Petition for Writ of Certiorari — Ance Payton, Petitioner v. United States
Supreme Court briefOct 20, 2021
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NO. _______________
IN THE
SUPREME COURT OF THE UNITED STATES
OF AMERICA
ANCE PAYTON
Petitioner-Defendant
v.
UNITED STATES OF AMERICA
Respondent
On Petition for Writ of Certiorari from the
United States Court of Appeals for the Fifth Circuit.
Fifth Circuit Case No. 21-60187
_______________________________________________________
PETITION FOR WRIT OF CERTIORARI
_______________________________________________________
Omodare B. Jupiter (MS Bar #102054)
Federal Public Defender
N. and S. Districts of Mississippi
200 South Lamar Street, Suite 200-N
Jackson, Mississippi 39201
Telephone: 601/948-4284
Facsimile: 601/948-5510
Jacinta A. Hall (MS Bar #101956)
Assistant Federal Public Defender
Attorney for Defendant-Petitioner
QUESTION PRESENTED FOR REVIEW
Whether the district court erred by denying Mr. Payton’s Motion for
Compassionate Release under 18 U.S.C. § 3582(c)(1)(A).
ii
PARTIES TO THE PROCEEDING
All parties to this proceeding are named in the caption of the case.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ............................................................. ii
PARTIES TO THE PROCEEDING ........................................................................ iii
TABLE OF CONTENTS ..........................................................................................iv
TABLE OF AUTHORITIES ....................................................................................vi
I. OPINIONS BELOW .............................................................................................1
II. JURISDICTIONAL STATEMENT..................................................................... 4
III. STATUTE INVOLVED .....................................................................................5
IV. STATEMENT OF THE CASE .......................................................................... 6
A. Basis for federal jurisdiction in the court of first instance................................... 6
B. Statement of material facts ...................................................................................6
1. Mr. Payton’s health conditions .............................................................................6
2. Mr. Payton’s achievements at BOP ...................................................................... 7
V. ARGUMENT .......................................................................................................8
A. Introduction ..........................................................................................................8
B. Review on certiorari should be granted in this case............................................. 8
C. The evolution of compassionate release .............................................................. 9
D. The history of the COVID-19 pandemic ...........................................................14
E. Mr. Payton’s health conditions warrant releasing him from prison ...................27
iv
F. Mr. Payton is not a danger to society .................................................................32
VI. CONCLUSION.................................................................................................35
CERTIFICATE OF SERVICE ................................................................................36
(Appendices 1 and 2)
v
TABLE OF AUTHORITIES
Page(s)
cases:
United States v. Beck,
No. 1:13-CR-186-6, 2019 WL 3805349 at *6 (M.D. N.C. June 28, 2019) ........... 12
United States v. Burke,
No. 17-CR-3089, 2020 WL 3000330 (D. Neb. June 4, 2020)...............................29
United States v. Cantu,
423 F. Supp. 3d 345 (S.D. Tex. 2019) ...................................................................11
United States v. Cantu-Rivera,
No. CR H-89-204, 2019 WL 2578272 (S.D. Tex. June 24, 2019) ........................12
United States v. Colvin,
451 F.Supp.3d 237 (D. Conn. 2020) ......................................................................29
United States v. Dawson,
No. 18-40085, 2020 WL 1812270 (D. Kan. Apr. 9, 2020) .............................30, 31
United States v. Dimasi,
220 F.Supp.3d 173 (D. Mass. 2016) ......................................................................12
United States v. Foreman,
No. 19-CR-62, 2020 WL 2315908 (D. Conn. May 11, 2020)...............................29
United States v. Fox,
No. 2:14-CR-03-DBH, 2019 WL 3046086 (D. Me. July 11, 2019)......................12
United States v. Guston,
No. 312CR116CWRFKB3, 2021 WL 149018 (S.D. Miss. Jan. 15, 2021) .....29, 30
United States v. Lavy,
17-CR-20033, 2020 WL 3218110 (D. Kan. June 15, 2020) .................................29
vi
United States v. Lewis,
No. 16-CR-302, 2020 WL 2081374 (S.D.N.Y. Apr. 30, 2020) ............................28
United States v. Lynn,
No. CR 89-0072-WS, 2019 WL 3805349 (S.D. Ala. Aug. 13, 2019)................... 12
United States v. Pabon,
No. 17-CR-165, 458 F.Supp.3d 296 (E.D. Pa. May 4, 2020)................................29
United States v. Pena,
No. 15-CR-551 (AJN), 2020 WL 2301199 (S.D.N.Y. May 8, 2020) .............28, 29
United States v. Quintero,
08-CR-6007L, 2020 WL 2175171 (W.D.N.Y. May 6, 2020) ...............................30
United States v. Rountree,
460 F.Supp.3d 224 (NDNY 2020) .........................................................................29
United States v. Salvagno,
No. 5:02-cr-00051-LEK, ECF No. 1181 (N.D.N.Y. June 22, 2020)...............27, 29
United States v. Sawicz,
No. 08-CR-287 (ARR), 2020 WL 1815851 (E.D.N.Y, Apr. 10, 2020) ................ 28
United States v. Scparta,
No. 18-CR-578 (AJN), 2020 WL 1910481 (S.D.N.Y. Apr. 20, 2020) ...........28, 29
United States v. Sherwood,
__ F.3d __, 2021 WL 345405 (6th Cir. 2021) .......................................................33
United States v. Soto,
No. 1:18-CR-10086-IT, 2020 WL 2104787 (D. Mass. May 1, 2020).............28, 29
United States v. Staten,
PJM-01-284-4, 2020 WL 4904270 (D. Md. Aug. 18, 2020) ...................................30
United States v. Walker,
No. CR ELH-18-0017, 2021 WL 461838 (D. Md. Feb. 9, 2021) ...................30, 31
vii
United States v. Williams,
PWG-19-134, 2020 WL 3073320 (D. Md. June 10, 2020) ...................................30
United States v. Zukerman,
451 F. Supp. 3d 329 (S.D.N.Y. 2020) ...................................................................31
statutes:
18 U.S.C. § 922 ..........................................................................................................1
18 U.S.C. § 924 ..........................................................................................................1
18 U.S.C. § 3231 ........................................................................................................6
18 U.S.C. § 3553 ........................................................................................5, 8, 14, 33
18 U.S.C. § 3582 ...............................................................................................passim
18 U.S.C. § 3583 ......................................................................................................14
21U.S.C. § 841 .......................................................................................................1, 6
28 U.S.C. § 994 ........................................................................................................11
28 U.S.C. § 1254 ........................................................................................................4
42 U.S.C. § 247 ........................................................................................................14
Comprehensive Crime Control Act of 1984 .............................................................. 9
First Step Act ...................................................................................5, 8, 9, 11, 13, 34
Public Health Services Act ......................................................................................14
rules:
Rule 10, Supreme Court Rules...................................................................................8
Rule 13.1, Supreme Court Rules................................................................................ 4
viii
Rule 29.5, Supreme Court Rules..............................................................................36
United States Sentencing Guidelines:
U.S.S.G. § 1B1.13 ............................................................................11, 12, 29, 33, 34
ix
I. OPINIONS BELOW
The prosecution filed an Indictment against Mr. Payton charging him with
the following nonviolent crimes:
Count 1: possession with intent to distribute illegal Schedule II narcotics, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C);
Count 2: possession with intent to distribute marijuana, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C); and
Count 3: felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2).
