UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 12-180 (BAH)

HENRY ALEJANDRO GOLDBERG a/k/a Chief Judge Beryl A. Howell ROBERT RASON HENRY (BOP Name),

Defendant.

MEMORANDUM OPINION AND ORDER

Upon consideration of the defendant’s Motion for Compassionate Release (“Def.’s

Mot.”), ECF No. 59, the memoranda submitted in support and opposition, and the entirety of the

underlying record, the defendant’s motion is DENIED for the reasons set out below.

I. BACKGROUND

In 2012, the defendant pled guilty to one count of Persuading or Coercing to Travel to

Engage in Sexual Activities for Which a Person Can be Changed with a Criminal Offense in

violation of

(a), and one count of Possession of Child Pornography in violation

of

(a)(5)(B). Plea Agreement at 1, ECF No. 13. These charges stemmed from

the defendant’s online communications, between April 26, 2012 and May 17, 2012, with an

undercover police officer (“UC”), in which communications the defendant both arranged to have

sexual relations with the UC’s purported 12 year-old daughter and also sent the UC pornographic

images and videos featuring children between the ages of two and eleven. Gov’t’s Opp’n to

Def.’s Mot. for Compassionate Release (“Gov’t’s Opp’n”), at 1–4, ECF No. 62; Final

Presentence Investigation Report (“PSR”), ¶¶ 12–21, ECF No. 18. The defendant was arrested

1 after he had traveled to this district to a prearranged location to meet the UC’s promised child.

PSR ¶¶ 15, 20.

On December 13, 2012, the defendant was sentenced to 135 months’ imprisonment on

count one, and 120 months’ imprisonment on count two, with the two terms to run concurrently.

Judgment and Commitment Order, at 3, ECF No. 35; Min. Entry (Dec. 13, 2012). This sentence

was the minimum period recommended by the applicable guideline range of 135 to 168 months’

incarceration. PSR ¶ 131; see also Statement of Reasons at 1, ECF No. 36.

Shortly after his sentencing, on January 11, 2013, the defendant, proceeding pro se,

sought reconsideration of his sentence, arguing, in part, for a downward departure under a United

States Sentencing Commission, Guidelines Manual, policy statement, U.S.S.G. § 5H1.6,

governing departures for “Family Ties and Responsibilities,” on the grounds that the defendant

was, as he again argues here, the “caretaker” for his elderly parents. See Def.’s Mot. for

Reconsideration and Request for a Downward Departure From Sentencing Guidelines (“Def.’s

Reconsideration Mot.”), at 2–4, ECF No. 40. Reconsideration was denied because the

referenced policy statement does not apply to defendants, who, as here, were convicted of

offenses under, inter alia, chapters 110 or 117 of Title 18, United States Code. See Mem. Op. &

Order (Feb. 12, 2013) (“Reconsideration Order”), at 2, ECF No. 41.1

1 The defendant also sought reconsideration because his sentence was incorrectly “based upon” his written confession to having engaged in the offense of Rape, 2d Degree, Def.’s Reconsideration Mot. at 5, a charge that was pending in another jurisdiction at the time of his sentencing in this case, PSR ¶ 68. This charge arose from the defendant’s admitted sexual relations in November 2011 with 13-year old girl, who became pregnant. Id; see also United States v. Henry,

(D.C. Cir. 2014) (“At some point before the signing of the plea agreement, the prosecutor asked Henry whether he had had any hands-on sexual contact with children, which Henry denied. But that was unfortunately not the case. In November 2011—before he was arrested in this case—Henry, then 22, had traveled from the District of Columbia to Prince George’s County, Maryland and had sex with a 13- year-old girl he met on Facebook. When Maryland officials later interviewed Henry about the incident, he confessed that he had had sex with the girl, but protested that he thought she was close to 15 years old at the time. Maryland officials filed a detainer for second degree rape of a minor in mid-July of 2012, after Henry’s arrest in this case and the drafting, but not the signing, of the plea agreement.”). This ground for reconsideration of his sentence was also rejected. Reconsideration Order at 3 (noting that “[t]he Commentary to U.S.S.G. § 2G2.2(b)(5) expressly states that the instances of sexual abuse or sexual exploitation of a minor by the defendant may be considered as part

