Opinion
17-CR-6159L
05-13-2020
UNITED STATES of America, Plaintiff, v. Sofonzia MACK, Defendant.
Charles E. Moynihan, Matthew Thomas McGrath, U.S. Attorney's Office, Rochester, NY, for Plaintiff Steven G. Slawinski, Wedade Wendy Abdallah, Federal Public Defender, Rochester, NY, for Defendant
Charles E. Moynihan, Matthew Thomas McGrath, U.S. Attorney's Office, Rochester, NY, for Plaintiff
Steven G. Slawinski, Wedade Wendy Abdallah, Federal Public Defender, Rochester, NY, for Defendant
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge
On April 20, 2020, defendant Sofonzia Mack ("Mack") filed a motion (Dkt. #130) pro se seeking compassionate release from imprisonment pursuant to 18 U.S.C. § 3582(c)(1)(A). The basis for the motion is the public health crisis involving the COVID-19 virus, as well as health issues involving both Mack's parents.
The Government filed a detailed Response on May 1, 2020 (Dkt. #132). The Court has also received a Report (Dkt. #133) from the Probation Office concerning the medical status of both Mack and at the facility where he is currently housed, F.C.I. Allenwood, Low. For several reasons, the motion must be, and hereby is DENIED. First of all, it appears that this Court lacks jurisdiction to entertain the motion since Mack has filed an appeal from the Court's judgment which is currently pending before the United States Court of Appeals for the Second Circuit. The filing of that appeal divests this Court of jurisdiction to consider legal matters concerning Mack's case. Second, and noted by the Government in it's Response, Mack has failed to make an administrative application to the Bureau of Prisons ("BOP") for compassionate release. The exhaustion requirement at Section 3582(c)(1)(A) requires the application for release to be made to the BOP which has 30 days within which to decide the matter. Although there are circumstances where the requirement can be waived or deemed futile, this does not appear to be such a case. Mack has failed to indicate that he made any such application and the Government notes that the BOP has no record of any application.
To establish entitlement to release, Mack must demonstrate extraordinary and compelling reasons for the Court to order release. The burden is on the inmate to demonstrate that. For several reasons, I believe Mack has failed to do so. First of all, Mack is relatively young, 37 years old and there does not appear to be any documented evidence to suggest that he has any medical conditions which make him especially vulnerable to the virus. Although he claims some lung issues in his motion, there is no evidence of these maladies either in the Presentence Report or in the medical treatment given to Mack while he has been incarcerated at the BOP.
Next, the Allenwood Facility where Mack is housed appears to be taking significant positive steps to limit the potential spread of the virus. According to the Report from Probation, as of April 30, 2020, no inmates had contracted the disease and there were no deaths of either inmates or staff. Thus, unlike other more crowded BOP facilities, the Allenwood Facilities do not appear to have a significant virus transmission problem.
CONCLUSION
Defendant Sofonzia Mack's motion (Dkt. #130) seeking compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) is in all respects DENIED.
IT IS SO ORDERED.