Opinion
No. 2:19-CR-37-KJM
01-15-2021
United States of America, Plaintiff, v. Ismael Nieves-Lopez, Defendant.
ORDER
Defendant Ismael Nieves-Lopez moves for compassionate release under 18 U.S.C. § 3582. Mr. Nieves-Lopez contends his medical conditions, his placement at FCI Lompoc, and the ongoing COVID-19 pandemic create extraordinary circumstances supporting his early release. The government opposes. For the reasons below, the court grants the motion.
I. BACKGROUND
A grand jury indicted Mr. Nieves-Lopez on one count of being a deported individual found in the United States in violation of 8 U.S.C. § 1326, and one count of possession of a controlled substance in violation of California Health and Safety Code § 11378. Indictment, ECF No. 6. He pleaded guilty to count one before this court. Mins. for Change of Plea Hr'g, ECF No. 11; Plea Agreement, ECF No. 12. Mr. Nieves-Lopez has a history of arrests and convictions for possession and transportation of controlled substances, driving under the influence, and unlawful reentry into the United States. Presentence Rep. ("PSR") ¶¶ 28-40, ECF No. 10. In light of his criminal history, among other sentencing factors, the court sentenced Mr. Nieves-Lopez to 63-months' imprisonment to be followed by 36-months' of supervised release in the event he is not deported after serving his prison term; if deported, the term of supervised release will convert to unsupervised release. J. and Commitment 2-3, ECF No. 13. The court also ordered Mr. Nieves-Lopez to pay a $100 special assessment. Id. at 5. He is under an Immigration and Customs Enforcement (ICE) detainer, PSR at 1, meaning the court need not consider the details of his release plan as he will be deported and therefore on unsupervised release. If his motion is granted, he intends to return to Mexico and enter drug treatment. Mot.at 2, ECF No. 14. He will live with family who intends to support him until he finds employment. Id.
Mr. Nieves-Lopez is assigned to FCI Lompoc. Opp'n at 3, ECF No. 19. With application of his good time credits his projected release date is September 2, 2023; thus, he has served about 34 percent of his sentence. Id. He has a history of disciplinary infractions while at FCI Lompoc, which are summarized as involving use of drugs and alcohol, possessing an unauthorized needle, and assault without resulting serious injury. See Opp'n Ex. 3 (Inmate Discipline Data), ECF No. 19-1.
Mr. Nieves-Lopez has benign essential hypertension, hyperlipidemia, prediabetes, chronic gastritis and gastroesophageal reflux disease ("GERD"). Opp'n Ex. 2 (Medical Records) (under seal).
The court grants the parties' requests to file portions of Mr. Nieves Lopez's medical records under seal to protect his private medical information. See Chester v. King, No. 1:16-01257, 2019 WL 5420213, at *2 (E.D. Cal. Sep. 10, 2019) ("This court, and others within the Ninth Circuit, have recognized that the need to protect medical privacy qualifies as a 'compelling reason' for sealing records.").
Mr. Nieves-Lopez moves for compassionate release under 18 U.S.C. § 3582(c). Mot., ECF No. 14; Reply, ECF No. 21. The government opposes his motion. Opp'n, ECF No. 19.
II. LEGAL STANDARD
The district court that imposed a sentence on a criminal defendant has authority to modify the term of imprisonment under the compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018. Under the statute, a court may grant a defendant's motion to reduce his prison term, provided the defendant first satisfies an exhaustion requirement. 18 U.S.C. § 3582(c)(1)(A), 3582(c)(1)(A)(i). Once the defendant has exhausted administrative remedies, the analysis is twofold. First, the court must find "extraordinary and compelling reasons" to release a defendant from BOP custody. 18 U.S.C. § 3582(c)(1)(A). Second, the court must consider the same factors applicable at the original sentencing, enumerated in 18 U.S.C. § 3553(a), to the extent they remain applicable at the time the motion is brought. Id.
Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018).
The statute further requires "that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A). In 2006, the Sentencing Commission issued a policy statement addressing what qualifies as "extraordinary and compelling reasons" to release a defendant from BOP custody, which was last amended November 1, 2018. See U.S.S.G. § 1B1.13. Since the passage of the First Step Act, district courts have disagreed whether U.S.S.G. § 1B1.13 remains binding. This court, as it has in previous cases, considers the Sentencing Commission's policy statement as guidance, without determining whether it is binding in this context. The court notes as relevant here that, in addition to listing possible "extraordinary and compelling reasons," section 1B1.13 "imposes an additional consideration of whether the defendant is a danger to the safety of any other person or to the community." United States v. Numann, No. 16-00025, 2020 WL 1977117, at *2 (D. Alaska Apr. 24, 2020) (citing U.S.S.G. § 1B1.13(2)).
