UNITED STATES v. ANDERS (2020)

ORDER GRANTING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE

INTRODUCTION

Pending before the Court is Defendant Thomas Edward Anders' (“Defendant”) motion to reduce his sentence of imprisonment in light of the increasing risks to health that the coronavirus disease (“COVID-19”) poses to incarcerated persons and Defendant's underlying health conditions. See generally Doc. No. 326. Defendant seeks compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Id. Having carefully considered the pleadings, and for the reasons set forth below, Defendant's motion is GRANTED.

BACKGROUND

On May 18, 1994, a six-count Indictment was filed charging Defendant and five co-defendants as follows: Count one charged all defendants with a violation of 21 U.S.C. §§ 846 and 841(a)(1), conspiracy to distribute methamphetamine. Count two charged Allen Lee Dotson with a violation of 21 U.S.C. § 841(a)(1), distribution of methamphetamine. Count three charged Allen Lee Dotson and Oscar David Mendiola with a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, aiding and abetting the distribution of methamphetamine. Counts four and five charged all defendants, with the exception of Oscar David Mendiola, with a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, aiding and abetting the distribution of methamphetamine. Count six charged Defendant with a violation of 18 U.S.C. § 924(c)(1), use and carrying of a firearm during the commission of a drug trafficking crime.

On June 14, 1995, Defendant was found guilty by jury verdict of conspiracy to distribute methamphetamine (Count 1), aiding and abetting possession of methamphetamine with intent to distribute (Counts 4 and 5) and use and carry of a firearm during the commission of a drug trafficking crime (Count 6). The Court sentenced Defendant to a 360-month term of imprisonment on Count 1, 4, and 5 to run concurrently, and a 60-month term on Count 6 to run consecutive to all other counts. The total term of imprisonment to be 420 months. The Court calculated a base level offense of 38, based on the 8.5 kilograms of actual methamphetamine attributed to Defendant. The amount of actual methamphetamine, in conjunction with the defendant's criminal history category of VI resulted in a sentencing guideline range of 360 months to life.

On October 23, 2020, Defendant filed the present 18 U.S.C. § 3582 motion, and seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A). Doc. No. 326. Defendant points to his chronic hepatitis C combined with his age, and the BOP's failure to take precautionary measures in ensuring the safety of the inmates during the COVID-19 pandemic. Id. On November 3, 2020, the Plaintiff United States of America (“Government”) filed an opposition to Defendant's motion. See Doc. No. 334. On November 6, 2020, Defendant filed a reply brief. Doc. No. 337.

LEGAL STANDARD

A court generally may not correct or modify a prison sentence once it has been imposed, unless expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure. United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Defendant seeks modification of his sentence under the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). The amendment to § 3582(c)(1)(A) provided prisoners with two direct routes to court: (1) file a motion after fully exhausting administrative appeals of the BOP's decision not to file a motion, or (2) file a motion after “the lapse of 30 days from the receipt ․ of such a request” by the warden of the defendant's facility, “whichever is earlier.” 18 U.S.C. § 3852(c)(1)(A). Thereafter, upon considering the applicable factors set forth in section 3553(a), the court may determine whether “extraordinary and compelling reasons warrant such a reduction” and “that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id.; U.S.S.G. § 1B1.13(1)(A) & cmt. 1. “Exhaustion occurs when the [Bureau of Prisons] denies a defendant's application[.]” United States v. Mondaca, 2020 WL 1029024, at *2 (S.D. Cal. Mar. 3, 2020) (internal citations omitted). A defendant who has not “requested compassionate release from the [Bureau of Prisons] [or] exhausted his administrative remedies” is not entitled to a reduction of his term of imprisonment. United States v. Solis, 2019 WL 2518452, at *2 (S.D. Ala. June 18, 2019).

DISCUSSION

In analyzing whether Defendant is entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A), the Court will determine whether the following three requirements are satisfied. First, Defendant must exhaust his administrative remedies. Second, Defendant must demonstrate that “extraordinary and compelling reasons”– as defined by the applicable Sentencing Commission policy statement—“warrant ․ a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). Third, Defendant must establish that the 18 U.S.C. § 3553 (a) sentencing factors “are consistent with” granting a motion for compassionate release. United States v. Trent, 2020 WL 1812242, at *2 (N.D. Cal. 2020).

