UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 19-cr-258 (KBJ) ) SEAN RAY WIGGINS, et al., ) ) ) Defendants. ) )

MEMORANDUM OPINION AND ORDER

With more than forty detainees in the D.C. Jail reportedly testing positive for the

new coronavirus, it is now regrettably clear that COVID -19 has struck the District of

Columbia’s Department of Corrections (“D.C. DOC”) with full force. 1 The obvious

increased risk of harm that the COVID-19 pandemic poses to individuals who have been

detained in the District’s correctional facilities reasonably suggests that each and every

criminal defendant who is currently in D.C. DOC custody—and who thus cannot take

independent measures to control their own hygiene and distance themselves from

others—should be released. But the unfortunate current state of affairs is that the

judiciary is limited in the steps that it can take to respond to the legitimate and pressing

COVID-19-related concerns that myriad defense counsel have raised in the numerous

emergency motions that have recently been filed in this jurisdiction. And, in this

Court’s view, the constraints on judicial authority derive both from the fac t that

1 Compare 41 DC Inmates Have Tested Positive for Coronavirus , NBC Wash. (Apr. 9, 2020), https://perma.cc/TH8M-CBQH (noting that “[a] total of 41 inmates in Washington, D.C., have tested positive for coronavirus” as of the evening of April 9, 2020) with United States v. Davis, No. 19-cr-292, ECF No. 157 at 2 (D.D.C. Apr. 6, 2020) (“On April 6, 2020, the Court was informed that twenty inmates at the D.C. Jail have now tested positive.”). existing statutes mandate an individualized assessment of a detained person’s flight risk

and dangerousness prior to such person’s release into the community, and also from the

recognition that the act of releasing dangerous and/or potentially non -compliant

criminal defendants into the community itself poses substantial risks to probation

officers, law enforcement, and the public at large.

Before this Court at present is defendant Sean Ray Wiggins’s “Emergency

Motion For A Hearing To Address The Impact Of The COVID-19 Pandemic On The

Defendant’s Safety And For Possible Release To Home Confinement Pending

Sentencing.” (See Emergency Mot. for Bond Hr’g (“Def.’s Mot.”), ECF No. 95.) Like

other defendants before him, Wiggins argues that “the existence o f the COVID-19

pandemic, and its effects on our communities, including the jail community, constitutes

new information sufficient for emergency reconsideration of [Wiggins’s] continued

detention in this case[.]” (Def.’s Mot. at 11.) For its part, the government

acknowledges the dangers of COVID-19, but opposes Wiggins’s request for release

nonetheless, largely for the same reasons that it proffered during the Court’s prior

consideration of whether there were any conditions that could ensure the safety of

people in the community if Wiggins was released pretrial. (See generally Gov’t Opp’n

to Def.’s Mot. (“Gov’t Opp’n”), ECF No. 96; see also Def.’s Reply to Gov’t Opp’n

(“Def.’s Reply”), ECF No. 97.) Specifically, the government contends that Wiggins is

a danger to the community, because he has been charged with (and has now pled guilty

to) actively participating at a high level in a large heroin trafficking conspiracy; there is

substantial evidence that Wiggins also maintained a separate (albeit uncharged) cocaine

trafficking operation; and there were a significant number of firearm magazines, high -

2 caliber bullets, and other types of ammunition found in Wiggins’s residence at the time

of his arrest. (See Gov’t Opp’n at 7–8 (incorporating by reference the government’s

prior arguments for pretrial detention under

(g) (citing Gov’t Mem. for

Pretrial Detention, ECF No. 18 at 18)).)

Notably, while this Court previously indicated that its decision regarding

whether or not Wiggins should be detained pretrial was “a close call” in light of his

limited criminal history and significant family ties (see Hr’g Tr. (“Detention Review

Hr’g”), ECF No. 39 at 2), it ultimately determined that the government had established

that Wiggins was a danger to the community within the meaning of the Bail Reform Act

such that his pretrial detention was required (id. at 8). And, for the reasons explained

below, nothing about the COVID-19 pandemic alters the Court’s analysis in this regard.

Therefore, even if the Court assumes that COVID-19 is an “exceptional reason[] why

[Wiggins’s] detention would not be appropriate,”

(c), it cannot

presently conclude that Wiggins has met the conditions of release under

(a)(1), which is a statutory prerequisite to the exercise of the Court’s authority

under section 3145(c) to release convicted defendants who have been mandatorily

detained. Consequently, Wiggins’s emergency motion for release must be DENIED.

