Summary
stating that just as with "all sentencing decisions, a judge should consider the Guidelines" but is not bound by them, the court would consider U.S.S.G. § 1B1.13, but would not consider itself bound by that guideline
Summary of this case from United States v. MarksOpinion
SA-05-CR-561-XR
10-10-2019
UNITED STATES OF AMERICA, v. RICARDO GONZALES
ORDER
On this day came on to be considered Defendant's Motion to Reduce Sentence (dkt. no. 120).
BACKGROUND
On October 22, 2007, a Judgment was signed wherein the Defendant was sentenced to a term of 120 months for conspiracy to distribute and possess five kilograms or more of cocaine and a term of sixty months for possession of a firearm during a drug trafficking crime. The Judgment was affirmed by the Fifth Circuit.
On June 17, 2019, Defendant, represented by counsel, filed his Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the First Step Act of 2018. Defendant argues that his adult daughter requires assistance because the daughter's mother has cancer and is under hospice care. He also states that his elderly mother's eyesight is deteriorating, that his mother is the primary caregiver of his sister, who is mentally disabled, and that he needs to aid both his mother and sister.
ANALYSIS
The First Step Act sets forth the conditions where a court may modify a sentence as follows:
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--
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and
(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; and
(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.
A. Exhaustion of Administrative Remedies
Defendant's counsel asserts that law firm personnel sent a letter and a "package of documents" in support of the request for compassionate release to the Warden at USP Pollock. It appears the material was sent by regular mail (there being no registered or certified mail receipt). The Government contends the material was never received and accordingly there has been no exhaustion of administrative remedies. This dispute notwithstanding, it is undisputed that this motion was filed on June 17, and accordingly there has been a lapse of more than 30 days from the receipt by the warden of the Defendant's facility. The Government in its Response (Dkt. No. 127) acknowledges that the law firm asserts it received a communication from USP Pollock (thereby evidencing that the letter and packet were received), but also asserts that the prison officials do not have any record of receiving Defendant's request. The Court will proceed to analyze the merits of this motion and assume that the administrative exhaustion requirements have been met.
B. Extraordinary and compelling reasons
Prior to the First Step Act's amendments to § 3582, the Bureau of Prisons determined whether "any extraordinary and compelling reasons" justified a motion for a reduction of sentence under § 3582(c)(1)(A). United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *4 (S.D. Tex. June 17, 2019). Thereafter, upon motion by the Director of the Bureau of Prisons, a court could reduce a term of imprisonment after considering the factors set forth in 18 U.S.C. § 3553(a) and considering U.S.S.G. 1B1.13.
"Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that-- (1)(A) Extraordinary and compelling reasons warrant the reduction; or (B) The defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned; (2) The defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g); and (3) The reduction is consistent with this policy statement."
The statute does not define "extraordinary and compelling reasons." The Application Notes to U.S.S.G. 1B1.13 state "extraordinary and compelling reasons" exist in the following situations: (1) the defendant is suffering from a terminal illness, (2) the defendant is suffering from a serious physical or medical condition, serious functional or cognitive impairment, or 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, (3) the defendant is at least 65 years old, experiencing a serious deterioration in physical or mental health because of the aging process, has served at least 10 years or 75 percent of his or her term of imprisonment, (4) the death or incapacitation of the caregiver of the defendant's minor child or minor children, (5) 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, or (6) other reasons in the defendant's case that establish an extraordinary and compelling reason.
Now with the First Step amendments, it is unclear how courts are to consider motions to reduce a sentence for "extraordinary and compelling reasons" or "compassionate release." See United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *4 (S.D. Tex. June 17, 2019) (court not bound by U.S.S.G. § 1B1.13); United States v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *9 (M.D.N.C. June 28, 2019) ("Courts are in a 'unique' position to determine whether such circumstances are present."). Contra United States v. Lynn, No. CR 89-0072-WS, 2019 WL 3805349, at *3 (S.D. Ala. Aug. 13, 2019) (concluding that courts must follow the United States Sentencing Commission policy statement).
Inasmuch as the Sentencing Guidelines are no longer mandatory, it seems inconsistent to hold that judges are nevertheless bound by U.S.S.G. § 1B1.13. But with regard to all sentencing decisions, a judge should consider the Guidelines. See United States v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051, at *4 (S.D. Iowa Oct. 8, 2019) (prior interpretation of extraordinary and compelling reasons is informative, but not dispositive). Accordingly, this Court will consider U.S.S.G. § 1B1.13 and apply its discretion.
As in Brown, Defendant Gonzales does not fit in any of the categories that form the heartland of compassionate release cases. Defendant is not terminally ill or older than sixty-five. Defendant's Motion presents information about Defendant's adult daughter, his adult daughter's mother, Defendant's own elderly mother, and Defendant's "mentally challenged" sister. None of these familial relations are covered by the Application Notes 1(C) or 1(D) to U.S.S.G. § 1B1.13. Defendant's desire to help his adult daughter "properly work through and cope with her emotions" and to "help support her financially" is not similar to being the only caregiver for a minor child or incapacitated spouse. Defendant's desire "to become [the] primary care giver" for his elderly mother and his "mentally challenged" sister similarly does not rise to the level "extraordinary and compelling reasons." United States v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051, at *4 (S.D. Iowa Oct. 8, 2019). More critically, he provides no documentary evidence to support any of the claims of medical illnesses afflicting his family members.
Defendant's motion is DENIED.
SIGNED this 10th day of October, 2019.
/s/_________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE