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February 13, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 79 BOP facilities and 8 RRCs

Currently positive-testing inmates: 180 (up from 154) Currently positive-testing staff: 1138 (up from 125) Recovered inmates currently in the BOP: 46,171 (down from 46,188) Recovered staff: 15,052 (up from 15,051)


Institutions with the largest number of currently positive-testing inmates:

Fort Dix FCI: 21 (up from 13)

Montgomery FPC: 17 (up from 14)

Carswell FMC: 14


Institutions with the largest number of currently positive-testing staff:

Devens FMC: 19 (up from 5)

Three Rivers FCI: 7 (unchanged)

Carswell FMC: 6 (up from 5)


System-wide testing results: Presently, BOP has 145,392 federal inmates in BOP-managed institutions and 13,024 in community-based facilities. Today's stats: Completed tests: 128,652 (up from 128,649) Positive tests: 55,300 (up from 55,297)


Total vaccine doses administered: 347,534 (up from 347,512)


Case Note: Court grants one of the rare Government motions for compassionate release for terminally ill inmate...


In U.S. v. NATHANIEL COLES, Defendant., No. 19 CR. 789 (PGG), 2023 WL 1865349 (S.D.N.Y. Feb. 9, 2023), SDNY Judge Gardephe granted one of the rare Government motions for compassionate release for a terminally ill defendant, explaining, "On November 6, 2019, Coles was charged with conspiracy to violate the Travel Act in violation of 18 U.S.C. §§ 371 and 1952; wrongful disclosure of individually identifiable healthcare information in violation of 42 U.S.C. §§ 1320d-6(a)(1)-3, (b)(3) and 18 U.S.C. § 2; and payments of bribes and gratuities to an agent of a federally funded organization in violation of 18 U.S.C. §§ 666(a)(2) and 2. The Government alleged that Coles committed these offenses in connection with his participation in a bribery and kickback scheme involving a ring of conspirators who procured information regarding motor vehicle accident victims and then steered those victims to corrupt medical clinics and law firms in exchange for kickbacks. (Indictment (Dkt. No. 1)) ... On June 28, 2021, Coles pleaded guilty to conspiracy to violate the Travel Act. (June 28, 2021 Tr. (Dkt. No. 620)).

At the December 9, 2021 sentencing, this Court noted that while Coles – then 68 – suffered from diabetes, he was otherwise in good health. (Dec. 9, 2021 Tr. (Dkt. No. 661) at 24; see also PSR (Dkt. No. 520) ¶ 145 (“[Coles] otherwise reported to be in overall good physical health and has never been hospitalized.”)) This Court went on to sentence Coles to five years’ imprisonment and three years’ supervised release. (Dec. 9, 2021 Tr. (Dkt. No. 661) at 25)


II. MOTION FOR COMPASSIONATE RELEASE In a February 7, 2023 motion, the Government asks this Court to grant Coles compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (Mot. (Dkt. No. 937)) The Government explains that “[o]n January 9, 2023, the BOP contacted [the Government] to request consideration for a reduction of sentence to time served for Nathaniel Coles, based on his terminal medical condition”:

BOP reports that Coles’ health significantly deteriorated over the past few months. Coles, who will turn 70 next week, was sent to the hospital on November 9, 2022, due to complaints of shortness of breath, cough, and bilateral leg swelling. He has remained hospitalized since that time. Coles was initially noted to be in acute renal failure with indications of congestive heart failure. Coles was then diagnosed with Amyloid Cardiomyopathy, and began chemotherapy on December 20, 2022. On December 31, 2022, Coles went into cardiac arrest and recovered after six minutes of cardiopulmonary resuscitation. He was also intubated, but was able to be extubated on January 1, 2023. Coles recently underwent a procedure on January 18, 2023, for placement of an automatic implantable cardioverter defibrillator. BOP further reported to [the Government] that according to treatment providers, Coles’ prognosis is extremely poor, with a life expectancy of five to six months and a 100 percent mortality rate within one year. Because he is considered terminally ill with a poor prognosis, a life expectancy of less than 18 months, and an end-of-life trajectory, BOP has determined that Coles meets BOP's medical criteria for consideration for a reduction in sentence....