I.

In December of 2017, the Federal Bureau of Investigation (“FBI”) began

investigating the illegal distribution of heroin in the Fort Totten area of Washington,

D.C. (See Stmt. of the Offense, ECF No. 91 at 3.) During this long-term

investigation—which included surveillance, controlled purchases, and Title III

wiretaps—law enforcement focused on George Allen Weaver, Jr.’s drug-trafficking

3 operation, which primarily brought heroin into the region through a redistribution

network that included Michael David Smith. (See

.) From November of 2018

until July of 2019, Wiggins assisted Weaver in his narcotics trafficking by supplying

heroin to Weaver’s redistribution network when Weaver was unavailable or out of

town. (See id.) For instance, in November of 2018, an undercover law enforcement

officer requested to purchase from Smith 100 grams of heroin, which was to be supplied

by Weaver, but the officer cancelled the transaction, and Weaver then asked Wiggins to

meet him at Smith’s residence. (See id.) Weaver explained that he was leaving the area

for a few days, and he left the stash of heroin with Wiggins, so that Wiggins could

continue making drug sales in Weaver’s absence. (See id.) And Wiggins apparently

did so: when Smith contacted Wiggins shortly thereafter to request heroin for his

customers, Wiggins provided some of the drug to Smith for this purpose. ( See id.)

On July 31, 2019, the FBI obtained a grand jury indictment, charging Weaver

and other suspected co-conspirators—including Wiggins—with conspiracy to distribute

and possess with intent to distribute 100 grams or more of heroin. ( See Indictment,

ECF No. 1 at 3.) Wiggins was arrested on August 1, 2019. (See Arrest Warrant, ECF

No. 6.) That same day, federal agents executed a search warrant at Wiggins’s

residence, during which they uncovered multiple firearm magazines and ammunition, a

digital scale, a telephone, and a large amount of cash. (See Gov’t Mem. for Pretrial

Detention, ECF No. 18 at 18.)

Four days later, on August 5, 2019, the government filed a motion to have

Wiggins detained prior to trial, arguing that the charged offense created a rebuttable

presumption that no conditions of release will reasonably ensure public safety. (See

4 at 25 (citing

(f)(1)(C)).) Magistrate Judge G. Michael Harvey held a

detention hearing on August 6, 2019, during which he determined that Wiggins had

successfully rebutted the presumption in favor of pretrial detention, because any drug

trafficking that Wiggins was involved in was “nowhere near as significant as that which

Mr. Weaver is engaging in” and, in his view, there was “no evidence that [Wiggins]

actually sold anything” while he was standing in for Weaver. (See Hr’g Tr. (“Detention

Hr’g”), ECF No. 32 at 41.)

The government immediately requested review of the Magistrate Judge’s

decision to release Wiggins under high-intensity supervision (see Minute Entry of Aug.

6, 2019), and this Court held another hearing concerning Wiggins’s detention status on

August 13, 2019 (see Minute Entry of Aug. 13, 2019). Upon consideration of the

parties’ arguments, the Court ultimately concluded that, while Wiggins had done

enough to rebut the statutory presumption in favor of detention that is based on the

charged offense, the government had shown, by clear and convincing evidence, that “no

conditions of release, including HISP, will reasonably assure the safety of the

community[.]” (Detention Review Hr’g at 8.) In particular, the Court noted that the

fact that Wiggins was a “part-time high-level drug dealer” and the fact that “the illegal

conduct [was] not his sole or even primary occupation” did not, in themselves, weigh in

favor of his release. (Id. at 11.) Moreover, the Court found that the weight of the

evidence favored detention, because the government had “proffered intercepted phone

conversations” that evidenced drug trafficking and that “were traced directly to Mr.

Wiggins’s phone” (id.), as well as “evidence that place[d] [Wiggins] in the proximity of

illegal drugs at various times beyond the charged offense” (id. at 12). Additionally,

5 while the Court concluded that “Mr. Wiggins’s family ties, length of residence in the

community, and lack of criminal history . . . weigh in favor of release” (id. at 13), it

also found that there was “strong evidence linking [Wiggins] to illegal drug trafficking

conduct both in this case and on his own” (id. at 14), as well as evidence that Wiggins

“possessed a substantial number of dangerous [am]munitions” at the time of his arrest

(id. at 15), both of which suggested that Wiggins’s release would threaten the safety of

the community (id.). Thus, the Court ordered that Wiggins was to be detained pending

trial. (Id. at 18.)

