UNITED STATES v. HOSSAIN (2020)

DECISION & ORDER

Before the Court is Defendant's motion for a reduction in his sentence. See dkt. # 732.

I. BACKGROUND

After a four-week trail, on October 10, 2006, a jury convicted Defendant Mohammed Mosharref Hossain on twenty-seven counts for his part in a scheme to procure a surface-to-air missile to be used against the Ambassador of Pakistan in New York City. See dkt. # 357. The confidential witness who played a role in promoting the plot told Hossain and his co-defendant that the attack would be carried out by an Islamic extremist group. See Court's Opinion denying Defendant's motions for acquittal or a new trial, dkt. # 440. On March 8, 2007, the Court sentenced Defendant to a total of 180 months imprisonment and a three-year term of supervised release. See dkt. # 448. The Second Circuit Court of Appeals affirmed the Defendant's conviction and sentence on September 17, 2008. See dkt. # 541.

On November 15, 2019, Defendant filed a motion to reduce his sentence. See dkt. # 732.¹ Defendant's initial motion argued that “extraordinary and compelling” reasons existed to reduce his sentence. He represented that his “health had steadily declined” since imprisonment. He suffered from “chronic and debilitating illnesses decreasing his life expectancy, requiring constant testing, regulation of his diet, and medical monitoring” during his incarceration. He represented that he suffered from Type 2 Diabetes with renal manifestations, chronic kidney disease, hypertension, psoriasis, anemia, hypothyroidism, polyneuropathy, retinopathy, secondary hyperthyroidism, and bilateral osteoarthritis in his knees. He had recently been diagnosed with glaucoma. Managing all of these conditions placed a burden on the prison medical staff. Allowing him to finish his sentence under home confinement, he argued, would benefit both him and the prison system. Defendant also represented that he was not a danger to the community and that his health status and age (65 years) made him worthy of mercy.

The government filed a brief opposing the motion on January 22, 2020. See dkt. # 740. The Court granted Defendant's request for an extension of time to file his reply to the government's briefing so that he could obtain additional documents from the Bureau of Prisons. See dkt. #s 741-742. Defendant filed his reply on March 26, 2020. See dkt. #s 743-775. Defendant argued that the Court could consider compassionate release because he had exhausted his administrative remedies as defined by the statute. He also argued that the health crisis brought about by the exploding number of cases of COVID-19 in the United States exacerbated the risks posed by the underlying medical conditions he described in his initial briefing. The pandemic's appearance and growth in the United States occurred between Defendant's initial filing and his March filing.

The Court consulted with the parties and the Probation Department after Defendant's filings in March. The Court understood from these conversations that Defendant was scheduled to be released soon, and that an Order from the Court granting Defendant's motion would not cause him to be released before the date on which his release had been scheduled. The Court therefore did not rule on the Defendant's motion, anticipating that it would soon become moot.

Defendant's counsel wrote the Court on May 27, 2020. See dkt. # 747. Counsel reported that Defendant still remained in the custody of the Bureau of Prisons, despite assurances from Defendant's counselor at the Federal Prison in Springfield, Missouri, that he would be released to home confinement on April 22, 2020. Id. at 2. The counselor informed defense counsel that Defendant had entered a 14-day quarantine and would soon be released. Id. On April 7, 2020, however, the counselor called to relate that Defendant had been removed from quarantine and returned to the general population. Id. He had a new cell and cell mate. Id. The reason the counselor gave for this change in status was that “monitoring could not be put in place.” Id. This alleged problem with monitoring came despite the fact that the Probation Department for the Northern District of New York had spoken with Defendant's family to arrange for monitoring and had not expressed any problem with the arrangements. Id. Counsel contacted officials and eventually requested that they reconsider their decision about monitoring. Id. at 2-3.

When the Bureau of Prisons did not respond to counsel's requests, defense counsel again contacted Defendant's counselor at the prison. Id. at 3. That counselor informed defense counsel that the Bureau of Prisons had changed its standard on requests for release, and that a person convicted of the crimes for which Defendant had been convicted was no longer eligible for release to home confinement under the Bureau's program. Id. at 4. Faced with this situation, Defendant filed a supplemental memorandum of law, essentially renewing his request for compassionate release. The government continues to oppose the motion.