2 Over seven years after the original sentence was imposed, the defendant, proceeding pro

se, submitted a letter, dated January 10, 2020, to the Court requesting compassionate release and

permission to serve the remainder of his sentence on home confinement, which letter has been

construed as a motion for compassionate release under the First Step Act. See generally Def.’s

Mot. The defendant expresses sincere remorse for his actions, as well as a desire to help others

and law enforcement in preventing the kinds of crimes for which he was arrested. Id. at 2–3. He

also attests to his own moral reformation while in prison, which he largely attributes to his

newfound faith and conversion to Judaism. Id. The defendant’s change of name from Robert

Rason Henry to Henry Alejandro Goldberg reflects his stated desire to begin a new life as “a

valuable contributing member of society.” Id. at 3.

The defendant’s primary basis for requesting compassionate release is his desire to help

care for his elderly parents, who are “in their mid 80’s and are suffering diminishing health

associated with advanced age.” Id. at 3. To help his parents, the defendant asks for “the mercy

of the court” to be “allowed to serve the remainder of my sentence on home confinement or any

option available to the discretion of the court to give me access to care for them on a daily basis.”

Id. at 4. Accompanying the defendant’s motion are letters of support from the defendant’s

brother, sister-in-law, and mother, as well as medical records documenting his mother’s multiple

health issues. Def.’s Mot., Exs. 2–8, ECF Nos. 59-2–59-8. Separately, the defendant’s father

also submitted a letter of support confirming that he and his wife “are in our eighties and in

extremely poor health.” Letter of Leniency for Henry Goldberg, ECF No. 63.

of the ‘pattern of activity’ under this SOC, ‘whether or not the abuse or exploitation . . . resulted in a conviction for such conduct.’ U.S.S.G. § 2G2.2, comment. (n.1).”).

3 II. LEGAL STANDARD

The First Step Act of 2018, enacted on December 21, 2018, among other things, amended

(c), which addresses “[m]odification of an imposed term of imprisonment.”

See First Step Act,

(b). Section 3582(c) generally bars a court from

“modify[ing] a term of imprisonment once it has been imposed,”

(c), except for

specified exceptions, including upon a motion by the Director of the Bureau of Prisons (“BOP”)

for a sentence reduction. See United States v. Smith,

(D.C. Cir. 2006) (noting

“that Congress has, in language with a somewhat jurisdictional flavor, limited district court

authority to modify sentences””). Section 603(b) of the First Step Act expanded this exception to

authorize a defendant to move directly in court for a sentence reduction after having “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.”

(c)(1)(A). To ensure

accessibility to this remedy, the First Step Act further directs that “all Bureau of Prisons facilities

regularly and visibly post … and make available to prisoners upon demand, notice of … a

defendant’s ability to request a sentence reduction pursuant to” § 3582(c)(1)(A), as well as “the

procedures and timelines for initiating and resolving” such requests and “the right to appeal a

denial of a request … after all administrative right to appeal within [BOP] have been exhausted.”

Id. § 3582(d)(2)(C).

