United States v. Shnewer

1

UNITED STATES OF AMERICA, Plaintiff, v. MOHAMAD IBRAHAM SHNEWER, Defendant.

Crim. No. 07-459-1 (RBK)

United States District Court, D. New Jersey

July 24, 2023

OPINION

ROBERT B. KUGLER UNITED STATE DISTRICT JUDGE

This matter comes before the Court upon Defendant Mohamad Ibraham Shnewer's Motion for Reduction of Sentence under the First Step Act (ECF No. 529 (“Mot.”)). Mr Shnewer also filed motions for appointment of pro bono counsel (ECF No. 530) and for an abeyance (ECF Nos. 537 539). For the reasons set forth below, Mr. Shnewer's motions are DENIED.

I. BACKGROUND

A. Factual Background

Mr. Shnewer is an inmate in federal custody at the United States Penitentiary at Terre Haute, Indiana (“USP Terre Haute”). (ECF No. 529 at 1). Following a nearly three-month trial in the fall of 2008, a jury found Mr. Shnewer guilty of conspiracy to murder members of the United States military in violation of 18 U.S.C. § 1117 and attempted possession of firearms in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). (ECF No. 371). On April 29, 2009, this Court sentenced Mr. Shnewer to life imprisonment on the murder conspiracy count and a thirty-year consecutive sentence on the 924(c) count. (ECF No. 425). On the same date, Mr. Shnewer filed an appeal of his convictions. The Third Circuit affirmed this Court's judgment as to the murder conspiracy count but vacated our judgment as to Mr. Shnewer's conviction under 924(c). U.S. v. Duka, 671 F.3d 329, 356 (3d Cir. 2011). In accordance with the Third Circuit's mandate, we amended the judgment against Mr. Shnewer to reflect only a conviction and sentence of life imprisonment on the murder conspiracy charge. (ECF No. 467).

On November 8, 2021, Mr. Shnewer filed an emergency motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). (ECF No. 529). Mr. Shnewer also filed a motion for appointment of pro bono counsel. (ECF No. 530). The United States opposed both Mr. Shnewer's motions on February 9, 2023. (ECF No. 532 (“Govt. Opp'n”)). Mr. Shnewer did not respond to the Government's opposition but filed two motions for an abeyance pending the effective date of the United States Sentencing Commission's 2023 amended Sentencing Guidelines. (ECF Nos. 537, 539).

II. LEGAL STANDARD

A. Motion for Reduction of Sentence Under the First Step Act

Section 3582(c)(1)(A), as amended by Section 603(b) of the First Step Act, provides:

[T]he 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). The changes implemented by the First Step Act's amendment allow prisoners to directly petition the court, as opposed to the Bureau of Prisons (“BOP”), for a reduction in sentence under 18 U.S.C. § 3852(c)(1)(A)(i) provided, however, they satisfy the exhaustion requirements first. United States v. Rodriguez, 451 F.Supp.3d 392, 396 (E.D. Pa. 2020).

As such, the first step for a defendant in a motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) is to exhaust any available administrative remedies. Before bringing a motion for reduced sentence on their own behalf, a defendant “must ask the Bureau of Prisons (BOP) to do so on their behalf, give BOP thirty days to respond, and exhaust any available administrative appeals.” United States v. Raia, 954 F.3d 594, 595-96 (3d Cir. 2020). Thirty days after submitting the request or after receipt of an adverse decision, whichever is earlier, the defendant may move for compassionate release in the district court. Id. At the second step, a defendant must show that “(1) extraordinary and compelling reasons warrant a reduction, (2) the reduction would be consistent with applicable policy statements issued by the Sentencing Commission, and (3) the applicable sentencing factors under § 3553(a) warrant a reduction.” United States v. Rivera, Crim. No. 06-849, 2022 WL 1284717, at *1 (D.N.J. Apr. 29, 2022) (quoting United States v. Pabon, 458 F.Supp.3d 296, 300 (E.D. Pa. 2020)).

