Opinion
CRIMINAL NO. 2:11cr34
2021-08-18
UNITED STATES of America, v. Abdi Jama AQID, Defendant.
Brian James Samuels, US Attorney, United States Attorney's Office, Newport News, VA, Joseph E. DePadilla, US Attorney, Benjamin Lucas Hatch, US Attorney, United States Attorney's Office, Norfolk, VA, for United States of America.
Brian James Samuels, US Attorney, United States Attorney's Office, Newport News, VA, Joseph E. DePadilla, US Attorney, Benjamin Lucas Hatch, US Attorney, United States Attorney's Office, Norfolk, VA, for United States of America.
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Defendant's Motion for Compassionate Release, filed pro se on April 27, 2021. ECF No. 1142.
I. Background
On May 24, 2011, the Petitioner pled guilty to one count of Piracy Under the Law of Nations, in violation of 18 U.S.C. § 1651. ECF No. 198. On March 30, 2012, the court sentenced the Defendant to a mandatory term of life imprisonment under 18 U.S.C. § 1651. ECF No. 437.
On April 27, 2021, the Defendant filed the instant Motion requesting a sentence reduction because of the spread of the novel Coronavirus ("COVID-19"). ECF No. 1142 at 2. He also argues that his life term of imprisonment is excessive and warrants a reduction. Id. On July 9, 2021, the United States filed a Response in Opposition to the Defendant's Motion, and the Defendant replied on August 2, 2021. ECF Nos. 1151, 1157.
II. Exhaustion of Remedies
Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the court may modify a term of imprisonment, if it finds that "extraordinary and compelling reasons warrant such a reduction." Id. Before the court may consider such a motion, however, the defendant must have "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf," or there must have been a "lapse of 30 days from the receipt of such a request by the warden of the defendant's facility." Id. § 3582(c)(1)(A).
The Defendant submitted a request for compassionate release to the warden of his facility on March 4, 2021. See ECF Nos. 1142 at 7, 1142-1 at 2 (copy of request), 1144 at 2. The Defendant asserts--and the United States does not challenge--that the warden failed to respond to the request within 30 days. ECF No. 1144 at 2. Therefore, the Defendant seems to have complied with the requirement that he exhaust his administrative remedies before pursuing a motion for compassionate release in this court. See 18 U.S.C. § 3582(c)(1)(A).
III. Merits
Next, the court must consider whether the Defendant has shown "extraordinary and compelling reasons" that justify a reduction in his sentence. Any reduction under § 3582(c)(1)(A) must be "consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A) ; see United States v. McCoy, 981 F.3d 271, 274-75 (4th Cir. Dec. 2, 2020). In McCoy, the Fourth Circuit held that "there currently exists no ‘applicable policy statement’ " because the Commission has not issued a policy statement since the passage of the First Step Act. 981 F.3d at 281. Therefore, until the Sentencing Commission issues an updated policy statement, "district courts are ‘empowered to consider any extraordinary and compelling reason for release that a defendant might raise.’ " Id. at 284 (alteration omitted) (quoting United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020) ).
Although the policy statement in U.S.S.G. § 1B1.13 is no longer binding on this court after the Fourth Circuit's decision in McCoy, the court finds certain provisions useful in addressing the instant Motion. For example, the court will still consider "the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable," U.S.S.G. § 1B1.13, and whether "[t]he defendant is ... a danger to the safety of any other person or to the community," id. § 1B1.13(2), because these considerations remain highly relevant to whether a reduction in sentence is warranted in this case. See United States v. Dean, Case No. 15-CR-0339, 2020 WL 7055349, at *1-2 (D. Minn. Dec. 2, 2020) (citing McCoy and stating that "the court will treat § 1B1.13 as providing useful guidance about how the Court should exercise its discretion under § 3582(c)(1)(A), but the Court will not treat its provisions as binding").
A.
The Defendant requests that his sentence be reduced primarily because of the spread of COVID-19. The Defendant's arguments regarding the generalized dangers of COVID-19 to the prison population do not constitute "extraordinary and compelling reasons" because "the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release." United States v. Feiling, 453 F. Supp. 3d 832, 841 (E.D. Va. 2020) (Novak, J.) (quoting United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) ). Rather, "[i]n the context of the COVID-19 outbreak, courts have found extraordinary and compelling reasons for compassionate release when an inmate shows both a particularized susceptibility to the disease and a particularized risk of contracting the disease at his prison facility." Feiling, 453 F. Supp. 3d at 841 (emphasis added); see id. (collecting cases).
The Defendant claims that his obesity places him at a high risk of severe illness if he were to contract COVID-19. ECF No. 1142 at 11-13. However, the Defendant, who is only 35 years old, presents no evidence that he is obese. According to his medical records, the Defendant was 73 inches tall and weighed 190 pounds, as of February 26, 2021, which yields a Body Mass Index ("BMI") of 25.1. See ECF No 1153 at 4. While the Defendant may be considered slightly overweight, that is well below the BMI threshold of 30 for obesity. Overall, the Defendant's medical records indicate that he is in good health. See generally ECF No. 1153. Moreover, the Defendant has already tested positive for COVID-19 and recovered without any serious complications, which undercuts the argument that he is particularly susceptible to extreme illness or death from COVID-19, or that the Bureau of Prisons ("BOP") would be ineffective in managing his illness in the off-chance he contracts COVID-19 again. See ECF Nos. 1142 at 10, 1153 at 34.