The First Step Act left intact the original statutory restrictions in § 3582(c)(1)(A) on

resolving motions for compassionate release submitted by BOP, and those restrictions now also

govern motions filed by defendants after exhausting BOP’s administrative process. Specifically,

in resolving a compassionate release motion, the court may reduce a term of imprisonment “after

4 considering the factors set forth in section 3553(a) to the extent that they are applicable,” id. §

3582(c)(1)(A), and upon making two findings: first, that “extraordinary and compelling reasons

warrant such a reduction,” id. § 3582(c)(1)(A)(i); 2 and, second, “that such a reduction is

consistent with applicable policy statements issued by the Sentencing Commission,” id. §

3582(c)(1)(A).3

The Sentencing Commission’s policy statement at U.S.S.G. § 1B1.13, which was last

substantively amended by the Sentencing Commission on November 1, 2016, applies to motions

for reduction of terms of imprisonment under § 3582(c)(1)(A), and provides guidance as to both

of the required findings under this statutory provision.4 Generally tracking the statutory

language, U.S.S.G. § 1B1.13 states that reduction of a term of imprisonment may be warranted,

“after considering the factors set forth in

(a), to the extent they are applicable,”

when the court makes three determinations: (1) “extraordinary and compelling reasons warrant

the reduction,” or the defendant meets certain age and a minimum incarceration period, U.S.S.G.

§ 1B1.13(1)(A) and (B); (2) the defendant poses no danger to the safety of any other person or

the community, id. § 1B1.13(2); and (3) “the reduction is consistent with this policy statement,”

2 In addition to “extraordinary and compelling reasons,” the court may find a sentence reduction warranted for a defendant who is “at least 70 years of age” and has served at least 30 years in prison, when BOP has determined “that the defendant is not a danger to the safety of any other person or the community, as provided under [18 U.S.C. §] 3142(g).”

(c)(1)(A)(ii). 3 Pertinent to the second finding, the Sentencing Commission is expressly tasked in its organic statute with promulgating general policy statements regarding “the sentence modification provisions set forth in section[] … 3582(c) of title 18,”

(a)(2), and “describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples,”

§ 994(t). 4 U.S.S.G. § 1B1.13 has not been updated since the enactment of the First Step Act, due to the lack of a voting quorum on the U.S. Sentencing Commission. See U. S. Sentencing Commission, 2019 Annual Report, at 3 (2019) (explaining that ‘[t]hroughout much of fiscal year 2019 and into fiscal year 2020 … the Commission has lacked the minimum of four affirmative votes required by statute to promulgate amendments to the federal sentencing guidelines…”). Consequently, this policy statement is framed to provide guidance in resolving a “motion of the Director of the Bureau of Prisons under

(c)(1)(A),” U.S.S.G. § 1B1.13. Nonetheless, this policy statement provides guidance in resolving compassionate release motions filed directly by defendants and must be considered to ensure any reduction is at least “consistent with” this applicable policy statement.

(c)(1)(A).

5

§ 1B1.13(3). The commentary to this policy statement then describes four “circumstances”

that satisfy “extraordinary and compelling reasons warrant[ing] the reduction”: (1) the medical

condition of the defendant, who “is suffering from a terminal illness” or has a chronic and

“substantially diminish[ed] [] ability… to provide self-care” within the prison environment, id. §

1B1.13, cmt. n.1(A)(i)-(ii); (2) the age of the defendant is at least 65 years old, with a serious

deterioration in physical or mental health, after serving at least 10 years or 75 percent of the

prison term, “whichever is less,” id. § 1B1.13, cmt. n.1(B); (3) “Family Circumstances” of

“[t]he death or incapacitation of the caregiver of the defendant’s minor child or minor children”

or incapacitation of the defendant’s spouse or registered partner “when the defendant would be

the only available caregiver for the spouse or registered partner,” id. § 1B1.13, cmt. n.1(C); and

(4) “[o]ther [r]easons” found by the BOP Director to present an extraordinary and compelling

reason “other than, or in combination with,” the reasons specified in the policy statement, id. §

1B1.13, cmt. n.1(D).

III. DISCUSSION

The government opposes the defendant’s motion for compassionate release, contending

that he fails to qualify for compassionate release, under

(c)(1)(A), as amended

by the First Step Act, because he failed to exhaust administrative remedies and, additionally, he

has not demonstrated “extraordinary and compelling reasons” for early release or shown that “an

analysis of the [Section] 3553(a) factors” warrants a sentence reduction. Gov’t’s Opp’n at 5.

