Opinion
CRIMINAL NO. 2:14-876-2
12-01-2020
UNITED STATES OF AMERICA, Plaintiff, v. FRANK CRUZ, Defendant.
MEMORANDUM OPINION & ORDER
Pending before the Court is Defendant Frank Cruz's Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A) (Compassionate Release). D.E. 98
I. BACKGROUND
In 2015, Defendant pled guilty to possession with intent to distribute 243.52 grams of methamphetamine (actual). He has served 71 months (59%) of his 120-month sentence and has a projected release date, after good time credit, of September 13, 2023. Defendant now moves the Court to reduce his sentence to time served and/or order his release to home confinement so that he can care for his elderly mother. He submitted a written request for compassionate release with the Warden at FCI Memphis on September 29, 2020, but says he never received a response.
II. LEGAL STANDARD
The statute, 18 U.S.C. § 3582(c)(1)(A), authorizes a court to reduce a defendant's sentence under limited circumstances:
(c) Modification of an Imposed Term of Imprisonment.—The court may not modify a term of imprisonment once it has been imposed except that—
(1) in any case—
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—
18 U.S.C. § 3582(c)(1)(A)(i) (emphasis added).(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.
The applicable United States Sentencing Commission policy statement provides that extraordinary and compelling reasons for early release exist where:
(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process,
that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
(B) Age of the Defendant. -
The defendant is (i) at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less;
(C) Family Circumstances. -
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons. -
U.S.S.G. § 1B1.13(1)(A), Application Note 1.As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary or compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
Even if "extraordinary and compelling reasons" for early release exist, the Guidelines' policy statements provide for a reduction in sentence only if a defendant "is not a danger to the safety of any other person or the community, as provided in 18 U.S.C. §3142(g)." U.S.S.G. § 1B1.13(2). Factors relevant to this inquiry include: (1) the nature and circumstances of the offenses of conviction, including whether the offense is a crime of violence, or involves a minor victim, a controlled substance, or a firearm, explosive, or destructive device; (2) the weight of the evidence; (3) the defendant's history and characteristics; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. See 18 U.S.C. § 3142(g).
The Court must also consider whether a reduction is consistent with the applicable section 3553(a) factors. See 18 U.S.C. § 3582(c)(1)(A); U.S.S.G. § 1B1.13. The applicable statutory factors include, among others: the defendant's history and characteristics; the nature and circumstances of the offense; the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; the need to deter criminal conduct and protect the public from further crimes of the defendant; the need to provide the defendant with, among other things, any needed medical treatment; and the various kinds of sentences available. See 18 U.S.C. §§ 3553(a)(1)-(7).
"In general, the defendant has the burden to show circumstances meeting the test for compassionate release." United States v. Stowe, 2019 WL 4673725, at *2 (S.D. Tex. Sept. 25, 2019).
III. ANALYSIS
Defendant moves the Court for compassionate release because his elderly mother is ill and needs a daily caregiver. He also emphasizes that he earned his GED and has completed a number of vocational courses while incarcerated, including HVAC, diesel engine repair, major appliance repair, and building trades. See D.E. 98-4.
While the Court is permitted to consider post-sentencing rehabilitation in determining whether to grant an eligible defendant a sentence reduction, it is not authorized to grant a reduction based upon post-sentencing rehabilitation alone. See U.S.S.G. § 1B1.10, app. n.1(B)(iii). "Courts in the Southern District of Texas have repeatedly held that caring for a sick and/or aging parent is not a qualifying 'family circumstance' under U.S.S.G. § 1B1.13(1)(A)." United States v. Hudec, No. 4:91-CR-1-1, 2020 WL 4925675, at *5 (S.D. Tex. Aug. 19, 2020) (citing United States v. Latham, No. 6:18-CR-16-4, 2020 WL 4192920, at *3 (S.D. Tex. July 20, 2020); United States v. Caldwell, No. 2:17-CR-774, 2020 WL 3250728, at *2 (S.D. Tex. June 16, 2020); United States v. Ramirez, No. 2:15-CR-750-4, 2020 WL 2062262, at *2 (S.D. Tex. Apr. 29, 2020)). See also United States v. Ingram, 2019 WL 3162305, at *2 (S.D. Ohio Jul. 16, 2019) (denying compassionate release to defendant to care for ill mother because "[m]any, if not all inmates, have aging and sick parents. Such circumstance is not extraordinary.")). The Court is therefore without authority to grant compassionate release based on family circumstances.
IV. CONCLUSION
For the reasons set forth above, Defendant's Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A) (Compassionate Release) (D.E. 98) is DENIED.
It is so ORDERED this 1st day of December, 2020.
/s/_________
JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE