USA v. Eisenberg

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 16-cr-157-LM
Opinion No. 2020 DNH 057
Leeland Eisenberg
O R D E R
Defendant pled guilty to one count of bank robbery and one
count of possession of cocaine in February 2017. This court
sentenced defendant to 60 months of imprisonment, three years of
supervised released, and restitution in the amount of $1,160.00.
Defendant is currently housed at the Federal Correctional
Institution in Terre Haute, Indiana. He moves on an expedited
basis for his compassionate release under 18 U.S.C. §
3582(c)(1)(A) due to his worsening medical condition. The
government has filed no response. Because defendant has not
shown that he exhausted his administrative remedies prior to
filing this motion, the court denies his motion without
prejudice.
STANDARD OF REVIEW
A court may grant so-called “compassionate release” to a
defendant under 18 U.S.C. § 3582(c)(1)(A). That statute
provides, in relevant part, that:
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the 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 section
3553(a) to the extent that they are applicable, if it
finds that--
(i) extraordinary and compelling reasons warrant
such a reduction . . . .
18 U.S.C. § 3582(c)(1)(A). Thus, a defendant may directly
petition the district court for compassionate release only if he
has either: (1) fully exhausted all administrative rights to
appeal the Bureau of Prison’s (“BOP”) failure to bring a
compassionate release motion on his behalf; or (2) filed a
request for compassionate release with BOP and BOP failed to
respond within 30 days. 18 U.S.C. § 3582(c)(1)(A); see also,
e.g., United States v. Nance, No. 7:92CR00135, 2020 WL 114195,
at *2 (W.D. Va. Jan. 10, 2020); United States v. Bolino, No. 06-
CR-0806 (BMC), 2020 WL 32461, at *1 (E.D.N.Y. Jan. 2, 2020)
(collecting cases). The defendant has the burden of showing
that he is entitled to a sentence reduction. United States v.
Ebbers, No. S402CR11443VEC, 2020 WL 91399, at *4 (S.D.N.Y. Jan.
8, 2020).
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BACKGROUND
Defendant has experienced several massive heart attacks and
other major cardiac episodes that have caused serious damage to
his heart. While incarcerated, he has suffered four heart
attacks and had two stents, a pacemaker, and a defibrillator
implanted. In January 2020, defendant suffered another cardiac
episode and was taken to a local hospital for emergency medical
care. He claims that his treating physician told him that he
needs a heart transplant but that he would not be approved for
one while incarcerated.
More recently, on March 20, 2020, defendant suffered a
“near death” cardiac event during which his heart stopped five
times. Defendant asserts that after this episode, his treating
physicians told him that his heart is severely damaged, has
greatly reduced functionality, and that his heart could stop
beating at any time. Defendant contends that if released, he
would have access to medical treatment not available at the
prison that could sustain and prolong his life, including a
heart transplant. He therefore requests that this court grant
his request for compassionate release on an expedited basis.
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DISCUSSION
As explained above, before a district court may consider a
compassionate release motion filed directly by a defendant, the
defendant must demonstrate that he has either exhausted his
administrative rights to appeal BOP’s refusal to bring a motion
for compassionate release on his behalf or that BOP has ignored
his request for compassionate release for 30 days. See 18
U.S.C. § 3582(c)(1)(A). Defendant has failed to show that he
has satisfied either of these prerequisites to requesting
compassionate release.
First, defendant has not shown that he has exhausted his
administrative right to appeal BOP’s failure to bring a
compassionate release motion on his behalf. Defendant states in
support of his motion that he “has repeatedly sought
administrative remedies ALL of which have been DENIED.” Doc.
no. 33-1 at 3. He also submits documentation evidencing his
efforts. That documentation shows that in February 2020 he
twice requested that BOP transfer him to Federal Medical Center
Devens in Ayers, Massachusetts, so that he could receive
appropriate cardiac care until his release date. See doc. no.
33-3 at 3-4. Those requests asked for a transfer, not release.
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Both requests were denied.1 On March 25, 2020, defendant filed a
request for compassionate release with BOP based on the
deterioration of his heart condition. Doc. no. 33-3 at 5-6.
