[00:00:00] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:03] Speaker 01:
Todd Borden from the Federal Public Defender's Office appearing on behalf of the appellant, Adam Herrick.

[00:00:08] Speaker 01:
Judge Wardlaw, I'm going to endeavor to save two minutes for rebuttal, and I will make sure to watch the clock.

[00:00:12] Speaker 03:
All right, thank you very much.

[00:00:14] Speaker 03:
Mr. Borden?

[00:00:16] Speaker 01:
Your Honors, the District Court erred when it denied Mr. Herrick's motion for a sentence reduction because the Bureau of Prisons categorically refused to provide him any form of treatment for his prostate cancer that would preserve his fertility.

[00:00:29] Speaker 01:
under the guidelines section 1B1.13B1C, this was a refusal to provide specialized medical care for a condition that would result in a serious deterioration of its health, and that is infertility.

[00:00:44] Speaker 01:
And indeed, the undisputed, it was undisputed below that any treatment for his prostate cancer, be it surgery or radiation, would severely damage his fertility, and it was likewise

[00:00:59] Speaker 01:
undisputed below that the BOP categorically just refused to provide any form of treatment for his prostate cancer that would also protect his fertility.

[00:01:08] Speaker 03:
Could an outside provider come in and provide that even though the prison couldn't?

[00:01:13] Speaker 01:
That question was not explored extensively below, Your Honor, so I'm somewhat having to speculate.

[00:01:22] Speaker 01:
I don't think it's in the record.

[00:01:23] Speaker 01:
In my experience dealing with the Bureau of Prisons, I'm extremely doubtful that that would be a possibility.

[00:01:30] Speaker 03:
Has he asked and has the BOP denied it?

[00:01:36] Speaker 01:
So Mr. Herrick's declaration, which is at excerpts, oh sorry, it's at 68 of the excerpts of record, he indicated that he was told by the BOP that it just wasn't a possibility at all.

[00:01:54] Speaker 02:
But I don't know I don't think the record reflects that he specifically went through sort of the kite process to specifically ask for fertility treatment But I really don't think there's any Maybe you could just clarify for me a little bit of the facts what happened here so There was some delay in diagnosing him with for his PSA

[00:02:16] Speaker 02:
and related diagnostic treatments for that.

[00:02:21] Speaker 02:
That's right.

[00:02:21] Speaker 02:
But at the local prison, he was actually diagnosed with cancer.

[00:02:28] Speaker 01:
Is that correct?

[00:02:29] Speaker 01:
He was eventually, so he was bouncing around a little bit within... Before he went to the... The buttoner, yeah.

[00:02:34] Speaker 01:
Yeah, what's it called?

[00:02:36] Speaker 01:
FMC buttoner, which is a... Buttoner.

[00:02:38] Speaker 02:
Yes, yes.

[00:02:39] Speaker 02:
But they had diagnosed his condition, is that correct?

[00:02:44] Speaker 02:
They did eventually.

[00:02:45] Speaker 02:
Locally.

[00:02:46] Speaker 01:
That's correct.

[00:02:46] Speaker 01:
I believe he saw an outside... I mean, I think he had to be transported to a local hospital to see an outside specialist who was an expert urologist.

[00:02:54] Speaker 01:
But yeah, that's correct.

[00:02:55] Speaker 02:
Right, and then ultimately he was transferred to Budner.

[00:02:59] Speaker 01:
Correct.

[00:03:00] Speaker 01:
I should say he was transferred after this instant motion was filed.

[00:03:03] Speaker 02:
Right.

[00:03:05] Speaker 02:
But by the time it was argued, the district court seemed to know that he had been a butener or whatever.

[00:03:11] Speaker 01:
That's right.

[00:03:12] Speaker 01:
So he was, by the time Judge Oreck had the hearing, Mr. Herrick had been transferred to North Carolina to FMC Butner, Butener.

[00:03:20] Speaker 01:
I don't totally know the pronunciation, which is a medical facility.

[00:03:24] Speaker 02:
Right.

[00:03:26] Speaker 02:
Seen by a doctor there, a cancer specialist, is that correct?

[00:03:31] Speaker 02:
That's right.

[00:03:32] Speaker 02:
And then he was given some options and he said he wanted to think about it.

[00:03:40] Speaker 02:
And they scheduled another appointment for him with a specialist and he didn't attend.

[00:03:46] Speaker 02:
Why not?

