Opinion
EP-20-CR-01860(2)-DCG
10-17-2022
UNITED STATES OF AMERICA v. (2) SERGIO IVAN GONZALEZ, Defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO COMMUTE SENTENCE TO PROBATION
DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE
Defendant Sergio Ivan Gonzalez moves pro se to commute his sentence to probation. Mot., ECF No. 230. The Court DENIES Gonzalez's Motion WITHOUT PREJUDICE to refiling once Gonzalez has exhausted his administrative remedies. The Court also DENIES Gonzalez's request for counsel.
I. BACKGROUND
On July 2, 2021, Gonzalez pleaded guilty to conspiring to possess 1,000 kilograms or more of marijuana with intent to distribute. J., ECF No. 220, at 1. The Court sentenced Gonzalez to 37 months' imprisonment on March 28, 2022. Id. at 2. Gonzalez's projected release date is October 15, 2024. BUREAU OF PRISONS, https://www.bop.gov/inmateloc/ (last visited Oct. 17, 2022).
Gonzalez now asks the Court to commute his sentence to probation. See Mot. The Government opposes Gonzalez's Motion. Resp., ECF No. 245.
II. ANALYSIS
Because Gonzalez filed his Motion pro se, the Court construes it liberally. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007).
A. The Probation Act
Gonzalez primarily bases his request for relief on Section 1 of the Probation Act, see Mot. at 4, which (subject to various prerequisites) authorized federal courts “to suspend the imposition or execution of” a defendant's criminal sentence and “place the defendant upon probation.” Probation Act, ch. 521, § 1, 43 Stat. 1259, 1259 (1925); 18 U.S.C. § 3651 (1982); see also United States v. Garcia-Quintanilla, 574 F.3d 295, 300-01 (5th Cir. 2009) (discussing the Probation Act and its history).
The problem with Gonzalez's request is that Congress repealed the Probation Act in 1987. Under current law, a court ordinarily “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). The Court cannot grant Gonzalez relief under a law that no longer exists.
See, e.g., United States v. Hunt, 32 F.3d 566, at *2 n.3 (5th Cir. 1994) (unpublished) (noting that the Sentencing Reform Act repealed the Probation Act in 1987, so the Probation Act only “applies to offenses committed prior to November 1, 1987”); Garcia-Quintanilla, 574 F.3d at 299 n.1 (“[T]he Sentencing Reform Act repealed the former 18 U.S.C. § 3651 [of the Probation Act], which gave district courts the general power to suspend the imposition or execution of a sentence and order probation.”); United States v. Mueller, 463 F.3d 887, 889 (9th Cir. 2006) (“The current statute, § 3561(a), differs from its predecessor [under the Probation Act] in that it does not give the sentencing court broad authority to ‘suspend the imposition or execution of sentence.' Under the new statutory scheme, instead of representing a suspension of the execution of a sentence, probation constitutes a type of sentence in itself.” (internal citations omitted)).
The Government further argues that the Probation Act did not authorize district courts place a defendant on probation if he had already started serving a prison sentence. Resp. at 1, 6-7 (citing Affronti v. United States, 350 U.S. 79, 80, 83 (1955); United States v. Murray, 275 U.S. 347, 358 (1928); Garcia-Quintanilla, 574 F.3d at 300-01). In other words, the Government claims that Gonzalez wouldn't be entitled to relief under the Probation Act even if it were still in effect. Id. Defendant, by contrast, maintains that Federal Rule of Criminal Procedure 35, in conjunction with the Probation Act, “permits the Judge to grant probation to a defendant who has already commenced service of a term of imprisonment.” Mot. at 4; see also FED. R. CRIM. P. 35(a) (authorizing the sentencing court to “correct a sentence that resulted from arithmetical, technical, or other clear error” within “14 days after sentencing”); FED. R. CRIM. P. 35(b) (authorizing the court to shorten a sentence if the defendant provides the Government substantial assistance). Because the Court cannot grant Gonzalez relief under a statute that no longer exists, the parties' dispute regarding this issue is moot.
