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1 in the United States District Court for the Western Case 2:05-cr-00350-NBF Document 319 Filed 09/02/20 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, ) ) v. ) Criminal Nos. 05-350 & 05-385 ) Senior Judge Nora Barry Fischer WANDA SOLOMON, ) ) Defendant. ) MEMORANDUM ORDER I. INTRODUCTION Presently before the Court is Defendant Wanda Solomon’s Motion to Reconsider Order to Deny Compassionate Release (Docket Nos. 310 at Crim. No. 05-350; 1029 at Crim. No. 05-385), the Government’s Response thereto (Docket Nos. 312 at Crim. No. 05-350; 1031 at Crim. No. 05- 385), Defendant’s Reply (Docket Nos. 314 at Crim. No. 05-350; 1034 at Crim. No. 05-385) and the Government’s Sur-reply (Docket Nos. 318 at Crim. No. 05-350; 1041 at Crim. No. 05-385).1 After careful consideration of the parties’ respective positions set forth in the briefing and for reasons that follow, Defendant’s Motion for reconsideration is granted in part and denied in part. The Court concludes that reconsideration is warranted on the issue of administrative exhaustion and that Defendant’s motion for compassionate release is properly before the Court; however, the Court declines to exercise its discretion to reduce Defendant’s sentence. 1 Although the relevant documents cited herein are filed at both docket numbers, the Court refers to the documents filed at Criminal No. 05-385 in order to streamline citations to the record. 1 Case 2:05-cr-00350-NBF Document 319 Filed 09/02/20 Page 2 of 12 II. BACKGROUND On August 2, 2006, Defendant appeared before Judge Terrence F. McVerry2 and pled guilty to Count One of the Indictment at Criminal No. 05-350, which charged her with conspiracy to distribute and possess with intent to distribute cocaine and 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846 (hereinafter, “the crack cocaine count”), and Count One of the Superseding Indictment at Criminal No. 05-385, which charged her with conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (hereinafter, the “powder cocaine count”). (Docket No. 89). On March 20, 2007, Judge McVerry sentenced Defendant to 240 months’ imprisonment on both the crack cocaine and powder cocaine counts to be served concurrently, followed by concurrent terms of five (5) years’ supervised release at each count. (Docket No. 376 at 2-3). Defendant filed a direct appeal, and the United States Court of Appeals for the Third Circuit affirmed the District Court’s Judgment on June 1, 2009. (Docket No. 803). Defendant later unsuccessfully attempted on numerous occasions to have her sentence vacated or reduced. (Docket Nos. 806, 809, 829, 833, 834, 838, 868, 882, 914, 915, 916, 918). Defendant also filed a motion for a sentence reduction as a result of amendments to the Sentencing Guidelines that retroactively reduced the base offense level for certain drug offenses, which Judge McVerry denied on February 19, 2016. (Docket Nos. 923, 925). On January 4, 2017, the Third Circuit Court of Appeals affirmed the District Court’s decision not to reduce Defendant’s sentence. (Docket No. 943-1). Next, Defendant filed a motion for reduction of sentence pursuant to Section 404(b) of the First Step Act, which this Court denied on October 1, 2019. (Docket Nos. 951, 983, 984). 2 Defendant’s cases originally were assigned to Judge McVerry. Following Judge McVerry’s retirement, the cases were re-assigned to this member of the Court when Defendant previously filed a motion for a sentence reduction. 2 Case 2:05-cr-00350-NBF Document 319 Filed 09/02/20 Page 3 of 12 On May 7, 2020, Defendant filed a motion for compassionate release pursuant to the First Step Act, 18 U.S.C. § 3582(c)(1)(A), arguing that her medical conditions (asthma, diabetes, hypertension and hepatitis C) place her at greater risk of contracting COVID-19 at FPC Alderson where she is incarcerated and therefore satisfy the “extraordinary and compelling reasons” standard under § 3582(c)(1)(A)(i). (Docket No. 1018 at 1-4, 13-15). The Government responded that Defendant’s Motion was premature because she did not exhaust her administrative remedies within the BOP. (Docket No. 1024 at 5-10). On May 28, 2020, this Court ruled that Defendant failed to exhaust her administrative remedies because the Warden of FPC Alderson responded to her request for compassionate release within 30 days of receipt; thus, she “is obligated to complete the administrative appeal process,” but she had not done so prior to filing her motion with the Court. United States v. Solomon, Crim. Nos. 05-350 & 05-385, 2020 WL 2768897, at *3 (W.D. Pa. May 28, 2020). Defendant subsequently filed a motion for reconsideration, arguing that the Court should reconsider its ruling “[b]ased on the analysis from [other] recent decisions” wherein courts found that BOP appeals exhaustion was unnecessary in order to file a motion for compassionate release in federal court. (Docket Nos. 1029 at 3; 1034 at 1). Contrary to the Government’s original position that Defendant’s compassionate release motion was premature, the Government now responds that “§ 3582(c)(1)(A) allows a defendant to file a motion after ‘the lapse of 30 days from the receipt of such a request by the warden,’ regardless of whether the warden has responded within those 30 days or not and regardless of whether or not the defendant files an appeal within BOP.”3 3 Even so, the Government still contends that Defendant’s motion is premature because her request to the warden did not mention COVID-19 and thus was not properly exhausted. (Docket Nos. 1031 at 2-3; 1041 at 1-2). To that end, the Court is cognizant of the decision rendered by the Honorable Joy Flowers Conti in United States v. Valenta, Crim. No. 15-161, 2020 WL 1689786 (W.D. Pa. Apr. 7, 2020), concluding that the defendant failed to exhaust his administrative remedies regarding the COVID-19 virus because he “made no specific reference to Covid-19 in his request and the BOP did not consider his request for release based on Covid-19.” (Id. at 1). In so ruling, Judge Conti observed that the BOP “could not have reasonably known about Covid-19” when it received the defendant’s request 3 Case 2:05-cr-00350-NBF Document 319 Filed 09/02/20 Page 4 of 12 (Docket No. 1031 at 2). The Government acknowledges that Defendant properly submitted a request to the BOP 30 days or more before filing her compassionate release motion with the Court. (Id.). Upon further consideration, the Government also submits that Defendant’s diabetes may be an “extraordinary and compelling reason” for release under § 3582(c)(1)(A) in the context of the COVID-19 pandemic, but her other claimed medical conditions of hepatitis C, asthma and hypertension do not meet this standard. (Id. at 3). However, even if the Court grants Defendant’s motion for reconsideration, the Government argues that it should nonetheless deny her motion for compassionate release because the § 3553(a) sentencing factors overwhelmingly favor the sentence originally imposed. (Docket No. 1041 at 2-3). To that end, the Government notes that the United States Probation Office continues to oppose Defendant’s release. (Id. at 3). III. DISCUSSION A motion for reconsideration only will be granted where a party demonstrates at least one of the following grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max’s Seafood Cafe ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Here, reconsideration is warranted because there is a need to correct what now could be considered a on January 7, 2020, given that the United States government announced the formation of a COVID-19 task force on January 29, 2020, and the World Health Organization declared a global health emergency on January 30, 2020. (Id.). Unlike the defendant in Valenta, Defendant submitted her request to the BOP on April 3, 2020, which was well after the significant COVID-19 dates Judge Conti referenced. (Docket No. 1018-4). Accordingly, it would be reasonable to conclude in Defendant’s case that the BOP was well aware of the COVID-19 crisis and that her request was, at least partially, related to same. See United States v. Davidson, Nos. 2:16-cr-00139-2 & 2:17-cr-00334, 2020 WL 4877255, at *10 (W.D. Pa. Aug. 20, 2020) (concluding that the timing and status of the defendant’s administrative request for relief was fundamentally different from the defendant in Valenta and other defendants in cases where the court reached a similar conclusion because “the BOP’s review of those defendants’ administrative requests was complete prior to the emergence (at least with any level of public notoriety) of the COVID-19 pandemic, and critically, prior to the BOP’s announced implementation of its own wide-ranging and extensive reviews of the medical and custody situation of every BOP inmate in the context of the COVID-19 pandemic”). 4 Case 2:05-cr-00350-NBF Document 319 Filed 09/02/20 Page 5 of 12 clear error of law given that the Third Circuit Court of Appeals recently clarified the proper reading of § 3582(c)(1)(A)’s exhaustion requirement. A. Reconsideration is Warranted on the Issue of Administrative Exhaustion.
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