Wiggins subsequently pled guilty to a superseding information that charged him

with unlawful possession with the intent to distribute a detectable amount of heroin.

(See Superseding Information, ECF No. 83.) Wiggins has now filed the instant

emergency motion for release from custody, in which he argues that he should be

released pending sentencing due to “the existence of the COVID -19 pandemic, and its

effects on our communities, including the jail community[.]” (Def.’s Mot. at 11).

According to Wiggins’s motion, “[a]t a minimum, it appears that it would be

appropriate for Mr. Wiggins to be released to home detention until the resolution of this

[COVID-19] outbreak” (id. at 2), and that he should be placed on high intensity

supervision in the custody of “his girlfriend at her parents’ home” (id. at 12), because

“[i]t is indisputable that we are experiencing unprecedented and exceptional

circumstances—both in the community and in the jails” (id. at 13).

Significantly for present purposes, Wiggins’s motion conflates the statutory

standards that are applicable to a detained defendant’s requests for release; for example,

his arguments rely on both the Bail Reform Act, which applies to pretrial detainees, and

6 the statutory provisions that govern motions by post-conviction defendants who are

awaiting sentencing (like Wiggins). However, insofar as Wiggins has pled guilty and

his motion suggests that the outbreak of COVID-19 and the heightened risk of

contracting the disease in jail are exceptional reasons that make his release appropriate,

Wiggins’s emergency request for release is properly construed as a motion for release

from detention pending sentencing pursuant to

(c). See also, e.g.,

United States v. Dixon, No. 20-cr-88,

, at *1 (S.D.N.Y. Apr. 7, 2020)

(construing a similar request based on the COVID-19 pandemic as a motion pursuant to

section 3145(c)).

II.

Wiggins’s emergency motion for release must be evaluated in accordance with

Congress’s intent as expressed in the statutory provisions that govern a district court’s

authority to detain and/or release criminal defendants at various stages of the criminal

justice process. To begin with, it is clear beyond cavil that, befor e a guilty plea or

conviction, “liberty is the norm and detention prior to trial or without trial is the

carefully limited exception.” United States v. Salerno,

(1987).

Thus, the Bail Reform Act provides that a criminal defendant can be detained before

trial only if, “after a hearing[,]” the Court “finds that no condition or combination of

conditions will reasonably assure the appearance of the person as required and the

safety of any other person and the community[.]”

(e)(1). That statute

further prescribes that, to make this determination, a court must evaluate four factors in

the first instance: (1) “the nature and circumstances of the offense charged”; (2) “the

weight of the evidence against the person”; (3) “the history and characteristics” of the

7 defendant; and (4) “the nature and seriousness of the danger to any person or the

community that would be posed by the person’s release.”

§ 3142(g). Consequently,

a criminal defendant can only be detained pending tri al consistent with the Bail Reform

Act if, on balance, those four factors weigh in favor of detention, such that the court

can confidently conclude that no condition or combination of conditions “will

reasonably assure the appearance of the person as required and the safety of any other

person and the community[.]” Id. § 3142(e)(1); see also United States v. Vasquez-

Benitez,

(D.C. Cir. 2019) (“In common parlance, the relevant inquiry

is whether the defendant is a ‘flight risk’ or a ‘dange r to the community.’”) 2

Once a defendant is convicted of an offense, a different detention statute, with

different presumptions, applies—namely,

. In this circumstance, far

from promoting liberty, a court is generally required to detain the defendant as the

background rule, and, notably, this detention requirement comes in two varieties: there

is either (1) a presumption of detention that a defendant can rebut with “clear and

convincing evidence” that he “is not likely to flee or pose a danger to the safety of any

other person or the community if released” under

(a)(1), or (2)

mandatory detention for defendants who have been convicted of specified crimes,

except in certain very narrow circumstances, under

(a)(2). 3 It is

2 This is not to suggest that the government must always proffer evidence concerning all fo ur factors with respect to every detained defendant in the first instance. With respect to defendants who have been charged with certain offenses—including offenses under the Controlled Substances Act which carry a maximum term of imprisonment of ten year s or more—a rebuttable presumption of dangerousness arises,

(e)(2)–(3), which “operate[s] at a minimum to impose a burden of production on the defendant to offer some credible evidence c ontrary to the statutory presumption[,]” United States v. Alatishe,

(D.C. Cir. 1985) (emphasis in the original). 3 To release a defendant who faces mandatory detention pending sentencing under

(a)(2), the judicial officer must find either that “there is a substantial likelihood that a motion for

8 reasonably clear that section 3143(a)(1) requires a court to make the same flight risk

and dangerousness assessment that the Bail Reform Act requires, see United States v.