See Centers for Disease Control and Prevention ("CDC"), "People with Certain Medical Conditions: Overweight and Obesity," https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/ people-with-medical-conditions.html.
Most importantly, the Defendant fails to show both a particularized susceptibility to COVID-19 and a risk of contracting the virus because he has now received the second and final dose of the highly effective Pfizer-BioNTech COVID-19 vaccine. ECF No. 1153 at 30 (immunization record). The combined efficacy of the vaccine and the Defendant's previous COVID-19 infection strongly suggests that he has little, if any, risk of contracting or suffering serious illness from COVID-19, even if his facility has another outbreak, which is speculative at best given the BOP's vaccination roll-out. See United States v. Sanders, No. CR SAG-06-087, 2021 WL 1428546, at *3 (D. Md. Apr. 15, 2021) (holding that defendant's "vaccination status remove[d] his other medical conditions from the category of risk constituting an ‘extraordinary and compelling reason,’ " and collecting cases concluding the same); United States v. Burks, No. 3:14-CR-208-MOC-1, 2021 WL 1394857, at *3 (W.D.N.C. Apr. 13, 2021) (holding that the continued threat of COVID-19 was not an extraordinary or compelling reason for release because "by accepting vaccination," the 74-year-old defendant with heart disease, diabetes, and hypertension, exercised "effective self-care against the virus"); United States v. Williams, No. 5:01-CR-00012-KDB, 2021 WL 966028, at *3 (W.D.N.C. Mar. 15, 2021) (finding that defendant did not show "extraordinary and compelling reasons" because he would not be particularly susceptible to COVID-19 after being fully vaccinated).
According to the CDC, the Pfizer-BioNTech vaccine is 95% effective in preventing COVID-19 for individuals without previously confirmed COVID-19 infection. CDC, Pfizer-BioNTech COVID-19 Overview and Safety, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/ Pfizer-BioNTech.html.
B.
Furthermore, even if the Defendant could show extraordinary and compelling reasons, the court declines to reduce the Defendant's sentence because his release would pose a danger to the community, and the factors in 18 U.S.C. § 3553(a) weigh heavily against his release. Cf. United States v. Kibble, 992 F.3d 326, 330-32 (4th Cir. 2021) (affirming denial of a motion for compassionate release where the defendant's "health conditions ... amount to extraordinary and compelling circumstances," but "the § 3553(a) factors counseled against a sentence reduction"). The Defendant was one of nineteen pirates who hijacked a United States flagged vessel, the sailboat Quest, with high-powered firearms; held the four American passengers hostage over the course of days; and attempted to bring the hostages back to Somalia for ransom. See PSR ¶¶ 28-31. Following a standoff with the United States Navy, which was attempting to rescue the hostages and secure the Quest, one pirate fired a rocket-propelled grenade toward a Navy ship and the pirates thereafter began firing weapons from the Quest. Id. ¶ 32. Soon after, a group of Navy SEALs boarded and secured the Quest, but the pirates had already killed all four American hostages. Id.
Although no words can aptly describe the true gravity of the crimes committed by the Defendant and his co-conspirators, the court agrees with the Defendant that his offense conduct is "undeniably serious." ECF No. 1142 at 16. Nevertheless, the Defendant describes his sentence as excessive and argues that a reduction from life to 20-25 years imprisonment is sufficient given the comparable sentences for defendants whose offenses involve murder. See ECF No. 1142 at 18. However, the Defendant's mandatory life sentence under 18 U.S.C. § 1651 "reflects a rational legislative judgment ... that piracy in international waters is a crime deserving of one of the harshest of penalties." United States v. Said, 798 F.3d 182, 199 (4th Cir. 2015). At the Defendant's sentencing, the court noted that a mandatory life sentence was "a recognition that piracy is a scourge on the entire international community, and that it threatens nations, commerce and free navigation." ECF No. 1148 at 8.
The court acknowledges the Defendant's purported remorse, his acceptance of responsibility, and his participation in prison programs as a means of rehabilitation, but these considerations simply do not outweigh the severity of the Defendant's offense conduct at this juncture. Not only did the Defendant engage in piracy, but his and his co-conspirators’ actions resulted in the murder of the four American citizens, being held hostage for ransom. The court reiterates its statement at sentencing that "[t]he fact that [the Defendant] was not one of those that directly murdered the victims in no way excuses the action of engaging in piracy," and that "he certainly understood the grave outcomes that could, and indeed did, result from the activity in which he engaged." ECF No. 1148 at 6. "[T]he actions of each individual [pirate] set the stage for the murders that followed." Id. at 7. The Defendant has only served about ten years of his life sentence for piracy that resulted in the loss of four innocent lives, so reducing the Defendant's sentence at this juncture would simply not reflect the seriousness of the offense, promote respect for the law, protect the public, or provide adequate deterrence. See 18 U.S.C § 3553(a).
IV. Conclusion
For the foregoing reasons, and having considered the factors in 18 U.S.C. § 3553(a), the court concludes that the Defendant is not entitled to a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Accordingly, the Defendant's Motion is DENIED .