USA v. Iwai

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BRYANT IWAI,
Defendant.
Case No. 15-cr-00723-DKW
ORDER DENYING
DEFENDANT’S SECOND
MOTION FOR
COMPASSIONATE RELEASE
Less than four months after this Court denied his first compassionate release
motion, see Dkt. No. 200, Defendant Bryant Iwai has brought a second, nearly
identical one. Iwai argues—again—that his health conditions—obesity,
hypertension, and type 2 diabetes—coupled with the COVID-19 pandemic, present
extraordinary and compelling circumstances warranting a sentence reduction. The
Court again disagrees. For the reasons set forth below, Iwai’s motion is DENIED.
RELEVANT BACKGROUND
On January 10, 2018, the Court sentenced Iwai to a total of 196 months’
imprisonment for methamphetamine distribution and possession of a firearm in
furtherance of a drug trafficking crime, followed by 5 years of supervised release.
Dkt. No. 159. While Iwai’s sentence included a downward departure for
substantial assistance to the Government, Dkt. No. 60 at 2, the Court expressed at
sentencing that significant aggravating factors were also present, including, but not
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limited to, the large quantity of methamphetamine in which Iwai transacted, the
presence of a loaded and operable firearm in Iwai’s residence that was seized
adjacent to those drugs, and Iwai’s long history of personal drug use. Dkt. No. 166
at 19:13–23:6.
On May 5, 2020, Iwai, through counsel, filed his first motion for sentence
reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (“first compassionate release
motion”). Dkt. 195. Iwai argued in that motion that his medical conditions—
obesity, hypertension, and type 2 diabetes—in light of the COVID-19 pandemic
presented extraordinary and compelling reasons warranting release. Id. After full
briefing, the Court denied that motion on June 15, 2020. Dkt. No. 200.
On October 6, 2020, Iwai, through counsel, filed his second motion for
sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (“second
compassionate release motion”),1 making substantially the same arguments he did
in his first compassionate release motion but adding that COVID-19 infections at
his facility appear to be increasing. Dkt. No. 208. On October 21, 2020, the
Government filed a response opposing any sentence reduction, Dkt. No. 210, to
which Defendant replied on October 27, 2020, Dkt. No. 214. This order follows.
1Iwai has asked the Court to “reduce his sentence to time served, or alternatively, allow him to serve
his sentence under home detention.” Dkt. No. 214 at 6; see also Dkt. No. 208 at 1–2. While this
Court has discretion to reduce an inmate’s sentence (to time served or otherwise) pursuant to 18
U.S.C. § 3582, it does not have the discretion to determine inmate placement while he serves his
sentence. Inmate housing determinations are made by the Bureau of Prisons (“BOP”). The Court
could, however, impose a home confinement condition as a part of Iwai's supervised release.
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LEGAL STANDARD
“‘[A] judgment of conviction that includes [a sentence of imprisonment]
constitutes a final judgment’ and may not be modified by a district court except in
limited circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010)
(alterations in original) (quoting 18 U.S.C. § 3582(b)). Such circumstances must
be “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal
Procedure.” See 18 U.S.C. § 3582(c)(1)(B); see also Dillon, 560 U.S. at 827, 831;
United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003).
Congress carved out one such circumstance in 18 U.S.C. § 3582(c)(1)(A)(i).
A court may “modify a term of imprisonment” upon an inmate’s motion if:
1. the inmate exhausted “all administrative rights to appeal a failure of the
[BOP] to bring a motion” on his behalf or 30 days has lapsed since the
relevant warden received a request to do so;
2. the inmate has established that “extraordinary and compelling reasons
warrant such a reduction” and that “such a reduction is consistent with
applicable [Sentencing Commission] policy statements”;
3. the court considers the sentencing factors set forth in 18 U.S.C. § 3553(a)
and finds the inmate is “not a danger to the safety of any other person or
the community,” as provided under 18 U.S.C. § 3142(g).
