while] 99 federal inmates and 1 BOP staff member death [have been] attributed to COVID-19 disease." Id. Relevant to the Motion at bar, Provost is serving her sentence at FMC Carswell, in Fort Worth, Texas. (Mot. 2.) According to BOP data, FMC Carswell has 519 inmates who have recently tested positive for COVID-19, and 3 have died. Fed. Bureau of Prisons, supra.

III. Compassionate Release

A. Standard of Review: 18 U.S.C. § 3582(c)(1)(A)

As amended by the First Step Act, 18 U.S.C. § 3582(c)(1)(A) authorizes courts to modify terms of imprisonment as follows:

The court may not modify a term of imprisonment once it has been imposed except that—in any case—the 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).

As a preliminary matter, a petitioner generally must "exhaust his or her administrative remedies prior to bringing a motion before the district court." Poulios v. United States , No. 2:09cr109, 2020 WL 1922775, at *1 (E.D. Va. Apr. 20, 2020). A limited number of situations, however, warrant waiver of the exhaustion requirement, such as when pursuit of "an administrative remedy would be futile," "exhaustion via the agency review process would result in inadequate relief[,]" or "pursuit of agency review would subject the petitioner to undue prejudice." United States v. Robinson , No. 3:10cr261, 2020 WL 4041436, at *3 (E.D. Va. July 17, 2020) (internal quotation marks and citations omitted).

After finding either that the petitioner meets the exhaustion requirement or that the situation justifies waiver, courts assess the merits of a motion for compassionate release under three prongs: (1) whether extraordinary and compelling reasons exist; (2) whether the defendant poses a danger to the community;² and, (3) whether the factors in 18 U.S.C. § 3553(a) would allow for a reduction in sentence. See e.g. , Delacruz v. United States , No. 18cv811, 2020 WL 3270503, at *1 (D.N.H. June 17, 2020) ; United States v. Howard , No. 4:15cr18, 2020 WL 2200855, at *2 (E.D.N.C. May 6, 2020). The United States Sentencing Commission defines "extraordinary and compelling" in the Application Note 1 of U.S.S.G. § 1B1.13³ and states "that a sentence may be modified due to the petitioner's medical condition, age, or family circumstances." Poulios , 2020 WL 1922775, at *2 (citing U.S.S.G....