[00:03:48] Speaker 02:
So, Your Honor, I confess I am not... There's something I read somewhere is that he decided he wanted to wait until after Judge Orwick made his ruling.

[00:03:59] Speaker 01:
That may be true, Your Honor.

[00:04:01] Speaker 01:
I can say, and this is outside the record, he did eventually receive radiation treatment, so that is the moral of the story.

[00:04:07] Speaker 01:
I've been in touch with his family recently.

[00:04:08] Speaker 01:
I mean, that's outside the record.

[00:04:11] Speaker 01:
Right.

[00:04:11] Speaker 01:
But yeah, I think he was concerned.

[00:04:13] Speaker 01:
I mean, and I think, I mean,

[00:04:15] Speaker 01:
There's two ways to look at that.

[00:04:16] Speaker 01:
I think potentially he was hoping to be able to, if this motion were successful, he would be able to be released and, you know, pursue treatment on the outside where perhaps the standard of care would be superior, but also where he could receive a fertility preserving treatments.

[00:04:33] Speaker 01:
And I did just want to alert the panel.

[00:04:36] Speaker 01:
I came in process as I was preparing for argument, but I think it's important, which is that under California state law, insurers are actually required

[00:04:43] Speaker 01:
to offer such treatment in situations where you're being treated for cancer, and then as a side effect of that, it would damage your fertility.

[00:04:52] Speaker 01:
And I can send a 28-J letter to the panel, but it's Health and Safety Code Section 1374.551.

[00:04:57] Speaker 01:
So, you know, I do think this is the sort of case where it's a situation where, you know, there's sort of one standard of care in prison and one on the outside.

[00:05:07] Speaker 02:
Well, did anybody tell him in North Carolina

[00:05:12] Speaker 02:
that fertility treatment or preserving his ability to bear, you know, to have children was a potential, was a possibility or they say it's not, it just, we don't do that sort of thing?

[00:05:28] Speaker 01:
I believe it's the latter, Your Honor.

[00:05:30] Speaker 01:
The record below is not super well developed on this point, I want to candidly acknowledge.

[00:05:35] Speaker 01:
But again, it's at the excerpts 134, that's the client's declaration where he,

[00:05:39] Speaker 01:
states that he was told that he could not, that fertility preservation just sort of wasn't on the menu of available treatments within the Bureau.

[00:05:53] Speaker 02:
Would the district court have the authority to order that?

[00:05:58] Speaker 01:
I mean, I guess this somewhat gets into Ms.

[00:06:00] Speaker 01:
Volkar's point about pursuing Bivens action or some sort of

[00:06:03] Speaker 01:
other relief.

[00:06:03] Speaker 01:
But, you know, under the remedy we were actually seeking, which was, you know, again, limited to the guidelines in 3582, motion for a sentence reduction, no.

[00:06:12] Speaker 01:
I mean, the district court's authority under 3582, which again was what we were using, is a sentence reduction or nothing.

[00:06:19] Speaker 01:
I mean, obviously the district courts have certain inherent authority to, you know, do certain, you know, to

[00:06:25] Speaker 02:
I don't know that they would or not.

[00:06:27] Speaker 01:
Maybe I'm being optimistic there, but... You're right, maybe it's a 1983 action.

[00:06:30] Speaker 02:
I don't know.

[00:06:31] Speaker 01:
Yeah, yeah.

[00:06:32] Speaker 02:
And again, the, you know, pursuing the sort of civil rights action... Maybe the district judge could say, well, I'm going to reduce his sentence unless you provide for fertility.

[00:06:43] Speaker 01:
Yeah, that would have... I'm not sure we asked for that specifically below, but that certainly would have been a... That would have certainly been a...

[00:06:51] Speaker 01:
Uh, a request that, uh, I think might've, uh, had an effect.

[00:06:54] Speaker 03:
Are you saying, you just, I know this is out of the record, but he is getting the, he chose to have the radiation improved?

[00:07:00] Speaker 01:
He did ultimately, Your Honor, yes.

[00:07:01] Speaker 01:
Um, and he's, I, I wasn't able to get a legal call with him.

[00:07:04] Speaker 01:
Butner is among the more difficult facilities to get one of those.

[00:07:07] Speaker 01:
But we've been in touch with his family and they report that, they report that, yeah, he did, consistent with Ms.

[00:07:14] Speaker 01:
Volcar's representation in her brief, that he did receive radiation treatment and he reports that he's having kind of total impotency as a result, so.

