United States v. Ray

1

UNITED STATES OF AMERICA v. JOSHUA RAY

No. 3:19-CR-46 JD

United States District Court, N.D. Indiana, South Bend Division

May 12, 2023

OPINION AND ORDER

JON E DEGUILIO CHIEF JUDGE

Now before the Court is Joshua Ray's motion for compassionate release. In his motion, Ray argues that there are three reasons his situation is extraordinary and compelling: (1) because his girlfriend's incarceration has resulted in his children entering the foster care system; (2) because his disabled mother is without care due to his grandfather passing away; and (3) because of the risk presented by COVID-19. For the reasons explained below, the Court denies this motion.

A. Factual Background

Joshua Ray is imprisoned at FCI Fort Dix. He is serving a 41-month sentence imposed by this Court after he was convicted of possessing one or more machine guns in violation of 18 U.S.C. § 922(o). Ray's conviction was based on his possession of illegal auto-switches, which convert a firearm into a machinegun by making it fully automatic. (DE 115 at 3-4.) His projected release date for this offense is February 22, 2024.^[1]

On January 4, 2023, Ray moved for compassionate release under 18 U.S.C. 3582(c)(1)(A). In this motion, Ray explains that the mother of his children was arrested “on the grounds of [f]elony neglect of a dependent child.” (DE 155 at 1.) Ray recounts how his “children [were] found outside naked during winter months alone, a quarter mile away from home, dirty, cold and injured while [the] mother was home sleeping multiple times.” (Id.) Because of this neglect, “two of [his] three children [were] placed in foster care.” (Id.) Ray attaches as an exhibit an order on protective custody from the Elkhart Circuit Court which is consistent with Ray's description of the condition his children were found in. (DE 155-1 at 4.) While it is somewhat unclear whether the order pertained to both children or only one child, the Elkhart Circuit Court found that, due to the above conditions and the incarceration of both parents, “responsibility for the placement and care of the child is ordered to the DCS.” (DE 155-1 at 4.) Ray asserts that these circumstances “are a major strain on [his] mental health” and that “due to [his] incarceration [his] children have not had the proper care.” (DE 155 at 2.)

In his motion, Ray also argues compassionate release is warranted for two other reasons. First, he explains that his disabled mother is “without a caretaker due to [his] grandfather's passing on 12-22-21.” (DE 155 at 2.) According to Ray, she “has no significant other to help.” (Id.) Second, Ray asserts that he is “at a heightened risk for death due to (Covid 19) [based on his] current health status and the fact that it is physically impossible to social[ly] distance in the Fort Dix New Jersey Prison ....” (Id. at 155.)

The Government then responded to Ray's motion. (DE 159.) Ray failed to file a reply. Therefore, the motion is ripe to review.

B. Legal Standard

A court generally cannot modify a sentence once the sentence has been imposed. 18 U.S.C. § 3582(c). However, an exception to that general rule allows a court to modify a sentence, after considering the factors under § 3553(a), if “extraordinary and compelling reasons warrant such a reduction,” the reduction is consistent with policy statements issued by the Sentencing Commission, and the defendant has submitted such a request to the warden at least 30 days before filing a motion or has fully exhausted all administrative rights within the Bureau of Prisons. 18 U.S.C. § 3582(c)(1)(A). This analysis proceeds in two steps. United States v. Thacker, 4 F.4th 569, 576 (7th Cir. 2021) (cert. denied 142 S.Ct. 1363 (2022)). At the first step the defendant must identify an extraordinary and compelling reason warranting a sentence reduction. Id. If the defendant establishes such a reason, the district court, in the discretion conferred by the statute, considers the applicable § 3553(a) factors as part of determining what reduction to award the defendant. Id.

The application notes to the Sentencing Guidelines offer some examples of when extraordinary and compelling reasons may be present. Those include when the defendant is suffering from a terminal illness or is suffering from a serious physical or medical condition that substantially diminishes his ability to provide self-care within the prison. U.S.S.G. § 1B1.13 n.1(A). See United States v. Gunn, 980 F.3d 1178, 1181 (7th Cir. 2020) (finding the substantive aspects of U.S.S.G. § 1B1.13 and its Application Notes provide a “working definition” of “extraordinary and compelling reasons” that can guide a court's discretion “without being conclusive”). Family circumstances, such as “[t]he death or incapacitation of the caregiver of the defendant's minor child or minor children,” may also constitute extraordinary and compelling reasons. U.S.S.G. § 1B1.13 n.1(C)(i). The finding of extraordinary and compelling reasons is conditioned upon the defendant not being “a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2).

