USA v. Strain et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
BARBARA ANN STRAIN,
Defendant.
Case No. 3:97-cr-00004-TMB
ORDER ON DEFENDANT’S MOTION
FOR MODIFICATION OF TERM OF
IMPRISONMENT UNDER
18 U.S.C. § 3582(c)(1)
[DKT. 284]
I. 	INTRODUCTION
The matter comes before the Court on Defendant Barbara Ann Strain’s Motion for
Modification of Term of Imprisonment Under 18 U.S.C. § 3582(c)(1) (the “Motion”).1 Strain
requests that her sentence be reduced to time-served and that she be released from custody.2 The
United States filed the Government’s Opposition to Compassionate Release.3 The Motion is now
ripe for resolution.4 For the reasons discussed below, the Motion is DENIED with leave to refile.
II. 	BACKGROUND
In 1997, a federal grand jury returned a nine-count indictment against Strain, charging her
with offenses arising from robberies at two credit unions and a liquor store in 1996.5 Following a
1 Dkt. 284 (Motion).
2 Id.
3 Dkt. 286 (Opposition).
4 Although Strain filed a Reply at docket 288, no such reply was ordered by the Court. Accordingly,
pursuant to L.Crim.R. 47.1(d), the Court will not consider arguments raised in Strain’s unsolicited
Reply.
5 Dkt. 286 at 3.
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jury trial, Strain was convicted on all counts: two counts of armed bank robbery, in violation of 18
U.S.C. § 2113(a) and (d); one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a);
three counts of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g); and three counts
of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).6 Although,
Strain’s offense level and criminal history category produced a sentencing guidelines range of 110-
137 months, she was subject to three mandatory consecutive sentences totaling 540 months for the
three 18 U.S.C. § 924(c) violations.7 Ultimately, she received a total of 650 months of
imprisonment, consisting of the 540 months for the 18 U.S.C. 924(c) violations in addition to 110
months on the six remaining counts.8
Strain is now is incarcerated at Dublin FCI and has served approximately 23 years of her
sentence with a projected release date of May 18, 2044.9 She is 68-years-old and claims that she
suffers from high blood pressure.10 If released, she indicates that she will submit to home
confinement, residing with her daughter, her daughter’s husband, and their teenage daughter in
Spanaway, Washington.11 On July 8, 2019, Strain submitted a request for compassionate release
to the Warden of Dublin FCI.12 In a response dated October 1, 2019, the Warden explained that
6 Dkt. 284 at 7.
7 Id.
8 Id.
9 Dkt. 284-9 at 1 (Reentry Plan and Progress Report).
10 Id.
11 Dkt. 284 at 35.
12 Dkts. 284-8 (BOP Request); 284-2 (Warden Response).
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Strain’s case did not meet the Bureau of Prisons’ (“BOP”) criteria for compassionate release.13
Therefore, the Warden declined to file a motion for compassionate release on Strain’s behalf and
recommended Strain consult with defense counsel and submit her request to the sentencing court.14
On April 9, 2020, Strain filed the present Motion.15 She raises two grounds for
compassionate release.16 First, she argues that her sentence was unduly harsh and, had she been
sentenced today, recent changes in the sentencing law make a sentence of 650 months
implausible.17 Second, she argues that given her age and medical condition, she runs a high risk
of serious injury or death if she were to contract COVID-19.18 Strain also argues that factors
including her history as a victim of domestic violence, her “extraordinary rehabilitation” effort
while incarcerated, and her repayment of restitution are “extraordinary and compelling reasons”
that warrant her release.19
In response, the Government argues that Strain did not raise her arguments relating to
COVID-19 in her request to the BOP.20 Therefore, the Government contends she has not exhausted
her administrative remedies as to those claims and the Court should not consider them.21 However,