The Government contends that “Coles’ terminal medical condition constitutes [an] ‘extraordinary and compelling reason[ ]’ warranting the requested reduction in sentence [to time served].” The Government further contends that, after Coles’ release from prison, “he should begin immediately serving the three-year term of supervised release previously imposed by the Court.” (Id. at 3)


DISCUSSION

I. LEGAL STANDARD The compassionate release statute – 18 U.S.C. § 3582(c)(1)(A) – provides that a court may upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant ... 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....


II. ANALYSIS A. “Extraordinary and Compelling Reasons Congress tasked the Sentencing Commission with providing guidance to courts regarding the application of the compassionate release statute. See 28 U.S.C. § 994(t) (“The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, 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.”); see also United States v. Ebbers, 432 F. Supp. 3d 421, 427 (S.D.N.Y. 2020). The Commission's policy statement and commentary concerning § 3582(c)(1)(A) are found in U.S. Sentencing Guideline § 1B1.13, which states that a court may reduce a sentence for “[e]xtraordinary and compelling reasons,” including where the defendant is “suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory),” such as “metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.” U.S.S.G. § 1B1.13(1)(A) & cmt. n.1(A)(i).

The Government argues that Coles’ diagnosis of amyloid cardiomyopathy constitutes an “ ‘extraordinary and compelling reason’ warranting the requested reduction in sentence.” (Mot. (Dkt. No. 937) at 3 (quotation marks for emphasis in original))...

Here, the Government represents that Coles’ prognosis is “extremely poor, with a life expectancy of five to six months, and a 100 percent mortality rate within one year.” (Mot. (Dkt. No. 937) at 2). As noted above, Coles is now 70 years old. He has been hospitalized for the past three months. He has suffered cardiac arrest, and six minutes of CPR were required to resuscitate him. An automatic defibrillator has been implanted in his heart. Coles’ heart condition is regarded as terminal. (Id.)

This Court concludes that Coles’ amyloid cardiomyopathy condition constitutes an “extraordinary and compelling reason[ ]” for purposes of the compassionate release statute....


B. Section 3553(a) Factors As to the Section 3553(a) factors, Coles’ offense is serious. He was a manager and supervisor of a massive, multi-year-long scheme to commit bribery and unlawfully obtain information about motor vehicle accident victims from hospitals and law enforcement. He personally profited from this scheme to the tune of millions of dollars.

As to Coles’ personal history and characteristics, he had a stable upbringing. (See PSR (Dkt. No. 520) ¶ 130) He has been married four times and has four children. (Id. ¶¶ 131-32, 136) He has a GED and an associate's degree and worked as a computer technician for many years before becoming a medical clinic manager, including at one of the medical clinics involved in the charged scheme. (Id. ¶¶ 165-69). He has a history of drug abuse. (Id. ¶ 149-55) Before his instant conviction, he had a 1969 conviction for petit larceny, a 1977 conviction for attempted criminal possession of a controlled substance, and a 1977 federal conviction for bank robbery in the Eastern District of New York, for which he received a sentence of four years’ imprisonment. (Id. ¶ 113-18) This Court finds, however, that given Coles’ terminal illness, his short life expectancy, and the conditions of his supervised release, his release does not pose a danger to the community. ...

Finally, Coles has served a year in prison. Given his terminal diagnosis and deteriorating medical condition, further imprisonment is not necessary to serve the goals of deterrence and promoting respect for the law. See United States v. Karr, No. 6:17-CR-25-REW, 2020 WL 774363, at *5–6 (E.D. Ky. Feb. 18, 2020) (granting compassionate release where defendant had served two years of 108-month sentence, was diagnosed with stage four lung cancer, and had a life expectancy of less than twelve months; finding that there is “no material risk of future criminality in a reduction based on a post-crime, terminal diagnosis”).

Finally, Coles’ offense – conspiracy to violate the Travel Act – did not involve violence or a risk of violence.

The Court concludes that Coles’ amyloid cardiomyopathy and short life expectancy constitute “extraordinary and compelling reasons” that warrant his release, and that these circumstances are not outweighed by the Section 3553(a) factors.

CONCLUSION

The Government's motion for Defendant Coles’ compassionate release (Dkt. No. 937) is granted, and he is ordered released pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)....


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced no new COVID-related deaths, leaving the total number of inmate COVID-related deaths at 312. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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