UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-127-LM Opinion No. 2020 DNH 063 Ahmad Khawaja
O R D E R
On May 2, 2019, defendant pleaded guilty to one count of
importation of a controlled substance (MDMA) in violation of 21
U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3). On January 3, 2020,
the court sentenced defendant to 30 months of imprisonment and
recommended that he participate in the Residential Drug Abuse
Program while incarcerated. On February 20, 2020, defendant
self-surrendered to the Federal Correctional Institution Danbury
in Connecticut where he remains incarcerated. In light of the
spread of COVID-19 in federal prisons and his respiratory health
issues, defendant requests pursuant to 18 U.S.C. § 3582(c)(1)(A)
that the court allow him to serve the remainder of his sentence
in home confinement. Doc. no. 43. The government objects. For
the following reasons, the court denies defendant’s motion.
STANDARD OF REVIEW
A court may grant so-called “compassionate release” to a
defendant under 18 U.S.C. § 3582(c)(1)(A). 18 U.S.C. §
3582(c)(1)(A) provides, in relevant part, that: the court, 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 the Bureau of Prisons 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—
(i) 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); see also U.S.S.G. § 1B1.13
(sentencing guidelines policy statement on compassionate
release). Under this statute, a district court may properly
consider a motion for compassionate release under three
circumstances: (1) the motion is filed by the Director of the
Bureau of Prisons (“BOP”); (2) the motion is filed by defendant
after he exhausts all his administrative rights to appeal BOP’s
refusal to bring a motion on his behalf; or (3) the motion is
filed by defendant 30 days after defendant requested BOP to
petition for compassionate release on his behalf. 18 U.S.C. §
3582(c)(1)(A).
2 Once a motion for compassionate release is properly before
the court, the court must then determine if defendant is
eligible for release. The statutory language quoted above
requires that defendant show that “extraordinary and compelling
reasons warrant” a reduction in his sentence, that the court
consider the factors set forth in 18 U.S.C. § 3553(a) to the
extent applicable, and that the reduction be “consistent” with
the Sentencing Commission’s applicable policy statements. 18
U.S.C. § 3582(c)(1)(A). The Sentencing Commission’s policy
statement regarding compassionate release adds the requirement
that the court find that “[t]he 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.S.G. § 1B1.13(2).
In short, a court may reduce a term of imprisonment under
the compassionate release provision if it: (1) finds that
extraordinary and compelling reasons warrant the reduction; (2)
finds that the defendant will not be a danger to the safety of
any other person or the community; and (3) the sentencing
factors outlined in 18 U.S.C. § 3553(a) weigh in favor of
reduction. See 18 U.S.C. § 3582(c)(1)(A); U.S.S.G. § 1B1.13;
see also United States v. Sapp, No. 14-CR-20520, 2020 WL 515935,
at *2 (E.D. Mich. Jan. 31, 2020); United States v. Willis, 382
F. Supp. 3d 1185, 1187 (D.N.M. 2019). The defendant has the
3 burden of showing that he or she is entitled to a sentence
reduction. United States v. Ebbers, No. S402CR11443VEC, 2020 WL
91399, at *4 (S.D.N.Y. Jan. 8, 2020). The court has “broad
discretion in deciding whether to grant or deny a motion for
sentence reduction.” United States v. Paul Gileno, No. 3:19-CR-
161-(VAB)-1, 2020 WL 1307108, at *2 (D. Conn. Mar. 19, 2020)
(internal quotation marks omitted).
BACKGROUND
On February 20, 2020, defendant began serving his 30-month
sentence at FCI Danbury for importation of a controlled
substance (MDMA). He has served two months of his sentence. He
now requests that the court release him to serve the remainder
of his sentence in home confinement due to the threat to his
health caused by the spread of COVID-19 in prisons. The threat
caused by COVID-19 to the health and safety of the public at
large is well-documented and constantly evolving.1 That threat
is even greater for incarcerated individuals due to the
constraints of the prison environment. As the Centers for
1 The court has issued numerous standing orders restricting access to the courthouse and postponing court proceedings due to the public health threat posed by the virus. See http://www.nhd.uscourts.gov/court-response-coronavirus-disease- covid-19.
