1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case No.: 18cr4562-JAH
12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION FOR COMPASSIONATE RELEASE WITH PREJUDICE (Doc. 14 SCOTT EDWARD SMELTZER, No. 55) 15 Defendant. 16 17 INTRODUCTION 18 Pending before the Court is Defendant Scott Edward Smeltzer’s (“Defendant”) 19 motion to vacate, set aside, or correct his sentence filed under 28 U.S.C. § 2255. See Doc. 20 No. 55. Defendant requests the Court to “grant home confinement under the applicable 21 provisions of the CARES ACT, or grant Compassionate Release under 18 U.S.C. § 22 3582(c)(1)(A).” Id. Having carefully considered the pleadings in this action, and for the 23 reasons set forth below, the Court hereby DENIES Defendant’s motion with prejudice. 24 BACKGROUND 25 Defendant was charged by complaint with distribution of images of minors engaged 26 in sexual explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). See Doc. No. 1. On June 27 11, 2019, Defendant pled guilty to a superseding information charging him with receipt of 28 images of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 1 2252(a)(2). Doc. No. 32. On October 21, 2019, the Court sentenced Defendant to 70 2 months in custody, followed by 10 years of supervised release. See Doc. No. 49. 3 On May 6, 2020, Defendant, proceeding pro se, filed the present 28 U.S.C. § 2255 4 motion, and seeks home confinement under the CARES ACT, or Compassionate Release 5 under 18 U.S.C. § 3582(c)(1)(A). Doc. No. 1. Defendant alleges to have suffered 6 significant weight loss since going into custody in October 2019, and was recently 7 diagnosed and treated for gout. See Doc. No. 55 at 15. Additionally, Defendant contends 8 the Bureau of Prisons (“BOP”) places the inmate population at health risk by determining 9 early release and home confinement through rigid requirements. See Doc. No. 55. The 10 Government opposed Defendant’s motion on the grounds that Defendant failed to exhaust 11 administrative remedies and is unable to identify “extraordinary and compelling reasons” 12 to grant relief under 18 U.S.C. § 3582(c)(1)(A). See Doc. No. 57. 13 LEGAL STANDARD 14 A court generally may not correct or modify a prison sentence once it has been 15 imposed, unless expressly permitted by statute or by Rule 35 of the Federal Rules of 16 Criminal Procedure. United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Defendant 17 seeks modification of his sentence under the compassionate release provision of 18 U.S.C. 18 § 3582(c)(1)(A)(i), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 19 (Dec. 21, 2018). The compassionate release provision of 18 U.S.C. § 3582(c)(1)(A) sets 20 forth a rare exception to the general rule. However, the provision includes a threshold 21 exhaustion requirement: Defendant cannot seek release from the Court until he first seeks 22 release from the BOP and then after exhausting administrative remedies or the lapse of 30 23 days. 18 U.S.C. § 3582(c)(1)(A). Thereafter, upon considering the applicable factors set 24 forth in section 3553(a), the court may determine whether “extraordinary and compelling 25 reasons warrant such a reduction” and that such a reduction is “consistent with applicable 26 policy statements issued by the Sentencing Commission.” Id; U.S.S.G. § 1B1.13(1)(A) & 27 cmt. 1. 28 1 Despite the plain language of 18 U.S.C. § 3582(c) rendering the exhaustion 2 requirement mandatory, some courts have nonetheless held that requirement can be 3 waived. See, e.g, Wilson v. MVM, Inc., 475 F.3d 166, 175 (3d Cir. 2007) (recognizing a 4 narrow futility exception to certain statutory exhaustion requirements); United States v. 5 Jemal, 2020 WL 1701706, at *3 (E.D. Penn. April 8, 2020) (“We are not convinced, 6 however, that we must rigidly adhere to the statutory directive that the BOP be provided 7 up to thirty days to address Defendant’s compassionate release request, without 8 considering a futility exception to exhaustion.”); United States v. Zukerman, No. 16 CR. 9 194 (AT), 2020 WL 1659880, at *4 (S.D.N.Y. Apr. 3, 2020) (holding that defendant’s 10 “advanced age and compromised health, combined with the high risk of contracting 11 COVID-19 at Otisville, justify waiver of the exhaustion requirement”); United States v. 12 Perez, No. 17 CR. 513-3 (AT), 2020 WL 1546422, at *3 (S.D.N.Y. Apr. 1, 2020) (holding 13 that defendant’s “undisputed fragile health, combined with the high risk of contracting 14 COVID-19 in the [detention center] justifies waiver of the exhaustion requirement”). 