See 18 U.S.C. § 3582(c)(1)(A)(i); U.S.S.G. § 1B1.13 (policy statement). The
inmate bears the burden of establishing by a preponderance the requirements for a
sentence reduction. See, e.g., United States v. Sprague, 135 F.3d 1301, 1306–07
(9th Cir. 1998); see also Walton v. Arizona, 497 U.S. 639, 650 (1990) (a
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defendant’s due process rights “are not violated by placing on him the burden of
proving mitigating circumstances sufficiently substantial to call for leniency”),
overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002).
DISCUSSION
As explained below, Defendant has failed to evidence exhaustion. Even if
he had, he fails to demonstrate an extraordinary and compelling reason justifying a
sentence reduction, and the Court finds that, in any event, the sentencing factors at
18 U.S.C. 3553(a) weigh against such a reduction.
I. Exhaustion
As this Court and many others have explained, exhaustion under Section
3582(c) is mandatory. See, e.g., United States v. Kazanowski, No. 15-CR-00459-
DKW-5, 2020 WL 3578310, at *3–5 (D. Haw. July 1, 2020); United States v. Van
Sickle, 2020 WL 3962225, *3 (W.D. Wash. July 13, 2020) (denying inmate’s
second compassionate release motion because inmate failed to exhaust). After an
inmate submits a request for compassionate release to the warden of the institution
in which he is housed, he may satisfy Section 3582’s exhaustion requirement in
two ways.
First, if at least 30 days have “lapse[d]” since the inmate submitted
his request to the warden and the BOP has failed to respond, then the
inmate may file a motion in federal court and the court “may reduce
the term of imprisonment.” 18 U.S.C. § 3582(c)(1)(A). This allows
the warden a reasonable time to respond to the inmate's request, but it
also prevents the warden from denying the inmate relief by simply
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refusing to respond. Second, if the warden denies the request within
the 30-day period, the inmate must “fully exhaust[ ] all administrative
rights to appeal.” 18 U.S.C. § 3582(c)(1)(A); see, e.g., United States v.
Miller, No. 2:16-CR-00269-BLW, 2020 WL 113349, at *2 (D. Idaho
Jan. 8, 2020) (noting that Congress did not intend to allow a defendant
to “short-circuit the [BOP]'s administrative procedures” by simply
“waiting 30 days after filing his request, despite the warden timely
acting on that request”). To that end, the inmate must “appeal the
denial through the Administrative Remedy Procedure (28 CFR part
542, subpart B).” 28 C.F.R. § 571.63(a).
Kazanowski, 2020 WL 3578310, at *4. Requiring exhaustion serves the
dual purpose of providing the agency an opportunity to act first in an area in
which it has expertise and of promoting judicial efficiency because the
agency’s decision-making process will either moot the issue or provide a
useful record for the Court. Id. at *4 n.8 (citation omitted).
Iwai makes no attempt to demonstrate exhaustion prior to bringing
this motion. On April 29, 2020, prior to bringing his first compassionate
release motion, Iwai petitioned the warden at his facility and had that
petition denied two weeks later. Dkt. No. 195 at 6; Dkt. No. 208-2. On June
15, 2020, the Court then considered and denied Iwai’s first compassionate
release motion on the merits. Dkt. No. 200. Iwai now points to the same
April 2020 administrative petition as satisfying the exhaustion requirement
here. Dkt. No. 208-1 at 5. But that will not do. Exhausting administrative
remedies on one occasion does not forever obviate the need to do so. Iwai’s
logic undermines a fundamental purpose of the exhaustion requirement: to
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first give the agency an opportunity to act in an area in which it has expertise
prior to judicial involvement.
Iwai brings his second compassionate release motion, at least in part,
because conditions have changed at his facility—that is, there are more
inmates and staff now testing positive for COVID-19 than was the case in
April 2020. Dkt. No. 208-1 at 10–11. In fact, if conditions had not changed,
there would be no point to seeking compassionate release a second time.
But precisely because conditions have changed, the BOP should first be
provided an opportunity to evaluate Iwai’s medical conditions in light of
these developments before the Court does so. That is what Section 3582(c)
requires.2
The Court holds that for each compassionate release motion an inmate
brings, he must first petition the warden of his facility and then meet one of
the two exhaustion methods detailed in Section 3582(c)(1)(A). As Iwai has
not done so, his motion is denied on that ground alone.