4 Disease Control and Prevention (“CDC”) has recognized,
“[i]ncarcerated/detained persons live, work, eat, study, and
recreate within congregate environments, heightening the
potential for COVID-19 to spread once introduced.”2 Indeed,
defendant represents that 34 inmates and 12 staff members at FCI
Danbury have tested positive for the virus.
Defendant argues that he is eligible for compassionate
release because he has a higher risk of experiencing severe
illness from the virus due to his underlying health condition.
Defendant alleges that two years ago, his primary care physician
prescribed him an inhaler for his “breathing difficulties.”
Doc. no. 43 at 4. Defendant admits that his physician has not
diagnosed the source of these breathing issues but contends that
they worsen when he experiences increased anxiety. He also
submits that after being incarcerated in late February he made a
medical appointment and requested an inhaler but has not yet
been seen by prison medical staff. He also contends that, due
to the outbreak of COVID-19, his anxiety has “greatly
increased,” thereby exacerbating his breathing problems.
2 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction- detention/guidance-correctional-detention.html (last visited Apr. 20, 2020).
5 Defendant filed his motion for compassionate release on
April 9, 2020. There is no indication in defendant’s motion
that he sought compassionate release from BOP before filing this
motion. Instead, he argues that the exhaustion of
administrative appeals and 30-day waiting period prerequisite to
a defendant filing a compassionate release motion are waivable
by the court in certain circumstances. He asserts that the
combination of the spread of COVID-19 in prison populations and
his increased risk of complications from the virus due to
underlying health issues justify waiver of the exhaustion
requirement in this case. The government objects, arguing that
the statutory exhaustion requirement is mandatory and cannot be
waived by the court.
DISCUSSION
Over the last month, federal courts have confronted a
tidal wave of compassionate release requests by inmates based on
the threat posed by the presence of the highly contagious COVID-
19 virus in the close quarters of the prison environment.
Courts addressing the issue of whether the exhaustion
requirements of 18 U.S.C. § 3582(c)(1)(A) are waivable in the
context of this global pandemic have split: some have held the
exhaustion requirement mandatory, while others have held that it
6 can be waived. Compare, e.g., United States v. Lugo, No. 2:19-
CR-00056-JAW, 2020 WL 1821010, at *4-5 (D. Me. Apr. 10, 2020)
(holding that statutory exhaustion requirement is mandatory and
describing split of authority), with United States v. Zukerman,
No. 16 CR. 194 (AT), 2020 WL 1659880, at *3-4 (S.D.N.Y. Apr. 3,
2020) (holding that exhaustion requirement may be waived under
certain circumstances).
The court need not decide this legal issue in the present
case. Even assuming that defendant is correct that the court
can waive the exhaustion requirement under certain
circumstances, the court finds that this case does not present
circumstances warranting such waiver. Alternatively, even if
the court did waive the exhaustion requirement, the court would
still not find that extraordinary and compelling reasons warrant
a reduction in defendant’s sentence.
I. Waiver of Exhaustion Requirements Not Justified
In support of his argument that the court has authority to
waive § 3582(c)(1)(A)’s exhaustion requirements, defendant
relies on a line of cases reasoning that exhaustion may be
excused under three circumstances. See, e.g., Zukerman, 2020 WL
1659880, at *3; United States v. Colvin, No. 3:19CR179 (JBA),
2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020). First,
7 exhaustion may be unnecessary where it would be futile. See
Colvin, 2020 WL 1613943, at *2. Exhaustion may be futile if
undue delay results in “catastrophic health consequences.” Id.
(internal quotation marks omitted). “Second, exhaustion may be
unnecessary where the administrative process would be incapable
of granting adequate relief.” Zukerman, 2020 WL 1659880, at *3
(internal quotation marks omitted). And third, “exhaustion may
be unnecessary where pursuing agency review would subject
plaintiffs to undue prejudice.” Id. (internal quotation marks
omitted).