A. Exhaustion of Administrative Remedies

As an initial matter, the Court finds Defendant satisfied the exhaustion of administrative remedies prior to bringing his motion for compassionate release. On April 20, 2020, an application for compassionate release was filed with the Warden of USP Lompoc on behalf of Defendant. Doc. No. 326-4, Exh. K at 1-3. On April 24, 2020, the Warden denied Defendant's application. Id. At 5. On May 23, 2020, Defendant filed a subsequent appeal from that decision. Id. at 7. On June 4, 2020, the Warden denied Defendant's appeal. Id. at 8. Accordingly, the Court deems Defendant properly exhausted his administrative remedies pursuant to § 3582(c)(1)(A).

B. Extraordinary and Compelling Reasons

Defendant argues that his history of chronic hepatitis C makes him particularly susceptible to developing serious complications from a COVID-19 infection. See Doc. No. 326 at 9. The Government argues Defendant's chronic hepatitis C is not a “serious physical or medical” condition that rises to the level of an “extraordinary and compelling reasons” to justify compassionate release. Doc. No. 334 at 11. A court may reduce a defendant's sentence if it finds “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). A defendant's medical condition may constitute an “extraordinary and compelling reason” if the defendant is suffering from a “serious physical or medical condition,” “a serious functional or cognitive impairment,” or is expecting deteriorating physical or mental health because of the aging process.” See U.S.S.G. § 1B1.13(1)(A) & cmt. 1(A).

Here, although Defendant does not claim to have tested positive for COVID-19, he asserts there is a significant risk that he will contract the virus and suffer complication from it if required to remain in custody. Although the ongoing pandemic is a global health crisis, the mere existence of COVID-19 and the possibility that it may spread to a particular prison alone cannot justify compassionate release. See United States v. Luck, 2020 WL 3050762, at *2 (N.D. Cal. June 8, 2020). As the Government has stated, the Bureau of Prisons (“BOP”) has detailed the various preventative and mitigation measures it has implemented to protect inmates in its facilities. See Federal Bureau of Prisons, BOP COVID-19 Modified Operations Plan (last updated Oct. 8, 2020)¹ ; see generally Federal Bureau of Prisons, COVID-19 Coronavirus.² However, this Court recognizes that a particular inmate's heightened susceptibility to contracting the virus or experiencing complications may rise to the level of extraordinary and compelling reasons for release. See United States v. Madrigal, 2020 WL 3188268, at *2 (N.D. Cal. June 15, 2020).

Defendant is a 55 year old man who suffers from chronic hepatitis C. First, the CDC explains how “among adults, the risk for severe illness from COVID-19 increases with age, with older adults at highest risk.”³ Although Defendant is only 55 years old, “people in their 50s are at higher risk for severe illness than people in their 40s.” Id. Moreover, Defendant's medical record corroborates his chronic condition. See Doc. No. 330 at 10 (Sealed). The CDC has maintained a list of underlying medical conditions that may increase a person's risk of severe illness from COVID-19. See Centers for Disease Control, People with Certain Medical Conditions (last updated Nov. 2, 2020).⁴ According to the CDC, Defendant's chronic hepatitis C is among those that probably increase his likelihood of complication from COVID-19. Id. However, chronic hepatitis C is not a condition that public health professionals have been able to establish a clear link to increased risk in the face of COVID-19. Chronic hepatitis C is a life-threatening liver infection that may place an individual at increased risk of complications.⁵ Because the evidence of increased risk due to chronic hepatitis C is suggestive but not conclusive, the Court does not decide today whether having chronic hepatitis C would be sufficient alone to justify compassionate release. Rather, the Court finds that Defendant's potential for heightened risk weights in favor of compassionate release.

C. Section 3553(a) Factors

Even if the Court were to conclude that Defendant's health issues weighted in favor of his release, the compassionate release statute requires courts to consider Section 3553(a) factors in determining whether to reduce a defendant's sentence. See 18 U.S.C. § 3582(c)(1)(A). Those factors include, among other things, the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant and to provide the defendant with needed medical care in the most effective manner; and the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. See 18 U.S.C. § 3553(a).

