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United States v. Schmitt

United States District Court, N.D. Iowa, Western Division

January 8, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
SHIRLEY EILEEN SCHMITT, Defendant.

          MEMORANDUM OPINION AND ORDER

          Leonard T. Strand, Chief Judge.

         I. INTRODUCTION

         This case is before me on defendant Shirley Eileen Schmitt's motion (Doc. No. 202) for compassionate release. The Government has filed a response (Doc. No. 206) and Schmitt has filed a reply (Doc. No. 207). Oral argument is not necessary. See Local Rule 7(c).

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On September 24, 2013, Judge Donald E. O'Brien sentenced Schmitt to 120 months' imprisonment on one count of conspiracy to manufacture and distribute methamphetamine and one count of possession of pseudoephedrine with intent to manufacture methamphetamine.[1] See Doc. No. 166. In October 2015, while in Bureau of Prisons (BOP) custody, Schmitt was diagnosed with stage three breast cancer. See Doc. No. 202-3 at 1. In 2016, she underwent chemotherapy and a left breast modified radical mastectomy. See Doc. No. 202-4 at 1. She also completed postmastectomy radiation therapy and was prescribed a chemotherapy drug to take from then on. See id.

         On December 7, 2018, Schmitt underwent an imaging scan that showed her breast cancer had returned. Doc. No. 202-8. On December 17, 2018, her doctor wrote that “this is stage IV disease for which there is no cure.” Doc. No. 202-9 at 2. On January 14, 2019, Schmitt was formally diagnosed with stage four breast cancer with metastasis in the bone, specifically the upper sternum. Doc. No. 202-7 at 3. On that date, Schmitt's doctor estimated her life expectancy to be greater than 18 months. Id. Schmitt began to receive chemotherapy in January 2019. See Doc. No. 202-11 at 1. On May 15, 2019, Schmitt underwent a whole-body imaging scan. Doc. No. 202-14. The scan confirmed Schmitt has metastatic breast cancer and destruction of bone in her sternum due to the cancer. See Id. The scan also indicated the cancer has spread to Schmitt's lymph nodes and hilum. See Id. On August 1, 2019, Schmitt underwent another imaging scan. Doc. No. 202-15. The scan indicated the cancer has worsened in Schmitt's upper chest and sternum but improved in her lymph nodes.[2] See id.

         On January 23, 2019, Schmitt submitted a request for compassionate release based on her incurable breast cancer to Warden Upton at the Federal Medical Center in Carswell, Texas, where Schmitt is imprisoned. See Doc. No. 202-20. On February 5, 2019, Warden Upton denied Schmitt's request because she did not have an end-of-life trajectory. See Doc. No. 202-21 at 3. Schmitt requested reconsideration of the denial on March 5, 2019. See Id. at 1. Warden Upton denied Schmitt's request again. See Doc. No. 202-22 at 3. Subsequently, on March 15, 2019, Schmitt filed an appeal with the BOP regional director. See Id. at 1. The regional director denied the appeal because Schmitt does “not currently have a life expectancy of 18 months or less or an end-of-life trajectory.” Doc. No. 202-23 at 2. On April 16, 2019, Schmitt filed an appeal with the BOP central office. See Id. at 1. Schmitt has not received a decision from the BOP central office-at least according to the record before me. See Doc. No. 202 at 10. On December 5, 2019, Schmitt filed the present motion for compassionate release. See id.

         III. COMPASSIONATE RELEASE STANDARDS

         A court's ability to modify a sentence after it has been imposed is extremely limited. One way a court may modify a sentence is through “compassionate release” as outlined in 18 U.S.C. § 3582(c)(1)(A), which was recently modified by the First Step Act (FSA). See Pub. L. No. 115-391, § 603. In the past, 18 U.S.C. § 3582(c)(1)(A) permitted a court to reduce a defendant's term of imprisonment only upon the motion of the Director of Bureau of Prisons (BOP). The FSA modified § 3582(c)(1)(A) such that a defendant may now directly petition the court “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.” See Mohrbacher v. Ponce, No. CV18-00513, 2019 WL 161727, at *1 (C.D. Cal. Jan. 10, 2019) (discussing modifications made to § 3582(c)(1)(A) by the FSA); see also United States v. Perez-Asencio, No. CR18-3611, 2019 WL 626175, at *2-3 (S.D. Cal. Feb. 14, 2019). Schmitt has exhausted all available remedies within the BOP. See Doc. Nos. 202-20, 202-21, 202-22, 202-23. While Schmitt is still waiting for a decision from the BOP central office approximately nine months after filing her appeal, I find there is nothing more Schmitt can do to administratively exhaust her remedies within the BOP. Further, the Government does not argue that Schmitt has filed to exhaust administrative remedies.

         If a defendant fully exhausts administrative remedies, the court may, upon motion of the defendant, reduce the defendant's sentence, after considering the factors set forth in 18 U.S.C. § 3553(a) to the extent they are applicable, if the court finds that:

(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission . . .

18 U.S.C. § 3582(c)(1)(A).

         Schmitt does not meet the requirements of § 3582(c)(1)(A)(ii). She is under 70 years of age. See Doc. No. 202-2 (BOP record showing Schmitt is 61 years of age as of September 19, 2019). Accordingly, Schmitt's only possible avenue for relief is § 3582(c)(1)(A)(i).

         The starting point in determining what constitutes “extraordinary and compelling reasons” under § 3582(c)(1)(A)(i) is the Sentencing Guideline discussing compassionate release issued by the United States Sentencing Commission. See U.S.S.G. § 1B1.13 (U.S. Sentencing Comm'n 2018); see also United States v. Hall, No. CR98-7, 2019 WL 6829951, at *3 (E.D. Ky. Dec. 13, 2019); United States v. Rivernider, No. CR10-222, 2019 WL 3816671, at *2 (D. Conn. Aug. 14, 2019). The Guideline provides that extraordinary and compelling reasons exist in the following circumstances:

(A) Medical Condition of the Defendant.-
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is-
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
(B) Age of the Defendant.-The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.-
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver ...

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