In a previous blog, I provided an overview of Section 3582(c) with respect to the modification of prison terms. In addition, I looked at two recent cases (United States v. Higa [Hawaii] & United States v. McGrath [Ohio]) that dealt with defendants who cited the COVID-19 pandemic in their respective motions for compassionate release. For more information on those cases, see the following Insight Blog: But, Your Honor, There’s A Coronavirus Pandemic – Higa & McGrath.

Now, another recent criminal case provides another data point with respect to defendants serving prison time related to tax crimes who file a motion for compassion release under Section 3582(c)(1)(A) and invoke the COVID-19 pandemic. This time the district court is located in Pennsylvania. And, this time the district court denied the defendant’s motion.

Compassionate Release, Generally

A defendant, after exhausting all administrative remedies, may bring a motion to modify his or her term of imprisonment.[1] The court, as a substitute, may impose a term of probation or supervised release for the remaining portion of the term of imprisonment. The court may take such actions after considering the section 3553(a) factors and after finding that the defendant’s “extraordinary and compelling reasons” warrant a reduction.[2]

The factors generally considered by federal courts relative to a motion for compassionate relief are as follows:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

. . .

(5) any pertinent policy statement—

. . .

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.[3]

In the following case, the defendant was incarcerated and serving his prison sentence related to certain tax crimes. The defendant moved the District Court for the Eastern District of Pennsylvania for compassionate release under Section 3582(c)(1)(A)(i). Moreover, the defendant invoked the COVID-19 pandemic as part of his motion. However, the District Court of Pennsylvania [Eastern District] denied the defendant’s motion.

United States v. Ishmael[4]

Defendant Ishmael was convicted of conspiracies to defraud the United States and to file false claims with the IRS. On July 26, 2013, Defendant Ishmael was sentenced to 144 months in prison. On October 27, 2020, after exhausting his administrative remedies, Defendant Ishmael filed a motion for compassionate release, citing the COVID-19 pandemic. The defendant argued that his “obesity, hypertension, and race” put him at higher risk regarding COVID-19 and that he satisfies the section 3553(a) factors, in part, because he is a non-violent offender, has “an exemplary behavioral record” while in prison; and has served over 70 percent of his prison sentence.[5] The district court denied his motion, in part, for failing to satisfy the section 3553(a) factors:

For purposes of this Motion, the Court will assume, without deciding, that Defendant’s obesity presents an extraordinary and compelling reason for his compassionate release in light of the COVID-19 pandemic. Because the Government concedes that Defendant’s obesity presents a COVID-19 risk factor, and the Court will consider this as an extraordinary and compelling reason for his release, the Court need not address whether his other medical conditions also meet this threshold. . . .

Defendant harnessed his wife’s knowledge as an IRS employee to prepare false tax returns, teach others how to propagate the scheme, and recruit claimants to participate in the fraud. Because of his participation in these crimes over a five-year period, Defendant owes nearly $1.8 million in restitution. And although Defendant asserts that he is a non-violent offender who “knows and understands the severity of his crime,” there is no assurance that he would be deterred from committing additional crimes if released. Defendant has a prior controlled substance conviction for which he was sentenced to twelve months’ incarceration. His time served did not deter him from participating in the tax fraud scheme over the five-year period.

. . .

Defendant has served approximately seventy percent of his total sentence of incarceration; however, the magnitude of his crimes and his criminal history warrant the entire sentence he received.[6]

Conclusion

Reviewing this case, this decision actually addresses the underlying section 3553(a) factors, unlike the court in United States v. Higa. Here, Defendant Ishmael appropriately exhausted his administrative remedies prior to filing his motion for compassionate release. Further, the district court entertained the defendant’s COVID-19 argument relative to his health concerns; however, the section 3553(a) factors foreclosed the court from ruling in Mr. Ishmael’s favor. Ultimately, the defendant’s prior criminal history and the severity of his crimes (resulting in nearly $1.8 million in restitution) undermined his motion for compassionate release.

Further, the court noted that the defendant’s main COVID-19 risk factor—obesity—wasn’t particularly convincing: (1) because his weight could be appropriately managed while incarcerated; and (2) because most cases where compassionate release was granted involved “an actual, non-speculative risk of exposure to COVID-19 in the facility where the prisoner [was] held.”[7] Thus, an abstract argument involving the pandemic—that the pandemic “is out there”—is too tenuous for most courts to entertain.

[1] See 18 U.S.C. § 3582(c)(1)(A).

[2] See 18 U.S.C. § 3582(c)(1)(A)(i).

[3] See 18 U.S.C. § 3553(a)(1)-(7).

[4] United States v. Ishmael, No. CR 12-155, 2021 WL 567747, at *1 (E.D. Pa. Feb. 16, 2021)

[5] Id. at *2.

[6] Id. at *7 (internal citations omitted).

[7] Id. at *4.

Have a question? Contact Zachary Montgomery, Freeman Law, Texas.