But defendant has not offered any evidence that BOP has, as of
yet, denied that request and refused to file a motion for
compassionate release in this court on his behalf.
Even if the court were to assume that BOP denied his
request, defendant has not shown that he has pursued and
exhausted administrative appeals of that decision in accord with
BOP’s Administrative Remedy Procedure. See Bolino, 2020 WL
32461, at *1. Specifically, once the prison warden denies his
request, he must appeal within the appropriate timeframe to the
Regional Director, and if that appeal is denied, he must appeal
again to the General Counsel to receive a final administrative
decision. See 28 C.F.R. § 571.63(a); 28 C.F.R. § 542.15(a).2
1 Defendant has also requested similar relief from this
court on multiple occasions. In August 2019, the court denied
defendant’s request that he serve the final twelve months of his
sentence at a halfway house in Massachusetts (doc. no. 28). And
in March 2020, the court denied defendant’s request to be
transferred to Federal Medical Center Devens in Massachusetts in
order to receive better care for his heart condition (doc. no.
32).
2 See also U.S. Dept. of Justice, Fed. Bureau of Prisons
Program Statement No. 5050.50, Compassionate Release/Reduction
in Sentence: Procedures for Implementation of 18 U.S.C. § 3582
and 4205(g), (Jan. 17, 2019), https://www.bop.gov/policy/
progstat/5050_050_EN.pdf.
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Second, defendant has not shown that BOP has failed to
respond to his request for compassionate release for 30 days.
See 18 U.S.C. § 3582(c)(1)(A). Given that he just filed his
request on March 25, this alternative avenue for exhaustion will
not be available to him until April 24, 2020. Under these
circumstances, the court must find that defendant has failed to
exhaust his administrative remedies prior to filing this motion.
See, e.g., Bolino, 2020 WL 32461, at *1 (denying motion for
compassionate release when defendant represented that he had
exhausted all administrative remedies but submitted no proof of
exhaustion).
The court has reviewed defendant’s submissions carefully.
If defendant exhausts his administrative remedies in accord with
18 U.S.C. § 3582(c)(1)(A) and refiles a properly supported
motion, the court will review his request on an expedited basis.
Defendant has represented that his heart condition is life-
threatening and expected to continue to deteriorate. If true,
this medical condition would qualify as an extraordinary and
compelling reason supporting his release. See U.S.S.G. §
1B1.13, App. Note (1)(A) (defining medical condition that
qualifies as extraordinary and compelling reason as including a
terminal illness, such as end-stage organ disease, or a serious
medical condition that substantially diminishes defendant’s
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ability to provide self-care in prison and from which he is not
expected to recover).3 The court must, however, also consider
the factors under 18 U.S.C. § 3553(a), which would weigh against
early release. See 18 U.S.C. § 3582(c)(1)(A) (requiring
consideration of § 3553(a) factors to the extent applicable);
U.S.S.G. § 1B1.13(2) (requiring that the court find that “[t]he
defendant is not a danger to the safety of any other person or
to the community, as provided in 18 U.S.C. § 3142(g)”).
In the interim, defendant may receive relief from BOP in
light of the Attorney General’s recent memorandum encouraging
the release of prisoners at high risk for complications from the
COVID-19 virus who are eligible for home confinement.4
CONCLUSION
For the foregoing reasons, the court finds that defendant
has failed to exhaust his administrative remedies as required by
18 U.S.C. § 3582(c)(1)(A). The court therefore denies
3 Defendant has submitted some medical records in support of
his motion as well as an affidavit signed under the pains and
penalties of perjury. The medical records are not, however, the
most recent records from his March 2020 episode and do not
appear to include a plan for his care or prognosis.
4 See Atty. Gen. William Barr, Prioritization of Home
Confinement as Appropriate in Response to COVID-19 Pandemic
(Mar. 26, 2020), https://www.bop.gov/resources/
news/pdfs/20200405_covid-19_home_confinement.pdf.
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defendant’s motion for compassionate release (doc. no. 33)
without prejudice to his refiling after he exhausts his
administrative remedies.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
April 9, 2020
cc: Leeland Eisenberg, pro se
Counsel of Record
U.S. Probation
U.S. Marshal
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