II. ANALYSIS

A. Exhaustion

The government argues that Defendant cannot obtain compassionate release because he failed to fulfill the statutory requirement to exhaust his administrative remedies before seeking relief from the Court.

Defendant relies on 18 U.S.C. § 3582(c)(1)(A) as a basis for relief. That Section provides that “in any case ․ upon motion of the Director 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 request by the warden of the defendant's facility, whichever is earlier” a court may reduce the sentence of a defendant on certain grounds. 18 U.S.C. § 3582(c)(1)(A).

Several courts addressing requests like the Defendant's for consideration during the current pandemic have concluded that they cannot consider a motion under this statute until Defendant meets the exhaustion requirement. See, e.g., United States v. Ogarro, No. 18cr373-9, 2020 WL 1876300, at *3-4, 2020 U.S. Dist. LEXIS 65914, at *9 (S.D.N.Y. April 14, 2020) (cannot consider a motion for release under Section 3582(C)(1)(A) until Defendant exhausts his administrative remedies or 30 days have passed); United States v. Woodson, No. 18cr845, 2020 WL 1673253, at *2, 2020 U.S. Dist. LEXIS 60564, at *4 (S.D.N.Y. Apr. 6, 2020) (“If the BOP does not act favorably on the defendant's request after 30 days, the exhaustion requirement is dispensed with and the defendant may bring his application to the Court.”); United States v. Brown, No. 13cr6006, 2020 U.S. Dist. LEXIS 91147, at *3-4 (W.D.N.Y. May 26, 2020) (“To be clear, the Court is not suggesting that it agrees with the Government's contention that mandating a 30-day waiting period in the face of this pandemic is prudent–indeed, as far as the Court is concerned, it is not. However, the Court cannot disregard the statutory language, and the Government has not waived compliance.”); United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (Where 30 days have not passed following presentation of a request to a warden, Section 3582(c)(1)(A)’s exhaustion requirement “presents a glaring roadblock foreclosing compassionate release at this point.”). The undersigned Judge has previously considered this exhaustion requirement and concluded that it was mandatory. See United States v. Adams, Slip. Op., No. 13cr395 (N.D.N.Y. May 7, 2020) (finding exhaustion required before consideration of a § 3582(c)(1)(A) motion). Nothing has changed the Court's mind on the matter since.

As such, if the Defendant has failed to exhaust his administrative remedies, the Court cannot consider his claim. The government responded to Defendant's initial motion by arguing that he failed to exhaust his administrative remedies because he did not complete the entire administrative appeals process. The government has now changed its position and “is no longer asserting that Hossain failed to exhaust his administrative remedies other than to the extent that he relies on the pandemic.” Instead, the government argues that Defendant cannot rely on that request, from July 2019, because it did not raise the dangers posed by COVID-19. The government insists that Defendant must file a new request for compassionate release, wait thirty days, and then file a new motion with the Court.²

The Court disagrees. The government admits that Defendant exhausted his administrative remedies by waiting thirty days before filing his motion in federal court. The Court has never ruled on that motion, which is still pending. The circumstances have changed in ways that Defendant could not have anticipated in November 2019, when he filed his motion. Defendant has supplemented his motion to reflect the present situation. The Court sees nothing in the Section 3582(c)(1)(A) that would require the Defendant to withdraw his motion and file a new one if circumstances change while his motion is pending. Defendant exhausted his administrative remedies before he filed his motion, and the Court cannot require him to go through that procedure again.³ The Court will therefore consider the Defendant's motion.

B. Extraordinary and Compelling Reasons

Under the relevant provision, a court can grant a sentence reduction only if it determines that “extraordinary and compelling reasons” justify the 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)(i). Congress delegated authority to the Sentencing Commission to “promulgat[e] general policy statements regarding [18 U.S.C. § 3582(c)(1)(A)]” and “describe what should be considered extraordinary and compelling reasons for sentence reduction, including criteria to be applied and a list of specific examples.” 28 U.S.C. § 994(t). The Sentencing Commission has listed four categories of extraordinary and compelling reasons in U.S.S.G. § 1B1.13 and the accompanying Application Notes. Those categories include, as relevant here, (i) any terminal illness, and (ii) any “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.” U.S.S.G. 1B1.13, cmt. n.1(A). “The defendant has the burden to show he is entitled to a sentence reduction.” United States v. Ebbers, 432 F.Supp.3d 421, 426 (S.D.N.Y. 2020)(citing United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992) (“A party with an affirmative goal and presumptive access to proof on a given issue normally has the burden of proof as to that issue.”)).