The methamphetamine trafficking offense of which Defendant was convicted in 1994 was a serious one involving the sale of 8.5 kilograms of methamphetamine to an undercover agent. Doc. No. 330, Ex. A at 3-6. Additionally, Defendant was in possession of a .380 semi-automatic pistol during the sale transaction. Id. However, Defendant has already served 26 years of his original 35 year custodial sentence. A 26 year sentence indeed not only reflects the seriousness of the offense but is sufficient to promote respect for the law and provides just punishment while also affording adequate deterrence to criminal conduct. See 18 U.S.C. § 3553(a)(2)(A), (B). Moreover, Defendant's post-sentencing rehabilitation indicates that an additional 10 years of incarceration would be unnecessary. Post-sentencing rehabilitation is a “critical factor” in judging the reasonableness of a sentence under § 3553(a). See Pepper v. United States, 562 U.S. 476, 491, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (explaining that post-sentencing rehabilitation goes to § 3553(a)(1)). In connection with his motion for compassionate release, Defendant submits documentation of his rehabilitation during incarceration.⁶ Since 2009, Defendant has not had any disciplinary infractions. Doc. No. 326, Ex. E at 118-126. Importantly, Defendant has shown significant evidence of rehabilitation, including completing the BOP's non-residential drug treatment program and Threshold Program. Doc. No. 326 Ex. E. Defendant has also demonstrated a commitment of self-improvement by investing in vocational programs, assisting others in their rehabilitative efforts, and exhibiting solid work habits. Id. Moreover, Defendant has earned several academic achievement awards to substantiate his efforts at personal growth and rehabilitation during his incarceration. Id.

The court must also consider “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). While each member of the conspiracy in this case holds varying levels of culpability and criminal history, Defendant received a sentence that is decades longer than any other co-defendant. Defendant and co-defendant Areco-Gonzalez were said to be the main participants in the conspiracy, yet Areco-Gonzalez received a sentence of 135 months in custody. Doc. No. 184, 185. Co-defendant Dotson “fell closely behind,” regarding culpability, and received a sentence of 60 months. Doc. No. 330, Ex. A 5-6. Co-defendant Mr. Mendiola received a 92-month sentence. Doc. No. 271, 272. Co-defendant Lytle received a 63-month sentence. See Doc. No. 330, Ex. A 5-6. Lastly, co-defendant Marez received a 60-month sentence. Doc. No. 160, 161. Thus, any sentencing disparity considerations strongly weigh in favor of granting relief.

In light of COVID-19, Defendant's chronic health condition and rehabilitative efforts, a time served sentence is sufficient, but not greater than necessary to accomplish the goals of sentencing The Court determines the 26 years Defendant has spent in prison 1) constitutes just punishment for his undeniably serious criminal offenses and criminal history; 2) is sufficient to deter such conduct in the future; and 3) will protect the public from further crimes. Furthermore, the Government does not argue that a sentence reduction would undermine the goals of sentencing or otherwise contravene § 3553(a).

Accordingly, the Court finds that the § 3553(a) factors weigh in favor of compassionate release.

D. Danger to the Community

Finally, the Court must assure that 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).” U.S. Sentencing Guidelines Manual § 1B1.13(2). Notwithstanding the seriousness of Defendant's offense, he was only 29 years old at the time the offense was committed. At 55 years old, Defendant has spent more than half of his life and nearly his entire adulthood in federal prison. Defendant's disciplinary history has had a positive trajectory, with no incidents since 2009. Moreover, Defendant has a support system to assist in his transformation into society, including; family, friends, and community members. Doc. No. 326 at 19. Finally, the Government does not argue that Defendant poses a danger “to the safety of any other person or to the community” so as to preclude the Court from reducing Defendant's 420-month sentence.

In accordance with the foregoing, the Court finds that Defendant would not be a danger to the community or to any individual person upon release.

CONCLUSION

For the reasons set forth above, Defendant's motion for compassionate release is GRANTED.

1. Defendant's sentence is MODIFIED and REDUCED to time served pursuant to 18 U.S.C. § 3582(c), effective immediately, to be followed by a 36-month term of supervised release under conditions set forth in the original judgment.

2. It is FURTHER ORDERED that prior to his release, Defendant shall submit to a 14-day quarantine at USP Lompoc, inclusive of any time already spent in quarantine immediately preceding this order.

3. Defendant is HEREBY ORDERED to report by telephone to the U.S. Probation Office in San Diego, California within 24 hours of his release from BOP custody.

4. Finally, once Defendant is released from custody, he must self-quarantine at his residence for an additional 14 days, as directed by the probation officer.

IT IS SO ORDERED.

FOOTNOTES

1.   https://www.bop.gov/coronavirus/covid19_status.jsp (visited Nov. 18, 2020)

2.   https://www.bop.gov/coronavirus/index.jsp.

3.   https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.

4.   https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html.

5.   See https://www.cdc.gov/hepatitis/hcv/index.htm; see also https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical conditions.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov% 2Fneed-extra-precautions% 2Fgroups-at-higher-risk.html) (last accessed Oct. 1, 2020).#liver-disease.

6.   The government does not address nor dispute Defendant's evidence of rehabilitation.

John A. Houston, United States District Judge