Weekes, No. 13-cr-187,

, at *1 (D.D.C. Dec. 13, 2013), only, now,

detention is presumed, and it is the defendant’s burden to convince the court that he

satisfies the non-dangerousness and no-flight-risk conditions of release, see

(a)(1). By contrast, per section 3143(a)(2), defendants who have been convicted

of certain offenses for which a maximum sentence of 10 or more years of imprisonment

is prescribed—such as Wiggins—have no such opportunity to secure release by

rebutting the presumption of detention at the time of their conviction; instead, they

ordinarily must be detained pending sentencing. See 18 U.S.C. 3143(a)(2).

Importantly, there appears to be one additional escape hatch for a defendant who

is subject to mandatory detention pending sentencing under section 3143(a)(2): the

statutory provision that is codified at

(c). In relevant part, section

3145(c) provides that

[a] person subject to detention pursuant to section 3143(a)(2) . . . , and who meets the conditions of release set forth in section 3143(a)(1) . . . , may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.

§ 3145(c). Thus, section 3145(c) permits the court to release “under appropriate

conditions” detainees who satisfy three criteria. First, the detainee must be a person

who is, or was, “subject to detention pursuant to section 3143(a)(2)”; second, the

acquittal or new trial will be granted” or that “an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person[,]” and also further find, “by clear and convincing evidence[,] that the person is not likely to flee or pose a danger to any other person or the community .”

(a)(2).

9 detained must “meet[] the conditions of release set forth in section 3143(a)(1)”; and

third, the detainee must “clearly show[] that there are exceptional reasons why [his]

detention would not be appropriate.”

In the instant case, there is no dispute that Wiggins is a defendant who is

awaiting trial after his plea of guilty with respect to a crime that made him subject to

mandatory detention under section 3143(a)(2). 4 Therefore, this Court’s assessment of

Wiggins’s emergency request for release turns on whether Wiggins “meets the

conditions of release set forth in section 3143(a)(1)[,]” and has “clearly shown that

there are exceptional reasons why [his] detention would not be appropriate.”

§ 3145(c).

Before the Court addresses that analysis, three other points are worth noting.

First, in this Court’s view, the government’s contention that district judges lack the

authority to release defendants under section 3145(c) (see Govt.’s Opp’n at 4–5) is

mistaken. That is, the Court agrees with Wiggins (see Def.’s Reply at 2–3) that the

plain text of section 3145(c) establishes that a district judge who has jurisdiction over a

defendant’s criminal case qualifies as the “judicial officer” who may order the

4 Wiggins qualifies as such because he pled guilty on March 2, 2020, pursuant to a plea agreement that is wired to the guilty plea of one of his co-defendants, George Allen Weaver, Jr. (see Plea Agreement, ECF No. 90), and this Court entered his guilty plea. During the plea hearing that the Court conducted, both Wiggins and Weaver admitted to their criminal conduct, and, in particular, Wi ggins pled guilty to conspiracy to distribute and possess with intent to distribute a detectable amount of heroin, in violation

(a)(1), 841(b)(1)(C), and 846, which carries a maximum sentence of 20 years of incarceration. (See Minute Entry of Mar. 2, 2020.) The Court deferred its agreement to impose the binding sentence contained in Weaver’s plea agreement, which was drafted pursuant to Fed. R. Crim. P. 11(c)(1)(C), in order to permit the Court to review the not-yet-issued presentence investigation report as confirmation that the binding sentence in Weaver’s plea agreement is reasonable. (See Minute Entry of Mar. 2, 2020.) But as of now, by virtue of the entry of his guilty plea and for purposes of his detention status, Wiggins “has been found guilty of an offense in a case described in subparagraph . . . (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence [.]”

(a)(2).