13 Dkt. 284-8.
14 Dkt. 284-2.
15 Dkt. 284.
16 Id. at 21–26.
17 Id. at 21.
18 Id. at 26.
19 Id. at 25.
20 Dkt. 286 at 5–6.
21 Id.
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even if the Court considers Strain’s COVID-19 concerns, the Government argues that she is in
relatively good health and, if released, she would pose a danger to the community.22 Additionally,
the Government argues the harshness of Strain’s sentence is not a ground for compassionate
release.23
III. 	LEGAL STANDARD
A. 	Exhaustion of the Bureau of Prisons’ Administrative Process
The First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to allow a defendant to move the
district court for compassionate release.24 A district court may only reduce a term of imprisonment
on a motion from a defendant “after the defendant has fully exhausted all administrative rights to
appeal a failure of the BOP 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.” 25
Judicially-created 	exceptions 	to 	statutorily-mandated 	exhaustion 	requirements 	are strongly
disfavored.26
For example, when interpreting the administrative exhaustion requirement under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a), the Supreme Court held that “a court may not excuse
a failure to exhaust” even under special circumstances.27 The Ross Court reasoned that unlike
22 Id. at 9–10.
23 Id. at 6–8.
24 See Pub. L. 115-391, 132 Stat. 5194, 5239 (2018).
25 18 U.S.C. § 3582(c)(1)(A).
26 Ross v. Blake, 136 S. Ct. 1850, 1856–57 (2016).
27 Id. at 1856.
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judicially-created exhaustion requirements, “mandatory exhaustion statutes like the PLRA
established mandatory exhaustion regimes, foreclosing judicial discretion.”28
Nevertheless, in light of the ongoing COVID-19 pandemic, some courts have waived the
exhaustion requirement for motions for compassionate release in certain instances.29 These courts
largely rely on findings that requiring exhaustion would be futile because the defendant had less
than 30 days left on their sentence, the defendant’s medical condition was so precarious that a
small delay could have catastrophic health consequences, or both. Furthermore, these cases rely
on out-of-circuit authority which holds “[e]ven where exhaustion is seemingly mandated by
statute . . . , the requirement is not absolute.”30 However, the Court is not persuaded by the
reasoning of these decisions, which seem to be contradicted by the Supreme Court’s holding in
Ross. Therefore, pursuant to Ross, the Court holds that district courts are without authority to
28 Id. at 1857.
29 See e.g., United States v. Perez, No. 17 Cr. 513-3 (AT), 2020 WL 1546422, at *2 (S.D.N.Y.
April 1, 2020) (excusing exhaustion requirement where defendant had “undisputed fragile health”
and only three weeks left on his sentence); United States v. McCarthy, No. 3:17-CR-0230 (JCH),
2020 WL 1698732, at *4 (D. Conn. Apr. 8, 2020) (excusing exhaustion requirement where
defendant was 65 years old, suffered from a host of well-documented heart and respiratory
ailments, and had only 26 days left on his sentence); United States v. Zukerman, No. 16 CR. 194
(AT), 2020 WL 1659880, at *4 (S.D.N.Y. Apr. 3, 2020) (excusing exhaustion requirement where
defendant was 75 years old and provided medical records proving he suffered from diabetes,
hypertension, and obesity); United States v. Colvin, No. 19 Cr. 179, 2020 WL 1613943, at *2 (D.
Conn. Apr. 2, 2020) (excusing exhaustion requirement because defendant only had 11 days left on
her sentence and provided medical records that she suffered from type II diabetes and high blood
pressure).
30 Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019) (citing McCarthy v. Madigan, 503 U.S.
140, 146–47 (1992)). It is worth noting that, unlike 18 U.S.C. § 3582(c)(1)(A), the statute at issue
in Washington v. Barr did not expressly mandate exhaustion of administrative remedies. See 21
U.S.C. § 801 et seq. Instead, the exhaustion requirement had been judicially-created out of
deference to Congress’ delegation of authority to administrative agencies and to promote judicial
economy. Washington, 925 F.3d at 117. Thus, as a judicially-created exhaustion requirement, it
could be subject to judicially created exceptions—e.g. futility or undue prejudice.
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consider the merits of claims for compassionate release until a defendant has exhausted all
available administrative rights to appeal.31
B. 	Extraordinary and Compelling Circumstances
Where a defendant has exhausted their administrative rights, after considering the
applicable factors set forth in § 3553(a), the court may grant the motion if it finds:
(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.32
Congress never defined what circumstances constitute “extraordinary and compelling reasons.”
Instead, Congress delegated authority to the United States Sentencing Commission to “describe
what should be considered extraordinary and compelling reasons for sentence reduction, including
the criteria to be applied and a list of specific examples.”33
The policy statement of the Sentencing Commission related to compassionate release is
found at U.S.S.G. §1B1.13. The policy statement provides:
[T]he court may reduce a term of imprisonment (and may impose a term of
supervised release with or without conditions that does not exceed the unserved
portion of the original term of imprisonment) if, after considering the factors set
forth in 18 U.S.C. § 3553(a), to the extent . . . applicable, the court determines that–
(1)(A) extraordinary and compelling reasons warrant the reduction; . . .