The district court dismissed Count 3 on the Motion of the prosecution.
The prosecution filed the Indictment in the United States District Court for
the Southern District of Mississippi on May 15, 2018, under case number
3:18cr105-TSL-FKB. Mr. Payton accepted full responsibility for his actions by
entering timely guilty pleas to Counts 1 and 2 on July 19, 2018. As stated above,
Count 3 was dismissed on the prosecution’s Motion.
Mr. Payton’s sentencing hearing followed on November 8, 2018. The court
sentenced him to serve “79 months imprisonment as to Count 1, and 60 months as
to Count 2, to run concurrently to Count 1, and both counts to run consecutively to
the undischarged term of imprisonment in the state case in Criminal No.: 17-400.”1
1
“Criminal No.: 17-400” is a state court case.
1
It also ordered a total of three years’ supervised release and a $1,500 fine. The
court entered a Judgment reflecting this sentence on November 19, 2018.
Mr. Payton filed a pro se Motion for Compassionate Release on May 4,
2020. He requested release from prison based on dangers posed by the COVID-19
pandemic. The same day that Mr. Payton filed the pro se Motion, the district court
entered a General Order appointing the Office of the Federal Public Defender to
represent him on the compassionate release issue.
After completion of briefing, the district court entered an Order denying Mr.
Payton’s Motion for Compassionate Release. It entered the Order on July 14,
2020. Mr. Payton did not appeal that Order.
Mr. Payton filed a second pro se Motion for Compassionate Release on
January 5, 2021. He again requested release from prison based on dangers posed
by the COVID-19 pandemic, combined with his own adverse health conditions.
The same day that Mr. Payton filed the pro se Motion, the district court again
entered a General Order appointing the Office of the Federal Public Defender to
represent him on the compassionate release issue.
The prosecution filed its response to the second Motion for Compassionate
Release on January 11, 2021, and the undersigned filed a Reply supporting the
Motion on January 14, 2021. The district court entered an Order denying Mr.
2
Payton’s Motion on March 2, 2021. The district court’s Order is attached hereto as
Appendix 1.
On March 8, 2021, Mr. Payton filed a Notice of Appeal to the United States
Court of Appeals for the Fifth Circuit. The Fifth Circuit case number is 21-60187.
The Fifth Circuit entered an Order affirming the district court’s rulings on August
3, 2021. It filed a Judgment on the same day. The Fifth Circuit’s Order and
Judgment are attached hereto as composite Appendix 2. This Petition for Writ of
Certiorari followed.
3
II. JURISDICTIONAL STATEMENT
The United States Court of Appeals for the Fifth Circuit filed both its Order
and its Judgment in this case on August 3, 2021. This Petition for Writ of
Certiorari is filed within 90 days after entry of the Fifth Circuit’s Judgment as
required by Rule 13.1 of the Supreme Court Rules. This Court has jurisdiction
over the case under the provisions of 28 U.S.C. § 1254(1).
4
III. STATUTE INVOLVED
Mr. Payton’s Motion for Compassionate Release is based on The First Step
Act. Relevant to Mr. Payton’s case is the codified portion of the First Step Act at
18 U.S.C. § 3582(c)(1)(A), which states:
The court, upon motion of the Director of the Bureau of Prisons (“BOP”), or
upon motion of the defendant after the defendant has fully exhausted all
administrative rights to appeal a failure of the [BOP] 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 extraordinary and compelling reasons warrant such a reduction . . .
5
IV. STATEMENT OF THE CASE
A.
Basis for federal jurisdiction in the court of first instance.
This case involves a Motion for Compassionate Release because of dangers
within the BOP associated with the COVID-19 pandemic. The underlying
criminal conviction against Mr. Payton was for two counts of possession with
intent to distribute illegal Schedule II narcotics, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C). The court of first instance, which was the United States
District Court for the Southern District of Mississippi, had jurisdiction over the
case under 18 U.S.C. § 3231 because the criminal charges levied against Mr.
Payton arose from the laws of the United States of America.
B.
Statement of material facts.
1.
Mr. Payton’s health conditions.
Mr. Payton’s preexisting health conditions are relevant to deciding whether
he should be granted compassionate release because of the COVID-19 pandemic.
He suffers from high blood pressure / hypertension. He takes one
Hydrochlorothiazide 25 MG tablet per day for hypertension.
Mr. Payton’s weight is another health condition that supports his request for
compassionate release. The BOP’s medical records indicate that he has a BMI of
38.91. He also has been diagnosed a prediabetic, which can be related to his
overweight condition.
6
Another factor we must consider is Mr. Payton’s race. He is African
American. The relevance of this fact in the COVID-19 context is addressed below.
2.
Mr. Payton’s achievements at the BOP.
Mr. Payton has made efforts to improve himself while at the BOP. He
participated in BOP’s nonresidential drug program, he earned a GED, and he
participated in parenting classes. Also, he works in food services within the BOP.
Finally, Mr. Payton has no disciplinary infractions while incarcerated.
7
V. ARGUMENT
A.
Introduction.
This case involves the district court’s denial of Mr. Payton’s Motion for
Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A), which is a codified
portion of the First Step Act. Through his Motion for Compassionate Release, Mr.
Payton argued that a combination of his health conditions, his race, and the dangers
posed by the COVID-19 pandemic warrant his release from BOP custody.
To establish entitlement to compassionate release under the First Step Act,
Mr. Payton must establish two factors. First, he must establish “extraordinary and
compelling reasons” that warrant a sentence reduction. 18 U.S.C. §
3582(c)(1)(a)(i). Second, he must satisfy the § 3553(a) factors. 18 U.S.C. §
3582(c)(1)(B).
As analyzed below, Mr. Payton suffers from debilitating health conditions.
His health conditions and his race, combined with the dangers posed by the
COVID-19 pandemic, represent “extraordinary and compelling reasons” to release
him from BOP custody.
B.
Review on certiorari should be granted in this case.
Rule 10 of the Supreme Court Rules states, “[r]eview on writ of certiorari is
not a matter of right, but of judicial discretion.” District courts and federal courts
of appeal are inundated with motions for compassionate release based on the
8
COVID-19 pandemic. Yet to date, this Court has not provided a roadmap to
analyze the issue. As indicated by the analysis in the following subsection of this
Petition titled “The evolution of compassionate release,” Supreme Court guidance
on the issue is needed to fulfill Congress’ intent when it enacted the First Step Act.
Granting certiorari in Mr. Payton’s case will give the Court an opportunity to
provide such guidance.
C.
The evolution of compassionate release.
Under changes made to the compassionate release statute by the First Step
Act, courts do not have to wait for a motion from the Director of the BOP to
resentence prisoners under 18 U.S.C. § 3582(c)(1)(A)(i), if “extraordinary and
compelling reasons” exist. Importantly, the reasons that can justify resentencing
need not involve only terminal illness or urgent dependent care for minor children.
