USA v. Scher

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
GREGORY SCHER,
Defendant.
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CR. NO. 15-00614 SOM
ORDER DENYING DEFENDANT’S
EMERGENCY MOTION FOR
COMPASSIONATE RELEASE
ORDER DENYING DEFENDANT’S EMERGENCY MOTION
FOR COMPASSIONATE RELEASE
I. INTRODUCTION.
In early 2019, Defendant Gregory Scher received an
above-guidelines prison sentence of twenty months on one count of
Social Security fraud in violation of 42 U.S.C. § 408(a)(3). He
has served more than a year of his sentence, and he is scheduled
to be released from FMC Rochester on September 24, 2020. He now
argues that, in light of the COVID-19 pandemic, this court should
release him early under 18 U.S.C. § 3582(c)(1)(A) and, as a
condition of his release, place him on home confinement for the
duration of what would have been his prison sentence. Scher is
67 years old and suffers from several serious medical conditions
that place him at risk of complications if he contracts COVID-19.
Those conditions, however, also mean that Scher may need medical
care as soon as he leaves prison. Scher has not explained how he
will receive that treatment or how he will practice social
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distancing after he is released. This court is left with a
concern that a release before such a plan is in place might pose
a threat to Scher’s health. Although this court considers this a
close case, it denies Scher’s request.
II. ANALYSIS.
Scher’s compassionate release request is governed by 18
U.S.C. § 3582(c)(1)(A), which provides:
[T]he court . . . upon motion of the
defendant after the defendant has fully
exhausted all administrative rights to appeal
a failure of the Bureau of Prisons to bring a
motion on the defendant’s behalf or the lapse
of 30 days from the receipt of such a request
by the warden of the defendant’s facility,
whichever is earlier, may 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--
(i) extraordinary and compelling reasons
warrant such a reduction . . . .
and that such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission.
This court begins by expressing some bewilderment about
the Government’s interpretation of § 3582(c)(1)(A). The
Government contends that Scher establishes extraordinary and
compelling reasons in the form of his age and medical conditions
that make him vulnerable if he contracts COVID-19. However, the
Government says that Scher nevertheless “is not entitled to
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relief after applying the § 3553(a) factors.” ECF No. 284,
PageID # 2885-86, 2888. That analysis does not track the
language of § 3582(c)(1)(A). In conceding that Scher has shown
extraordinary and compelling reasons, the Government is
separating the words “extraordinary and compelling reasons” from
the immediately following words in the statute. The statute
requires a court to find “that extraordinary and compelling
reasons warrant such a reduction.” Treating Scher’s reasons as
“extraordinary and compelling” and only then turning to § 3553
requires treating in isolation words in § 3582(c)(1)(A) that
cannot justifiably be isolated from the idea that the
extraordinary and compelling reasons must be reasons that warrant
a reduction. Indeed, § 3582(c)(1)(A) directs courts to determine
whether extraordinary and compelling reasons warrant a reduction
in sentence only after considering the factors in § 3553(a).
This court views the § 3582(c)(1)(A) analysis as being
of a piece. This court cannot find that any reason is
extraordinary or compelling without also finding that the reason
warrants a sentence reduction. Thus, for the court to exercise
its authority under § 3582(c)(1)(A), it must (1) find that the
defendant exhausted his administrative remedies or that 30 days
have passed since he filed an administrative compassionate relief
request; (2) also find, after considering the factors set forth
in section 3553(a), that extraordinary and compelling reasons
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warrant a sentence reduction; and (3) find that such a reduction
is consistent with the Sentencing Commission’s policy statements.
A. Scher has exhausted his administrative appeals.
As to exhaustion, on April 2, 2020, Scher submitted an
administrative compassionate release request to the warden of his
prison. ECF No. 284-2, PageID # 2902. That request was
ultimately denied, and it appears that Scher has completed the
administrative appeals process. The Government is not contesting
Scher’s satisfaction of the exhaustion requirement.
B. Scher has not demonstrated that extraordinary and
compelling circumstances justify his early
release.
This court therefore turns to § 3582(c)(1)(A)’s second
requirement: whether extraordinary and compelling reasons warrant
a sentence reduction. This court recognizes that it possesses
considerable discretion in determining whether a particular
defendant has established the existence of extraordinary and
compelling reasons that justify early release. United States v.
Kamaka, 2020 WL 2820139, at *3 (D. Haw. May 29, 2020); see also
Woolem v. United States, 2020 WL 2820140, at *4 (D. Haw. May 29,
2020); United States v. Maka, 2020 WL 2544408, at *3 (D. Haw. May
19, 2020).
Scher is a nonviolent offender who has nearly completed
his sentence and faces a substantial risk of complications if he
contracts COVID-19. According to Scher, he is “on continuous 3-
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liters-per-minute (LPM) oxygen [during] the waking hours and 4-5
LPM [Oxygen] CPAP bleed-in while sleeping. Further, [he] is now
on a total of ten medications every twelve hours to maintain his
well-being.” ECF No. 268. In his initial request for
compassionate release, Scher stated that, once released, he will
have “live-in home health care nurse(s) to provide for the
Petitioner should he experience an acute respiratory event[.]”