15 DISCUSSION 16 In the instant motion, there is no evidence Defendant filed a compassionate release 17 request with the BOP as required by 18 U.S.C. § 3582(c)(1)(A). Additionally, Defendant 18 did not address his failure to exhaust administrative remedies in his motion. Although the 19 exhaustion requirement may be circumvented in rare circumstances, Defendant fails to 20 demonstrate the futility of pursuing administrative remedies to excuse his failure to 21 exhaust, or even seek administrative remedies at all. Defendant’s failure to meet the 22 threshold exhaustion requirement provides grounds for the Court to deny the motion 23 without reaching the merits. See 18 U.S.C. § 3582(c)(1)(A); see also United States v. 24 Eberhart, No. 13-CR-313-PJH-1, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020) 25 (denying Defendant’s compassionate release motion for failure to exhaust administrative 26 remedies). This Court also joins other sister courts in the Ninth Circuit and elsewhere in 27 concluding that this Court has no authority to consider Defendant’s motion until the 28 exhaustion criteria of § 3852(c)(1)(A) is met. See United States v. Garza, 2020 WL 1 1485782 (S.D. Cal. March 27, 2020); United States v. Reid, 2020 WL 1904598 (N.D. Cal. 2 April 18, 2020) (The futility exception “only applies to judicially created exhaustion 3 requirements, as opposed to the statutory variety at issue here.”) (citations omitted); United 4 States v. Eberhart, No. 13-cr-00313, 2020 WL 1450745, at *2 (N.D. Cal. March 25, 2020); 5 United States v. Fuentes, 2020 WL 1937398 (E.D. Cal. April 22, 2020); United States v. 6 Meron, 2020 WL 1873900 (E.D. Cal. April 15, 2020); see also, United States v. Otero, 7 2020 WL 1912216, (S.D. Cal. April 20, 2020). 8 However, even if the Court were to reach the merits, Defendant’s generalized 9 concerns about contracting COVID-19 is insufficient to show an “extraordinary and 10 compelling” reason for release.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case No.: 18cr4562-JAH
12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION FOR COMPASSIONATE RELEASE WITH PREJUDICE (Doc. 14 SCOTT EDWARD SMELTZER, No. 55) 15 Defendant. 16 17 INTRODUCTION 18 Pending before the Court is Defendant Scott Edward Smeltzer’s (“Defendant”) 19 motion to vacate, set aside, or correct his sentence filed under 28 U.S.C. § 2255. See Doc. 20 No. 55. Defendant requests the Court to “grant home confinement under the applicable 21 provisions of the CARES ACT, or grant Compassionate Release under 18 U.S.C. § 22 3582(c)(1)(A).” Id. Having carefully considered the pleadings in this action, and for the 23 reasons set forth below, the Court hereby DENIES Defendant’s motion with prejudice. 24 BACKGROUND 25 Defendant was charged by complaint with distribution of images of minors engaged 26 in sexual explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). See Doc. No. 1. On June 27 11, 2019, Defendant pled guilty to a superseding information charging him with receipt of 28 images of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 1 2252(a)(2). Doc. No. 32. On October 21, 2019, the Court sentenced Defendant to 70 2 months in custody, followed by 10 years of supervised release. See Doc. No. 49. 3 On May 6, 2020, Defendant, proceeding pro se, filed the present 28 U.S.C. § 2255 4 motion, and seeks home confinement under the CARES ACT, or Compassionate Release 5 under 18 U.S.C. § 3582(c)(1)(A). Doc. No. 1. Defendant alleges to have suffered 6 significant weight loss since going into custody in October 2019, and was recently 7 diagnosed and treated for gout. See Doc. No. 55 at 15. Additionally, Defendant contends 8 the Bureau of Prisons (“BOP”) places the inmate population at health risk by determining 9 early release and home confinement through rigid requirements. See Doc. No. 55. The 10 Government opposed Defendant’s motion on the grounds that Defendant failed to exhaust 11 administrative remedies and is unable to identify “extraordinary and compelling reasons” 12 to grant relief under 18 U.S.C. § 3582(c)(1)(A). See Doc. No. 57. 13 LEGAL STANDARD 14 A court generally may not correct or modify a prison sentence once it has been 15 imposed, unless expressly permitted by statute or by Rule 35 of the Federal Rules of 16 Criminal Procedure. United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Defendant 17 seeks modification of his sentence under the compassionate release provision of 18 U.S.C. 18 § 3582(c)(1)(A)(i), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 19 (Dec. 21, 2018). The compassionate release provision of 18 U.S.C. § 3582(c)(1)(A) sets 20 forth a rare exception to the general rule. However, the provision includes a threshold 21 exhaustion requirement: Defendant cannot seek release from the Court until he first seeks 22 release from the BOP and then after exhausting administrative remedies or the lapse of 30 23 days. 18 U.S.C. § 3582(c)(1)(A). Thereafter, upon considering the applicable factors set 24 forth in section 3553(a), the court may determine whether “extraordinary and compelling 25 reasons warrant such a reduction” and that such a reduction is “consistent with applicable 26 policy statements issued by the Sentencing Commission.” Id; U.S.S.G. § 1B1.13(1)(A) & 27 cmt. 1. 