The first modern form of the compassionate release statute is codified at 18
U.S.C. § 3582 as part of the Comprehensive Crime Control Act of 1984. Section
3582(c) states that a sentencing court can reduce a sentence whenever
“extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §
3582(c)(1)(A)(i). In 1984, Congress conditioned the reduction of sentences on the
Director of BOP filing an initial motion to the sentencing court. Absent such a
motion, sentencing courts had no authority to modify a prisoner’s sentence for
compassionate release. Id.
9
Congress never defined what constitutes an “extraordinary and compelling
reason” for resentencing under Section 3582(c). But the legislative history to the
statute gives an indication of how Congress thought the statute should be employed
by the federal courts. The Senate Committee stressed how some individual cases,
even after the abolition of federal parole, still may warrant a second look at
resentencing:
The Committee believes that there may be unusual cases in which an
eventual reduction in the length of a term of imprisonment is justified by
changed circumstances. These would include cases of severe illness, cases
in which other extraordinary and compelling circumstances justify a
reduction of an unusually long sentence, and some cases in which the
sentencing guidelines for the offense of which the defendant was convicted
have been later amended to provide a shorter term of imprisonment.
S. Rep. No. 98-225, at 55-56 (1983) (emphasis added). Congress intended for
circumstances listed in § 3582(c) to act as “safety valves for modification of
sentences,” id. at 121, giving judges an opportunity for a second look for possible
sentence reductions when justified by various factors that previously could have
been addressed through the abolished parole system. This safety valve statute
would “assure the availability of specific review and reduction of a term of
imprisonment for ‘extraordinary and compelling reasons’ and [would allow courts]
to respond to changes in the guidelines.” Id. Noting that this approach would keep
“the sentencing power in the judiciary where it belongs,” rather than with a federal
10
parole board, the statute permitted “later review of sentences in particularly
compelling situations.” Id. (emphasis added).
Congress initially delegated the responsibility for outlining what could
qualify as “extraordinary and compelling reasons” to the U.S. Sentencing
Commission (“Commission”). See 28 U.S.C. § 994(t) (stating “[t]he Commission
… shall describe what should be considered extraordinary and compelling reasons
for sentence reduction, including the criteria to be applied and a list of specific
examples.”). The Commission took considerable time to promulgate its policy in
response to Congress’s directive. It finally acted in 2007, almost a generation
later, with the very general guidance that “extraordinary and compelling reasons”
may include medical conditions, age, family circumstances, and “other reasons.”
U.S.S.G. § 1B1.13, app. n.1(A). However, this guidance did little to spur the BOP
to file on behalf of prisoners who might have met these general standards.
After a negative Department of Justice Inspector General report found that
the BOP rarely invoked its authority under the statute to move for reduced
sentences, the Commission felt compelled to act again. See U.S. Dep’t of Justice,
Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate
Release Program, I-2023-006 (Apr. 2013). The Commission amended its policy
statement on “compassionate release” in November 2016. See U.S.S.G. § 1B1.13
Amend. (11/1/2016).
11
In addition to broadening the eligibility guidelines for sentencing courts, the
new policy statement admonished the BOP for its past failures to file motions on
behalf of inmates who had met the general criteria identified in U.S.S.G. § 1B1.13.
See U.S.S.G. § 1B1.13, n.4; see also United States v. Dimasi, 220 F. Supp. 3d 173,
175 (D. Mass. 2016) (discussing the history of the BOP, DOJ and Commission’s
interplay in developing guidance for “compassionate release” motions). Notably,
the Commission concluded that reasons beyond medical illness, age, and family
circumstances could qualify as “extraordinary and compelling reasons” for
resentencing. Id., n.1(A) (including a category for “Other Reasons,” when there is
“an extraordinary and compelling reason other than, or in combination with, the
reasons described in subdivisions (A) through (C).”). 2
2
See United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *4 (S.D. Tex. June 17,
2019) (holding that, given the changes to the compassionate release statute by the First Step Act,
U.S.S.G. § 1B1.13, application note 1(D) “no longer fits with the statute and thus does not
comply with the congressional mandate that the policy statement must provide guidance on the
appropriate use of sentence-modification provisions under § 3582.”); United States v. Fox, No.
2:14-CR-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019) (“I treat the previous BOP
discretion to identify other extraordinary and compelling reasons as assigned now to the
courts.”); United States v. Cantu-Rivera, No. CR H-89-204, 2019 WL 2578272, at *2 n.1 (S.D.
Tex. June 24, 2019) (“Because the current version of the Guideline policy statement conflicts
with the First Step Act, the newly-enacted statutory provisions must be given effect.”); United
States v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *6 (M.D.N.C. June 28, 2019) (holding
that application note 1(D) is “inconsistent with the First Step Act, which was enacted to further
increase the use of compassionate release and which explicitly allows courts to grant such
motions even when BoP finds they are not appropriate,” and courts thus may “consider whether a
sentence reduction is warranted for extraordinary and compelling reasons other than those
specifically identified in the application notes to the old policy statement”); but see United States
v. Lynn, No. CR 89-0072-WS, 2019 WL 3805349, at *4 (S.D. Ala. Aug. 13, 2019) (holding that
application note 1(D) governs compassionate release reductions of sentence and federal judges
have no authority to create their own criteria for what constitutes an “extraordinary and
compelling” reason for resentencing).
12
The Commission’s actions, however, did little to change the dearth of filings
by the BOP on behalf of inmates who satisfied the Commission’s general
guidance. During the more than three decades during which the BOP was the
exclusive gatekeeper for “compassionate release” motions, very little effort was
made to implement Congress’s intention to provide a safety valve to correct
injustices or allow relief under extraordinary and compelling circumstances.
Finally, this changed with the passage of the First Step Act in 2018. See
P.L. 115-391, 132 Stat. 5194, at § 603 (Dec. 21, 2018). Section 603 of the First
Step Act changed the process by which § 3582(c)(1)(A) compassionate release
occurs. Instead of depending upon the BOP Director to determine an extraordinary
circumstance and move for release, a court can now resentence “upon motion of
the defendant,” after the inmate exhausts administrative remedies with the BOP, or
after 30 days from the receipt of the inmate’s request for compassionate release
with the warden of the defendant’s facility, whichever comes earlier. 18 U.S.C. §
3582(c)(1)(A). Thus, under the First Step Act, a court may now consider the
defendant’s own motion to be resentenced, without waiting for it to be made by the
BOP.
Courts are now authorized to consider a defendant’s motion, even one which
the BOP opposes, and order resentencing if a court finds that “extraordinary and
compelling reasons” warrant a reduction and such a reduction is consistent with the
13
Section 3553(a) factors. 18 U.S.C. § 3582(c)(1). Resentencing courts are also
advised that any decision to reduce a previously ordered sentence be “consistent
with applicable policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3583(c)(2).
D.
The history of the COVID-19 pandemic.