III. ANALYSIS
The parties do not dispute that Mr. Nieves-Lopez has exhausted his administrative remedies as required by § 3582(c). See Opp'n at 4. The court thus considers whether Mr. Nieves-Lopez's motion is supported by extraordinary and compelling reasons and the sentencing factors of § 3553(a). /////
A. Extraordinary and Compelling Reasons
The government argues Mr. Nieves-Lopez has not shown extraordinary and compelling reasons and discounts the risk Mr. Nieves-Lopez's hypertension presents. In doing so the government points out that his condition is properly controlled by his medication. Opp'n at 9. Additionally, the government claims Mr. Nieves-Lopez's benign essential hypertension does not warrant his early release because the CDC has found pulmonary hypertension definitively presents a higher risk for COVID-19 complications, while benign essential hypertension only "might" increase risk. Opp'n at 9 (citing Center for Disease Control and Prevention (CDC), Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk ; CDC, Clinical Questions about COVID-19: Questions and Answers, "Patients with Hypertension" ("people whose only underlying medical condition is hypertension might be at increased risk for severe illness from COVID-19"); CDC, People with Certain Medical Conditions ("[H]eart conditions [including pulmonary hypertension] increase[ ] your risk of severe illness from COVID-19 . . . . [O]ther cardiovascular or cerebrovascular disease, such as hypertension (high blood pressure) . . . might increase your risk of severe illness from COVID-19").
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Patients-with-Hypertension
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html
The court acknowledges that some other courts, in considering defendants with hypertension, have found benign essential hypertension alone cannot support compassionate release. United States v. Thomas, 471 F. Supp. 3d 745, 749 (W.D. Va. 2020) ("During the pandemic, courts in this district and across the country have released individuals suffering from hypertension, but only when these individuals also suffered from other underlying medical conditions."); United States v. Brown, No. 3:13-14, 2020 WL 3511584, at *6 (E.D. Tenn. June 29, 2020) ("the CDC only identifies pulmonary hypertension, not essential hypertension, from which defendant suffers [ ], as increasing the risk for severe COVID-19 infection."). This court has, however, as have some other courts, granted release when a defendant had hypertension that was not specifically identified as pulmonary hypertension. See, e.g., United States v. Richardson, No. 17-00048, 2020 U.S. Dist. LEXIS 108043, at *8 (E.D. Cal. June 19, 2020) ("Defendant's hypertension alone places him at significant risk of complications."); United States v. Sanders, No. 19-20288, 2020 U.S. Dist. LEXIS 67595, at *10 (E.D. Mich. Apr. 17, 2020) ("Several courts . . . have identified hypertension as an underlying medical condition that renders a prisoner higher-risk, weighing against continued detention during the COVID-19 pandemic."); United States v. Terraciano, No. 2:17-00187-2, 2020 WL 5878284, at *4 (E.D. Cal. Oct. 2, 2020) (collecting cases); United States v. Tamasoa, No. 2:15-0124, 2020 WL 6700416, at *3 (E.D. Cal. Nov. 13, 2020) (finding defendants "stage 1 hypertension" supported release). Given that the medical evidence indicates defendant's benign essential hypertension still might increase his risk, CDC, People with Certain Medical Conditions, the court finds Mr. Nieves-Lopez's hypertension weighs in favor of finding extraordinary and compelling circumstances.
Also, as this court previously has noted, the coronavirus outbreak at FCI Lompoc has been one of the worst in the nation. United States v. Robinson, ___ F. Supp. 3d ___, 2020 WL 1982872, at *1 (N.D. Cal. Apr. 27, 2020); United States v. Curtiss, 467 F. Supp. 3d 96 (W.D. N.Y. 2020); United States v. Purry, No. 14-00332, 2020 WL 2773477, at *2 (D. Nev. May 28, 2020); BOP, COVID-19 Cases. Some time ago, the court in United States v. Pickard expressed skepticism regarding the "suggestion that more than 900 active infections were resolved within two weeks." 2:11-00449, 2020 WL 4227510, at *4 (E.D. Cal. July 23, 2020); United States v. Schweder, No. 2:11-00449, 2020 WL 5257598, at *5 (E.D. Cal. Sept. 3, 2020) (same; collecting cases).
https://www.bop.gov/coronavirus/ (updated daily) (accessed Dec. 18, 2020).
