United States v. Rao

UNITED STATES v. JOSEPH RAO

No. 3:12-cr-97 (SRU)

United States District Court, D. Connecticut

August 23, 2021

ORDER

Stefan R. Underhill United States District Judge

On February 4, 2013, Rao pleaded guilty (pursuant to a plea agreement) to a lesser-included offense of count one of a superseding indictment charging him with conspiracy to distribute and to possess with intent to distribute oxycodone and cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. See Superseding Indictment, Doc. No. 410; Plea Agreement, Doc. No. 454. On June 6, 2013, Rao was sentenced by District Judge Ellen Bree Burns to a 91-month term of incarceration followed by five years of supervised release. See Min. Entry, Doc No. 672; Judgment, Doc. No. 673. Rao's federal sentence was to run consecutively to a five-year state sentence that Rao was already serving. See Judgment, Doc. No. 673; Presentence Report (“PSR”), Doc. No. 622, at ¶ 2.^[1] Rao, who is 61, is currently in federal custody and is housed at the Federal Correctional Institution, Beckley (“FCI Beckley”). See Find an Inmate, FED. BUREAU OF PRISONS https://www.bop.gov/inmateloc/ (last visited Aug. 23, 2021). Rao's scheduled release date is May 14 2023.^[2] See id. Rao has been incarcerated since October 2011 (then in state custody). See PSR Doc. No. 622, at ¶ 2.

On April 30, 2021, Rao filed a counseled motion for reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), as amended in 2018 by the First Step Act. See Rao's Mot. for Reduction in Sentence, Doc. No. 1287; Mem. of Law in Supp. Mot. for Reduction in Sentence (“Rao's Mot.”), Doc. No. 1287-1. On May 10, the government filed an opposition. See Gov't Opp'n, Doc. No. 1289. On May 20, Rao filed a reply. See Rao's Reply, Doc. No. 1293. For the following reasons, I deny without prejudice Rao's motion for relief and decline to alter his sentence.^[3]

I. Standard of Review

The First Step Act of 2018 (the “FSA”) amended the language of section 3582(c)(1)(A). Before the FSA, only the Director of the Bureau of Prisons (the “BOP”) could make a motion for the court to reduce a defendant's sentence based on extraordinary and compelling reasons. It is widely acknowledged that the BOP fell short in its gatekeeper role and that, as a result, too few inmates were granted compassionate release. See, e.g., U.S. Dep't of Justice, Office of the Inspector General, Evaluation and Inspections Division, The Federal Bureau of Prisons' Compassionate Release Program i (April 2013), https://oig.justice.gov/reports/2013/e1306.pdf (“[W]e found that the existing BOP compassionate release program has been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.”); Shon Hopwood, Second Looks & Second Chances, 41 CARDOZO L. REV. 83, 105-06 (2019); William W. Berry III, Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release, 68 MD. L. REV. 850, 868 (2009) (noting that, in the 1990s, 0.01 percent of inmates annually were granted compassionate release).

Congress passed the FSA against that backdrop. The FSA altered section 3582(c)(1)(A), in part, to increase the use of compassionate release. See 164 Cong. Rec. H10358 (daily ed. Dec. 20, 2018) (titling changes to section 3582(c)(1)(A) as “Increasing the Use and Transparency of Compassionate Release”). In particular, the FSA amended section 3582(c)(1)(A) to allow a defendant him- or herself to bring a motion for compassionate release. Section 3582(c) now reads, in relevant part:

(c) Modification of an imposed term of imprisonment.-The court may not modify a term of imprisonment once it has been imposed except that - (1) in any case -

(A) 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 ....

For some time, I (and many other district courts around the country) interpreted the “applicable policy statement[] issued by the Sentencing Commission” to be U.S.S.G. § 1B1.13. See, e.g., United States v. Almontes, 2020 WL 1812713, at *2 (D. Conn. Apr. 9, 2020).

However, in September 2020, the Second Circuit clarified that section 1B1.13 is not applicable to compassionate release motions brought by defendants themselves. See United States v. Brooker, 976 F.3d 228, 236 (2d Cir. 2020). Since the Second Circuit decided Brooker, several courts of appeals in other circuits have concurred that section 1B1.13 is not applicable to compassionate release motions brought by defendants. See United States v. McCoy, 981 F.3d 271, 281 (4th Cir. 2020); United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021); United States v. Jones, 980 F.3d 1098, 1101 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021); United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021); United States v. Long, 997 F.3d 342, 347 (D.C. Cir. 2021); but see United States v. Bryant, 996 F.3d 1243, 1252-62 (11th Cir. 2021). Because in this case Rao himself made a motion for compassionate release, I may “consider the full slate of extraordinary and compelling reasons, ” and nothing in the “now-outdated version” of section 1B1.13 limits my discretion. Brooker, 976 F.3d at 237.