10 defendant released. See

(a)(1) (defining generally the term “judicial

officer” for the purpose of 18 U.S.C. §§ 3141–3150 to mean “any person or court

authorized . . . to detain or release a person before trial or sentencing or pending appeal

in a court of the United States”). The weight of authority specifically holds as much,

and this is so notwithstanding the fact that the first part of section 3145(c) is plainly

directed to the court of appeals. See United States v. Meister,

, 1237–38

(11th Cir. 2013) (noting that each of the other eight circuits that has considered whether

or not district courts have the authority to apply § 3145 have found that they do); see

also, e.g., United States v. Christman,

(6th Cir. 2010) (finding that a

district court has authority to make a section 3145(c) determination); United States v.

DiSomma,

(2d Cir. 1991) (same); United States v. Harris, No. 19-cr-

356,

, at *3 (D.D.C. Mar. 27, 2020) (same). 5

Second, when determining whether or not Wiggins satisfies “the conditions of

release set forth in section 3143(a)(1)” for section 3145(c) purposes, the Court must

evaluate the record facts in light of the four dangerousness and flight-risk factors that

5 The first half of section 3145(c) “provide[s] for immediate appe llate review of the detention decision[.]” Salerno,

; see also

(c) (stating that “[a]n appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title”) . But Congress enacted this part of section 1345(c) more than five years prior to language concerning the release of a mandatorily detained defendant. See 136 Cong. Rec. 36750 (daily ed. Oct. 27, 1990) (adding the release provision to section 3145(c) as part of the Crime Control Act of 1990). This later amendment appears to have derived from a particular concern that the Department of Justice had about the need for certain defendants who faced mandatory detention under section 3143(a)(2) to be permitted to remain out of jail pending sentencing under exceptional cir cumstances, see Letter from Carol T. Crawford, Assistant Att’y Gen, Office of Legal Affairs, Dep’t of Justice, to Paul Simon, U.S. Senator (July 26, 1989)—a type of judgment call that is ordinarily in the purview of the district judge who is presiding over the defendant’s case. And the legislative history of the 1990 amendment further indicates that the second half of section 3145(c) includes district court judges, insofar as an early draft of this amendment granted authority to release defendants specific ally to “a court of appeals or a judge thereof,” 135 Cong. Rec. 22940 (daily ed. Oct. 3, 1989), but the provision that was eventually enacted uses the broader, statutorily defined term “the judicial officer [,]” see

(c).

11 Congress has prescribed in

(g). This is because section 3145(c)

specifically references section 3143(a)(1), which, in turn, cross -references the modes of

releasing a defendant set forth in

(b) and (c). And it is well

established that “[t]he factors that the court uses to determine ‘whether there are

conditions of release that will reasonably assure the appearance of the person as

required and the safety of any other person and the comm unity’ under §§ 3142(b) and

(c) are provided in § 3142(g).” United States v. Hawkins, No. 2:10-cr-458,

, at *1 (E.D. Cal. Apr. 10, 2013) (quoting

(a)(1)); see also

Weekes,

, at *1 (“To determine whether a defendant subject to § 3143

poses a risk of flight or danger, the court may consider the factors set forth in

§ 3142(g).”); United States v. Tann, No. 04-cr-392,

, at *4 (D.D.C.

May 12, 2006) (same).

Third, and finally, with respect to the requirement of “exceptional reasons why

[the defendant’s] detention would not be appropriate,” it is obvious that “a plain

reading of the statute offers little if any help[,]” United States v. Garcia,

,

1016–17 (9th Cir. 2003), and, unfortunately, the legislative history is also “sparse and

uninformative[,]” DiSomma,

. Congress did not define the term

“exceptional reasons” in the statute, nor did it provide examples, so, naturally, courts

have laid out their own standards. See, e.g., Garcia,

(explaining that,

when evaluating a release motion under section 3145(c), a “court should examine the

totality of the circumstances and, on the basis of that examination, determine whether,

due to any truly unusual factors or combination of factors . . . it would be unreasonable

to incarcerate the defendant” pending sentencing); United States v. Larue,

924, 925 (8th Cir. 2007) (defining “exceptional” under § 3145(c) as “clearly out of the

ordinary, uncommon, or rare.”). By adopting the term “exceptional reasons” but

declining to define it, it appears that “Congress placed broad discretion in the district

court to consider all the particular circumstances of the case before it and draw upon its

broad experience with the mainsprings of human conduct.” Garcia,

(internal quotation marks and citation omitted). And to the extent that Congress

requires a determination of whether “there are exceptional reasons why such person’s

detention would not be appropriate,”

(c) (emphasis added), it would

also seem as though the required exceptional reason must be particular to the defendant

who is requesting release notwithstanding the fact that he is subject to mandatory

detention. Cf. United States v. Lee, No. 19-cr-298,

, at *4 (D.D.C.

