USA v. Agustin et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ADAM BOGEMA, 	(03)
Defendant.
CR. NO. 16-00451 JMS-03
ORDER DENYING MOTION FOR
COMPASSIONATE RELEASE OR A
RECOMMENDATION FOR HOME
CONFINEMENT, ECF NO 286
ORDER DENYING MOTION FOR COMPASSIONATE RELEASE OR A
RECOMMENDATION FOR HOME CONFINEMENT, ECF NO 286
I. INTRODUCTION
Defendant Adam Bogema (“Defendant”) moves, pursuant to 18
U.S.C. § 3582(c)(1)(A)(i), for compassionate release from USP Lompoc
(“Lompoc”), based on several pre-existing medical conditions and the ongoing
COVID-19 pandemic. The court determines that Defendant has failed to show
extraordinary and compelling reasons to warrant release, and, even if he had, the
court would deny his Motion based on a consideration of the applicable 18 U.S.C.
§ 3553(a) factors. Thus, for the following reasons, Defendant’s Motion is
DENIED.
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II. BACKGROUND
Defendant is a 43-year-old inmate incarcerated at Lompoc with a
projected release date of October 26, 2037. See https://www.bop.gov/inmateloc/
(last visited October 20, 2020).
On September 22, 2017, Defendant pled guilty without a plea
agreement to one count of conspiracy to distribute, and possess with intent to
distribute, 50 grams or more of methamphetamine (count 1), one count of
attempted possession with intent to distribute 50 grams or more of a mixture or
substance containing a detectible amount of methamphetamine (count 2), and two
counts of attempted possession with intent to distribute 50 grams or more of
methamphetamine (counts 3 and 4). See ECF Nos. 202 & 264; see also Amended
Presentence Investigation Report (“PSR”) ¶ 12, ECF No. 263 at PageID # 1488-
89.1 On June 12, 2018, Defendant was sentenced to a total term of 300 months
imprisonment, and a total term of five years of supervised release. ECF Nos. 262
1 Defendant earlier had entered a plea of guilty to count 1 pursuant to a plea agreement,
but the court permitted him to withdraw that plea after he obtained new counsel. Defendant then
entered a plea of guilty to all four counts charged against him, without a plea agreement. See
ECF Nos. 125, 157, 200 & 202.
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& 264.2 On June 8, 2020, the Ninth Circuit affirmed the sentence in a
memorandum disposition. ECF No. 282.
Defendant submitted a request for compassionate release to Lompoc’s
Warden on June 14, 2020. See ECF No. 286-10 at PageID # 1996. It appears that
the Warden has not responded to that request. See ECF No. 286 at PageID # 1664.
On August 28, 2020, Defendant filed the instant Motion seeking a reduction of
Defendant’s sentence to time served or in the alternative for the court to
recommend to the Bureau of Prisons (“BOP”) that Defendant be released on home
confinement. Id. at PageID # 1669. Defendant supplemented his Motion on
September 28, 2020 with a Report of Dr. Homer Venters in relation to a pending
civil action in the Central District of California. ECF No. 299-1. On October 13,
2020, the Government filed its Response. ECF No. 300.
The court decides the motion without a hearing pursuant to Local
Rule 7.1(c).
2 Defendant’s total offense level 35, Criminal History Category VI, resulted in an
advisory United States Sentencing Guideline range of 292 to 365 months incarceration. See ECF
No. 265 at PageID # 1542. Further, the court ordered that Defendant’s sentence run concurrent
to any sentences imposed in pending cases in Los Angeles Superior Court; Clark County,
Nevada Justice Court; and the Central District of California. ECF No. 264 at PageID # 1537.
On August 15, 2019, Defendant was sentenced in the Central District of California to a
concurrent 204 months in custody based on his plea of guilty to conspiracy to possess with intent
to distribute methamphetamine. ECF No. 286-3.
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III. DISCUSSION
A. 	Legal Standard
Defendant moves for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A), as amended by the First Step Act of 2018, which provides as
relevant:
[T]he court, upon motion of the Director of the Bureau of
Prisons, or 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 . . . after considering the factors set
forth in [18 U.S.C.] 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[.]
Thus, the court may reduce Defendant’s sentence if: (1) Defendant
has exhausted the required administrative remedies; (2) Defendant has shown that
“extraordinary and compelling reasons” warrant the reduction; and (3) the
reduction is consistent with applicable Sentencing Commission’s policy
statements. Here, both parties agree that Defendant has exhausted his
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administrative remedies. See ECF No. 286 at PageID # 1664; ECF No. 300 at
PageID # 2339-40.