31 Because the administrative exhaustion process described in 18 U.S.C. § 3582(c)(1)(A) may take
up to 30 days, there may be merit to the argument that a defendant who has less than 30 days left
on their sentence has no available administrative rights. In such a case, the Court may deem the
defendant’s administrative rights exhausted within the meaning of the statute. However, that is not
the case here.
32 18 U.S.C. § 3582(c)(1).
33 28 U.S.C. § 994.
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(2) the 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); and
(3) the reduction is consistent with this policy statement.34
The Sentencing Commission goes on to describe what may constitute “extraordinary and
compelling reasons” that warrant a sentence reduction. Specifically, it states that “extraordinary
and compelling reasons” may exist based on (A) the defendant’s medical condition—e.g. terminal
illness or diminished ability to care for themselves; (B) the defendant’s age; (C) the defendant’s
family circumstances; or (D) “[o]ther [r]easons . . . [a]s determined by the Director of the Bureau
of Prisons.”35 Pursuant to 28 U.S.C. § 994(t), the Sentencing Commission reiterates that
rehabilitation of the defendant is not, by itself, an extraordinary and compelling reason for
purposes of this policy statement.36
United States Sentencing Guidelines (“U.S.S.G.”) §1B1.13 was promulgated prior to the
passage of the First Step Act. As a result, there is disagreement among district courts regarding
whether the policy statement remains applicable following the First Step Act amendments.37 The
Sentencing Commission has not yet “harmonized its policy statements with the [First Step Act]”
as evinced by U.S.S.G. §1B1.13’s assumption that compassionate release “may be granted only
34 U.S.S.G. §1B1.13.
35 Id. n.1.
36 Id. n.3.
37 Compare United States v. Rodriguez, 424 F. Supp. 3d 674, 682 (N.D. Cal. 2019) (holding that
district courts may grant motions for compassionate release for reasons other than those articulated
in U.S.S.G. § 1B1.13) with United States v. Willingham, No. CR 113-010, 2019 WL 6733028, at
*2 (S.D. Ga. Dec. 10, 2019) (“Indeed, § 3582(c) (1) (A) as amended by the First Step Act still
requires 	courts 	to 	abide 	by 	policy 	statements 	issued 	by 	the 	Sentencing
Commission . . . . Accordingly, this Court will follow the policy statement in U.S.S.G. § 1B1.”
(emphasis in original)).
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upon motion by the Director of the Bureau of Prisons.”38 Given this anachronism, some courts
have held U.S.S.G. §1B1.13 no longer applies to motions for compassionate brought to district
courts by defendants.39 Other courts have held U.S.S.G. §1B1.13 still governs all motions for
compassionate release and courts are not free to go beyond the text of the policy statements in
order to grant relief.40
The Court is not persuaded that the First Step Act rendered U.S.S.G. §1B1.13 inapplicable.
Congress delegated the authority to the Sentencing Commission to define “extraordinary and
compelling reasons.”41 Further, Congress went on to require that district courts’ decisions on
whether a defendant is eligible for compassionate release be “consistent with applicable policy
statements issued by the Sentencing Commission.”42 Nothing in the First Step Act nullifies,
amends, or expressly contradicts the definition of “extraordinary and compelling reasons”
provided by U.S.S.G. §1B1.13. Thus, the Court finds that it is the clear command of 18 U.S.C.
§ 3582(c)(1)(A) that district courts may only grant compassionate release where consistent with
U.S.S.G. §1B1.13 as written.
38 Rodriguez, 424 F. Supp. 3d at 681 (quoting United States v. Brown, No. 4:05-CR-00227-1, 2019
WL 4942051, at *2 (S.D. Iowa Oct. 8, 2019)).
39 See e.g., Rodriguez, 424 F. Supp. 3d at 682; Brown, 2019 WL 4942051 at *2; United States v.
Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *5 (S.D. Tex. June 17, 2019); United States v.
Fox, No. 2:14-CR-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019).