Mar. 30, 2020) (asking, in the context of a pretrial detainee’s request for release

pursuant to section 3142(f), whether “COVID-19 pandemic has any material impact on

the section 3142(g) factors that led [the Magistrate Judge] to determine that pretrial

detention was warranted in [the defendant’s particular] case.”).

III.

Given these statutory standards, Wiggins has an uphill battle with respect to

establishing that he can be, and should be, released from detention under section

3145(c), even if the Court assumes—without deciding—that the COVID-19 pandemic

qualifies as an “exceptional reason[]” for concluding that Wiggins’s detention is “not

. . . appropriate.”

(c). This is primarily because, as explained above,

Wiggins also has to demonstrate that he “meets the conditions of release” in section

3143(a)(1), and in the context of the government’s appeal of Magistrate Judge Harvey’s

13 detention order, this Court already specifically determined that Wiggins’s release poses

a danger to the safety of the community, pursuant to

(g). Thus, it

appears that Wiggins’s only hope of demonstrating, by clear and convincing evidence,

that he meets the conditions of release for section 3145(c) purposes now, when this

Court previously and unfavorably assessed the detention issue then, is to show that

circumstances have changed, or that newly relevant evidence sheds different light on

the factors at issue, in a manner that compels a different conclusion about his

dangerousness than this Court reached before. Cf.

§ 3142(f). For the reasons

explained below, Wiggins’s motion falls short of meeting this mark.

First of all, defense counsel’s contention that “the nature of the offense is a little

less serious than it was at the time of the detention hearing” because Wiggins has now

pled guilty to a less serious crime from a sentencing standpoint ( see Def.’s Reply at 9

(citing to

(g)(1))) is unpersuasive. It is well established that the

statute of conviction alone does not establish the seriousness of an offense. And

Wiggins has now freely and fully admitted to playing a substantial role in a conspiracy

to distribute at least 100 grams of heroin, and also to possessing v arious items

indicative of unlawful and dangerous conduct, including firearm magazines and high -

caliber ammunition. (See Stmt. of the Offense at 4.) It is true that a mandatory

minimum penalty no longer applies to Wiggins conduct by virtue of the particu lar

offense to which Wiggins has pled guilty, but in this context, that is neither here nor

there, because Wiggins’s own admissions regarding his active and willful participation

in inherently dangerous criminal conduct plainly weighs in favor of his conti nued

detention for the purpose of

(g)(1).

14 With respect to the weight of the evidence against Wiggins, see

(g)(2), this factor, too, weighs in favor of detention, and perhaps even more so

now than before. By entering a guilty plea, Wiggins has knowingly and voluntarily

admitted that he engaged in serious and unlawful behavior concerning heroin

trafficking, which is certainly strong and incontrovertible evidence that he has, in fact,

committed the charged crime. Defense counsel’s suggestion that this weight-of-the-

evidence analysis now relates “only” to an assessment of record evidence concerning

“the likelihood that the person will fail to appear or will pose a danger” (Def.’s Reply at

10 (quoting United States v. Motamedi,

(9th Cir. 1985))) finds no

support in this jurisdiction. See, e.g., United States v. Taylor,

(D.D.C. 2018) (explaining that “the weight of the evidence factor” does not focus “on

the defendant’s danger to the community . . . to the exclusion of any consideration of

the strength of the government’s case”); see also United States v. Ausby, No. 72-cr-67,

, at *4 n.1 (D.D.C. June 11, 2019) (same). Nor could it, given that

the “relevant statutory language does not focus on the evidence of danger to the

community . . . ; rather, it requires that the judicial officer consider ‘the weight of the

evidence against the person[.]’” Taylor,

(emphasis in original)

(quoting

(g)(2)).

