Federal Judge Awards Michigan Physician COVID Compassionate Release

The Hon. Judith E. Levy ordered the release of a Michigan physician sentenced to sixty months for unlawful prescribing. CLICK THE LINK BELOW TO READ THE OPINION AND ORDER The physician was represented by Ronald Chapman at sentencing and was facing over twenty years in prison after pleading guilty to healthcare fraud and unlawful distribution of controlled substances. He was sentenced in February 2018 to sixty months in prison. Now, after serving just nine of his required sixty months in custody, Judge Levy ordered his release under the Compassionate release program. The First Step Act modified compassionate release for federal inmates requiring that to conditions are satisfied, 1) exhaust administrative remedies available with the BOP or wait 30 days after sending a request for release to the warden of the Defendant's facility, and 2) the Defendant shows extraordinary circumstances. 18 U.S.C. 3582(c)(1)(A)(i). Since the outbreak of COVID-19 courts around the country have wrestled with the question of whether a judge may waive the 18 U.S.C. 3582(c) exhaustion requirement and reach the merits of a Defendant's petition. Many other judges, including those in the Eastern District of Michigan, have gone the other way. See, United States v. Reddy, No. 13-20358, 2020 WL 2320093, at *4 (E.D. Mich. May 11, 2020) (reaching the merits because “the purposes of the exhaustion requirement have been satisfied” and because “excusing strict exhaustion
. . . during the COVID-19 pandemic is consistent with the congressional intent underlying the exhaustion requirement”); United States v. Atwi, No. 18-20607, 2020 WL 1910152, at *3 (E.D. Mich. Apr. 20, 2020) (reaching the merits because of the “once-in-a-lifetime circumstances of COVID-19 and the personal characteristics of [the defendant] . . . it would respect Congress’ intent in placing a 30-day clock on the Warden to act, to allow [the] motion to be heard now”); United States v. Mathews, No. 14-20427, 2020 WL 1873360, at *2 (E.D. Mich. Apr. 15, 2020) (declining to reach the merits because “[t]he statute does not contain the type of exception contemplated by Defendant. Granting such an exception would rob the BOP of the opportunity to address Defendant’s request”);United States v. Alam, No. 15-20351, 2020 WL 1703881, at *2 (E.D. Mich. Apr. 8, 2020) (declining to reach the merits because “courts have a role in creating exceptions only if Congress wants them to . . . even if an exception to 18 U.S.C. § 3582(c)(1)(A)’s filing requirements for defendants is appropriate during the COVID-19 pandemic, the Court lacks authority to craft such an exception”). The physician in this case could not show that he satisfied the exhaustion of administrative remedies requirement because he did not exhaust his administrative remedies first with the BOP and did not wait 30 days after filing a request. Nonetheless, he moved for release in district court. Judge Levy, in a detailed written opinion, determined that the 30 day requirement was not a jurisdictional bar to judicial review of the case and determined that it merely bound the government - not the defendant. Moreover, she reasoned that the spirit of the 30 day requirement was met given COVID-19's impact on the BOP and the undeniable fact that the BOP cannot possibly process all of the requests currently before it. This decision is a bold step in opening up access to the Courts by defendants seeking relief from COVID-19. While we wait for the Federal Circuit Courts to definitively speak on the issue, we can expect a mixed bag of decisions in various Federal courts. CLICK BELOW TO READ THE ORDER

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