As of this writing FCI Lompoc reports zero cases among the incarcerated population, two confirmed staff cases and 664 incarcerated individuals as "recovered" from the virus. BOP, COVID-19 Cases (accessed Jan. 14, 2021). The government provides no evidence to suggest BOP's measures have improved or are proving more effective now than in the past in preventing COVID-19 exposure to inmates. See Dep't of Justice Pandemic Response Report. At the time this motion was briefed, USP Lompoc was reporting only one incarcerated person and one staff member tested positive for COVID-19. Opp'n at 5 (citing BOP, COVID-19 Coronavirus ). At this time, USP Lompoc is reporting forty-two confirmed cases among incarcerated individuals and ten confirmed staff cases. BOP, COVID-19 Cases (accessed Jan. 14, 2021). USP Lompoc is the federal prison camp that is "part of a larger complex with FCI Lompoc", Schweder, 2020 WL 5257598, at *1, and courts have noted the "possibility of staff rotating between USP Lompoc and FCI Lompoc as creating likelihood of infection," id. at *5 (citing United States v. Kamaka, No. 18-00085, 2020 WL 2820139, at *3-4 (D. Haw. May 29, 2020)). Although there are no cases reported at FCI Lompoc at this moment, the court errs on the side of caution considering COVID-19's persistence, the potential for rapid spread and the questions raised regarding testing, reporting and the provision of medical care at Lompoc. The court thus finds Mr. Nieves-Lopez's current placement also weighs in favor of release.
Remote Inspection of Federal Correctional Complex Lompoc, issued July 23, 2020. https://oig.justice.gov/reports/remote-inspection-federal-correctional-complex-lompoc (accessed October 2, 2020) (documenting shortage of medical staff at FCI and USP Lompoc and ineffective COVID-19 screening and isolation process at both facilities).
https://www.bop.gov/coronavirus/.
B. Sentencing Guidelines
The Sentencing Guidelines instruct "the [c]ourt should consider the sentencing factors set forth in 18 U.S.C. § 3553(a) when deciding a motion for compassionate release, and the [c]ourt should not grant a sentence reduction if the defendant poses a risk of danger to the community, as defined in the Bail Reform Act." United States v. Gonzalez, 451 F. Supp. 3d 1194, 1196 (E.D. Wash. 2020) (citing U.S.S.G. § 1B1.13); see also 18 U.S.C. § 3582(c)(1)(A). "In assessing danger, physical violence is not the only form of danger contemplated by the statute. Danger to the community can be in the form of continued narcotics activity or even encompass pecuniary or economic harm." United States v. Zaragoza, No. 08-0083, 2008 WL 686825, at *3 (N.D. Cal. Mar. 11, 2008)). Here, Mr. Nieves-Lopez's crime was nonviolent. The government points to Mr. Nieves-Lopez's criminal history, which includes arrests and convictions for felony possession of controlled substances, felony possession for sale of a controlled substance, felony transportation of a controlled substance, driving under the influence, domestic violence and being a deported alien found in the United States. Opp'n at 12; PSR ¶¶ 28-40. The government also cites to Mr. Nieves-Lopez's continued pattern of misconduct evidenced by his history of discipline at Lompoc. See generally Inmate Discipline Data.
The majority of Mr. Nieves-Lopez's crimes and disciplinary infractions are nonviolent and a number appear to be related to the substance abuse issues he says he will be seeking treatment for once back in Mexico with the support of his family. Cf. United States v. Dailey, No. 2:13-00118, 2020 WL 4504449, at *4 (E.D. Cal. Aug. 5, 2020) ("While defendant's criminal history is extensive, it is primarily drug-related and is non-violent in nature. . . . While it is a close call, the court determines defendant does not pose a danger to the community"). On this record, the court finds he is not a danger.
The government argues reducing Mr. Nieves-Lopez's sentence to time served would effect too significant of a reduction in his prison term. Opp'n at 13. "Courts have been willing to grant release in spite of a short amount of time served where a defendant's health conditions rose to the level of an 'extraordinary and compelling' reason." United States v. Galaz, ___ F. Supp. 3d ___, 2020 WL 4569125, at *6 (S.D. Cal. Aug. 7, 2020) (collecting authority and granting motion for compassionate release to inmate who had served only 14 months of her 48-month sentence); see also, e.g., United States v. Fowler, 445 F. Supp. 3d 452, 452 (N.D. Cal. 2020) (granting release for defendant who had served 11 months of 60 month sentence); United States v. Castillo, No. 08-146, 2020 WL 2820401, at *5 (S.D. Tex. May 29, 2020) (granting release for defendant who had served 12 years of life sentence); United States v. Barber, No. 18-0446, 2020 U.S. Dist. LEXIS 83457, at *13 (D. Or. May 12, 2020) (granting release for defendant who had served less than one year of five-year sentence). Here, the court finds the sentence reduction resulting from granting the pending motion does not weigh against Mr. Nieves-Lopez's release. ///// /////
IV. CONCLUSION
The motion for compassionate release is granted. Given that Mr. Nieves-Lopez is subject to an immigration detainer, the court does not make any particular orders regarding release or quarantine because he will be released to the custody of ICE subject to any quarantine protocols being implemented by the Bureau of Prisons prior to transfer to ICE.
Defendant's motion to seal is granted.
The government's motion to seal is granted.
This order resolves ECF No. 14, 15, 20.
IT IS SO ORDERED. DATED: January 15, 2021.
/s/_________
CHIEF UNITED STATES DISTRICT JUDGE