The COVID-19 outbreak presents a compelling and extraordinary
circumstance that warrants compassionate release in Mr. Payton’s case. On March
11, 2020, the World Health Organization (hereinafter “WHO”) officially classified
the new strain of coronavirus, COVID-19, as a pandemic.3 As of October 11,
2021, COVID-19 has infected at least 237,383,711 worldwide, leading to at least
4,842,716.4 As of October 11, 2021, the WHO also indicates that in the United
States, approximately 43,792,254 have been infected, leading to 703,599 deaths.5
These numbers almost certainly underrepresent the true scope of the crisis.
On March 13, 2020, the White House declared a national emergency, under
Section 319 of the Public Health Service Act, 42 U.S.C. § 247(d)). 6 On March 16,
2020, the White House issued guidance recommending that, for the next eight
3
“WHO Characterizes COVID-19 as a Pandemic,” World Health Organization (Feb. 19, 2021),
available at https://bit.ly/2W8dwpS.
4
https://www.who.int.
5
Id.
6
The White House, Proclamation on Declaring a National Emergency Concerning the Novel
Coronavirus Disease (COVID-19) Outbreak (March 13, 2020), available at
https://www.whitehouse.gov/presidential-actions/proclemation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/.
14
weeks, gatherings of ten persons or more be canceled or postponed. 7 These drastic
measures followed the issuance of a report by British epidemiologists, concluding
from emerging data that 2.2 million Americans could die without drastic
intervention to slow the global spread of the deadly disease.8
The Centers for Disease Control and Prevention (hereinafter “CDC”) have
also issued guidance related to the deadly effects of COVID-19 on certain highrisk patients of the population. The CDC updated their list of people who need to
take extra precautions on August 20, 2021.9 According to the CDC, “Having heart
conditions such as heart failure, coronary artery disease, cardiomyopathies, and
possibly high blood pressure (hypertension) can make you more likely to get
severely ill from COVID-19.”10 Also, being “[o]verweight (defined as a body
mass index (BMI) > 25 kg/m2 but < 30 kg/m2), obesity (BMI ≥30 kg/m2 but < 40
kg/m2), or severe obesity (BMI of ≥40 kg/m2), can make you more likely to get
severely ill from COVID-19. The risk of severe COVID-19 illness increases
sharply with elevated BMI.” 11
7
Sheri Fink, “White House Takes New Line After Dire Report on Death Toll,” New York Times
(March 17, 2020), available at https://www.nytimes.com/2020/03/17/us/coronavirus-fatalityrate-white-house.html?action=click&module=Spotlight&pgtype=Homepage.
8
Fink, “White House Takes New Line After Dire Report on Death Toll,” New York Times.
9
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html#MedicalConditionsAdults.
10
Id. (bold emphasis in original; italicized and underlined emphasis added).
11
Id. (emphasis in original)
15
Conditions of confinement at FCI Memphis, the prison where Mr. Payton is
housed, create an optimal environment for the transmission of contagious
disease.12 People who work in the facility leave and return daily; and people
deliver items daily to the prison. These inmates share restrooms and showers.
Public health experts are unanimous in their opinion that incarcerated individuals
“are at special risk of infection, given their living situations,” and “may also be less
able to participate in proactive measures to keep themselves safe,” and “infection
control is challenging in these settings.” 13
The CDC advises that the coronavirus is “spread mainly from person-toperson . . . [b]etween people who are in close contact with one another . . .
[t]hrough respiratory droplets produced when an infected person coughs or
sneezes.” 14 The droplets can land in the mouths or noses, or can be inhaled into
the lungs, of people who are within about six feet of the infected person.15 The
coronavirus is highly contagious and those who are infected can spread the virus
12
Joseph A. Bick, “Infection Control in Jails and Prisons,” Clinical Infectious Diseases 45(8):
1047-1055 (2007), available at https://doi.org/10.1086/521910.
13
“Achieving a Fair and Effective COVID-19 Response: An Open Letter to Vice-President
Mike Pence, and Other Federal, State, and Local Leaders from Public Health and Legal Experts
in the United States” (March 2, 2020), at https://bit.ly/2W9V6oS.
14
CDC, Coronavirus Disease 2019 (COVID-19), How It Spreads, Mar. 4, 2020,
https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html.
15
Id.
16
even if they are asymptomatic. 16 Additionally, studies have shown that the
coronavirus can survive from three hours to three days on various surfaces.
COVID-19 cases have been confirmed at multiple BOP facilities, and with
every day that passes, BOP identifies additional cases at additional institutions.17
As of October 8, 2021, BOP has identified 325 inmates and 482 staff members that
are currently positive with COVID-19.18 A total of 43,658 inmates have tested
positive since the pandemic’s outbreak.19 As of October 8, 2021, 262 inmates have
died in BOP custody and six BOP staff members have died because of the COVID19 pandemic. 20 Asked whether the BOP’s figures “could be relied upon as an
accurate reflection of the number of inmates and staff that are infected,” BOP
Public Information Supervisor Sue Allison acknowledged that “reporting of cases
while tied to positive cases, does not necessarily account for unconfirmed (nontested) cases.” 21
16
Marco Cascella, et al., Features, Evaluation and Treatment Coronavirus (COVID-19), National
Center for Biotechnology Information (“NCBI”), Mar. 20, 2020,
https://www.ncbi.nlm.nih.gov/books/NBK554776/#_ncbi_dlg_citbx_NBK554776.
17
U.S. Bureau of Prisons, COVID-19 Coronavirus (updated daily),
https://www.bop.gov/coronavirus/.
18
Id.
19
Id.
20
Id.
21
Walter Pavlo, Bureau of Prisons Underreporting COVID-19 Outbreaks in Prison, FORBES
(Apr. 1, 2020), available at https://www.forbes.com/sites/walterpavlo/2020/04/01/bureau-ofprisons-underreporting-outbreaks-in-prison/#268a97f7ba32.
17
Because transmission may happen asymptomatically, BOP is quarantining
inmates even in institutions where there are no positive cases. The CDC now
warns that as many as 25 percent of people infected with the virus have no
symptoms, would not be tested for the virus, and may be “unwitting spreaders.” 22
Dr. Jeffrey Shaman, an infectious disease expert at Columbia University, explains:
“The bottom line is that there are people out there shedding the virus who don’t
know that they’re infected.”23
To this day, inmates must share communal living spaces, such as cells,
recreation rooms, dining halls, libraries, and exercise yards. To make matters
worse, hand sanitizer, an effective disinfectant recommended by the CDC to
reduce transmission, is deemed forbidden “contraband” in BOP facilities because
of its alcohol content.24
Recognizing the unique risks that correctional facilities pose to both inmates
and employees, members of Congress asked the BOP on March 19, 2020, to allow
22
Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders,
N.Y. TIMES (Apr. 1, 2020), available at
https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatictransmission.html?action=click&module=Top%20Stories&pgtype=Homepage.
23
Id.
24
Keri Blakinger and Beth Schwarzapfel, How Can Prisons Contain Coronavirus When Purell is
Contraband?, ABA J. (Mar. 13, 2020), available at
https://www.abajournal.com/news/article/when-purell-is-contraband-how-can-prisons-containcoronavirus.
