United States v. Rashid

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UNITED STATES OF AMERICA, Plaintiff, v. D-1 MASHIYAT RASHID, Defendant.

No. 17-cr-20465

United States District Court, E.D. Michigan, Southern Division

June 29, 2023

ORDER DENYING DEFENDANT'S SECOND MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. § 3582(C)(1)(A)(I) [ECF NO. 807]

DENISE PAGE HOOD, UNITED STATES DISTRICT JUDGE

On July 27, 2022, Defendant filed a Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). [ECF No. 748] The Government filed a response, to which Defendant replied. On January 5, 2023, the Court denied the July 22, 2022 Motion. ECF No. 790. The Defendant filed a Notice of Appeal on January 18, 2023, though no appeal of the Court's determination was ever filed. ECF No. 791.

On February 1, 2023, the Defendant appears to have submitted a new request for compassionate release to the Warden at FCI McKean. ECF No. 807, PageID.10895. On April 12, 2023 Defendant filed a second Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) ("Second Motion"). [ECF No. 807] The Second Motion is fully briefed. The Court denies the Second Motion.

I. Background

Defendant has been detained since October 2017, when this Court determined that Defendant was not complying with the conditions of his bond and revoked his bond. ECF No. 170. On October 15, 2018, Defendant pleaded guilty to Counts One and Nine of the Superseding Indictment. Four of his co-defendants went to trial in February 2020, and Defendant testified on behalf of the Government at that trial. All four of those co-defendants were convicted by a jury. Defendant had not been sentenced by the time that trial concluded because, with the agreement of the Government and the Court, Defendant was not to be sentenced until after the trial of Francisco Patino ("Patino"), a defendant in a related case. A month after the trial of those four co-defendants, the Covid-19 pandemic commenced. As a result, the Patino trial, as well as the sentencings of Defendant and the four co-defendants who went to trial, each of whom desired to be sentenced in person, were delayed.

The Court eventually scheduled and held the Patino jury trial in August-September 2021 (the first such criminal trial held in the Eastern District of Michigan after the onset of the Covid-19 pandemic). By February 2021, however, Defendant could no longer wait to be sentenced, and he insisted on being sentenced as soon as possible. The Court held Defendant's sentencing on March 3, 2021. Despite a guideline range of 360 months, and the Government's request of 216 months after a 40% reduction of sentence from that guideline range due to Defendant's cooperation, the Court sentenced Defendant to a term of 180 months. As of March 3, 2021, (a) none the four co-defendants who went trial had been sentenced, (b) only one of Defendant's 14 co-defendants (Hina Qazi, a comparatively minor participant) had been sentenced, and (c) Patino had not gone to trial.

Defendant testified on behalf of the Government at the Patino trial. Patino recently was sentenced to 198 months in prison - 18 months more than Defendant. Defendant has served more than one-third and less than 40% of his sentence.

II. Analysis

When seeking a reduction in sentence for extraordinary and compelling reasons, a defendant must first exhaust all administrative remedies or wait 30 days after the warden's first receipt of the request.18 U.S.C. § 3582(c)(1)(A); United States v. Alam, 960 F.3d 831, 832 (6th Cir. 2020). It is undisputed that Defendant has exhausted his administrative remedies through the Bureau of Prisons.

In resolving motions pursuant to 18 U.S.C. § 3582(c)(1)(A), district courts now face two questions: (1) whether extraordinary and compelling circumstances merit a sentence reduction; and (2) if so, whether the applicable § 3553(a) factors warrant such a reduction. United States v. Jones, 980 F.3d 1098, 1106 (6th Cir. 2020); United States v. Ruffin, 978 F.3d 1000, 1006-07 (6th Cir. 2020). A third consideration, the U.S.S.G. § 1B1.13 policy statement, is no longer a requirement courts must address in ruling on defendant-filed motions. United States v. Elias, 984 F.3d 516, 518-20 (6th Cir. 2021) (citing Jones, 980 F.3d at 1108); United States v. Hampton, 985 F.3d 530, 531 (6th Cir. 2021); United States v. Tomes, 990 F.3d 500, 503, n.l (6th Cir. 2021) (citations and internal quotations omitted) (a court "may look to § IB 1.13 as relevant, even if no longer binding," but "may not proceed as though § IB 1.13 constrains its analysis of what constitutes extraordinary and compelling reasons for release.").