2Iwai alternatively argues that he need not petition the Warden because the BOP has
mischaracterized him as a violent offender, making any request futile. Dkt. No. 214 at 6. There
is, however, no futility exception to the exhaustion requirement, see 18 U.S.C. § 3582(c)(1)(A),
and even if there was, there is no showing that such offenders are per se ineligible for
compassionate release.
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II. Extraordinary and Compelling Reasons
Even if Iwai had met the exhaustion requirement, he has not demonstrated
extraordinary and compelling reasons warranting a sentence reduction. The Court
applies the following framework to determine whether COVID-19 presents
extraordinary and compelling reasons to grant such a reduction:
[A]n inmate must necessarily establish the following three elements
by a preponderance of the evidence: (1) the inmate is “suffering from
a terminal illness,” or a “serious” physical or cognitive condition; (2)
that condition puts the inmate at a high risk of becoming seriously ill
from COVID-19; and (3) if the inmate were to contract COVID-19,
the inmate's ability “to provide self-care within the . . . correctional
facility” would be “substantially diminishe[d]” and the inmate would
“not [be] expected to recover.”
Kazanowski, 2020 WL 3578310, at *7 (alterations in original) (quoting U.S.S.G.
§1B1.13 & cmt. n.1(A)). Defendant fails on the last two elements.
The Court recognizes Iwai’s medical records show he currently suffers from
obesity, hypertension, and type 2 diabetes. Dkt. No. 195 at 2; see also Dkt. No. 210-
1 at 45 (at a June 30, 2020 examination, a BOP doctor recorded Defendant’s body
mass index (“BMI”) as 30.1). Thus, as was the case with his first compassionate
release motion, see Dkt. 195 at 16–19, Iwai has medical conditions recognized by
the CDC as placing him at greater risk of a severe reaction to COVID-19.3
3See Coronavirus Disease 2019 (COVID-19): People at Increased Risk for Severe Illness –
People with Certain Medical Conditions, CDC (updated Oct. 16, 2020)
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-
conditions.html (last visited Nov. 2, 2020) (listing obesity, with a BMI of 30 or higher, and type
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But as the Court has often explained, demonstrating a high risk of becoming
seriously ill from COVID-19 requires showing not only that an inmate is a member
of an at-risk group, but also that there is “a high risk of contracting the virus
because of the number of positive COVID-19 cases at the facility where [the
inmate] is housed.” See, e.g., United States v. Rodrigues, No. 16-CR-00529-
DKW, 2020 WL 5351029, *5 (D. Haw. Sept. 4, 2020). The Court acknowledges
there has been an increase in COVID-19 cases at FMC Rochester, where Iwai is
currently housed, as compared to when Iwai filed his first compassionate release
motion. See Dkt. No. 200 at 4 (acknowledging “just one positive test” having ever
been reported at the facility as of the date of the order). From the record presented,
the highest reported active case count at FMC Rochester is from October 21, 2020,
when 44 people (38 inmates, 6 staff) were reportedly infected. Dkt. No. 210 at 14;
see also Dkt. No. 208-1 (reporting 35 active cases as of October 5, 2020).
But even since October 21, 2020, the prevalence of the virus at FMC
Rochester appears to be subsiding. Iwai himself admits, “current active cases in
total is . . . getting smaller each week because most are recovering from the virus.”
Dkt. No. 214-4. As of November 3, 2020, BOP reports just 22 active cases (13
2 diabetes as placing someone at an increased risk of severe illness if they contract COVID-19;
listing hypertension as possibly creating an increased risk).
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inmates, 9 staff) at the facility.4 And even if the Court accepts Iwai’s unverified
account that his housing unit was particularly hard hit, see Dkt. No. 214-3,
Defendant admits “the major majority [sic] of those infected have already
recovered” and those who have not are “in the COVID section downstairs,” away
from Iwai. Dkt. No. 214-4. Of course, this does not mean these conditions present
no risk. Indeed, the risk at FMC Rochester and other BOP facilities may be more
than nominal. But Iwai is tasked with presenting "extraordinary and compelling"
circumstances, far from those that presently exist. Cf. United States v. Cornelio,
No. 17-CR-00321-DKW, 2020 WL 6021466 *3 (D. Haw. Oct. 12, 2020) (finding
the defendant demonstrated a high risk of contracting the virus where 398 inmates
and 6 staff were then testing positive for the virus).
