United States v. Stevens

454 F.Supp.3d 472

UNITED STATES

v.Abid STEVENS

CRIMINAL ACTION NO. 19-350-02

United States District Court, E.D. Pennsylvania.

Filed April 16, 2020

Robert E. Eckert, U.S. Attorney's Office, Philadelphia, PA, for United States.

MEMORANDUM

DuBois, J.

I. INTRODUCTION

Defendant Abid Stevens was convicted of Hobbs Act robbery and brandishing a firearm during and in relation to a crime of violence. He is currently detained, awaiting sentencing, at the Federal Detention Center in Philadelphia ("the FDC"). Presently before the Court is Defendant's Motion for Release Pending Imposition of Sentence. For the reasons set forth below, the motion is denied.

II. BACKGROUND

The record on which the decision of the Court is based was agreed to by the parties, through counsel, in a telephone conference on April 10, 2020. It consists of: a report from Alisha Gallagher, Attorney for the Bureau of Prisons, dated April 13, 2020; Abid Stevens’ Medical Record from the Bureau of Prisons; and publically available information from the Bureau of Prisons identified in the Government's Response in Opposition to Motion for Release (Document No. 132, filed April 13, 2020), the Centers for Disease Control & Prevention, and the Pennsylvania Department of Health.¹ The record also includes Stevens’ agreed upon criminal history as set forth in the draft of the Presentence Report dated April 8, 2020.

On February 4, 2020, Stevens was convicted of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Verdict Form (Document No. 118, filed Feb. 7, 2020). The Federal Sentencing Guidelines provide a sentencing range of 154 to 171 months with a mandatory minimum term of incarceration of seven years. Gov't's Resp. at 3. Stevens is currently detained at the FDC awaiting sentencing, which is scheduled for May 20, 2020. Notice (Document No. 121, filed Feb. 7, 2020). During his detention at FDC, Stevens, who is forty years of age, was recently diagnosed with type 2 diabetes. Stevens’ Medical Record from the Bureau of Prisons.

Since shortly after Stevens’ trial, Pennsylvania and the rest of the country have been plagued by an unprecedented pandemic triggered by COVID-19, a highly contagious respiratory virus caused by a novel coronavirus. See United States v. Raia , 954 F.3d 594, 595 (3d Cir. 2020). According to the Pennsylvania Department of Health, as of April 14, 2020, "there were 634,975 cases [of COVID-19] in the U.S., and 2,049,888 worldwide. There have been 27,940 deaths in the U.S. and 133,572 throughout the world" from the virus.² In Pennsylvania, as of April 16, 2020, over 27,000 people have contracted COVID-19, and over 700 people have died from it.³ Currently, "there is no approved cure, treatment, or vaccine to prevent" COVID-19. United States v. Rodriguez , No. 2:03-CR-00271-AB-1, 451 F.Supp.3d 392, 393 (E.D. Pa. Apr. 1, 2020). The Centers for Disease Control and Prevention ("CDC") has advised that people—like Stevens—who have diabetes "might be at higher risk for severe illness from COVID-19."⁴

In response to the COVID-19 pandemic, the Federal Bureau of Prisons ("BOP"), which operates the FDC, has implemented a number of protocols to protect the inmate population and staff from COVID-19. At the FDC, all new inmates who were not in BOP custody for 14 days prior to arriving at the facility are quarantined and monitored for possible COVID-19 symptoms for a 14 day period before being placed in general population. Report from Alisha Gallagher, Attorney for the Bureau of Prisons, (Apr. 13, 2020) [hereinafter Gallagher Report]. Additionally, the BOP suspended legal and social visitation, limited inmate movement, modified operations to maximize social distancing, and now screens all persons (contractors and staff) who enter the facility. Id.⁵

As of April 13, 2020, there are no positive cases of COVID-19 at the FDC among the staff or inmates. Gallagher Report. None of the inmates have developed COVID-19 symptoms, and the FDC is unaware of any staff members with COVID-19 symptoms. Id.

On April 9, 2020, Stevens filed a Motion for Release Pending Imposition of Sentence (Document No. 130), requesting that the Court release him from the FDC pending the imposition of his sentence. Def.’s Mem. Law Supp. Mot. Release Pending Imposition Sentence at 1 [hereinafter Def.’s Mem.]. Stevens argues that he should be placed in home confinement prior to the imposition of his sentence because, due to his age and diabetes, he is at high risk of serious illness should he contract COVID-19 while incarcerated. The Government responded to the motion on April 13, 2020.