The defendant bears the burden of proving that he is entitled to a sentence reduction. See United States v. Morales, 2020 WL 2097630, at *2 (D. Conn. May 1, 2020). Courts “have broad discretion in deciding whether to grant or deny a motion for a sentence reduction.” United States v. Jones, 2020 WL 2782395, at *2 (D. Conn. May 29, 2020) (quoting United States v. Tagliaferri, 2019 WL 6307494, at *3 (S.D.N.Y. Nov. 25, 2019)). Indeed, section 3582(c)(1)(A) grants a district court permissive authority to reduce an inmate's sentence under certain conditions. See 18 U.S.C. § 3582(c)(1)(A) (“[T]he court . . . may reduce the term of imprisonment ....”). A court may not reduce a term of imprisonment without “considering the factors set forth in section 3553(a) to the extent that they are applicable.” Id.; see also United States v. Torres, 464 F.Supp.3d 651, 658 (S.D.N.Y. 2020) (explaining that courts must consider section 3553(a) factors before granting a sentence reduction pursuant to section 3582(c)(1)(A)).

II. Discussion

A. Background

On April 1, 2011, Rao was arrested by the New Haven Police Department during a sale of oxycodone. See PSR, Doc. No. 622, at ¶ 17. The arrest resulted from a year-long investigation, headed by the Drug Enforcement Administration, targeting narcotics trafficking and gang violence in the Dwight-Kensington and Fair Haven sections of New Haven. See id. at ¶ 8. During the investigation, law enforcement monitored wiretaps on over 20 different cell phones. See id. at ¶ 9. Intercepted communications revealed that Rao was one of many individuals involved in the distribution of large quantities of cocaine, cocaine base, marijuana, and oxycodone. See id. at ¶ 13. During Rao's arrest, officers recovered $9, 661 and over 100 oxycodone pills from Rao's person and vehicle. See id. at ¶ 17.

Sadly, Rao's history of drug addiction began early. At age 12, Rao began using marijuana; by age 14, he was “sniffing heroin and cocaine daily” and using heroin intravenously. Id. at ¶ 66. By age 15, Rao had “developed a drug habit which included using speed, downers, uppers and acid.” Id. at ¶ 60 (cleaned up). Rao continued to use drugs heavily in his adulthood: In the 1990s (Rao's thirties), Rao was using crack cocaine multiple times per week. See id. at ¶ 66. And after suffering a work-related injury in 2009, Rao began taking twenty 30-milligram oxycodone pills per day. See id. Throughout his life, Rao has relied on criminality to fund his drug dependencies. See id. at ¶¶ 61, 66. As a result, Rao has been in and out of prison consistently since age 18. See id. at ¶¶ 34-57, 60-61. Rao has stated that “drugs have caused him to ‘lose everything including [his] dignity, [his] family. [He] has no sense of morals while doing drugs.'” Id. at ¶ 67.

Rao has lived with HIV since 1993. See Rao's Mot., Doc. No. 1287-1, at 4; PSR, Doc. No. 622, at ¶ 61; Medical Records, Ex. E to Rao's Mot. (“Rao's Medical Records”), Doc. No. 1287-2, at 14 (indicating that Rao is “HIV asymptomatic (never had an HIV-related illness)”). As a result, Rao has a somewhat-diminished count of CD4 cells, which help to fight off infection. See Rao's Mot., Doc. No. 1287-1, at 4; Rao's Sealed Medical Records, Doc. No. 1288-1, at 62.^[4] Other medical conditions impact Rao's health as well. In 2020, Rao was diagnosed with an unspecified mental disorder which causes him lack of sleep and nightmares. See Rao's Mot., Doc. No. 1287-1, at 5; Rao's Medical Records, Doc. No. 1287-2, at 13. Rao is also being monitored for chronic obstructive pulmonary disease, a lung disease that is likely connected to Rao's decades of smoking. See Rao's Mot., Doc. No. 1287-1, ...