18
for the immediate release of elderly, non-violent inmates.25 The following week,
Attorney General Barr urged the Director of the BOP to prioritize home
confinement for such vulnerable individuals. 26 On March 27, 2020, more than 400
former DOJ leaders, attorneys, and federal judges sent an open letter to the
President, asking that he take immediate action to reduce the population in
correctional facilities to prevent the catastrophic spread of COVID-19, in particular
by commuting the sentences of elderly and medically vulnerable inmates who have
already served a majority of their sentence. 27 The same day, dozens of leading
public health experts made a similar request, asking the President to commute the
sentences of all elderly inmates, noting that these individuals are at the highest risk
of dying from the disease and pose the smallest risks to public safety. 28
On March 30, 2020, members of Congress wrote Attorney General Barr
again to implore him “to do the right thing” and “immediately move to release
25
Letter from Rep. Jerrold Nadler & Rep. Karen Bass to U.S. Attorney General William P. Barr
(Mar. 19, 2020), available at https://judiciary.house.gov/uploadedfiles/2020-0319_letter_to_ag_barr_re_covid19.pdf (“DOJ and BOP must also do all they can to release as
many people as possible who are currently behind bars and at risk of getting sick. Pursuant to 18
U.S.C. 3582(c)(1)(A), the Director of the Bureau of Prisons may move the court to reduce an
inmate’s term of imprisonment for “extraordinary and compelling reasons.”).
26
Memorandum from Attorney General William P. Barr to Director of Bureau of Prisons (Mar.
26, 2020), available at https://www.justice.gov/file/1262731/download.
27
Letter from Julie Abbate, et al. to President Donald J. Trump (Mar. 27, 2020), available at
https://fairandjustprosecution.org/wp-content/uploads/2020/03/Letter-to-Trump-from-DOJ-andJudges-FINAL.pdf.
28
Letter from Sandro Galea, et al. to President Donald J. Trump (Mar. 27, 2020), available at
https://thejusticecollaborative.com/wp-content/uploads/2020/03/Public-Health-Expert-Letter-toTrump.pdf.
19
medically-compromised, elderly, and pregnant prisoners in the custody of the
BOP.”29 On April 3, 2020, Attorney General Barr issued a memorandum directing
the BOP to move vulnerable prisoners into home confinement with due
“dispatch.”30 On April 10, 2020, members of Congress wrote again to Attorney
General Barr, noting that “since the last time we wrote to you, there have been at
least eight deaths in BOP custody,” all of which involved prisoners with “longterm, pre-existing medical conditions,” and asked why BOP “did not see fit to take
action concerning these individuals before it was too late.” 31
On March 31, 2020, BOP employees filed a complaint with the
Occupational Safety and Health Administration, alleging that federal prisoners are
“proliferating the spread” of COVID-19 and citing “imminent danger” conditions
at BOP facilities nationwide. The union listed 100 of 122 facilities nationwide
with alleged safety or health hazards. The complaint alleges that the BOP has:
29
Letter from Rep. Jerrold Nadler & Rep. Karen Bass to U.S. Attorney General William P. Barr
(Mar. 30, 2020), available at
https://judiciary.house.gov/uploadedfiles/3.30.20_letter_to_ag_barr_re_covid19.pdf.
30
Attorney General William P. Barr, Memorandum for Director of Bureau of Prisons (“Barr
April 3 Memorandum”), Apr. 3, 2020, available at https://www.politico.com/f/?id=000001714255-d6b1-a3f1-c6d51b810000.
31
Letter from Rep. Jerrold Nadler & Rep. Karen Bass to U.S. Attorney General William P. Barr
(Apr. 10, 2020), available at https://judiciary.house.gov/uploadedfiles/2020-0410_letter_to_doj_on_covid-19.pdf; see also Luke Barr, Bureau of Prisons Coronavirus Response
Under Fire: ‘Reactive,’ Not ‘Proactive,’ Inmates, Staff Say: BOP Has More COVID-19 Cases
Than Three States, ABC NEWS (Apr. 1, 2020, 10:49 AM),
https://abcnews.go.com/Health/bureau-prisons-coronavirus-response-fire-reactive-proactiveinmates/story?id=70063263.
20
• Directed staff members to return to work within 48 hours of being near
those with coronavirus or show symptoms of having the virus;
• Authorized the movement of inmates with suspected or confirmed
coronavirus cases to areas nationwide that did not have any known
infections;
• Failed to mitigate the spread of COVID-19 in facilities by using air filters
or improving ventilation in other ways;
• Failed to maintain social distancing guidelines for inmates and staff; and
• Although BOP has fit tested staff for masks, it “failed to provide the
proper N-95 masks to staff who are transporting and have custodial
control over hospitalized inmates testing positive for the virus.”
Jails and prisons are among the most dangerous places to be during an
epidemic because they create the ideal environment for transmission of contagious
diseases.32 The declaration of Dr. Jaime Meyer, a Yale Law School Liman Center
Affiliate, explains the particular risks of contagious diseases in prison. Inmates are
confined in close proximity and the staff leave and return daily. Incarcerated
32
Matthew J. Akiyama, et al., Flattening the Curve for Incarcerated populations – COVID-19 in
Jails and Prisons, NEW ENGLAND J. MED. (Apr. 2, 2020),
https://www.nejm.org/doi/full/10.1056/NEJMp2005687 (“Therefore, we believe that we need to
prepare now, by ‘decarcerating,’ or releasing, as many people as possible . . . . “); Joseph A.
Bick, Infection Control in Jails and Prisons, 45 CLINICAL INFECTIOUS DISEASES 8, 1047–55
(Oct. 15, 2007), available at https://doi.org/10.1086/521910.
21
individuals “are at special risk of infection, given their living situations,” and “may
also be less able to participate in proactive measures to keep themselves safe;”
“infection control is challenging in these settings,” according to public health
experts.33 Jails and prisons are sites of disproportionate infectious disease rates.34
Outbreaks of the flu regularly occur in jails, and during the H1N1 epidemic in
2009, many jails and prisons dealt with high numbers of cases. 35
In China, officials have confirmed the coronavirus spreading rapidly in
Chinese prisons. 36 China is not the exception to the rule, as other countries have
severe problems with the prison population. For example, former Secretary of
State Mike Pompeo called for Iran to release Americans detained there because of
the “deeply troubling” “[r]eports that COVID-19 has spread to Iranian prisons,”
noting that “[t]heir detention amid increasingly deteriorating conditions defies
33
“Achieving A Fair And Effective COVID-19 Response: An Open Letter to Vice-President
Mike Pence, and Other Federal, State, and Local Leaders from Public Health and Legal Experts
in the United States,” (Mar. 2, 2020), available at
https://law.yale.edu/sites/default/files/area/center/ghjp/documents/final_covid19_letter_from_public_health_and_legal_experts.pdf.
34
Leonard S. Rubenstein, et al., HIV, Prisoners, and Human Rights, LANCET (July 14, 2016),
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(16)30663-8/fulltext.
35
Prisons and Jails are Vulnerable to COVID-19 Outbreaks, THE VERGE (Mar. 7, 2020),
https://www.theverge.com/2020/3/7/21167807/coronavirus-prison-jail-health-outbreak-covid-19flu-soap.