Id. Scher may be suggesting that he indeed needs a health care
worker to live with him to ensure that his conditions remain
under control.1
Scher is now serving his sentence at FMC Rochester in
Minnesota. That facility is a specialized medical facility
equipped to treat all of his conditions. No inmate is reported
as having been infected with the coronavirus.
https://www.bop.gov/coronavirus/ (last visited June 10, 2020).
One staff member has been infected, but has recovered. Id. If
these statistics are accurate, Scher is not presently at high
risk of contracting COVID-19 while in that facility. This court	2
This court is well aware of Scher’s medical issues. It	1
considered those issues during sentencing in two different cases.
Indeed, Scher’s sentencing in this case was continued to allow
Scher to present more complete medical information to the court.
ECF No. 205, PageID # 1272.
The BOP has implemented extensive measures designed to	2
keep COVID-19 out of prisons like FMC Rochester. See ECF No.
284, PageID # 2890-91. As Scher notes, those measures have not
always been successful, and it does appear that once COVID-19
enters a prison, it rapidly spreads. See ECF No. 286, PageID #
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is not questioning Scher’s assertion that he is at risk of
complications if he is infected. This court is instead noting
the low risk that he will be infected at the facility in light of
its present circumstances. This court is certainly not saying
that relief is available only if COVID-19 is rampant in a
facility. Such a position would clearly risk endangering people
like Scher. But the risk that Scher will suffer complications if
infected does need to be considered in the context of what risk
he faces of being infected in the first place.
This court also must consider the risks that Scher will
face if he is released without adequate provision for his care.
As discussed above, Scher has suggested that he will need to live
with a health care worker to manage his physical condition. None
of Scher’s submissions show that he will actually receive that
care if released. According to the probation office, both of the
“live-in nurses” identified by Scher have denied that they are
health care workers. ECF No. 277, PageID # 1941-42. One of the
two barely knows Scher. Id. The other is a convicted felon who
cannot associate with Scher under the terms of the supervised
release Scher must complete following his release from custody.
Id. Scher appears to be misrepresenting the care they might give
him, apparently hoping to thereby influence this court’s
2962. For the moment, however, this court has no evidence that
the BOP has failed to keep the coronavirus out of FMC Rochester.
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decision.
This court is not treating Scher’s lie as something
requiring punishment in the form of a denial of his request for
compassionate release. But Scher’s need to lie indicates that
Scher does not have an actual plan to keep himself safe if
released.
Nor has Scher explained how he plans to safely return
to Honolulu. At Scher’s sentencing, his doctor indicated that,
in light of his condition, air travel presented such a risk to
his health that he “shouldn’t be in the air at all.” ECF No.
284-4, PageID # 2929. Whether released early or not, Scher will,
of course, finish his prison term and return to Hawaii. But
returning now may be particularly risky. It is not clear how
airlines will ensure passenger safety, and Scher offers no plan
to mitigate the risks he would face on a plane.
This court is now forced to balance two different
potential threats to Scher’s health. If he remains in prison and
contracts COVID-19, he will likely suffer serious complications.
On the other hand, if he is released without a plan to address
his significant medical needs, the illnesses he already has could
become much worse. Moreover, if released from prison, he could
still contract COVID-19. Although the coronavirus is not as
active in Hawaii as it is elsewhere, to return to Hawaii, Scher
will have to board an airplane, and that travel alone could
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present increased risks of contracting COVID-19. Possibly, the
travel risks could lessen in the coming months, either because
the virus subsides or because airlines implement better ways to
reduce the risk.
This court must also consider the § 3553 factors. In
considering Scher’s history and characteristics and the need to
afford adequate deterrence for his crime, this court notes
Scher’s extensive history of crimes of fraud or deceit. Indeed,
this is Scher’s second criminal case in federal court, and both
involved deceptive conduct. Moreover, Scher does not appear to
have been rehabilitated. According to the probation office,
Scher’s request for Federal Location Monitoring was denied
because of his manipulative behavior, “untruthfulness,” and
“misrepresentations.” ECF No. 277, PageID # 1941-42. Under
§ 3582(c)(1)(A), this court considers Scher’s history of deceit
before determining that extraordinary and compelling
circumstances warrant Scher’s release. Scher’s deceit goes to
far more than lying to the court. The underlying crime in this
case involves taking money from Social Security that Scher was
not entitled to. In short, this court has to be concerned that
Scher will find new victims.
This is a close case. Scher’s compassionate release
motion is based on the threat that COVID-19 poses to his health.
A person’s health is naturally of primary concern. But at FMC
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Rochester, the risk of infection so far appears low, and the
record suggests that release may pose its own dangers. After
considering those circumstances along with Scher’s continuing
pattern of deceptive conduct, this court concludes that
extraordinary and compelling circumstances do not justify Scher’s
early release. The court urges Scher to prepare for his
scheduled relase in September by considering how to travel safely
to Hawaii and how to ensure that he has lined up any necessary
care once he is in Hawaii.
III. CONCLUSION.
Scher’s request for compassionate release under 18
U.S.C. § 3582(c)(1)(A) is denied.
It is so ordered.
DATED: Honolulu, Hawaii, June 10, 2020.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
United States v. Scher, Cr. No. 15-00614 SOM; ORDER DENYING DEFENDANT’S
EMERGENCY MOTION FOR COMPASSIONATE RELEASE
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