The United States Sentencing Commission’s policy statement, United
States Sentencing Guideline (“Guideline”) § 1B1.13, provides, as relevant to
Defendant, that the court may grant a motion for compassionate release only if,
after consideration of the applicable § 3553(a) factors, the court determines that
extraordinary and compelling reasons exist to warrant a sentence reduction, the
defendant is not a danger to another person or to the community, and a sentence
reduction is consistent with the policy statement.
Guideline § 1B1.13 provides three specific examples of extraordinary
and compelling reasons for compassionate release—the defendant’s terminal
medical condition, deterioration of health due to advanced age, and extenuating
family circumstances—along with a fourth, catch-all provision granting discretion
to the Bureau of Prisons (“BOP”) Director to determine whether other
extraordinary and compelling reasons exist. See Guideline § 1B1.13 n.1(A)-(D).
In a detailed analysis, this court previously determined that the “discretion to
determine whether ‘other’ extraordinary and compelling reasons exist granted by
[Guideline § 1B1.13 n.1(D)] to the BOP Director applies equally to the court when
ruling on motions for compassionate release.” United States v. Hernandez, 2020
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WL 3453839, at *4 (D. Haw. June 24, 2020); see also United States v. Brooker,
__F.3d__, 2020 WL 5739712, at *7 (2d Cir. Sept. 25, 2020) (“[T]he First Step Act
freed district courts to consider the full slate of extraordinary and compelling
reasons that an imprisoned person might bring before them in motions for
compassionate release.”). The court incorporates its Hernandez analysis here.
B. 	Extraordinary and Compelling Reasons Do Not Warrant Release
Defendant bears the burden to establish extraordinary and compelling
reasons that warrant compassionate release. See, e.g., United States v. Bolden,
2020 WL 4286820, at *3 (W.D. Wash. July 27, 2020); United States v. Proudfoot,
2020 WL 4284128, at *4 (D. Or. July 27, 2020). Here, Defendant contends that he
should be released from custody because: (1) he is at increased risk should he
contract COVID-19 because he suffers from obesity, chronic asthma,3
hypertension,4 and obstructive sleep apnea (requiring a CPAP unit for sleep), and
3 Defendant’s BOP medical records do not reflect any diagnosis or treatment for asthma.
ECF No. 286-13. In fact, in several places the records state “Hx of Asthma: No.” See, e.g., ECF
No. 286-13 at Page ID ## 2190, 2249. Nonetheless, in his Motion Defendant states that “[a]s the
PSR noted, [Defendant] has had chronic asthma since childhood.” ECF No. 286 at PageID
# 1661. That isn’t what the PSR says—instead, the PSR states that Defendant’s “mother
reported a childhood history of chronic asthma, during which he was frequently hospitalized
. . . .” See PSR ¶ 94, ECF No. 263 at PageID # 1512. Regardless, Defendant now states in a
declaration that he has suffered from severe asthma since birth. ECF No. 286-11 at PageID
# 2001. Given this record, the court accepts that Defendant has asthma, although it does not
appear that he has suffered from the symptoms of asthma while in BOP custody.
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has been diagnosed as suffering from bipolar disorder and ADHD; and (2) Lompoc
“has one of the worst COVID-19 outbreaks in the federal prison system.” ECF
No. 286 at PageID ## 1660-64. Defendant also points out that he has completed
various courses while in BOP custody, and proposes a release plan. Id. at PageID
# 1665; ECF No. 286-12 at PageID # 2005. The court addresses each argument in
turn.
The court agrees that Defendant has underlying medical conditions
that place him or might place him at an increased risk for severe illness from
COVID-19. According to the Centers for Disease Control and Prevention
(“CDC”), individuals with “[o]besity (body mass index [BMI] 30 kg/m2 or higher)”
fall into a high-risk category. See https://www.cdc.gov/coronavirus/2019-ncov/
need-extra-precautions/people-with-medical-conditions.html (last visited October
20, 2020). Defendant’s BMI is in the 31.0-31.9 range. See, e.g., ECF No. 286-13
at Page ID ## 2155, 2188, 2248. Further, an individual with moderate to severe
asthma or hypertension “might be at an increased risk.” See https://www.cdc.gov/
coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions
4 The BOP medical records suggest that Defendant has hypertension and was prescribed
Lisinopril, but that prescription was discontinued because Defendant was non-complaint. See
ECF No. 286-13 at PageID ## 2219, 2248.
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.html (last visited October20, 2020). In short, Defendant’s pre-existing medical
conditions place him at an increased risk should he contract COVID-19.