36
Rhea Mahbubani, Chinese Jails Have Become Hotbeds of Coronavirus As More Than 500
Cases Have Erupted, Prompting the Ouster of Several Officials, BUS. INSIDER (Feb. 21, 2020,
5:11 PM), https://www.businessinsider.com/500-coronavirus-cases-reported-in-jails-in-china2020-2.
22
basic human decency.” 37 Courts across Iran have granted 54,000 inmates furlough
as part of the measures to contain coronavirus across the country. 38
It was reported on March 18, 2020, that a guard at Rikers Island in New
York City had tested positive for COVID-19.39 Three days later, at least 38 people
at Rikers had tested positive. 40 Despite efforts to release hundreds of detainees to
try to stem the tide of infection there, 41 the virus continues to spread rapidly; as of
April 10, 2020, 304 inmates and 518 staffers had tested positive, and one inmate
had died.42 An op-ed ran in the Washington Post on April 10, 2020 with the title:
“I’m a doctor on Rikers Island. My patients shouldn’t have to die in jail: In
37
Jennifer Hansler & Kylie Atwood, Pompeo calls for humanitarian release of wrongfully
detained Americans in Iran amid coronavirus outbreak, CNN (Mar. 10, 2020),
https://www.cnn.com/2020/03/10/politics/mike-pompeo-iran-release-detained-americanscoronavirus/index.html.
38
Claudia Lauer and Colleen Long, US Prisons, Jails On Alert for Spread of Coronavirus,
ASSOCIATED PRESS (Mar. 7, 2020, 8:12 PM),
https://apnews.com/af98b0a38aaabedbcb059092db356697.
39
NYC Officials Call for Release of ‘Most at Risk’ on Rikers Island as More Test Positive for
Virus, NBC N.Y., ASSOCIATED PRESS (Mar. 18, 2020),
https://www.nbcnewyork.com/news/local/nyc-officials-call-for-release-of-most-at-risk-on-rikersprison-as-more-test-positive-for-virus/2333348.
40
38 Positive for Coronavirus at Rikers, NYC Jails, N.Y. TIMES, ASSOCIATED PRESS (Mar. 21,
2020), https://www.nytimes.com/aponline/2020/03/21/us/ap-us-virus-outbreak-inmates.html.
41
Craig McCarthy, NYC To Release 300 More Rikers Inmates Admit Coronavirus Pandemic,
N.Y. POST (Mar. 25, 2020 7:25 AM), https://nypost.com/2020/03/25/nyc-to-release-300-morerikers-inmates-amid-coronavirus-pandemic/.
42
Rebecca Rosenberg, Second Rikers Island inmate Dead From Coronavirus After Failed
Release, N.Y. POST (Apr. 14, 2020, 11:00 AM), https://nypost.com/2020/04/14/second-rikersisland-inmate-dead-from-coronavirus/; Justin Carissimo, First Rikers Island Inmate Dies After
Testing Positive for Coronavirus, CBS NEWS (Apr. 7, 2020 2:36 PM),
https://www.cbsnews.com/news/coronavirus-michael-tyson-rikers-island-inmate-dies-covid-19/.
23
anything called a justice system, a death in such circumstances is a failure.”43 On
April 14, 2020, another Rikers inmate died of COVID-19.44 On March 23, two
inmates in Cook County jail were placed in isolation cells after testing positive for
COVID-19. On April 8, after a little over two weeks, the virus had infected 238
inmates and 115 staff members.45 On April 19, the count has risen to 395 inmates
and 225 staff members, and four inmates had died. 46 The large-scale release of
detainees reflects the growing recognition that “[i]t’s like an approaching tsunami.
Once it hits, it’s too late. . . . We should release as many as it’s safe to release in
order to avoid a situation like the one at Rikers.” 47
“The coronavirus is invading U.S. jails and prisons, prompting inmate
releases, reduced bail requirements and other extraordinary measures as officials
rush to avert a potentially disastrous spread of the virus among crowded inmate
populations.” 48 As a prominent group of Yale School of Medicine “medical
43
Rachael Bedard, WASH. POST (Apr. 10, 2020, 9:47 a.m. EDT),
https://www.washingtonpost.com/outlook/doctor-rikers-compassionaterelease/2020/04/10/07fc863a-7a93-11ea-9bee-c5bf9d2e3288_story.html.
44
Rosenberg, supra.
45
Timothy Williams & Danielle Ivory, Chicago’s jail Is Top U.S. Hot Spot as Virus Spreads
Behind Bars, N.Y. TIMES (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/us/coronaviruscook-county-jail-chicago.html.
46
4th Detainee at Cook County Jail Dies after Contracting Coronavirus, NBC CHICAGO (Apr.
19, 2020, 9:37 PM), https://www.nbcchicago.com/news/local/4th-detainee-at-cook-county-jaildies-after-contracting-coronavirus/2258480/.
47
38 Positive for Coronavirus at Rikers, supra.
48
Releasing Inmates, Screening Staff: U.S. Jails and Prisons Rush to Limit Virus Risks,
N.Y. TIMES, REUTERS (Mar. 22, 2020),
https://www.nytimes.com/reuters/2020/03/22/us/22reuters-health-coronavirus-usa-inmates.html
(emphasis added).
24
professionals and experts in infectious disease and/or prison populations” wrote to
Connecticut Supreme Court Associate Justice Andrew J. McDonald, the way to
safeguard inmates is to reduce jail populations now. 49 “Once a case of COVID-19
[is] identified in a facility, it will likely be too late to prevent a widespread
outbreak.”50 Two doctors who are contracted experts for the Department of
Homeland Security’s Office of Civil Rights and Civil Liberties said that COVID19 presents an “imminent risk to the health and safety” of detainees in ICE
detention centers, as well as the general public.51
And the risks of COVID-19 are increasing because of the Delta variant of
the virus. According to the WHO, the Delta variant is “of concern because we
know it has increased transmissibility.52 “This has been demonstrated by several
countries.”53 “And we know that where the Delta variant is identified, it really
rapidly takes off and spreads between people more efficiently than even the Alpha
variant that was first detected around December, January 2021.” 54
49
Letter from Dan Barrett to Justice Andrew McDonald (Mar. 26, 2020), available at
https://www.acluct.org/sites/default/files/field_documents/2020-0326_letter_to_committee_requesting_emergency_alteration_of_rules.pdf.
50
Id.
51
Catherine E. Shoichet, Doctors Warn of ‘Tinderbox Scenario’ if Coronavirus Spreads in ICE
Detention, CNN (Mar. 20, 2020, 8:21 PM ET), https://www.cnn.com/2020/03/20/health/doctorsice-detention-coronavirus/index.html.
52
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/media-resources/sciencein-5/episode-45---delta-variant.
53
Id.
54
Id.
25
Mr. Payton is powerless to take the preventative self-care measures directed
by the CDC for him to remain safe from COVID-19 infection. He cannot selfquarantine or partake in “social distancing” in his prison facility. BOP facilities
typically have several community spaces, including a common room, laundry
facilities, barbershop, medical areas, dining hall, small library and gym. These
high-density areas are precisely the kind of spaces that have caused the alarmingly
high-spread rates of COVID-19. Hand sanitizer, an effective disinfectant
recommended by the CDC to reduce transmission rates, is contraband in jails and
prisons because of its alcohol content. 55 Correctional health experts worry that no
matter what precautions are taken by crowded prisons, these facilities may become
incubators for the COVID-19 disease.56 Prisons cannot maintain the level of
separation and sanitation necessary to prevent widespread infection. 57 As stated
above, BOP is NOT taking adequate steps to contain the virus and protect the
inmate population.