B. Compassionate Release and the First Step Act
Under limited circumstances, however, current law does authorize federal courts to grant relief similar to that which Gonzalez seeks. If, subject to various considerations the Court need not analyze here, a district court finds that “extraordinary and compelling reasons warrant” reducing a defendant's sentence, the court may “reduce [that defendant's] term of imprisonment” and “impose a term of probation.” 18 U.S.C. § 3582(c)(1)(A). Such relief is called “compassionate release.” See, e.g., Ward v. United States, 11 F.4th 354, 359 (5th Cir. 2021).
Specifically, the court must also
(1) “consider[ ] the [sentencing] factors set forth in section 3553(a) to the extent that they are applicable;” and
(2) assess whether reducing the defendant's sentence would be “consistent with applicable policy statements issued by the Sentencing Commission.”18 U.S.C. § 3582(c)(1)(A); see also United States v. Jackson, 27 F.4th 1088, 1089 (5th Cir. 2022). As the Court discusses below, Gonzalez has failed to exhaust his administrative remedies, so the Court need not analyze those considerations here. See, e.g., United States v. Sharer, No. 3:14-CR-0367, 2020 WL 7695996, at *4 (N.D. Tex. Dec. 24, 2020) (declining to perform Section 3553(a) analysis where, among other defects, the defendant failed to exhaust administrative remedies).
The Court will not discuss which reasons qualify as “extraordinary and compelling” because Gonzalez has failed to exhaust his administrative remedies. See, e.g., United States v. Silcox, No. 3:17-CR-134, 2020 WL 4341758, at *1 (E.D. Tenn. July 28, 2020) (“[T]he Court need not address whether extraordinary and compelling reasons exist warranting defendant's release because she has not satisfied § 3582(c)(1)(A)'s exhaustion requirement.”).
A defendant need not demonstrate “extraordinary and compelling reasons” for reducing his sentence if he
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).18 U.S.C. § 3582(c)(1)(A)(ii). Gonzalez does not satisfy those prerequisites. See, e.g., BUREAU OF PRISONS, https://www.bop.gov/inmateloc/ (last visited Oct. 17, 2022) (indicating that Gonzalez is younger than 70).
Until 2018, “only the Bureau of Prisons [(“BOP”)] could file a motion for compassionate release” on a defendant's behalf. E.g., id. In 2018, however, Congress passed the First Step Act, which (among other things) allows convicted defendants to move for compassionate release “on their own accord.” E.g., United States v. Shkambi, 993 F.3d 388, 392 (5th Cir. 2021).
Gonzalez says he will not consent to the Court construing his Motion as a request for compassionate release under the First Step Act unless “the Government will stipulate in writing that it will waive” the First Step Act's administrative exhaustion requirements. Def.'s Obj., ECF No. 233, at 1. The Government has made no such stipulation; to the contrary, it explicitly seeks to enforce those requirements against Gonzalez. See Resp. at 1, 5, 7-8 (asking the Court to “deny Defendant's motion because Defendant has failed to show exhaustion of administrative remedies”); see also United States v. Franco, 973 F.3d 465, 468 (5th Cir. 2020) (holding that although the First Step Act's administrative exhaustion requirement is not jurisdictional, it is “mandatory,” such that the district court must enforce the requirement if the Government properly raises it). Nonetheless, because Gonzalez's request for relief under the Probation Act is meritless, the Court will also consider in the alternative-for Gonzalez's benefit-whether he is eligible for compassionate release under the First Step Act. See, e.g., Erickson, 551 U.S. at 94 (instructing courts to construe pro se filings liberally).
A defendant asking a court to reduce his sentence under the First Step Act cannot obtain relief unless he “first exhaust[s] the available administrative avenues.” United States v. Garrett, 15 F.4th 335, 337 (5th Cir. 2021); see also 18 U.S.C. § 3582(c)(1)(A). The defendant must first ask BOP to file a motion for compassionate release on his behalf. Garrett, 15 F.4th at 338. Only after
(1) “the defendant has fully exhausted all administrative rights to appeal” BOP's refusal to file a compassionate release motion; or
(2) 30 days have lapsed “from the receipt of such a request by the warden of the defendant's facility, whichever is earlier,”
may the defendant seek relief in federal court. 18 U.S.C. § 3582(c)(1)(A); see also Garrett, 15 F.4th at 338.
