UNITED STATES v. FAAFIU (2020)

ORDER RE MOTION FOR COMPASSIONATE RELEASE

In April 2018, the Court sentenced defendant Lipine Faafiu to 48 months custody for being a felon in possession of a firearm. He has been in continuous custody for 31 months (including state time for another offense). He now moves for immediate release from custody.

Under 18 U.S.C. § 3582(c)(1)(A)(i), a district court may modify a term of imprisonment:

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 [BOP] 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.

Defendant here filed a request for compassionate release with the BOP warden on April 13. At least 30 days have passed and BOP has not granted the request, which means that this Court has the authority to rule on the underlying motion.

In determining whether to modify a term of imprisonment, courts must consider the factors in Section 3553(a) and find that “extraordinary and compelling reasons warrant such a reduction,” “and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

In turn, the relevant policy statement provide that extraordinary and compelling reasons exist when:

(ii) The defendant is—

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

The policy statement also notes that the court must find defendant is not a danger to the safety of any other person or to the community. U.S.S.G. § 1B1.13.

Defendant here suffers from, among other things, obesity, high blood pressure, hypertension, mononeuropathy, sleep apnea, chronic cellulitis, and is prone to infections. These medical conditions place him at a higher risk for contracting coronavirus. Although there are no confirmed coronavirus cases at USP Atwater where he is housed, the parties agree and this order finds that defendant's medical conditions present extraordinary and compelling reasons under the Sentencing Commission policies.

The parties, however, still disagree as to whether the motion should be granted based on the danger defendant presents to the community. Defendant has been charged with being a felon in possession of a firearm and ammunition. During his arrest for the instant crime, officers seized his cell phone, which contained additional photographs and videos of firearms. The nature of this crime alone weighs toward a finding that defendant poses a danger to the community. The government has also noted a number of concerning incidents prior to defendant's arrest that indicate his danger to the community. In 2006, defendant carried a gun into Kaiser Hospital, placed the gun in the baby incubator where his child was sleeping, and took a photograph that he later posted on Instagram. In 2017, defendant, his cousin, and his sister-in-law's ex-boyfriend kidnapped his sister-in-law's child.

These incidents all occurred prior to defendant's imprisonment for the underlying crime, and it is possible that defendant's period of incarceration so far has rehabilitated him enough so that he is now less of a danger to the community. Since entering BOP custody, defendant has exhibited positive behavior such as obtaining his GED, but has, nonetheless, committed various infractions. In February 2019, defendant failed to report to a medical appointment. In April 2019, staff found defendant in possession of an unauthorized item (his wedding ring). In May 2019, defendant exhibited insolence toward a prison staff member after the staff member warned him for making inappropriate physical contact with a female visitor (his wife). In November 2019, prison staff found defendant in possession of Suboxone (buprenorphine). In June 2019, January 2020, and May 2020, defendant abused his telephone privileges by using the telephone accounts of other inmates multiple times. He was not, however, using the telephone to make calls for illegal purposes.

The government has also noted defendant and his family's associations with the TRE-4 gang. Although defendant previously sold firearms to this gang, there is no evidence he has had any recent contact with them so that it would increase the danger posed to the community.

The Court is concerned by defendant's inability to abide by rules. He has exhibited less than stellar behavior in custody, but the violations he committed in custody do not indicate that he poses a great enough danger to the community that he should not be released from BOP custody. Any risk or danger he does pose can be mitigated with highly restrictive conditions in home confinement. Defendant shall accordingly serve the remainder of his original term of imprisonment in home confinement followed by the term of supervised release imposed in his original sentence. Probation shall please submit conditions of home confinement for this Court's approval by JUNE 29 AT NOON. Defendant shall be released only after the conditions are approved and release and travel plans are in place. Following release, defendant shall quarantine for 14 days at home instead of in BOP custody.

IT IS SO ORDERED.

WILLIAM ALSUP, United States District Judge