As a general matter, and as this Court noted during the pretrial detention hearing,

Wiggins’s “history and characteristics” do weigh in favor of his release,

(g)(3), and defense counsel here again stresses Wiggins’s “longstandi ng ties to

the D.C. area[,]” his “strong family and community support[,]” and his recent history of

employment (Def.’s Reply at 10–11). This Court previously credited these

15 characteristics; yet, it determined nevertheless that they were insufficient to ti p the

balance in favor of Wiggins’s release. (See Detention Review Hr’g at 14 (concluding

that “this factor ultimately does not and cannot outweigh the considerations about the

nature of the offense and the weight of the evidence against Mr. Wiggins as far as drug

dealing is concerned”).) And COVID-19 appears to have no impact on this equation

under the circumstances presented here. Wiggins has not demonstrated, for example,

that he has an “underlying medical condition[] that make[s] [him] especially vulnerable

to the virus[,]” Lee,

, at *6, which might reasonably cause a court to

reevaluate the “history and characteristics” factor and reach a different result with

respect to the detention calculus, see, e.g., United States v. Davis, No. 19-cr-292, ECF

No. 157 at 2–3 (D.D.C. Apr. 6, 2020) (ordering the temporary release of a pretrial

detainee who “is currently suffering from acute bronchitis and taking five medications,

including albuterol and prednisone, a corticosteroid that is an anti -inflammatory and

immunosuppressant”). Here, the defense has not provided the Court with any basis for

concluding that this third factor should be afforded any greater weight now than the

Court gave it during its earlier review of Wiggins’s detention status.

Rather, Wiggins’s motion mostly points to the fourth and final factor and

vigorously maintains that “the nature and seriousness of the danger to any person or the

community that would be posed by [his] release,”

(g)(4), now weighs

heavily against his continued detention, insofar as “it is the incarceration that is

dangerous in the context of the COVID-19 pandemic[,]” and Wiggins’s “release under

house arrest until the global pandemic abates will actually enhance the safety of the

community” (Def.’s Reply at 11). This contention cannot b e credited consistent with

16 the statutory framework, for the reasons that this Court recently explained in Lee. For

one thing, “accepting this argument would require the Court to ignore the fact that the

relevant statutory inquiry is not the benefits that a defendant’s release would bring

about (however significant) or the harms that his incarceration would cause (however

substantial) . . . [but] ‘the danger’ that ‘would be posed by the person’s release.’” Lee,

, at *5 (quoting

(g)(4)). And, just as in Lee,

Wiggins has not shown, by clear and convincing evidence or otherwise, that, if he is

released, he would not engage in the same kinds of inherently dangerous and illegal

activities that gave rise to his conviction in this case. (Cf. Detention Review Hr’g at 15

(noting specifically that Wiggins had “used a cellphone to arrange drug sales[,]” and

rejecting release partly because this “is not the kind of conduct that is amenable to

effective supervision”).) Furthermore, it is significant that Wiggins’s established

offense conduct spanned many months and was only revealed after extensive

investigation by law enforcement. Thus, it is also clear to this Court that the potential

danger posed by Wiggins’s release in the age of COV ID-19 includes the heightened

safety concerns that might exist for “the probation officers who would be tasked with

monitoring his behavior while he is out of jail” pending sentencing. Lee,

, at *5.

In short, and unfortunately for Wiggins, even if the COVID-19 pandemic rises to

the level of an “exceptional reason[]” for releasing him pending sentencing under

section 3145(c), the law authorizes such release only if Wiggins “meets the conditions

of release set forth in section 3143(a)(1),”

(c), and for the reasons

explained above, this Court cannot conclude that Wiggins has shown “by clear and

17 convincing evidence” that the Court’s previous specific assessment of his

dangerousness leads to a different result today, such that he “meets the conditions of

release set forth in section 3143(a)(1)” as section 3145(c) requires, see

§§ 3143(a)(1), 3145(c).

IV.

This Court’s conclusion that Wiggins has not satisfied the prerequisites of

section 3145(c) is all that is required to resol ve the pending emergency motion for

release. Although Wiggins also appears to request release under

(i)

(see Def.’s Reply at 12), such reliance is misplaced under the circumstances presented

here. See United States v. Goldman, No. 19-cr-0263,

, at *2 (D.

Minn. Apr. 1, 2020) (noting that applying section 3142(i) to detainees awaiting

sentencing would “ignore[] [their] adjudication of guilt” and also result in the

“application of the less stringent legal standard that applies to pretrial release”); see

also United States v. McDuffie, No. 19-cr-212,

, at *1 (S.D.N.Y. Apr.

3, 2020) (“Although defense counsel brings this motion pursuant to

(i), which allows for temporary pretrial release for a compelling reason, the

motion is governed by

(c), which applies when a defendant is awaiting

sentencing.”).

