Brown

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

a et rt en er in ee inte eee ee

UNITED STATES OF AMERICA,

17-cr-789 (PKC)

. 19-CV-11557 (PKC)

-against-

ORDER

JOHN BROWN,

Defendant.

nn nn nnn nn ne ne nn ee te

CASTEL, U.S.D.J.:

Defendant John Brown moves pro se for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(1)(A) asserting “extraordinary and compelling reasons” related to the ongoing COVID-

19 pandemic.! Brown is serving a sentence of principally 72 months’ imprisonment following his

plea of guilty to four counts of Hobbs Act robbery in violation 18 U.S.C. § 1951, (Doc 70). He

is currently incarcerated at FCI Cumberland in Cumberland, Maryland.

Section 3582(c)(1){A) of title 18 provides that “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,” a court

may reduce such defendant’s sentence if it finds that “extraordinary and compelling

circumstances warrant such a reduction.” 18 U.S.C.§ 3582(c)(1)(A)(i).2. The Court is

' Brown submitted two requests raising similar grounds for a sentence reduction. (See Docs 89 and 92), The Court

is also in receipt of Brown’s letter of November 4, 2020, which attached a written correspondence from the Warden

of FCI Cumberland to Brown. (Doc 96). The government has responded to Brown’s application (Doc 93), and

Brown has replied to the government’s submission. (Doc 96).

* Section 3582(c)(1)(A) also requires consideration of whether a sentence reduction is “consistent with the

applicable policy statements issued by the Sentencing Commission.” But the Second Circuit has “held that United

States Sentencing Guideline § 1B1.13—the policy statement ‘applicable’ to compassionate-release motions brought

by the Director of the Bureau of Prisons—is not ‘applicable’ to compassionate-release motions brought by

Mailed to |. Brown 2/11/2071

permitted “to consider the full slate of extraordinary and compelling reasons that an imprisoned

person might bring before [it] in motions for compassionate release.” United States v. Brooker,

976 F.3d 228, 237 (2d Cir. 2020). The Court must also consider the “factors set forth in section

3553(a) to the extent they are applicable... 18 U.S.C. § 3582(c)(1)(A).

The First Step Act provides a 30-day window for the Bureau of Prisons (“BOP”)

to act and, only if a prisoner has exhausted his BOP administrative remedies or the 30-day

period has expired, may a prisoner make an application to the Court. United States v.

Woodson, 18-cr-845 (PKC), 2020 WL 1673253, at *1 (S.D.N.Y. Apr. 6, 2020). The

government argues that Brown has not satisfied the First Step’s exhaustion requirement, The

government further represents that it conferred with BOP counsel, who confirmed that Brown

did not submit a request for compassionate release. (Doc 93, at 6). However, it fails to address

Brown’s November 4, 2020 letter, which was submitted prior to the government’s opposition,

and attached a written response from the Warden of FCI Cumberland rejecting Brown’s

application for a “Compassionate Release/Reduction in Sentence.” The letter, dated April 30,

2020, notes that the BOP received Brown’s request on Apnl 20, 2020. (Doc 90, at 3).

Brown’s reply to the government’s opposition reattaches the Warden’s April 30, 2020 letter.

(Doc 96, Ex. B). The Court concludes that Brown has satisfied the exhaustion requirement

under the First Step Act and will now turn to the merits of his application.

Brown states that he suffers from pre-existing medical conditions including

diabetes, heart disease, high blood pressure, cholesterol, mental health disabilities and other

physical ailments. (Doc 89). Brown is 54 years old. The Presentence Report (“PSR”)

prepared by the Department of Probation noted that he was diabetic, had a history of mental

incarcerated defendants.” United States v. Roney, 2020 WL 6387844, at *3 (2d Cir. Nov, 2, 2020) (citing

United States v. Brooker, 976 F.3d 228, 235-36 (2d Cir. 2020)).

OL

health issues and had experienced shoulder and back pain. (PSR ff 93, 96-100). Brown’s

BOP medical records show he suffers from Type 2 diabetes and hypertension. (Doc 93 Ex. B,

at 29-30). A recent medical evaluation on November 1, 2020 noted that Brown is an “insulin

dependent diabetic” and that his diabetes was managed with daily insulin injections. (Id. at

789). The evaluation further identified that Brown has a history of hypertension and measured

his blood pressure at 128/81. (Id.) An SAO: test measuring oxygen saturation levels was

administered without remarkable results. The government points to some of Brown’s medical

records that show he refused insulin to argue that “Brown’s stated concern for his health and

wellbeing in the Motion also appears at odds with his actual interactions with the medical

professionals at FCI Cumberland.” (Doc. 93, at 10). The record on this motion at least

supports Brown’s assertion that he is subjectively concerned for his well-being due to the

COVID-19 virus. According to the Center for Disease Control (“CDC”), “[a]dults of any age”

with Type 2 diabetes are at an “increased risk of severe illness from the virus that causes

COVID-19.”? CDC guidance also counsels that individuals with hypertension might be at an

increased risk of severe iliness from COVID-19.4 The Court concludes that Brown, at age 54,

faces elevated risks if he were to be infected by the COVID-19 virus.

