Criminal Practice – Prisons & Jails – Compassionate Release Request – COVID-19 Consideration

It is unclear whether, in denying a request for compassionate release from defendant – a 67-year-old man with emphysema and chronic obstructive pulmonary disease who was extradited from Costa Rica after targeting U.S. citizens in a fraudulent sweepstakes scheme – the district court properly reconsidered the 18 U.S.C. § 3553(a) factors in view of defendant’s age and health conditions, the COVID-19 outbreak at his prison, and the severe risks arising out of those circumstances.

We vacate the denial of defendant’s request and remand for reconsideration.

The government initially supported defendant’s request for compassionate release. However, the district court called a telephonic hearing and directed the government to file a new response, focusing on the § 3553(a) factors without reference to COVID-19. In its new response, the government changed its position, arguing that the § 3553(a) factors weighed against release.

The district court denied defendant’s request, but the district court’s explanation of its decision does not reflect that it considered defendant’s heightened vulnerability to COVID-19 in weighing the § 3553(a) factors.

We note that, in its colloquy with the government during the telephonic hearing, the district court appeared to take the view that it was inappropriate to consider COVID-19 or defendant’s particular susceptibility to the disease not only as part of the “extraordinary and compelling reasons” analysis but also under the § 3553(a) factors. Indeed, its dissatisfaction with the government’s initial brief in support of defendant’s motion seems to have been driven by precisely this concern: that the government had improperly relied on defendant’s heightened COVID-19 risks to argue that the § 3553(a) factors could now be satisfied by a 14-year sentence. And the court’s final instructions to the government were that in reconsidering its position on defendant’s motion, it should keep separate, in its analysis, the “COVID-19 issue” from the “§ 3553(a) issue.”

Because it is not clear that the district court considered defendant’s particular vulnerability to COVID-19 in weighing the § 3553(a) factors, we cannot meaningfully review its denial of defendant’s motion for compassionate release.

Vacated and remanded.

United States v. Mangarella (Lawyers Weekly No. 001-004-23, 15 pp.) (Pamela Harris, J.) No. 20-7912. Appealed from USDC at Charlotte, N.C. (Frank Whitney, J.) John Stephen Tagert and Brian Boone for appellant; Ross Brandon Goldman, Kenneth Polite and Lisa Miller for appellee. 4^th Cir.