Nor can Wiggins credibly suggest that he should be released because his

continued detention is fundamentally unfair, in violation of his Fifth Amendment rights

or otherwise. (See Def.’s Mot. at 12.) The crux of Wiggins’s argument in this regard

appears to be that “[t]he Due Process Clause of the 5th Amendment protects against

unnecessary [sentencing] delays” and also that, as a matter of procedural fairness, “the

Court should order temporary release because it is necessary for the continued

18 preparation of his defense for sentencing in a timely manner.” (Def.’s Reply at 13

(internal quotation marks and citations omitted).) Wiggins has waived any

constitutional claim concerning the right to a speedy sentencing as part of his plea

agreement (see Plea Agreement, ECF No. 90 at 7), and this aspect of his Due Process

Clause argument also fails on its merits, because Wiggins’s sentencing date has not

changed: it remains slated for June 11, 2020—a date that was selected with the consent

of the parties during the plea hearing on March 2, 2020, before the COVID-19 outbreak

in D.C. Jail, due to the amount of time that is necessary for the Probation Office to

compile a presentence report. (See Minute Entry of Mar. 2, 2020.) See also United

States v. Lovasco,

(1977) (explaining that, in order to determine

whether a defendant has been deprived of his due process right to a prompt sentencing,

the Court “must consider [1] the reasons for the delay as well as [2] the prejudice to the

accused”).

To the extent that defense counsel suggests that procedural fairness to Wiggins

requires that he be released in order to aid in the preparation of his defense, that

argument fares no better. The scope of Wiggins’s defense at this point is quite limited,

since he has already entered a guilty plea, and his sentencing date is not sufficiently

imminent to warrant temporary release on the grounds that he needs to prepare. Cf.

United States v. Villegas, No. 2:19-cr-568,

, at *2 (C.D. Cal. Apr. 3,

2020) (“If federal courts had to order temporary release just because it would aid a

defendant’s ability to work with counsel, the exception in section 3142(i) would

swallow all detention orders.”); United States v. Stephens, No. 15-cr-95,

, at *3 (S.D.N.Y. Mar. 19, 2020) (finding that, where a hearing on alleged

violation of supervised release was scheduled for the following week and legal visits to

jail had been suspended, the temporary release of a pretrial defendant who is otherwise

19 unable “to prepare his defenses” was warranted).

V.

In conclusion, the Court fully acknowledges the unprecedented magnitude of the

COVID-19 pandemic and the extremely serious health risks that it presents for all of us,

including, and perhaps especially, those individuals who are unfo rtunately presently

detained in federal custody. The conditions of detention within the District of

Columbia’s correctional facilities are currently being assessed, see Banks v. Booth, No.

20-cv-849 (D.D.C. Mar. 30, 2020), as they should be, given the alarming rate at which

individuals who are in D.C. DOC custody are now contracting the virus. In the

meantime, however, “Congress has given judges only limited tools” to address the

requested release of individual detainees. United States v. Nkanga, No. 18-cr-713,

, at *4 (S.D.N.Y. Mar. 31, 2020). It is crystal clear that “[t]he dangers of

the moment . . . call for more systematic action than a judge can grant in any one

case[,]” and that “[o]nly the political branches can do what this moment requires[.]”

. But, at present, it falls to the courts to determine, on an ad hoc, case -by-case

basis, whether each detained defendant who files a motion for release on the basis of

COVID-19 can be let out jail consistent with the dictates of th e law.

In the instant case, as the law currently stands, this Court is called upon to

evaluate the release motion of a healthy and relatively young detainee who is in D.C.

Jail mandatorily because he has pled guilty to serious and dangerous criminal condu ct.

This Court previously and carefully determined that no conditions of release could

assure the safety of the community if this individual is not held in custody, and the

generalized risks that the COVID-19 pandemic poses for residents of the D.C. Jail do

not impact the Court’s prior considered analysis of his dangerousness. Under these

20 circumstances the Court cannot find that Wiggins is a person who “meets the conditions

of release set forth in 3143(a)(1)” as a threshold matter. See

(c).

Therefore, it is hereby

ORDERED that the pending emergency motion (see ECF No. 95) is DENIED.

Date: April 10, 2020 Ketanji Brown Jackson u KETANJI BROWN JACKSON United States District Judge

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