The government is correct that, on the current record, the defendant has failed to show

proper exhaustion of his administrative remedies before seeking judicial intervention for

compassionate release, as required under

(c)(1)(A). His original letter makes

no reference to presenting his compassionate release request to BOP for consideration. In a

6 supplementary letter, dated January 27, 2020, the defendant attached a document, dated

December 7, 2019, that he describes as relaying information about “whether I can earn good time

days under the First Step Act and it also includes my recidivism risk level.” Def.’s Letter at 2,

ECF No. 63. The brief half-page attachment purportedly from BOP’s “LSCI Butner” reflects

only a circled word “Ineligible” next to “First Step Act,” and a circled word “Low” next to

“Recidivism Risk Level.”

. Nothing in this supplementary submission or the defendant’s

original letter indicates that he has petitioned BOP to review his case and move on his behalf for

compassionate release under the First Step Act, and that his petition was denied. Thus, on the

current record, the defendant has not shown that he has satisfied the statutory exhaustion

requirement in § 3582(c)(1)(A).

Even if the defendant had exhausted his administrative remedies, his motion would still

be denied because he has fallen short of showing “extraordinary and compelling reasons”

warranting compassionate release. The defendant cites his own personal reformation, including

his religious conversion to Judaism, and his family circumstances due to the declining health of

his elderly parents as warranting his reduction of sentence. These attestations to the defendant’s

new approach to living his life reflect positive and constructive changes. Nonetheless, the

Sentencing Commission’s applicable policy statement makes clear that “rehabilitation of the

defendant is not, by itself, an extraordinary and compelling reason” warranting a sentence

reduction. U.S.S.G. § 1B1.13, cmt. n.3 (citing

(t) (“Rehabilitation of the

defendant alone shall not be considered an extraordinary and compelling reason” for sentence

modification under § 3582(c)(1)(A))). A sentence reduction on this basis would therefore not be

“consistent with applicable policy statements issued by the Sentencing Commission,” as required

by § 3582(c)(1)(A).

7 Moreover, the family circumstances that would amount to an extraordinary and

compelling reason are strictly circumscribed under the policy statement and do not encompass

providing care to elderly parents. Instead, the family circumstances that may be considered an

adequate reason for a sentence reduction are limited, as noted supra Part II, to the need to care

for the defendant’s minor children or a spouse or registered partner, when no other caregiver is

available. See id. § 1B1.13, cmt. n.1(C). While certainly admirable, a desire to help care for

one’s elderly parents does not qualify as an “extraordinary and compelling reason” for release

under U.S.S.G. § 1B1.13, nor, therefore, under

(c)(1)(A)(i). After all, “[m]any,

if not all inmates, have aging and sick parents.” United States v. Ingram, No. 2:14-cr-40,

, at *2 (S.D. Ohio July 16, 2019) (denying compassionate release motion to care for

defendant’s ill mother). Even if the policy statement could be stretched in some circumstances to

cover a defendant’s elderly parents, a critical consideration in this guidance is that no person

other than the defendant is available to serve as a caretaker of a minor or incapacitated

immediate family member. As the government points out here, the record indicates that other

family members—namely the defendant’s brother and sister-in-law—are available to help care

for the defendant’s parents. Gov’t’s Opp’n at 6.

This Court declines to adopt the view of some courts that U.S.S.G. § 1B1.13 may be

eschewed as outdated. See, e.g., United States v. Redd, No. 1:97-cr-6,

, at *8

(E.D. Va. Mar. 16, 2020) (finding that courts may consider “extraordinary and compelling

reasons based on facts and circumstances other than those set forth in U.S.S.G. §1B1.13 cmt.

n.1(A)-(C)”); United States v. Young, No. 2:00-cr-2,

, at *6 (M.D. Tenn. Mar.