As the Third Circuit and other district courts have held, “the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release.” Raia, 954 F.3d at 597; see also United States v. Eberhart, 448 F.Supp.3d 1086, 1089–90 (N.D. Cal. Mar. 25, 2020)(“a reduction of sentence due solely to concerns about the spread of COVID-19 is not consistent with the applicable policy statement of the Sentencing Commission as required by § 3582(c)(1)(A)”). This does not mean that COVID-19 is irrelevant to a court's analysis of a motion under § 3582(c)(1)(A). An inmate with a chronic medical condition that has been identified by the Centers for Disease Control and Prevention (“CDC”) as elevating the inmate's risk of becoming seriously ill from COVID-19 may satisfy the standard of “extraordinary and compelling reasons” on the grounds that the chronic condition reasonably may be found to be “serious” and to “substantially diminish[ ] the ability of the defendant to provide self-care within the environment of a correctional facility,” even if that condition would not have constituted an “extraordinary and compelling reason” absent the risk of COVID-19. U.S.S.G. § 1B1.13, cmt. n.1(A)(ii)(I).

The CDC has identified conditions and other factors that increase the risk of severe illness from COVID-19 infection. See CDC Website, Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk for Severe Illness.⁴ This includes individuals with chronic kidney disease being treated by dialysis, diabetes, asthma, chronic lung disease, hemoglobin disorders, immunocompromised conditions, liver disease, severe obesity, serious heart conditions, and being aged 65 years and older. Id. Defendant has diabetes, severe kidney disease, and hypertension, which implicate these categories. He is also more than 65 years old. The government agrees that, considering his chronic medical conditions, Defendant suffers 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 from which he or she is not expected to recover,’ ․ because Hossain's ability to provide self-care against serious injury or death as a result of COVID-19 is substantially diminished within the environment of a correctional facility by that chronic condition.” Dkt. # 749 at 6 (quoting U.S.S.G § 1B1.13 cmt. n.1(A)(ii)(I)).

Under the totality of the circumstances, the Court finds that extraordinary and compelling reasons exist for Defendant's release at this time. Defendant's chronic medical condition, combined with the risks posed by the present pandemic crisis, mean that Defendant's ability to provide self-care against serious injury or death within the correctional environment has been substantially diminished.

C. 3553(a) Factors

Having reached this conclusion, the Court must now address the factors set forth in 18 U.S.C. § 3553(a), see 18 U.S.C. § 3582(c)(1)(A) (“[T]he court, ․ upon motion of the defendant ․ may reduce the term of imprisonment ․ after considering the factors set forth in section 3553(a) to the extent that they are applicable.”). The factors listed in that section include: “(1) the nature and circumstances of the offense and the history and characteristics of the defendant”; “(2) the need for the sentence imposed ․ (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (b) to afford adequate deterrence ․; [and] (C) to protect the public from further crimes of the defendant”; “(3) the kinds of sentences available”; and “(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[.]” 18 U.S.C. § 3553(a). While the Court must consider each party's arguments and must have a “ ‘reasoned basis for exercising [its] own legal decisionmaking authority,’ ․ what is adequate to fulfill these purposes necessarily depends on the circumstances.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2004) (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). “[A] brief statement of reasons will generally suffice where the parties have addressed only straightforward, conceptually simple arguments.” Id.

Defendant acknowledges that his offense was serious, but notes that he has served nearly all of his original sentence, and that he is not challenging the term of supervised release he faces. The reduction in sentence he seeks would still serve to deter criminal conduct, acknowledge the seriousness of the crime, and protect the public. The government emphasizes the seriousness of the crime and the fact that Defendant has faced disciplinary sanctions while in prison, as well as the fact that his sentence has nearly expired.