As to whether extraordinary and compelling circumstances exist to merit a sentence reduction in a case, the Sixth Circuit concluded that "in the absence of an applicable policy statement for inmate-filed compassionate release motions, district courts have discretion to define 'extraordinary and compelling' on their own initiative." Elias, 984 F.3d at 520. See also Jones, 980 F.3d at 1109; United States v. McDonel, 513 F.Supp.3d 752, 755 (E.D. Mich. 2021) (quoting Elias).

"Extraordinary" is defined as "exceptional to a very marked extent." Webster's Third International Dictionary, Unabridged (2020). "Compelling" is defined as "tending to convince or convert by or as if by forcefulness of evidence." Id. A court in the Eastern District of Michigan has described the requirements of "'extraordinary' as beyond what is usual, customary, regular, or common," and "'compelling reason' as one so great that irreparable harm or injustice would result if the relief is not granted." See United States v. Sapp, Case No. 14-20520, 2020 WL 515935, at *3 (E.D. Mich. Jan. 31, 2020) (citations omitted).

Defendant contends that a combination of his health conditions and the length of his sentence, which he contends is significantly longer than the sentences of his co-defendants - namely Patino - and the average health care fraud sentence, constitute extraordinary and compelling circumstances justifying a reduction in his sentence.

A. Health Conditions

Defendant has a number of health conditions, including obesity, asthma (for which he uses Albuterol daily), hypertension, and high cholesterol, all of which are conditions that may elevate risk while being incarcerated during the COVID-19 pandemic. Although Defendant did not discuss his health conditions in detail in the Second Motion, he did so in his previous compassionate release motion. As the Court stated in its January 5, 2023 Order, the authority upon which Defendant relies was issued in 2020 - before any vaccines were available to incarcerated persons. The Sixth Circuit has since concluded that, if a defendant has access to the vaccine, the COVID-19 pandemic itself does not present an "extraordinary and compelling reason" warranting a sentence reduction. United States v. Lemons, 15 F. 4th 747, 751 (6th Cir. 2021) (citing United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021)).^[1]

Defendant not only has had access to the Covid-19 vaccine, he has received it. He also contends that he has contracted and recovered from Covid-19 two times (the record does not indicate when that occurred).

Many defendants have been denied release pursuant to Section 3582(c)(1)(A)(i), even with health conditions similar to Defendant's, when they have had access to or received the Covid-19 vaccine, including if they have previously contracted the Covid-19 virus. See, e.g., United States v. Banks, No. 18-cr-20462, 2022 WL 2679417 (E.D. Mich. July 11, 2022) (denying compassionate release to inmate suffering from COPD, lupus, high blood pressure, arthritis, and obesity because she had access to the COVID-19 vaccine); United States v. Jackson, No. 19-cr-20396, 2022 WL 107577 (E.D. Mich. Jan. 11, 2022) (denying compassionate release to inmate with hypertension and asthma because he had received the COVID-19 vaccine); United States v. Mukherjee, No. 4-cr-50044,2022 WL 2703955 (E.D. Mich. July 12,2022) (denying compassionate release to 80-year-old defendant with hypertension, diabetes, obesity, kidney disease, and enlarged prostate because he had received the COVID-19 vaccine and recovered from a prior infection, such that his "proven resilience to COVID-19 belies the alleged comorbidity of his diagnoses.").

For the reasons stated, the Court concludes that Defendant has not, based on his health conditions, demonstrated an extraordinary and compelling reason for reducing his sentence.

B. Disparity in Sentencing

Defendant contends that his sentence, as compared to the average health care fraud sentence and the sentences of his co-defendants - specifically, Patino - was so disparate as to constitute an extraordinary and compelling reason to have his sentence reduced. Defendant contends that Patino will serve less time than Defendant, despite a sentence 18 months longer than Defendant's, because Patino will have his sentenced reduced as an elderly offender. For the reasons set forth in the Court's January 5, 2023 Order related to the comparative sentences of Pappas, Betro, Zahoor, and Omar, the Court is not persuaded by Defendant's arguments and reasoning. Again, Defendant was the mastermind and primary force behind the health care fraud scheme perpetrated in this case, including with respect to Patino at the outset of Patino's fraudulent activity while working with Defendant.

Defendant established the business model and recruited physicians (and others) to carry out a system that, among other things: (a) harmed patients, both by utilizing painful facet injections to treat them and by providing them with opioids; (b) fraudulently billed Medicare over $150 million; and (c) allowed him to profit at significantly greater levels than his co-defendants, specifically, and health care fraud d...