On the other hand, at 43 years old, Defendant is not in a high-risk age
group. As stated by the CDC:
As you get older, your risk for severe illness from
COVID-19 increases. For example, people in their
50s are at higher risk for severe illness than people
in their 40s. Similarly, people in their 60s or 70s
are, in general, at higher risk for severe illness than
people in their 50s. The greatest risk for severe
illness from COVID-19 is among those aged 85 or
older.
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-
adults.html (last visited October 20, 2020).
Next, although Lompoc5 certainly was a COVID-19 “hot spot” several
months ago, the same is not true at the present time. BOP reports that 846 inmates
have been tested for COVID-19 at Lompoc, and 145 tests have returned positive.
See https://www.bop.gov/coronavirus/(COVID-19 resource page) (last visited
October 20, 2020). But BOP currently reports that “confirmed active cases” are
5 Lompoc USP presently houses 896 inmates. See bop.gov/locations/institutions/lom/
(last visited October 20, 2020).
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limited to no inmates and four staff members. Id. Thus, Lompoc simply does not
pose the threat it did several months ago.6
The court finds that based on the existing evidence, Defendant has
failed to demonstrate that extraordinary and compelling reasons warrant
compassionate release. Although Defendant’s medical conditions place him at a
higher risk for complications from COVID-19, Defendant is only 43 years old and
6 The court has carefully considered Dr. Venters’ report and findings. ECF No. 299-1.
The report describes Lompoc’s response to the “unprecedented challenge” of COVID-19 as
“exhibit[ing] both significant strengths and serious deficiencies” and goes on to state that
“[o]verall, the COVID-19 response at . . . Lompoc is characterized by some evidence-based
strategies being superimposed on a grossly inadequate system of health care.” Id. ¶ 39, PageID
# 2327. The report predicts that current shortcomings in Lompac’s COVID-19 response are
likely to increase the risk of inmates contracting COVID-19 and anticipates those who do
become ill are likely to face higher risks of serious illness and death. Id. ¶ 41, PageID # 2328.
These concerns around the “health system” at Lompoc “create a strong mandate for more
vigorous consideration and processing of compassionate release applications.” Id. ¶ 42,
PageID # 2329.
While the court is sympathetic to the increased risk facing incarcerated individuals during
the pandemic, the present conditions at Lompac do not, at least absent evidence of more serious
health complications affecting Defendant, provide a basis for his compassionate release. First, it
is unclear from the report that conditions at Lompac are materially worse than at other BOP
facilities. Indeed, while access to paper towels is described as worse than at other facilities, the
report also indicates that Lompac’s creation of a dedicated hospital unit to care for COVID-19
patients is “superior to any other effort [Venters] ha[s] seen in [his] 12 facility COVID-19
inspections.” Id. ¶ 36, PageID # 2318. Moreover, the quantitative evidence before the court
demonstrates that COVID-19 at Lompoc is, at present, relatively well-contained, with only four
active cases among staff and no active cases among inmates. In short, although the court
certainly does not discount the problems facing Lompoc at the present time, Defendant has failed
to meet his burden to demonstrate extraordinary and compelling reasons to justify his release
given his age and health conditions.
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the number of COVID-19 cases at Lompoc has dropped dramatically over the
past few months.
C. 	Section 3553(a) Factors
Even if Defendant had demonstrated that extraordinary and
compelling reasons exist to justify compassionate release, the court would deny the
motion based on a consideration of the applicable § 3553(a) factors.
As relevant to this case, the § 3553(a) factors include: (1) the nature
and circumstances of the offense and the history and characteristics of the
defendant;7 and (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[.]” 18 U.S.C.
§ 3553(a)(1)-(2). And under the parsimony clause, the court must “impose a
sentence sufficient, but not greater than necessary, to comply with the purposes set
forth” in § 3553(a)(2).
7 As part of the § 3553(a) analysis, the court considers Defendant’s post-offense conduct,
including his rehabilitation while in custody. See Pepper v. United States, 562 U.S. 476, 491
(2011).
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Defendant trafficked in substantial quantities of methamphetamine.
See PSR ¶¶ 15-34, ECF No. 263 at PageID ## 1490-94. In total, Defendant was
held responsible for 883 grams of 99% pure methamphetamine and 1,831 grams of
generic methamphetamine. Id. ¶ 34, ECF No. 263 at PageID # 1494.8 Based on
his leadership role in the offense, in that Defendant controlled the distribution and
he was exercising decision-making authority, he also received a four-level upward
adjustment under the Guidelines. See id. ¶ 48, ECF No. 263 at PageID # 1496;
ECF No. 271 at PageID # 1588. Further, even though Defendant was detained on
December 17, 2015 after the controlled delivery of a parcel containing pseudo-
methamphetamine, he continued to deal methamphetamine the following week.