28 1 Despite the plain language of 18 U.S.C. § 3582(c) rendering the exhaustion 2 requirement mandatory, some courts have nonetheless held that requirement can be 3 waived. See, e.g, Wilson v. MVM, Inc., 475 F.3d 166, 175 (3d Cir. 2007) (recognizing a 4 narrow futility exception to certain statutory exhaustion requirements); United States v. 5 Jemal, 2020 WL 1701706, at *3 (E.D. Penn. April 8, 2020) (“We are not convinced, 6 however, that we must rigidly adhere to the statutory directive that the BOP be provided 7 up to thirty days to address Defendant’s compassionate release request, without 8 considering a futility exception to exhaustion.”); United States v. Zukerman, No. 16 CR. 9 194 (AT), 2020 WL 1659880, at *4 (S.D.N.Y. Apr. 3, 2020) (holding that defendant’s 10 “advanced age and compromised health, combined with the high risk of contracting 11 COVID-19 at Otisville, justify waiver of the exhaustion requirement”); United States v. 12 Perez, No. 17 CR. 513-3 (AT), 2020 WL 1546422, at *3 (S.D.N.Y. Apr. 1, 2020) (holding 13 that defendant’s “undisputed fragile health, combined with the high risk of contracting 14 COVID-19 in the [detention center] justifies waiver of the exhaustion requirement”). 15 DISCUSSION 16 In the instant motion, there is no evidence Defendant filed a compassionate release 17 request with the BOP as required by 18 U.S.C. § 3582(c)(1)(A). Additionally, Defendant 18 did not address his failure to exhaust administrative remedies in his motion. Although the 19 exhaustion requirement may be circumvented in rare circumstances, Defendant fails to 20 demonstrate the futility of pursuing administrative remedies to excuse his failure to 21 exhaust, or even seek administrative remedies at all. Defendant’s failure to meet the 22 threshold exhaustion requirement provides grounds for the Court to deny the motion 23 without reaching the merits. See 18 U.S.C. § 3582(c)(1)(A); see also United States v. 24 Eberhart, No. 13-CR-313-PJH-1, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020) 25 (denying Defendant’s compassionate release motion for failure to exhaust administrative 26 remedies). This Court also joins other sister courts in the Ninth Circuit and elsewhere in 27 concluding that this Court has no authority to consider Defendant’s motion until the 28 exhaustion criteria of § 3852(c)(1)(A) is met. See United States v. Garza, 2020 WL 1 1485782 (S.D. Cal. March 27, 2020); United States v. Reid, 2020 WL 1904598 (N.D. Cal. 2 April 18, 2020) (The futility exception “only applies to judicially created exhaustion 3 requirements, as opposed to the statutory variety at issue here.”) (citations omitted); United 4 States v. Eberhart, No. 13-cr-00313, 2020 WL 1450745, at *2 (N.D. Cal. March 25, 2020); 5 United States v. Fuentes, 2020 WL 1937398 (E.D. Cal. April 22, 2020); United States v. 6 Meron, 2020 WL 1873900 (E.D. Cal. April 15, 2020); see also, United States v. Otero, 7 2020 WL 1912216, (S.D. Cal. April 20, 2020). 8 However, even if the Court were to reach the merits, Defendant’s generalized 9 concerns about contracting COVID-19 is insufficient to show an “extraordinary and 10 compelling” reason for release. Defendant is eligible for compassionate release only if he 11 can demonstrate “extraordinary and compelling reasons” to justify a sentence reduction 12 and that such a reduction is “consistent with applicable policy statements issued by the 13 Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). In accordance with the Sentencing 14 Commission, qualifying reasons include: (1) “terminal illness”; (2) a “serious deterioration 15 in physical or mental health,” due to aging; and (3) the “death or incapacitation of the 16 caregiver of the defendant’s minor child.” U.S.S.G. § 1B1.13, cmt 1. Here, Defendant’s 17 weight loss since going into custody and diagnosis of gout is not considered a “terminal 18 illness” that would reach the “extraordinary and compelling” standard. Moreover, 19 Defendant is 48 years old and reflects no medical condition that would specifically make 20 him more vulnerable to contract COVID-19. Defendant’s arguments regarding the 21 generalized risk of contracting the virus would apply to each inmate in confinement at FCI 22 Lompoc. See United States v. Raia, 954 F.3d 594 (3rd Cir. 2020) (holding that “the mere 23 existence of COVID-19 in society and the possibility that it may spread to a particular 24 prison alone cannot independently justify compassionate release.”). 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 For the reasons set forth above, the Court DENIES Defendant’s motion with 3 || prejudice for failing to exhaust administrative remedies and the inability to meet the 4 burden of showing “extraordinary and compelling reasons” for compassionate release or 5 || home confinement. 6 IT IS SO ORDERED. 7 8 9 || DATED: May 29, 2020 10 11 Hon. John A. Houston 12 Jnited States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28