The Court finds that the 3553(a) factors weigh in favor of reducing the sentence. Contrary to the government's perspective, the fact that Defendant has served nearly all of his sentence weighs in favor of finding that a reduced sentence will still satisfy the factors in question. Fulfilling nearly all of his original sentence supports a finding that the term of imprisonment will serve the purposes of recognizing the seriousness of the crime and providing adequate punishment. Indeed, the reason that the Defendant only has a little over a month remaining on his sentence when the Court is considering his motion has more to do with the Bureau of Prison's dilatory conduct and changing standards for release than with the seriousness of his offense. Reducing his sentence would not undermine respect for the law under these circumstances. Moreover, given the Defendant's age and medical condition, allowing him out of prison shortly before his term ends would not undermine respect for the law or the deterrent effect of his sentence. In addition, since Defendant will serve most of the sentence assigned, releasing him now would not create some sort of disparity between his sentence and those who committed similar crimes. The 3553(a) factors counsel in favor of reducing Defendant's sentence.

D. Danger to Persons or Community

Finally, the Court is to consider whether Defendant is a danger to the safety of any other person or to the community. See U.S.S.G. § 1B1.13 (“[T]he court may reduce a term of imprisonment ․ if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that—(1) (A) extraordinary and compelling reasons warrant the reduction; ․ (2) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g); and (3) the reduction is consistent with this policy statement.”).

The government contends that the Court should deny relief because the Bureau of Prisons has already determined that the home confinement is not appropriate for the Defendant. The government notes that the Bureau has concluded that home confinement should not be available to Defendants convicted of terrorism offenses. Defendant notes that the facility where he was housed referred him for home confinement and in doing so concluded that he did not have a history of violence. He also had no prior criminal history before his conviction, and the Court noted his lack of danger to the community by permitting him to enjoy pre-trial release. Moreover, Defendant's age and ailments mean that he is not a danger to the community.

The Court agrees that Defendant is not a danger to other persons or to the community. While he was convicted of a terrorism offense, no evidence indicated that he had engaged in any violence. Moreover, Defendant has strong family ties. Letters to the Court indicate he also has strong ties to the community and that he is unlikely to engage in any behavior that would jeopardize the safety of the community in which he resides. Finally, Defendant's age and physical difficulties make him less dangerous to others and to the community than a younger, healthier man would be.

The Court will therefore grant the Defendant's motion for a reduction of sentence. The Court will reduce the sentence to time served. Recognizing the danger to the community from exposure to COVID-19, the Court orders that the Defendant be tested for the virus before his release from prison. Upon his release, the Defendant shall quarantine himself for 14 days or until he receives a negative result from that test.

III. CONCLUSION

Defendant's motion for a reduction in sentence, dkt. # 732, is hereby GRANTED. The Defendant's sentence is hereby REDUCED to time served. The Bureau of Prisons shall retain custody of Defendant until such time as safe transportation to Defendant's home district is secured and available to that district. All other conditions of the sentence, including the term of supervised release, shall remain the same as originally imposed by the Court. The Bureau of Prisons shall test Defendant for the COVID-19 virus before his release from prison and report those results to the Defendant as soon as they are available. Defendant shall quarantine himself for fourteen days upon his release from prison, or until he is informed he has tested negative for the disease. Defendant's first motion for a reduction in sentence, dkt. # 728, is hereby DENIED as moot.

IT IS SO ORDERED.

FOOTNOTES

1.   On February 19, 2019, Defendant filed, pro se, a motion for release to home confinement pursuant to 18 U.S.C. § 3624 in the United States District Court f or the Western District of Missouri. See dkt. # 728. He contended that he was eligible under the First Step Act to spend up to 12 months at the end of his sentence in home confinement. The Western District of Missouri transferred the case to this Court, and the Court appointed Defendant a public defender. See dkt. # 729. The parties never briefed the issues raised in Defendant's pro se motion. Instead, Defense Counsel filed the instant motion, which relies on another provision in the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i). The Court will deny that first motion as moot.

2.   The parties agree that Defendant's scheduled release date is July 18, 2020.

3.   In any case, the government would benefit from the delays it caused in this case if the Court refused to consider the motion. In March, the government represented to the Court that Defendant would soon be released. The government then changed its mind, without informing Defendant clearly and promptly of the basis for that decision. Now, forty-two days before Defendant's scheduled release, the government asserts that Defendant's pending motion cannot be considered and suggests that he return in thirty days. While the Court agrees with those courts that have concluded that the exhaustion requirement cannot be avoided by equitable remedies, the facts of this case cry out for an equitable remedy. Defendant's path to release has been blocked by the government's inconsistent actions and dilatory response.

4.   https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last accessed June 5, 2020).

THOMAS J. MCAVOY, Senior United States District Judge