55
Keri Blakinger and Beth Schwarzapfel, “How Can Prisons Contain Coronavirus When Purell
is Contraband?,” ABA Journal (March 13, 2020), available at
https://www.abajournal.com/news/article/when-purell-is-contraband-how-can-prisons-containcoronavirus.
56
Michael Kaste, “Prisons and Jails Worry About Becoming Coronavirus ‘Incubators’,” NPR
(March 13, 2020), available at https://www.npr.org/2020/03/13/815002735/prisons-and-jailsworry-about-becoming-coronavirus-incubators.
57
“Prisons and Jails are Vulnerable to COVID-19 Outbreaks,” The Verge (Mar. 7, 2020),
available at https://bit.ly/2TNcNZY.
26
E.
Mr. Payton’s health conditions warrant releasing him from prison.
Based on BOP medical records, Mr. Payton suffers from high blood pressure
/ hypertension. He takes one Hydrochlorothiazide 25 MG tablet per day for
hypertension. CDC research indicates, “[h]aving heart conditions such as heart
failure, coronary artery disease, cardiomyopathies, and possibly high blood
pressure (hypertension) can make you more likely to get severely ill from
COVID-19.”58
Mr. Payton’s hypertension diagnosis supports a ruling that he should be
released from prison”59 That is true because “[p]eople with high blood pressure or
high cholesterol are more likely to suffer from Covid-19 complications because of
problems with how the heart pumps blood around the body.”60 The increased risk
of COVID-19 health issues for people with high blood pressure is also recognized
by the American Heart Association. 61
Case law supports a conclusion that Mr. Payton’s hypertension warrants
compassionate release. See, e.g., United States v. Salvagno, 456 F.Supp.3d 420,
58
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html#MedicalConditionsAdults (bold emphasis in original; italicized and underlined
emphasis added).
59
Id.
60
https://www.msn.com/en-za/health/medical/health-conditions-that-put-you-at-risk-of-covid19/ar-BB11lQqT
61
https://newsroom.heart.org/news/what-people-with-high-blood-pressure-need-to-know-aboutcovid-19 (stating people with high blood pressure “may face an increased risk for severe
complications if they get the virus”).
27
438 (N.D. N.Y. 2020); see also United States v. Pena, No. 15-CR-551 (AJN), 2020
WL 2301199, at *4 (S.D.N.Y. May 8, 2020) (“This Court has repeatedly
recognized that COVID-19 presents a heightened risk for individuals with
hypertension[.]”); United States v. Soto, No. 1:18-CR-10086-IT, 2020 WL
2104787, at *2 (D. Mass. May 1, 2020) (“Defendant’s medical records show that
he suffers from hypertension. This condition increases her risk for serious
complications from contracting COVID-19, including death.”); United States v.
Scparta, No. 18-CR-578 (AJN), 2020 WL 1910481, at * 9 (S.D.N.Y. Apr. 20,
2020) (finding hypertension to be a comorbidity that increases the risk of death
from COVID-19, and “reject[ing] the Government's contention that Mr. Scparta’s
general good health before the pandemic speaks to whether he should now be
released.”); United States v. Sawicz, No. 08-CR-287 (ARR), 2020 WL 1815851
(E.D.N.Y, Apr. 10, 2020) (granting compassionate release to a defendant convicted
of possession of child pornography who suffers from hypertension).
Mr. Payton’s case originates from the Southern District of Mississippi,
Northern Division. Judge Carlton Reeves of the Southern District, Northern
Division, recently canvased case law in which hypertension was at issue in the
COVID-19 / compassionate release context. Following is an excerpt from Judge
Reeves’ opinion:
Other courts have granted compassionate relief for inmates suffering from
diabetes and hypertension. See United States v. Lewis, No. 16-CR-302, 2020
28
WL 2081374, at *1 (S.D.N.Y. Apr. 30, 2020) (finding extraordinary and
compelling reasons for release because “[i]t [was] beyond dispute that Mr.
Lewis is at high risk from COVID-19, as ... [his] diabetes is one of the most
significant comorbidity factors and that is no doubt heightened by Mr.
Lewis’s high blood pressure.”); United States v. Colvin, 451 F.Supp.3d 237,
241 (D. Conn. 2020) (Defendant with diabetes and high blood pressure
demonstrated extraordinary and compelling reasons justifying her immediate
release); U.S. v. Rountree, 460 F.Supp.3d 224, 325 (NDNY 2020) (“Here, in
line with numerous other courts to have considered this issue, the Court
finds that Rountree's diabetes and hypertension, in the face of the COVID-19
pandemic, satisfies either § 1B1.13’s specific “medical condition” provision
or its “catchall” provision.”).
Courts have also granted compassionate release for defendants suffering
from hypertension alone. “What the scientific community knows with
relative certainty is that hypertension is one of the most common
‘comorbidities’ in people who experience severe cases of COVID-19, a fact
that has been apparent since the early days of the pandemic; indeed, much
research identifies hypertension as the most common comorbidity.” U.S. v.
Salvagno, 456 F.Supp.3d 420, 438 (NDNY 2020). “For many courts, this
strong correlation [between hypertension and poor COVID-19 outcomes]
has been sufficient to find that COVID-19 poses a heightened risk to
hypertensive inmates, for purposes of compassionate release.” Id. at 439-40;
see, e.g., United States v. Lavy, 17-CR-20033, 2020 WL 3218110, at *4 (D.
Kan. June 15, 2020) (citing scientific studies); United States v. Burke, No.
17-CR-3089, 2020 WL 3000330, at *2 (D. Neb. June 4, 2020) (citing
scientific studies); United States v. Foreman, No. 19-CR-62, 2020 WL
2315908 at *3–4 (D. Conn. May 11, 2020) (citing New York city and state
data); United States v. Pena, No. 15-CR-551, 459 F.Supp.3d 544, ––––
(S.D.N.Y. May 8, 2020) (citing CDC data); United States v. Pabon, No. 17CR-165, 458 F.Supp.3d 296, –––– (E.D. Pa. May 4, 2020) (citing scientific
articles and data from China, New York City, and New York State); United
States v. Soto, No. 18-CR-10086, 2020 WL 2104787, at *2 (D. Mass. May
1, 2020) (citing WHO data); United States v. Scparta, No. 18-CR-578, –––
F.Supp.3d ––––, ––––, 2020 WL 1910481, at *9 (S.D.N.Y. Apr. 20, 2020)
(citing CDC data).
United States v. Guston, No. 312CR116CWRFKB3, 2021 WL 149018 at *3 (S.D.
Miss. Jan. 15, 2021).
29
In Guston, Judge Reeves granted compassionate release. Guston, 2021 WL
149018 at *6. The holdings in Guston certainly support ruling that Mr. Payton
should be granted compassionate release because he suffers from hypertension.
