UNITED STATES v. ALLINGER (2020)

INTERIM ORDER RE MOTION FOR COMPASSIONATE RELEASE

I. INTRODUCTION

Defendant Mark Warren Allinger is currently in the custody of the Bureau of Prisons (“BOP”) and incarcerated at the federal correctional institution (“FCI”) in Danbury, Connecticut. He moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Allinger seeks such so-called “compassionate release” based on his particular health conditions, in light of the COVID-19 pandemic. This order concludes there is jurisdiction to grant relief, and solicits a further response from Allinger regarding the terms on which any relief may be granted.

II. BACKGROUND

Allinger was charged with violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2)—Possession of Child Pornography—in March of 2019. Pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, Allinger was convicted in July of 2019. The plea agreement waived his right to move for relief under 18 U.S.C. § 3582. Allinger's conviction was based on the factual basis set forth in the plea agreement.

On December 3, 2019, Allinger was sentenced to 48 months imprisonment and 10 years of supervised release. The court recommended that Allinger be placed as close to Rochester, New York as possible to facilitate family visits. FCI Danbury, where Allinger is presently housed, is approximately 50 miles northeast of New York City.

Allinger self-surrendered as ordered on January 3, 2020, and has a projected release date of May 30, 2023. Allinger is presently 64 years old. The U.S. Probation Office's Presentence Investigation Report noted that he reported the following medical conditions, among others: hypertension; high cholesterol; arterial sclerosis of left carotid artery; and pre-diabetes. After spending approximately a month in custody, Allinger was assessed by Health Services at FCI Danbury to have probable pneumonia and sepsis. He was sent to a local hospital, where he had a cardiopulmonary arrest while receiving a CT scan. He experienced acute hypoxemic respiratory failure and was placed on a ventilator. Allinger received further treatment at the hospital and was discharged back to FCI Danbury several days later.

FCI Danbury houses approximately 1000 inmates, and as of May 19, 2020 the facility had 34 active cases of inmates testing positive for COVID-19, three active cases of staff members testing positive, and had experienced one COVID-19-related death. Through his counsel, Allinger first submitted correspondence to the warden on requesting compassionate release the day before this motion was filed.

III. LEGAL STANDARD

Under section 3582, a court may modify a defendant's sentence “after considering the factors set forth in § 3553(a) to the extent applicable” if it finds “extraordinary and compelling reasons warrant such a reduction” and “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. § 3582(c)(1)(A). The relevant Sentencing Commission policy statement sets forth several “extraordinary and compelling reasons.” U.S. Sentencing Guidelines, § 1B1.13(1)(A) & cmt. 1. One of these reasons is where the defendant is “suffering from a serious physical or medical condition ․ that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.” Id. § 1B1.13 cmt. 1(A)(ii). The Commission also requires the defendant not pose a danger to the safety of the community. Id. § 1B1.13(2).

IV. DISCUSSION

The government has filed a response “that opposes in part and does not contest in part” Allinger's motion. The government first argues the court lacks jurisdiction to grant relief at least until 30 days have elapsed since Allinger submitted his request to the warden, if the BOP does not act on that request earlier. See 18 U.S.C. § 3582(c)(1)(A). The government's contention that the “exhaustion” requirement is jurisdictional is rejected for the reasons explained in detail in United States v. Connell, No. 18-CR-00281-RS-1, Dkt. 49, ––– F.Supp.3d ––––, 2020 WL 2315858 (N.D. Cal. May 9, 2020).¹ The government's alternative position that the 30-day period is a “mandatory claim-processing rule” that must be enforced if raised likewise fails under Connell. Accordingly, as in Connell, and under the particular facts of this case, it is appropriate to find an exception to section 3582's claim-processing exhaustion provision.²

On the merits, the government carefully and appropriately notes the limitations on relief under section 3582 and that “[g]eneral concerns about possible exposure to COVID-19 do not meet the criteria.” United States v. Eberhart, 448 F.Supp.3d 1086, 1090, (N.D. Cal. Mar. 25, 2020). The government acknowledges, however, that “the combination of an inmate's chronic medical condition and the risk of contracting COVID-19 in a custodial setting may constitute an extraordinary and compelling reason to grant a motion under 18 U.S.C. § 3582(c)(1)(A), where COVID-19 and an inmate's medical condition would not individually suffice.” The government recognizes that the particular set of circumstances applicable to Allinger rise to that level.

The government stops short of expressly conceding that Allinger necessarily meets the additional requirement of showing that he “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” The government acknowledges, however, that Allinger has no prior convictions or convictions for violence. Without minimizing the indirect harm caused by participation in the market for child pornography, and taking into account all of the factors specified in 18 U.S.C. § 3142(g)(1)–(4), the record supports a conclusion that any risk of harm to others or the community posed by Allinger's early release does not rise to a disqualifying level.

Finally, the government asserts factors under 18 U.S.C. § 3553(a) do not support Allinger's request “for premature, permanent release,” and it identifies concerns with the adequacy of specific aspects of his proposed release plan. The government, however, suggests that the § 3553 factors could be “re-balanced” with appropriate conditions imposed on release.

Accordingly, within two days of issuance of this order, Allinger shall submit a reply brief addressing the release conditions and release plan issues identified by the government. Allinger should include a proposed order setting out such terms as he believes are appropriate. Within 24 hours of the filing of such reply, the government may submit any comments on the proposed order and may include an alternative proposed order governing the terms of any release, without waiving its arguments that no release should be granted prior to expiration of the 30-day period.

IT IS SO ORDERED.

FOOTNOTES

1.   The government contends that contrary to an observation in Connell, it has not been taking a case-by-case approach to whether exhaustion is jurisdictional. Because the Connell decision did not turn on that observation, which it characterized only as “informative,” there is no need to reevaluate the inference to be drawn from inconsistencies in the government's positions in prior cases.

2.   Nothing in this order should be read as adopting a rule that the general circumstances of the COVID-19 pandemic will excuse compliance with the 30-day rule in every instance. Rather, each case must be evaluated on its own facts in light of the specific risks posed by delay and all other relevant considerations.

RICHARD SEEBORG, United States District Judge