The government asserts that Brown would face similar nsks from COVID-19 if

he were to be released, and the Court recognizes that individuals with pre-conditions are at a

heightened risk of serious consequences from the virus, if infected, whether they are at liberty or

imprisoned. (Doc 93, at 10). A person who is at liberty, however, has an arguably greater ability

to avoid infection because of his freedom to quarantine, social distance or utilize personal

3 https://www.cdc. gov/corcnavitus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html {last

accessed Feb. 10, 2021).

“Id.

protective equipment as he chooses, options that are not always available to a person who is

incarcerated. The Court also acknowledges that a person at liberty has the freedom to select a

medical provider of his choosing in the event he contracts the virus and this, again, an

incarcerated person does not have the same option.

Brown is currently incarcerated at Cumberland FCI, and the parties dispute the

prevalence of COVID-19 at the facility. The government states that at the time of its opposition

on December 18, 2020 there were 37 confirmed cases among inmates and 10 among staff, while

208 inmates had recovered from the virus without a death at the facility. Brown responds that in

early December the facility had to take emergency measures due to a rise in cases. His reply

attaches a record purportedly confirmed by FCI Cumberland’s medical department stating there

were 240 confirmed cases between November 25, 2020 and January 4, 2021. (Doc 96, Ex. A).

The BOP website provides up-to-date figures. As of February 3, 2021, it states that FCI

Cumberland has 12 confirmed active cases among inmates and 10 cases among staff.> Over the

course of the pandemic, there have been 390 confirmed cases of COVID-19 among inmates,

there are 1,132 inmates at FCI Cumberland at this time.®

In Brown’s case, application of the relevant section 3553(a) factors counsel

against a grant of sentence reduction. On February 15, 2019, Brown pled guilty to four counts of

Hobbs Act Robbery in violation of 18 U.S.C. § 1951. (Doc 58). As detailed in the factual

findings of the PSR, which the Court adopted at sentencing, Brown committed a series of four

robberies at commercial establishments in Manhattan, New York during the summer and fall of

2017 while brandishing a firearm. (Doc 72, Sentencing Tr at 30; PSR ff 12-16). During each of

the robberies, an employee of those establishments opened the cash register, fearing for his or

5 See https://www.bop.gov/coronavirus/ (last accessed Feb, 10, 2021).

6 See https://www.bop.gov/locations/institutions/cum/ (last accessed Feb. 10, 2021)

-A-

her life. (Id.). In addition, around this same time period Brown engaged in two robberies on the

street with one individual being robbed at gunpoint and a second being pistol-whipped and

robbed, (Id. at J 17-18).

Brown’s advisory guidelines range was 70 to 87 months of imprisonment.

(Sentencing Tr. at 13). The Court sentenced Brown to a term on the bottom end of the guidelines

of 72 months’ imprisonment. (Id, at 33), At sentencing, the Court noted that Brown’s substance

abuse and history of mental illness contributed to his criminal behavior but stated that it was not

the “case here of a person who would never consider robbing another human being but for the

fact that this doctor gave him Percocet for shoulder pain. The criminal history of this defendant

indicates otherwise.” (Id. at 29). The Court noted that Brown had a history of robberies and

violent behavior, including a conviction for robbery in the second degree for which he received a

14-year sentence, and further observed that Brown’s current offenses were committed at an

advanced age when he was 51. (Id. at 29-33). BOP disciplinary records show that since Brown

has been incarcerated, he has two disciplinary violations for fighting other inmates. (Doc 96, Ex.

A). Brown responds that no violations have occurred since his sentencing on May 31, 2019.

Brown’s record of behavior while incarcerated does not warrant an additional sentence reduction

beyond the approximately 1 1-month reduction he should receive in the form of good time credit.

Brown has been detained since the date of arrest on November 29, 2017. (PSR at

2). He has served approximately 38 months or 53% of his 72-month sentence. According to the

BOP’s website, Brown’s projected release date is January 9, 2023. Accounting for good time

credit, reducing Brown’s sentence to time served would have the effect of lowering his sentence

by 23 months.

a.

Brown is 54 years old but he committed four gunpoint robberies at age 51.

Taking full account of Brown’s health, the present conditions at FCI Cumberland, the time he

has served in prison to date and the other section 3553(a) factors, Brown’s motion will be denied.

Brown has served approximately half of his six-year sentence, and even accounting for good

time credit, he has served less than two-thirds of his sentence. The need to protect the public

from further crimes of Brown remains a compelling consideration. The Court has also taken

account of all of the other section 3553(a) factors, including the seriousness of the offense, the

need for just punishment, and Brown’s history and characteristics. Brown has Type 2 diabetes

and hypertension, and the CDC recognizes these conditions to be associated with degrees of

heightened risk if the individual is infected with COVID-19. The Court has considered Brown’s

health conditions and whether viewed in isolation or in combination with other relevant

considerations, it does not constitute an extraordinary and compelling reason that warrants a

reduction in his sentence.

CONCLUSION

Taking all considerations both in isolation and in combination, the Court

concludes that Brown has not demonstrated an extraordinary and compelling reason to reduce his

sentence. Brown’s motion for a sentencing reduction under 18 U.S.C. § 3582(c)(1)(A)Q@) is

DENIED. The Clerk is directed to terminate the motions. (Docs 89 and 92).

SO ORDERED.

Dated: New York, New York LA eon Cp af

February 11, 2021 . P Kevin Castel

United States District Judge

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