In addition to hypertension, Mr. Payton is obese, with a BMI of 38.91. The
CDC defines obesity as people with a BMI greater than or equal to 30 kg/m2 and
less than 40 kg/m2. The CDC states that obesity “can make you more likely to
get severely ill from COVID-19.”62
In United States v. Walker, No. CR ELH-18-0017, 2021 WL 461838 (D.
Md. Feb. 9, 2021), the court collected cases in which other courts found that an
inmate’s obesity warrants compassionate release. The cases cited in Walker are:
United States v. Staten, PJM-01-284-4, 2020 WL 4904270, at *2 (D. Md. Aug. 18,
2020) (finding an “extraordinary and compelling reason” for compassionate release
based on a BMI of 38); United States v. Williams, PWG-19-134, 2020 WL
3073320 (D. Md. June 10, 2020) (finding obese defendant with a BMI of 32.5
qualified for compassionate release in light of COVID-19); United States v.
Quintero, 08-CR-6007L, 2020 WL 2175171, at *1 (W.D.N.Y. May 6, 2020)
(finding defendant's diabetes, compromised immune system, obesity, and
hypertension satisfied an extraordinary and compelling reason); United States v.
62
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html#MedicalConditionsAdults (emphasis in original).
30
Dawson, No. 18-40085, 2020 WL 1812270, at *7 (D. Kan. Apr. 9, 2020) (granting
compassionate release based on a defendant's obesity); United States v. Zukerman,
451 F. Supp. 3d 329, 336 (S.D.N.Y. 2020) (concluding that defendant's diabetes,
hypertension, obesity, and age satisfied extraordinary and compelling reason).
Walker, 2021 WL 461838, at *9. These cases support a conclusion that Mr.
Payton’s obesity supports granting him compassionate release.
Also worthy of consideration is Mr. Payton’s recent leg injury. He informed
the undersigned that a sprinkler broke on February 16, 2021, causing an excessive
amount of water on the floor. He slipped and fell, resulting in a leg injury and
infection in his leg. Mr. Payton indicated that he has been to three hospitals for
treatment of this injury. The last hospital stay was from February 27 to March 9,
2021. This infection, combined with the dangers posed by COVID-19, is another
extraordinary and compelling reason to grant compassionate release.
A final factor that we must consider is Mr. Payton’s race. He is African
American. According to the CDC, race is a factor that warrants consideration in
the COVID-19 analysis. “Long-standing systemic health and social inequities
have put various groups of people at increased risk of getting sick and dying from
COVID-19, including many racial and ethnic minority groups[.]” 63 Mr. Payton’s
63
https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html.
31
status as a racial minority is another building block supporting compassionate
release.
The CDC recommends those in a higher risk category avoid exposure to the
virus. 64 There is an urgent need to act now, because COVID-19 has already spread
to Memphis FCI and almost all other BOP facilities. As described in the attached
declaration of Dr. Jamie Meyer, an infectious disease specialist and Assistant
Professor of Medicine at Yale School of Medicine, inmates are uniquely
vulnerable:
[t]he risk posed by infectious diseases in jails and prisons is
significantly higher than in the community, both in terms of risk of
transmission, exposure, and harm to individuals who become infected.
Dr. Meyer describes the inadequate pandemic preparedness plans in many
detention facilities and the difficulty of separating infected or symptomatic inmates
from others. The risk of disease transmission at Memphis FCI, combined with Mr.
Payton’s health conditions, presents an extraordinary and compelling reason to
grant his compassionate release.
F.
Mr. Payton is not a danger to society.
Mr. Payton will not be a danger to the community if his sentence is modified
or reduced. Although Mr. Payton’s charges were serious, he is taking advantage of
64
http://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html.
32
the programs at Memphis FCI, and has not had any disciplinary write-ups. He has
completed several programs, and has “above average work evaluations.”
If given home confinement, Mr. Payton will seek additional medical care for
the diagnoses and symptoms that he is dealing with while incarcerated. He will
also seek employment with the Animal Rescue League, as he has several years of
experience working with veterinary clinics. Plus, he has already arranged to live
with relatives upon release. These facts indicate that he will not be a danger to
society of this Court grants him compassionate release.
But even if this Court deems Mr. Payton a danger to society, that factor, in
and of itself, does not bar compassionate release. The Sixth Circuit analyzed this
issue in United States v. Sherwood, __ F.3d __, 2021 WL 345405 (6th Cir. 2021).
In addition to the “extraordinary and compelling reasons” factor, the
Sherwood court held that compassionate release is warranted where a reduction
“is ‘consistent with applicable policy statements issued by the Sentencing
Commission’ set forth in U.S.S.G. § 1B1.13; and that the § 3553(a) factors, to the
extent they apply, support a reduction.” Sherwood, 2021 WL 345405 at *1 (citing
18 U.S.C. § 3582(c)(1)(A)) (emphasis added). At issue in Sherwood was “the
second step in that three-step statutory formula, § 1B1.13, which, among other
things, requires district courts to find that “the defendant is not a danger to the
33
safety of any other person or to the community ....” Id. (quoting U.S.S.G. §
1B1.13(2)) (emphasis added).
In the context of § 1B1.13, the court held, “[f]ollowing enactment of the
First Step Act, district courts addressing defendant-filed motions for release may
now ‘skip step two of the § 3582(c)(1)(A) inquiry,’ meaning they need not
consider § 1B1.13 when ruling on those motions.” Sherwood, 2021 WL 345405 at
*1 (citations omitted). Therefore, “because satisfying the § 1B1.13 policy
statement is no longer a requirement for defendant-filed compassionate release
motions, the policy statement’s requirement that the defendant not be a danger to
the community no longer provides an independent basis for denying compassionate
release.” Id. (citation omitted).
34
VI. CONCLUSION
Based on the arguments presented above, Mr. Payton asks the Court to grant
his Petition for Writ of Certiorari in this case.
Submitted October 20, 2021, by:
___________________________
Jacinta A. Hall
Assistant Federal Public Defender
Southern District of Mississippi
200 South Lamar Street, Suite 200-N
Jackson, Mississippi 39201
Telephone: 601/948-4284
Facsimile: 601/948-5510
Attorney for Defendant-Petitioner
35
NO. _______________
IN THE
SUPREME COURT OF THE UNITED STATES
OF AMERICA
ANCE PAYTON
Petitioner-Defendant
v.
UNITED STATES OF AMERICA
Respondent
On Petition for Writ of Certiorari from the
United States Court of Appeals for the Fifth Circuit.
Fifth Circuit Case No. 21-60187
CERTIFICATE OF SERVICE
I, Jacinta A. Hall, appointed under the Criminal Justice Act, certify that
today, October 20, 2021, pursuant to Rule 29.5 of the Supreme Court Rules, a copy
of the Petition for Writ of Certiorari and the Motion to Proceed In Forma Pauperis
was served on Counsel for the United States by Federal Express, No. XXX,
addressed to:
The Honorable Brian H. Fletcher
Solicitor General of the United States
Room 5614, Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
36
I further certify that all parties required to be served with this Petition and the
Motion have been served.
_______________________________
Jacinta A. Hall
Assistant Federal Public Defender
37
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.