[00:07:23] Speaker 01:
He's having?

[00:07:24] Speaker 01:
He's experiencing total impotency as a result of the irradiation of his prostate.

[00:07:31] Speaker 03:
Is he able to bank his sperm?

[00:07:34] Speaker 01:
So that is, so,

[00:07:36] Speaker 01:
I would point the court to excerpts of record 134.

[00:07:40] Speaker 01:
There's some indication that, I mean, so the preferred treatment would be when sort of things are still functioning in sort of the more traditional way.

[00:07:47] Speaker 01:
You can bank your sperm that way more easily.

[00:07:50] Speaker 01:
There is some indication that there still is a possibility of extracting sperm directly from the testes.

[00:07:55] Speaker 01:
That's much less successful and I think would require use of IVF in the future.

[00:08:01] Speaker 01:
So it would be, yeah, I think we are at a point where

[00:08:04] Speaker 01:
Things are worse because of the treatment he didn't receive, but I don't think it's totally impossible at this stage, although much, much reduced.

[00:08:15] Speaker 01:
I see I, for once, have actually saved the two minutes, so I'd like to reserve those.

[00:08:38] Speaker 00:
Good afternoon, your honors.

[00:08:39] Speaker 00:
Kelly Volcar on behalf of the United States.

[00:08:43] Speaker 00:
This court should affirm, because the district court did not abuse its discretion in denying Herrick's motion for a sentence reduction, the only remedy he sought in his 3582 C1A motion, also colloquially known as a compassionate release motion, because Herrick only claims one provision of the binding policy statement supports his claim of extraordinary and compelling circumstances, and it does not apply.

[00:09:09] Speaker 00:
Herrick presented a serious but treatable medical condition.

[00:09:13] Speaker 00:
Judge Oreck did not clearly err in finding that BOP was providing specialized medical treatment when the defendant was transferred to FMC-Butner and was immediately met with a competent physician and provided multiple treatment options.

[00:09:31] Speaker 00:
In response to Your Honor's questions to my colleagues across the aisle, I want to point that even my friend concedes that all treatment options for prostate cancer involve a risk to fertility.

[00:09:46] Speaker 00:
All treatments, any treatment out there and... Is that in the record?

[00:09:52] Speaker 02:
Was Judge Orwick informed of that?

[00:09:55] Speaker 00:
Your honor, since this was not the focus of the hearing below, I believe what was presented in the record was what my colleague across the aisle is also asking for, a treatment plus sperm preservation.

[00:10:08] Speaker 00:
And so I believe that is what was presented to Judge Oreck.

[00:10:11] Speaker 00:
I do not know to the extent it was made clear that any treatment we're talking about is really two separate procedures, the treatment for the prostate cancer and a separate procedure.

[00:10:22] Speaker 00:
to preserve fertility.

[00:10:24] Speaker 00:
I did not see in the record that was clear.

[00:10:27] Speaker 00:
What is in the record, Your Honor, Judge Paez, was a question that you had asked at ER 248, where, and it's citing to the medical record as an exhibit as well, where Mr. Herrick informed the medical staff at FMC-Butner that he wanted to wait until after the hearing before Judge Oreck to pursue treatment, and indeed he did.

[00:10:50] Speaker 00:
wait until this past summer at which point he pursued treatment.

[00:10:54] Speaker 00:
But back to the fertility point, it's not as far as I'm aware a contested point between my friend across the aisle and myself that any treatment of prostate cancer, indeed in speaking to medical professionals, I understand that prostate cancer itself carries risks to fertility and any treatment that is medically available.

[00:11:15] Speaker 00:
will carry some risk to fertility.

[00:11:17] Speaker 00:
The only thing that I understand my friend across the aisle to be asking for on behalf of Mr. Herrick was that he should have been presented with an additional procedure to preserve his sperm or to preserve, to freeze his sperm, for example.

[00:11:33] Speaker 00:
And we would argue the government's position is that that's not what the binding policy statement requires.

[00:11:39] Speaker 00:
The binding policy statement that both sides agree applies here.

[00:11:43] Speaker 00:
says that specialized medical care is not being provided.

[00:11:46] Speaker 00:
The specialized care in the form of treatment of prostate cancer was being offered, was being provided.

[00:11:53] Speaker 00:
That risks serious deterioration in health or death.

[00:11:56] Speaker 00:
Instead, what my friend across the aisle is arguing for is a separate procedure of freezing sperm or maintaining fertility, which would have been a different procedure than what BOP was offering.