The Government maintains-and Gonzalez implicitly concedes-that Gonzalez has not exhausted his administrative remedies. Gonzalez appears to argue that it would be futile to pursue his administrative remedies because BOP personnel would not promptly process or respond to his request to seek compassionate release on his behalf. However, Gonzalez need not wait for BOP to rule on his request before he can ask the Court to release him from prison; he need only wait for 30 days to lapse “from the receipt of such a request by the warden.” 18 U.S.C. § 3582(c)(1)(A) (emphasis added); see also Garrett, 15 F.4th at 339 (“Once 30 days has ‘lapsed from the receipt of such a request by the warden,' the prisoner may file his motion in the district court. That is so irrespective of whether the inmate has administrative appeals available to him.”) (cleaned up). Thus, the possibility that BOP may not respond timely to Gonzalez's requests does not excuse him from satisfying the First Step Act's exhaustion requirements.
See Resp. Ex. A, ECF No. 245-1 (email from BOP attorney averring that BOP's databases do not indicate that Gonzalez ever sought administrative relief); Def.'s Obj. at 1-2 (demanding that the Government “stipulate in writing that it will waive the Administrative Exhaustion Requirement,” thereby implicitly conceding that he has not satisfied that requirement).
See Def.'s Obj. at 2 (“The problem here is that Counselor Ibarra, Case Manager Munoz and Warden Hijar do not respond or answer tru-link emails or BP-8s of BP-9s at all so Mr. Gonzalez would never get in front of the Honorable Sentencing Judge properly. Secondly, even if Mr. Gonzalez by a miracle got them to respond, ‘In writing for proof' by then his properly filed Motion for probation pursuant to the Probation Act of 1925 would be moot.”).
The Court therefore DENIES Gonzalez's Motion WITHOUT PREJUDICE to refiling once Gonzalez has exhausted his administrative remedies. The Court will not consider the merits of Gonzalez's Motion or the Government's substantive objections thereto.
See, e.g., United States v. Briseno-Martinez, No. 10-CR-03172(3), 2021 WL 3039109, at *3 (W.D. Tex. July 19, 2021) (denying compassionate release where defendant had “failed to carry his burden of establishing that he ha[d] exhausted his administrative remedies”); United States v. Love, 3:14-CR-0300, 2020 WL 5250541, at *2 (N.D. Tex. Sept. 2, 2020) (“Due to Love's failure to meet the exhaustion requirement under § 3582(c)(1)(A), the Court DENIES his motion for compassionate release WITHOUT PREJUDICE to re-filing upon exhaustion of all administrative appeals or a thirty-day lapse from the warden's receipt of his request.”).
See, e.g., United States v. Brown, No. 18-CR-190, 2020 WL 4548045, at *1 (S.D.N.Y. Aug. 6, 2020) (“Because defendant has not properly exhausted her administrative remedies, the Court need not consider the merits of the motion ....”).
C. Motion for Appointment of Counsel
The Court also DENIES Gonzalez's request that the Court appoint counsel to help him prosecute his Motion because the interests of justice do not require it. Mot. at 5; see also Briseno-Martinez, 2021 WL 3039109, at *2 (holding that “[t]he interests of justice do not require that counsel be appointed where,” as here, “a defendant's motion does ‘not involve complicated or unresolved issues'” (quoting United States v. Moore, 400 Fed.Appx. 851, 852 (5th Cir. 2010))).
III. CONCLUSION
The Court thus DENIES Defendant Sergio Ivan Gonzalez's “Motion for Sentence Commutation to Probation Pursuant to Probation Act” (ECF No. 230) WITHOUT PREJUDICE to refiling once Gonzalez has exhausted his administrative remedies.
The Court also DENIES Gonzalez's request for court-appointed counsel.
So ORDERED.