In Colvin, the court concluded that all three exceptions to
the exhaustion requirement were met, justifying waiver. Colvin,
2020 WL 1613943, at *2. In that case, it was undisputed that
defendant suffered from type II diabetes, which put her at a
higher risk of experiencing severe illness from COVID-19 than
otherwise healthy inmates. Id. at *1. The court explained that
undue delay resulting in catastrophic health consequences to
defendant would make exhaustion futile, that BOP would be
incapable of granting relief because defendant’s sentence would
likely expire before exhaustion of her appeals or 30 days, and
she would be subjected to the undue prejudice of a heightened
risk of severe illness while attempting to exhaust her appeals.
Id. at *2. The court concluded that under the specific facts
8 presented—defendant’s type II diabetes and short remaining term
of imprisonment—waiving the exhaustion requirement was therefore
justified. Id. at *2.
By contrast, here, defendant has not submitted sufficient
proof that he suffers from a medical condition that puts him at
higher risk for complications from the virus. Defendant alleges
that two years ago, his primary care physician prescribed him an
inhaler for his “breathing difficulties.” Doc. no. 43 at 4.
But defendant admits that his physician has not diagnosed the
source of these breathing issues. And defendant has not
submitted any medical records from before or during his
incarceration that support these contentions.
Under the CDC guidelines, individuals with “chronic lung
disease or moderate to severe asthma” are at a higher risk of
experiencing severe illness from COVID-19.3 Although the court
believes that defendant has some form of breathing difficulty,
there is no evidence in the record indicating that he has asthma
or, if so, the severity of his condition. Indeed, the court
finds it unlikely that his breathing condition is severe given
that in his presentence report interview last fall defendant
3 Centers for Disease Control and Prevention, Information for Healthcare Professionals: COVID-19 and Underlying Conditions, https://www.cdc.gov/coronavirus/2019- ncov/hcp/underlying-conditions.html (last visited Apr. 17, 2020).
9 “denied any history of significant medical issues.” Doc. no. 31
at 10. With no mention of his condition in the presentence
report and no medical records from his primary care (or other)
physician, the court cannot classify defendant has having
“moderate to severe asthma.”
Under these circumstances, none of the exceptions to
exhaustion applies. First, because defendant has not shown that
his underlying health condition puts him in special danger of
facing catastrophic health consequences if infected with COVID-
19, his exhaustion of administrative remedies would not be
futile. Cf. United States v. McCarthy, No. 3:17-CR-0230 (JCH),
2020 WL 1698732, at *4 (D. Conn. Apr. 8, 2020) (waiver justified
because defendant in danger of severe illness from COVID-19 due
to underlying conditions of COPD and asthma).
Second, waiver is not warranted because defendant is not
“incapable of getting adequate relief” through the
administrative appeals process. Zukerman, 2020 WL 1659880, at
*3 (internal quotation marks omitted). He only recently began
serving his 30-month sentence, so he has time before his release
to complete the administrative appeals process or wait 30 days
before petitioning this court again for his release. Cf.
McCarthy, 2020 WL 1698732, at *4 (waiver justified where
defendant had been incarcerated for 31 months and only 26 days
10 of his sentence remained); Colvin, 2020 WL 1613943, at *2
(waiver justified when defendant had diabetes and only eleven
days of imprisonment remaining); United States v. Perez, No. 17
CR. 513-3 (AT), 2020 WL 1546422, at *3 (S.D.N.Y. Apr. 1, 2020)
(waiver justified when delay of appeals process would deny
relief altogether because defendant had only three weeks of
imprisonment remaining).
Third, defendant has not shown that he would be subjected
to undue prejudice by having to exhaust his administrative
remedies. To be sure, all inmates, including defendant, are
subjected to the prejudice of heightened exposure to the virus
while in prison. But because defendant has not shown that he is
a member of a particularly vulnerable population, he will not
suffer undue prejudice by waiting for 30 days or exhausting his
administrative appeals before refiling before this court. Cf.
Zukerman, 2020 WL 1659880, at *3-4 (finding waiver of exhaustion
requirements justified due to defendant’s old age, diabetes,
hypertension, and obesity, which put him at a higher risk of
experiencing severe illness from COVID-19). Ultimately,
defendant’s purported health issues are not severe enough to
justify bypassing the statutorily prescribed procedure of
allowing BOP to evaluate his compassionate release request in
11 the first instance. Assuming that waiver is justified in some
cases, the present case is not one of them.