A defendant moving for release from prison bears the burden of establishing extraordinary and compelling reasons. See United States v. Newton, 996 F.3d 485, 488 (7th Cir. 2021) (“Although it has appeared only in nonprecedential opinions until now, we have also said that the movant bears the burden of establishing ‘extraordinary and compelling reasons' that warrant a sentence reduction.”).

C. Discussion

As an initial matter, the Court considers whether Ray exhausted his administrative remedies. Prior to adjudicating a motion directly from a defendant under § 3582(c)(1)(A), a defendant “must first present his request for compassionate release to the warden and exhaust administrative appeals (if the request is denied) or wait ‘30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.'” United States v. Sanford, 986 F.3d 779, 782 (7th Cir. 2021). The Court finds that Ray exhausted his administrative remedies by waiting thirty days from the warden's receipt of his request. Ray demonstrated this by attaching his request to the warden for compassionate release as an exhibit. This request is dated November 22, 2022, more than 30 days before him filing the instant motion on January 4, 2023. (DE 155-1.) In his filing, Ray also stated that he “exhausted all remed[ies] with the warden[.]” (DE 155 at 4.) While the Government argues that Ray did not “allege that the warden failed to respond” to this compassionate release request or allege how the compassionate release request was resolved, the Government provides no evidence to contradict Ray's assertion that he exhausted his remedies or that he submitted his request for compassionate relief to the warden. If the warden did respond, then the Government could have included that as an exhibit. Because the Government did not, and because Ray is pro se and has attached evidence supporting that he submitted a request for compassionate release to the warden, the Court finds that the exhaustion requirement has been satisfied.

The Court next considers whether Ray has shown an extraordinary and compelling reason for his release. Ray first argues that his girlfriend being incarcerated and his children being placed in the foster care system is an extraordinary and compelling reason justifying his release. The Sentencing Guidelines do indicate that the “incapacitation of the caregiver of the defendant's minor child or minor children,” may constitute an extraordinary and compelling reason for release. U.S.S.G. § 1B1.13 n.1(C)(i). The Government argues that incapacitation based on incarceration may never justify compassionate release because incapacitation is limited to only where the caregiver has passed away or suffered an illness resulting in incapacitation. (DE 159 at 13.) The Court disagrees. The Guidelines focus on whether the caretaker of the defendant's minor child is “incapacitated,” not the reason for this incapacitation. If the incapacitation is legal in nature, such as the caretaker's incarceration, this may, depending on the circumstance, constitute the type of extraordinary and compelling situation warranting compassionate release. Other courts have held exactly that. See United States v. Fields, 569 F.Supp.3d 231, 240 (E.D. Pa. 2021) (granting compassionate release where the defendant's children had been taken away from the mother for neglect where the defendant sought “compassionate release to participate” in removal proceedings which “could prove critical to the custody determinations”).^[2]

In determining whether Ray's children being placed in foster care constitutes an extraordinary and compelling reason for his release, the Court looks to whether the Defendant would be “legally entitled to custody of the children” if released and whether the Defendant would be a suitable caregiver to that child. See United States v. Johnson, No. 1:15-CR-00059-NONE, 2020 WL 6075867, at *5 (E.D. Cal. Oct. 15, 2020) (finding that extraordinary and compelling reasons did not exist because it was unclear based on the record before the court whether the defendant would be found “a ‘suitable caretaker' for his child by the governing authorities'”); United States v. Dawkins, No. CR 08-412, 2021 WL 1946662, at *3 (W.D. Pa. May 14, 2021) (denying motion for compassionate where the defendant's child had been placed in foster care because the defendant “[f]ailed to support his motion with evidence that he [was] a suitable caregiver for his minor child” and because it was “unclear what, if any, custodial or parental rights Defendant has retained over the minor at issue”).

Courts look at suitability and legal...