40 See e.g. Willingham, 2019 WL 6733028, at *2; United States v. Lynn, 2019 WL 3805349, at *4
(S.D. Ala. Aug. 12, 2019) (“If the policy statement needs tweaking in light of Section 603(b) [of
the First Step Act], that tweaking must be accomplished by the [Sentencing] Commission, not by
the courts.”); United States v. Johns, 2019 WL 2646663 (D. Ariz. June 28, 2019); United States v.
Gross, 2019 WL 2437463 (E.D. Wash. June 11, 2019).
41 28 U.S.C. § 994.
42 18 U.S.C. § 3582(c)(1)(A).
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IV. 	ANALYSIS
Strain’s Motion seeks release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Strain has failed to
exhaust her administrative remedies as to her health-related grounds for release presented in her
Motion. Therefore, the Court may not consider these grounds, however meritorious they may be.
Furthermore, although Strain did exhaust her administrative remedies as to the harshness of her
sentence and her exemplary efforts at rehabilitation, these are not “extraordinary and compelling
reasons” that warrant release as defined by the Sentencing Commission.
A. 	Exhaustion of the Bureau of Prisons’ Administrative Process
As previously discussed, 18 U.S.C. 3582(c)(1)(A) confers authority over compassionate
release motions to the district court after the defendant exhausts the BOP’s administrative process.
On July 8, 2019, Defendant submitted a written request for compassionate release to her Warden
(“BOP Request”).43 Strain’s BOP Request argued that the sentence she received in 1997 was
disproportionately high due to “stacking” mandatory minimums under 18 U.S.C. § 924(c).44 Strain
also provided evidence of the rehabilitative activities she has completed while incarcerated.45 On
October 1, 2019, the Warden rejected her request stating “[Strain’s] request for compassionate
release is based solely on [her] belief that you were sentenced excessively . . .” and that the reasons
presented did not meet the BOP’s definition for “extraordinary or compelling circumstances.”46
Thus, Strain fully exhausted her administrative rights as to her request based on the harshness of
her sentence.
43 Dkt. 284-8.
44 Id. at 1.
45 Id. at 1–2.
46 Dkt. 284-2.
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However, Strain did not identify any health concerns in her BOP Request. In fact, her BOP
Request specifically cites the BOP’s policy related to “Non-Medical Circumstances” as grounds
for release.47 Strain does not allege she has filed any subsequent request with the Warden raising
health concerns. Therefore, Strain has not exhausted her administrative rights as to her request
based on her medical concerns. Accordingly, the Court may not consider those claims in resolving
the present Motion, regardless of potential merit.
B. 	Extraordinary and Compelling Reasons
Because Strain has not exhausted her administrative remedies as to her health-related
claims, subsections (A) and (B) are inapplicable here. Similarly, subsection (C) does not apply
because Strain has not claimed that she has minor children. Therefore, in order to prove release is
warranted 	under 	“extraordinary 	or 	compelling 	circumstances,” she must 	show 	that 	“[a]s
determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an
extraordinary and compelling reason other than, or in combination with, the reasons described in
subdivisions (A) through (C).”48 The Director of the BOP has not issued any policy or finding that
sentences that resulted from now-impermissible “stacking” of § 924(c) offenses qualify as an
“extraordinary and compelling reason.”49 Accordingly, this reason cannot serve a basis for
granting Strain’s Motion even in light of her substantial and commendable efforts toward
rehabilitation.
47 Dkt. 284-8 at 1.
48 U.S.S.G. §1B1.13 n.1(D).
49 The Director of the BOP issued Program Statement 5050.50 following the enactment of the First
Step Act. Program Statement 5050.50 contains additional and more detailed circumstances which
are considered by the Director to constitute “extraordinary and compelling reasons” warranting
release.
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Therefore, the Court finds that Strain has failed to exhaust her administrative remedies as
to her health-related claims and, of the claims for which she has exhausted her administrative
remedies, she has failed to present the Court with “extraordinary and compelling reasons”
warranting her release as required by 18 U.S.C. § 3582(c)(1)(A) and U.S.S.G. §1B1.13.
V. 	CONCLUSION
For the foregoing reasons, Strain’s Motion at docket 284 is DENIED with leave to refile
once she has exhausted her administrative remedies as to her health-related claims. The Court
appreciates the serious health-risks caused by COVID-19 and will consider any arguments related
to Strain’s health and other circumstances after she attempts to bring such claims through the
BOP’s administrative process.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 24th day of April, 2020.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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