“Extraordinary and compelling reasons” are not defined by statute. Rather, Congress tasked the United States Sentencing Commission with providing a definition. Congress's only instruction to the Commission was that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t). The Commission provided such a definition in U.S.S.G. § 1B1.13 cmt. n.1(A)-(D). There, the Commission explained that extraordinary and compelling reasons exist where there is:

(A) terminal illness diagnoses or serious medical, physical or mental impairments from which a defendant is unlikely to recover, and which “substantially diminish” the defendant's capacity for self-care in prison; (B) aging-related health decline where a defendant is over 65 years old and has served at least ten years or 75% of his sentence; or (C) two family related circumstances: (i) death/incapacitation of the only caregiver for the inmate's children or (ii) incapacitation of an inmate's spouse, if the inmate is the spouse's only caregiver.

U.S.S.G. § 1B1.13, cmt. n.1(A)-(C). In subsection (D) of the Application Note to U.S.S.G. § 1B1.13, there is a catchall provision that gives the Director of the BOP the authority to determine if “there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with” the other three categories.

The Third Circuit recently held that courts are not bound by Section 1B1.13's definition of “extraordinary and compelling reasons” when considering prisoner-initiated motions. United States v. Andrews, 12 F.4th 255, 259 (3d Cir. 2021), cert. denied, 142 S.Ct. 1446 (2022). Nonetheless, Section 1B1.13 “still sheds light on the meaning of extraordinary and compelling reasons” and can provide a useful guide for courts considering compassionate release motions. Id. at 260 (“[T]he District Court did not err when it consulted the text, dictionary definitions, and the policy statement to form a working definition of ‘extraordinary and compelling reasons.'”).

III. DISCUSSION

Section 3582(c)(1)(A)'s exhaustion requirement is a mandatory claim-processing rule, not a jurisdictional prerequisite. See United States v. Banks, Crim. No. 21-2674, 2022 WL 832049, at *2 (3d Cir. 2022) (“Section 3582(c)(1)(A)'s exhaustion requirement is generally considered a ‘mandatory claim-processing rule.'” (citation omitted)); United States v. Texeira-Nieves, 23 F.4th 48, 53 (1st Cir. 2022) (holding that § 3582(c)(1)(A)'s “exhaustion requirement is not a jurisdictional limitation: as several circuits previously have held, it is a non-jurisdictional claimprocessing rule.” (citing United States v. Saladino, 7 F.4th 120, 123 (2d Cir. 2021)). “[M]andatory claim-processing rules bind the courts only when properly asserted and not forfeited.” United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020) (citing Eberhart v. United States, 546 U.S. 12,19 (2005)); United States v. Fields, 569 F.Supp.3d 231, 236 (E.D. Pa. 2021) (“As the government has not asserted failure to exhaust as an affirmative defense, it is forfeited.”); see also United States v. Armstrong, Crim. No. 14-633, 2022 WL 1261530, at *2 (D.N.J. Apr. 27, 2022) (“Based on Defendant's representation and the lack of dispute by the Government, the Court will accept that Defendant has exhausted his administrative remedies for the purposes of analyzing this motion.”). Since the Government does not contest exhaustion, the Court turns its focus to the second step of the analysis. See United States v. Armstrong, Crim. No. 14-633, 2022 WL 1261530, at *2 (D.N.J. Apr. 27, 2022) (“Based on Defendant's representation and the lack of dispute by the Government, the Court will accept that Defendant has exhausted his administrative remedies for the purposes of analyzing this motion.”).

A. Extraordinary and Compelling Reasons

Mr. Shnewer asserts that the risks he faces due to COVID-19, particularly in light of his individual medical conditions and circumstances, are so extraordinary and compelling as to justify compassionate release. Mr. Shnewer also argues that the severe conditions caused by lockdowns and restrictions due to COVID-19 and the evidence of Mr. Shnewer's “total rehabilitation” further support a finding of extraordinary and compelling circumstances warranting compassionate release. (Mot. at 13-14). The Court finds that Mr. Shnewer has not shown that extraordinary and compelling reasons warrant a reduction in his sentence.

The mere “existence of some health risk to every federal prisoner as the result of this global pandemic does not without more, provide the sole basis for granting release to each and every prisoner[.]” United States v. Roeder, 807 Fed. App'x 157, 161 n.16 (3d Cir. 2020). Most defendants who successfully move for compassionate release through § 3582(c)(1)(A) on COVID-19 grounds demonstrate that: (1) they are particularly vulnerable to developing severe illness from COVID-19 due to age or a medical condition...