[00:12:09] Speaker 00:
And the government argues that that is not properly brought

[00:12:13] Speaker 00:
in a compassionate release or a sentence reduction motion, there are other avenues if the defendant wanted to pursue those.

[00:12:20] Speaker 00:
And to Judge Wardlaw's question to my colleague, I do know that there is a statute, for example, for BOP to furlough inmates.

[00:12:31] Speaker 00:
I don't know if that was pursued.

[00:12:32] Speaker 00:
It certainly wasn't discussed at the district court level in this particular case.

[00:12:37] Speaker 00:
But I essentially, I argue that there might have been paths if that was something that was particularly important to pursue that separate procedure.

[00:12:47] Speaker 00:
But the government's understanding from talking with BOP is that they provided the same treatment in terms of the prostate cancer that Mr. Herrick would have had the opportunity to access outside of the prison system.

[00:13:02] Speaker 00:
And so the question for this court is did Judge Oreck abuse

[00:13:06] Speaker 00:
His discretion in finding that the circumstances presented to him the serious but treatable condition presented by Mr. Herrick whether that Decision was an abuse of discretion and the government asserts.

[00:13:19] Speaker 00:
It was not Alternatively Judge or did not reach the three five five three a factors however those also support affirming in this case

[00:13:40] Speaker 00:
With that, unless Your Honors have further questions for me, the government respectfully requests that you affirm in this matter.

[00:13:47] Speaker 00:
Thank you.

[00:13:49] Speaker 03:
Thank you, Council.

[00:13:50] Speaker 03:
Mr. Borden.

[00:13:59] Speaker 01:
Thank you, Your Honors.

[00:13:59] Speaker 01:
I'm going to try to make three brief points.

[00:14:02] Speaker 01:
First, on the fertility risk question, that was in the record below.

[00:14:05] Speaker 01:
It was at 2ER117 and 2ER134.

[00:14:10] Speaker 01:
One critical point I'd like to respond to by Ms.

[00:14:13] Speaker 01:
Volkar concerns the notion that these are somehow two separate treatments or that the fertility preservation is somehow just some sort of extra treatment on top.

[00:14:21] Speaker 01:
And I don't think that's quite right because, you know, as we're indicating, the standard of care for prostate cancer, you know, isn't just to treat the cancer.

[00:14:30] Speaker 01:
It's also, you know, as evidenced by that State of California statute I was just citing, it also should take into account fertility preservation.

[00:14:38] Speaker 01:
I think a useful analogy might be

[00:14:40] Speaker 01:
If an inmate had, it's an extreme analogy, but had appendicitis and the BOP was only willing to do the surgery but not use anesthesia, I don't think we could somehow deem anesthesia as just some sort of extra treatment.

[00:14:52] Speaker 01:
And so I think it is important to take into account the sort of whole patient situation and the entirety of treatments that are related to that cancer.

[00:14:59] Speaker 01:
And we do know that fertility preservation is a core part of the treatment for

[00:15:04] Speaker 01:
prostate cancer because the treatment and perhaps the condition itself do damage fertility.

[00:15:08] Speaker 01:
So I don't think they're somehow entirely separate.

[00:15:10] Speaker 01:
And I think that they're called for under the text of the guideline itself, which requires specialized medical care to be provided if it will result in a serious deterioration of health.

[00:15:23] Speaker 01:
The last point is I'd like to respond to concerns sort of the civil rights, Bivens constitutional standard.

[00:15:29] Speaker 01:
I think if the court looks to the text of the guidelines provision here, which hasn't been interpreted a lot, it's quite new, there's no indication that it's somehow coextensive with the Eighth Amendment's deliberate and different standard.

[00:15:40] Speaker 01:
That's a much, much harsher standard, and I can't imagine the Sentencing Commission would only require

[00:15:45] Speaker 01:
courts to act if a defendant was receiving intentionally, constitutionally inadequate care.

[00:15:51] Speaker 01:
That's a very high standard.

[00:15:52] Speaker 01:
And I think if we look to the text of the guideline itself, it suggests that courts should apply a lower standard when determining what medical care should be received by defendants under this.

[00:16:00] Speaker 01:
And with that, I would urge the district court to reverse the district court.

[00:16:03] Speaker 03:
All right.

[00:16:04] Speaker 03:
Thank you, counsel.

[00:16:05] Speaker 03:
United States versus Herrick is submitted.