Case News, DREAM, & Staff News
The passage of the First Step Act in December 2018 expanded compassionate release under 18 U.S.C. § 3582(c)(1), allowing our clients to file compassionate release motions to reduce sentences based on “extraordinary and compelling reasons” directly with their sentencing courts. Through advocacy by the whole office, the district courts have joined the majority of courts across the nation that recognize the COVID-19 pandemic should inform the requisite analysis – either in terms of whether extraordinary and compelling reasons exist or, if a person qualifies for a sentence reduction, whether relief is warranted based on § 3553(a) factors. Together with members of the CJA panel, we have filed over 240 petitions under § 3582(c).
This month, another two motions were granted; their stories follow:
On February 5, 2021, Judge Settle granted compassionate release to my 62-year-old client who suffers from CHF, CAD, COPD, HTN and obesity. He was serving a 60-month sentence for possession with intent to distribute at FCI Sheridan. He had recently completed the residential portion of the RDAP program. He had also secured clean and sober housing through Kate’s Place, which was vetted by USPO Markham. The Government conceded that his health conditions put him at an increased risk of severe illness. Judge Settle found that my client’s “risk for severe infection is among the greatest the Court has seen thus far.” Judge Settle reduced the sentence to time served, and imposed supervised release with location monitoring for the remainder of the unserved sentence. His previous release date was March 11, 2022. Congrats to CJA Panel Attorney Juanita Holmes and her client!
My client is 65 years old. He underwent a kidney transplant in 2011 and takes immunosuppressant medication because of the transplant, and he suffers from chronic kidney disease, several heart conditions, and Type II diabetes mellitus. He has a body mass index (“BMI”) of 28 and has a history of obesity.
Judge Leighton originally denied compassionate release, despite the fact that my client has a number of CDC red-flag medical conditions. I appealed to the Ninth Circuit, filed the opening brief, and the government agreed to a joint motion for remand vacating Judge Leighton’s decision in light of the government’s new policy regarding cases in which inmates haves one of the conditions the CDC identified as creating a risk of serious illness or death. Judge Leighton retired, and the case went to Judge Settle. There were some hurdles to overcome. Judge Leighton had previously denied compassionate release on the grounds that (1) my client was in a MCFP which provided good care and the BOP was taking strong measures to combat the spread of the virus, (2) ICE could not provide the same level of care as an MCFP upon the transfer of custody for removal, and (3) my client, who served as an alleged leader in a family drug distribution scheme, was a danger to the community. Also, my client already was recovering from Covid-19, and had received his first dose of the vaccine. Further, I believe that Judge Settle sets a tougher standard than many of his colleagues on the bench in cases in which the defendant already had Covid-19. Judge Settle provides that “absent a specific showing that the defendant themselves remains susceptible to reinfection, a previous diagnosis of COVID 19 cuts against a finding of extraordinary and compelling reasons.” I believe that the declaration of the infectious disease doctor was very helpful. My client belongs to a unique subgroup because of his kidney transplant and need to take immunosuppressant drugs. Congrats to CJA Panel Attorney Jonathan Solovy and his client!
Fierce Advocacy by FPD Defense Team Secures New and Lower Sentence for Client:
In 2005 an FPD client who later became a CJA client chose to exercise his Sixth Amendment right to trial by jury. He paid an outrageously high price for that choice. The government punished him for that decision by adding multiple gun counts which, if convicted would require 25 year consecutive sentences on each. This client who was in his mid-30s and had no prior criminal record had to be sentenced to over 182 years because the judge’s hands were tied by the prosecutor’s charging decision and the law. He had no power to go lower. Despite no hope for release from prison this client had an excellent prison record, mentored other inmates, created a mentorship program and impressed the staff at his prison. Based on the First Step Act and the cases which have expanded the arguments for reductions in sentences for extraordinary and compelling circumstances, FPD filed a motion to reduce his absurdly long sentence. The government opposed the motion, first asking for outright denial, and alternatively requesting 56, and if that failed 30 years of prison. On February 4th the district court resentenced our client to 20 years of imprisonment close to time served. The judge at sentencing stated “some of the recommendations and some of the positions the U.S. Attorney's Office has taken in this case are troubling.” As well as this: “a sentence of 182 years, 56 years, or even 30 years, in my opinion, does not give respect for the law. These sentences are far greater and typically given for more serious crimes. You could murder someone in the State of Washington, or in a federal jurisdiction where they have federal law, and you probably wouldn't get a 56-year sentence.”
With the help of Legal Intern Rolf Toren, Seattle AFD Corey Endo convinced the government to dismiss a failure to register charge against a man currently in Oregon state custody. The charged raised significant legal questions and practical considerations weighing against prosecution, including the difficulty of transporting people in custody during the global pandemic. Although we never had the chance to meet the client, sometimes that is for the best. He is thrilled with the result and grateful for our advocacy. The client sent this short but sweet note after their case was dismissed:
Another DREAM participant graduated from the program in February. This man was charged with a drug-trafficking offense and faced a guideline range of 57-71 months imprisonment. He entered the program with the help of an FPD Tacoma dream team. He first turned to drugs and alcohol as young immigrant to the United States, looking for ways to feel comfortable and find acceptance. By the time he had entered DREAM, he had endured a decades-long struggle with substance use disorder. Although there were a few hiccups in the beginning, our most recent graduate showed focus and fortitude and found not just sobriety but health and happiness. We wish him nothing but the best.
The Federal Defender is happy to announce that Natalya Kim has joined our staff as a case-assigned paralegal in the Seattle office. She is a graduate of the University of Washington Paralegal Program. Natalya has worked as a paralegal in the state public defender system, in a private immigration practice, as well as a prominent social services agency. She is a polyglot and speaks Russian, Spanish, French, among others. She is diving into two cases that will benefit from these foreign language skills. Natalya is a great addition to the paralegal department and the office as a whole. Welcome Natalya!