The motion is now ripe for decision.⁶

III. DISCUSSION

In his motion, Stevens asserts that he should be released pursuant to 18 U.S.C. § 3143(a), and 18 U.S.C. § 3145(c), the Due Process Clause of the Fifth Amendment, and the Eighth Amendment. The Court will address each argument in turn.

A. 18 U.S.C. § 3143(a)

First, Stevens claims that he should be released pursuant to 18 U.S.C. § 3143(a). Stevens acknowledges that because of his crimes of conviction, 18 U.S.C. § 3143(a)(2) applies to his motion. See Def.’s Mot. Release Pending Imposition Sentence ¶ 6 [hereinafter Def.’s Mot.]. Section 3143(a)(2) states that:

The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless [1] the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or [2] an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

18 U.S.C. § 3143(a)(2). In his motion, Stevens does not argue that there is a substantial likelihood that a motion for acquittal or new trial will be granted, and, as of the date of this Memorandum, he has not raised any post-trial arguments that would support a motion for acquittal or a new trial. Additionally, the Government in its opposition, states that it "has no plans to recommend a sentence that does not include prison time." Gov't's Resp. at 9. Therefore, the Court declines to grant Stevens’ request for release under 18 U.S.C. § 3143(a).

B. 18 U.S.C. § 3145(c)

Second, Stevens argues that he should be released pursuant to 18 U.S.C. § 3145(c).⁷ In order to be released prior to sentencing under § 3145(c), Stevens must demonstrate by clear and convincing evidence that he is unlikely to flee or pose a danger to the community, and he must clearly show that there is an exceptional reason why his detention would be inappropriate. 18 U.S.C. §§ 3143(a)(1) - (b)(1), 3145(c).

Stevens has failed to show by clear and convincing evidence that he is unlikely to flee if he is released. Stevens asserts that he is not a flight risk because he has strong ties to the community, does not have a history of failing to appear for court, and the current public health crisis mitigates any potential flight risk. Def.’s Mot. ¶ 8. However, Stevens has an incentive to flee because he has already been convicted and faces a substantial term of imprisonment—154 to 171 months with a mandatory minimum term of incarceration of seven years. In light of Stevens’ potential sentence, he has failed to demonstrate by clear and convincing evidence that he is not a flight risk.

Stevens has also failed to show by clear and convincing evidence that he would not pose a danger to the community if he is released. Stevens argues that he "poses no measurable danger of violence and, once released, will be able to practice the medically mandated social distancing." Def.’s Mot. ¶ 9. However, his assertion that he "poses no measurable danger of violence" and would practice social distancing does not constitute clear and convincing evidence that he would not pose a danger to the community if released. Stevens was convicted of Hobbs Act robbery and brandishing a gun during a crime of violence. See supra Part II. He has an extensive criminal history, which includes several firearms related convictions, a conviction for aggravated assault, and a conviction for reckless endangerment of another person. Draft Presentence Report (Apr. 8, 2020). Moreover, Stevens was under Philadelphia County supervision at the time he committed the offenses of conviction, which demonstrates that being under supervision did not prevent him from committing a violent crime. Id. Accordingly, the Court concludes that Stevens failed to meet his burden of proving by clear and convincing evidence that he would not pose a danger to the community if released prior to sentencing.

Finally, Stevens has failed to clearly show that there is an exceptional reason why his continued detention is inappropriate. In his motion, Stevens broadly describes the dangers of COVID-19, the increased risks of COVID-19 transmission in detention facilities, and how he has a high risk for serious infection if he were to contract COVID-19 because of his age and diabetes. Def.’s Mem. at 2-9. He also states that "it appears increasingly unlikely that the FDC will be able to ensure effective medical care if and when a COVID-19 outbreak emerges." Id. at 9.

A number of courts have rejected motions for release on bail filed by defendants with diabetes and other underlying medical conditions who claimed they were at higher risk for serious illness from COVID-19. See United States v. Morris , No. CR1710701DWFTNL, 2020 WL 1471683, at *2 n.3, 4 (D. Minn. Mar. 26, 2020) (finding that defendant did not present an exception reason under 18 U.S.C. § 3145(c) where defendant was a 66 year old man and asserted that he underwent surgery for an abdominal aortic aneurysm in 2016, and "suffer[ed] from...