PSR ¶¶ 21, 25, ECF No. 263 at PageID ## 1491, 1492.
Further, Defendant has a long and troubling criminal history. Id.
¶¶ 56-71, ECF No. 263 at PageID ## 1497-1506. Aside from the instant
conviction and his recent conviction in the Central District of California, as an
adult, Defendant has been convicted of the following offenses, among others:
possess/manufacture/sell dangerous weapon/etc. in 1995; inflict corporal injury
8 The conspiracy charge in this case spanned from January 2015 through May 2016.
ECF No. 16. The indictment in the Central District of California, see supra footnote 2, charged
Defendant with distributing multiple kilograms of methamphetamine to an individual in Missouri
during the same general time period. PSR ¶ 76, ECF No. 263 at PageID # 1507-08.
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spouse/cohabitant in 1997; threaten crime with intent to terrorize and stalking in
1999; transport/etc. controlled substance and give false information to peace
officer in 2000; felon/etc. possess firearm in 2002 and 2010; transport/etc.
controlled substance and false ID to specific peace officers in 2004; possession of
controlled substance paraphernalia in 2007; threaten crime with intent to terrorize
and prevent/dissuade witness with threat/force in 2010; take vehicle without owner
consent in 2010; and make/etc. equipment: fake access card in 2016. Further,
Defendant consistently had either probation or parole revoked for these
convictions. Id. ¶¶ 56-82 ECF No. 263 at PageID ## 1497-1506. In total, at the
time of sentencing for his most recent offenses, Defendant had a criminal history
score of 22, resulting in a criminal history category VI.9 Id. ¶ 72, ECF No. 263 at
PageID # 1506.
Further, Defendant still has the vast majority of his sentence to
serve—he is not scheduled for release from custody until October 26, 2037, over
9 The criminal history score of 22 is “off the chart.” A defendant is placed in the
maximum criminal history category VI with 13 or more criminal history points. See United
States Sentencing Commission, Guideline Sentencing Table (1987), available at: https://www.
ussc.gov/guidelines/2018-guidelines-manual/2018-chapter-5 (last visited October 20, 2020).
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17 years from now. See https://www.bop.gov/inmateloc/ (last visited October 20,
2020).10
In mitigation, Defendant points out that he has completed a number of
programs while in custody, that he has maintained strong family and community
support, and that he has a release plan that mitigates any danger that he might pose.
See ECF Nos. 286, 286-12.
Considering all of the § 3553(a) factors, including the offense
conduct, Defendant’s criminal history, Defendant’s post-offense conduct, and the
time remaining on Defendant’s sentence, reducing Defendant’s sentence to time
served would severely undermine the goals of sentencing set forth in § 3553(a)(2).
IV. CONCLUSION
In sum, the court finds that Defendant has not established the requisite
extraordinary and compelling reasons to warrant compassionate release, and, even
if he did, the court would deny the motion based on the relevant § 3553(a) factors.
10 When evaluating the § 3553(a) factors, courts consider the amount of time remaining
on a defendant’s sentence—whether short or long—in determining whether to grant
compassionate release. See e.g., United States v. Pawlowski, 967 F.3d 327, 330-31 (3d Cir.
2020); United States v. Chambliss, 948 F.3d 691, 694 (5th Cir. 2020); United States v. Maka,
2020 WL 2544408, at *4 (D. Haw. May 19, 2020); United States v. Bogdanoff, ___ F. Supp. 3d
___, 2020 WL 2307315, at *6 (E.D. Pa. May 8, 2020); United States v. Farmer, 2020 WL
4057550, at *2 (N.D. Ohio July 20, 2020); cf. United States v. Moskop, 2020 WL 1862636, at
*1-2 (S.D. Ill. Apr. 14, 2020); United States v. Steffey, 2020 WL 3840558, at *1 (D. Nev. July 8,
2020).
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Further, for all the reasons set forth above, the court declines to recommend to the
BOP that Defendant be placed in home custody.
For the foregoing reasons, Defendant’s Motion for Compassionate
Release or a Recommendation for Home Confinement, ECF No. 286, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 20, 2020.
United States v. Bogema, Cr. No. 16-00451 JMS-03, Order Denying Motion for Compassionate
Release or a Recommendation for Home Confinement, ECF No. 286
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
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