II. No Extraordinary and Compelling Reason
As an alternative ground for its decision, the court finds
that even if it waived the exhaustion requirements, defendant
would not be entitled to a sentence reduction. As discussed
above, properly exhausting administrative remedies is only the
first step in achieving a sentence reduction. Defendant must
also establish that: extraordinary and compelling reasons
warrant the sentence reduction; that he is not a danger to the
community; and that the release would be consistent with the 18
U.S.C. § 3553(a) factors. See 18 U.S.C. § 3582(c)(1)(A);
U.S.S.G. § 1B1.13. Based on the current record, defendant has
not demonstrated an extraordinary and compelling reason
warranting a sentence reduction to home confinement.
The Commentary to the Sentencing Guidelines Policy
Statement regarding compassionate release identifies four
categories of “extraordinary and compelling reasons” that
justify a sentence reduction: defendant’s medical condition;
defendant’s age; defendant’s family circumstances; and a
catchall category. U.S.S.G. § 1B1.13, App. Note 1. Only the
12 medical condition and catchall categories are arguably relevant
here.
In order for a medical condition to qualify as an
extraordinary and compelling reason under the guidelines, it
must be either a “terminal illness” or a serious 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.” See U.S.S.G. § 1B1.13, App. Note 1(A). Defendant
has not shown that his “breathing difficulties” meet either of
these definitions.
This case also does not fall within the “catchall
category.” The catchall provision encompasses situations in
which “there exists in the defendant’s case an extraordinary and
compelling reason other than, or in combination with”
defendant’s medical condition, age, or family circumstances.
U.S.S.G. § 1B1.13, App. Note (1)(D). There are some
circumstances in which a defendant’s underlying health issues
combined with the threat posed by COVID-19 constitute an
“extraordinary and compelling reason” warranting release. See,
e.g., United States v. Edwards, No. 6:17-CR-00003, 2020 WL
1650406, at *5 (W.D. Va. Apr. 2, 2020) (granting compassionate
13 release based on threat of COVID-19 and defendant’s terminal
brain cancer and immunocompromised condition from chemotherapy).
But here, defendant’s allegations fall short. As described
in detail above, the court finds that defendant has offered
inadequate support for his contention that his breathing
difficulties actually put him at a higher risk of experiencing
severe illness from COVID-19. See United States v. Lowry, No.
18 CR 882, 2020 WL 1674060, at *2 (S.D.N.Y. Apr. 6, 2020)
(denying request for compassionate release because defendant’s
history of respiratory infections and ailments, even coupled
with the risk of contracting COVID-19, did not qualify as an
“extraordinary and compelling reason” for his release); cf.
United States v. Ordonez, No. CR-18-00539-01-PHX-DGC, 2020 U.S.
Dist. LEXIS 58955, at *6-7 (D. Ariz. Apr. 3, 2020) (denying
defendant’s request for release pending appeal because defendant
offered only speculative evidence that he suffered from an
autoimmune disorder that would put him at greater risk from
COVID-19). Defendant has not demonstrated that “extraordinary
and compelling reasons” warrant his release to home confinement.
Nevertheless, the court is sympathetic to defendant’s
request. Based on defendant’s minimal criminal history, he may
be a good candidate for home confinement under 18 U.S.C. §
3624(c)(2) as amended by § 12003(b)(2) of the CARES Act and the
14 guidance provided in Attorney General Barr’s Memorandum.4
Although BOP is already proactively reviewing inmates for
suitability to be released to home confinement, an inmate who
believes he is eligible for home confinement may submit a
request and provide a release plan to his case manager.5
CONCLUSION
For the foregoing reasons, the court denies defendant’s
motion for compassionate release (doc. no. 43) without
prejudice.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
April 22, 2020
cc: Counsel of Record U.S. Probation U.S. Marshal
4See Attorney General William Barr, Increasing the Use of Home Confinement at Institutions Most Affected by COVID-19, https://www.justice.gov/file/1266661/download (last visited Apr. 20, 2020).
5See Federal Bureau of Prisons, Update on COVID-19 and Home Confinement, https://www.bop.gov/resources/news/20200405_covid19_home_confine ment.jsp (last visited Apr. 20, 2020).