Further, even if one assumed the current case count and conditions
represented a significant risk of Iwai contracting the virus at FMC Rochester, he
has failed to demonstrate that if he were to contract COVID-19, his ability “to
provide self-care within the . . . correctional facility” would be “substantially
diminishe[d]” and he would “not [be] expected to recover.” See U.S.S.G. § 1B1.13
n.1(A). Again, Iwai belies his own argument. Though he claims it is difficult for
him to get medical attention, see Dkt. No. 214-5, he states he sees a nurse twice a
4COVID-19 Coronavirus: COVID-19 Cases, BOP, https://www.bop.gov/coronavirus/ (last
visited Nov. 2, 2020).
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day and has not had an issue getting insulin to treat his diabetes, see id.; Dkt. No.
214-3. Further, FMC Rochester is a medical facility5 and, as the Government
points out, Dkt. No. 210 at 14, there have been no COVID-19-related deaths
reported there, despite roughly 100 total inmate infections.6 While these facts are
not conclusive, they suggest Defendant is in a place capable of providing him with
the care he needs should he contract the virus.7 Certainly, Defendant has not
presented convincing evidence to the contrary.
Because Defendant has again not carried his burden of showing that there
are “extraordinary and compelling reasons” justifying his early release under 18
U.S.C. § 3582(c)(1), he is not entitled to a sentence reduction.
III. Section 3553(a) Factors & Risk of Danger to the Community
Even assuming, arguendo, that Iwai exhausted administrative remedies and
established an extraordinary and compelling reason justifying a sentence reduction,
the Court must still consider any reduction in light of the sentencing factors set
forth in 18 U.S.C. § 3553(a) and determine Iwai is “not a danger to the safety of
5Legal Resource Guide to the Federal Bureau of Prisons, BOP at 26 (2014), https://www.bop.
gov/resources/pdfs/legal_guide.pdf (“FMC Rochester serves as a major medical and mental
health referral center for male inmates. Most specialty and sub-specialty consultations are
available through the Mayo Clinic, and in other local facilities.”).
6COVID-19 Coronavirus: COVID-19 Cases, BOP, https://www.bop.gov/coronavirus/(last
visited Nov. 2, 2020).
7This is further evidenced by the facility’s apparent ability to detect an infection early, given how
frequently Defendant is being tested. See Dkt. No. 210-1 at 1–8 (Iwai had three negative tests in
October 2020 alone).
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any other person or the community, as provided under [18 U.S.C. §] 3142(g).” See
18 U.S.C. § 3582(c)(1)(A); U.S.S.G. § 1B1.13.
The only change since the Court’s assessment of the Section 3553(a) factors
when it denied Iwai’s first compassionate release motion is that he has served a
few more months of his sentence. This change alone is immaterial to the Court’s
Section 3553(a) analysis, particularly considering the length of Iwai’s total and
remaining sentence (projected release date: January 22, 2030).8 For the same
reasons articulated at Dkt. No. 200 at 5–7 then, the Court finds the Section 3553(a)
factors counsel against release and that Defendant’s 196-month sentence of
imprisonment is, as it was at sentencing, “sufficient, but not greater than
necessary” to meet the purposes of sentencing.
8Find and Inmate, BOP, https://www.bop.gov/inmateloc/ (last visited Nov. 3, 2020).
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CONCLUSION
For the reasons set forth herein, Iwai’s motion for compassionate release, Dkt.
No. 208, is DENIED.
IT IS SO ORDERED.
Dated: November 3, 2020 at Honolulu, Hawai‘i.
United States of America v. Bryant Iwai, Criminal No. 15-00723-DKW,
ORDER DENYING DEFENDANT’S SECOND MOTION FOR
COMPASSIONATE RELEASE
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