4, 2020) (“[D]istrict courts themselves have the power to determine what constitute

extraordinary and compelling reasons for compassionate release.”); United States v. Maumau,

8 No. 2:08-cr-758,

, at *4 (D. Utah Feb. 18, 2020) (concluding that the court “has

the discretion to provide [the defendant] with relief, even if his situation does not fall directly

within the Sentencing Commission’s current policy statement.”); United States v. Beck, No.

1:13-cr-186-6,

, at *6 (M.D.N.C. June 28, 2019) (“An interpretation of the old

policy statement as binding on the new compassionate release procedure is ... inconsistent with

the First Step Act, which was enacted to further increase the use of compassionate release and

which explicitly allows courts to grant such motions even when BoP finds they are not

appropriate.”). To the contrary, given the plain text of § 3582(c)(1)(A), which requires a finding

that any sentence reduction is “consistent with applicable policy statements issued by the

Sentencing Commission,” the limitations in U.S.S.G. § 1B1.13 apply and are binding. See, e.g.,

United States v. Ebbers, No. 02-cr-1144-3,

, at *4 (S.D.N.Y. Jan. 8, 2020)

(“U.S.S.G. § 1B1.13's descriptions of ‘extraordinary and compelling reasons’ remain current,

even if references to the identity of the moving party are not.”); United States v. Shields, No. 12-

cr-410,

, at *4 (N.D. Cal. June 4, 2019) (finding no “authority for the

proposition that the Court may disregard guidance provided by the Sentencing Commission

where it appears that such guidance has not kept pace with statutory amendments.”); United

States v. Lynn, CR No. 89-72,

, at *4 (S.D. Ala. Aug. 13, 2019) (finding “the

Court must follow the policy statement as it stands”).

In addition to the plain text of § 3582(c)(1)(A), this conclusion is bolstered by the fact

that, in amending this statutory provision to authorize motions by defendants, no change was

made to the requirements for granting a sentence reduction. Although the current language of

the policy statement was adopted before the enactment of the First Step Act, the November 2016

amendment was made after “an in-depth review” by the Sentencing Commission, “including

9 consideration of Bureau of Prisons data documenting lengthy review of compassionate release

applications and low approval rates, as well as two reports issued by the Department of Justice

Office of the Inspector General that [were] critical of the Bureau of Prisons’ implementation of

its compassionate release program.” U.S.S.G. Supp. To App. C (Nov. 1, 2018) Reason for

Amendment 799, at 127,

, 27,263 (May 5, 2016) (citing U.S. Dep’t of

Justice, Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release

Program, I-2023-006 (Apr., 2013); U.S. Dep’t of Justice, Office of the Inspector General, The

Impact of the Aging Inmate Population on the Federal Bureau of Prisons, E-15-05 (May, 2015)).

The amended policy statement “broadens the Commission’s guidance on what should be

considered ‘extraordinary and compelling reasons’ for compassionate release,”

and

encourages BOP to file appropriate motions for sentence reductions, given “the inefficiencies

that exist within the Bureau of Prisons’ administrative review of compassionate release

applications, which can delay or deny release, even in cases where the applicant appears to meet

the criteria for eligibility,”

. In short, the aims of the amended, current policy statement

appear fully consistent with those of the First Step Act, which contains no indication that

Congress intended to repudiate U.S.S.G. § 1B1.13 a mere two years after approving the

November 1, 2016 amendment thereto.

IV. ORDER

For the foregoing reasons, the defendant has not shown that he administratively

exhausted his request for compassionate release or presented an “extraordinary and compelling

reason” for a sentence reduction, as required by

(c)(1)(A). Accordingly, it is

hereby

10 ORDERED that the defendant’s Motion for Compassionate Release, ECF No. 59, is

DENIED.

SO ORDERED.

Dated: April 13, 2020

__________________________ BERYL A. HOWELL Chief Judge

11