Opinion
18-CR-0350 (ILG)
2022-02-24
UNITED STATES of America v. Edwin ALAMO, Defendant.
Elizabeth L. MacChiaverna, Government Attorney, United States Attorney's Office, Brooklyn, NY, for United States of America. Dawn Maria Florio, Dawn M. Florio Law Firm PLLC, Bronx, NY, for Defendant.
Elizabeth L. MacChiaverna, Government Attorney, United States Attorney's Office, Brooklyn, NY, for United States of America.
Dawn Maria Florio, Dawn M. Florio Law Firm PLLC, Bronx, NY, for Defendant.
MEMORANDUM AND ORDER
GLASSER, Senior United States District Judge:
Before the Court is defendant Edwin Alamo's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). [ECF No. 57]. On the basis of the COVID-19 pandemic, Alamo seeks to be permitted to serve the balance of his sentence on home confinement, or to receive a sentence reduction as a result of not being able to partake in a drug rehabilitation program. The Government opposes his motion. [ECF No. 60]. For the following reasons, Alamo's motion is DENIED .
BACKGROUND
In June 2018, Alamo was arrested while in possession of nearly four kilograms of fentanyl, a controlled substance. Pre-Sentence Report [ECF No. 36] ("PSR") ¶ 6. A subsequent search of his apartment revealed significant additional quantities of fentanyl, as well as heroin and Quinine (an anti-malarial drug often used as a cutting agent with other narcotics), a large hydraulic press (often used to package kilogram quantities of narcotics), two dozen cell phones, and 40 rounds of ammunition. Id. at ¶ 7. An investigation revealed that Alamo acted as a middleman in an international drug trafficking operation – he was responsible for receiving narcotic shipments from Mexico and wiring the proceeds back out of the country. Id. at ¶ 8. He also was a narcotics supplier for low-level drug dealers in the New York area. Id.
On April 26, 2019, Alamo pled guilty to Count 1 of a four-count superseding indictment charging him with conspiracy to distribute and possess with intent to distribute heroin and fentanyl, in violation of 21 U.S.C. § 841(a)(1). [ECF No. 32]. On December 13, 2019, the Court sentenced Alamo to a 72-month term of incarceration, to be followed by a five-year period of supervised release. [ECF No. 51]. According to the Bureau of Prisons, he is currently scheduled for release on August 21, 2022.
On June 15, 2020, after completing 23 months of his term of incarceration (including time served prior to his sentencing date), he moved for compassionate release. [ECF No. 57]. He argues that his underlying health conditions – asthma, obesity, and poor circulation in his legs – place him at an especially high risk from COVID-19, and thus create an extraordinary and compelling reason to release him from custody, to permit him to complete his term on home confinement, or to reduce his sentence in light of the fact that he has been unable (due to the pandemic) to complete a drug rehabilitation program.
DISCUSSION
I. Law
18 U.S.C. § 3582(c)(1)(A) permits a court to modify a term of imprisonment that has been imposed where, after considering the factors set forth in 18 U.S.C. § 3553(a), 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, 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. 18 U.S.C. § 3582(c)(1)(A). A court must also find that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. Before a defendant can take advantage of this statute in court, however, the defendant must first exhaust "all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or [show] the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility." Id.
The statute does not define what is an "extraordinary and compelling" reason, nor can it: as this Court has previously written, "[t]he combination and permutation of facts and events and the emotions they arouse that inhere in those two words are infinite and beyond classification." United States v. LoCascio , No. 90-cr-1051, 2020 WL 12719849, at *2 (E.D.N.Y. July 17, 2020). Instead, Congress directed the United States Sentencing Commission to "describe what should be considered extraordinary and compelling reasons for [a § 3582(c) ] sentence reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). The Commission's response was U.S.S.G. § 1B1.13. In Comment 1 to that section, the Commission defined "extraordinary and compelling reasons" as including:
i. a terminal illness;
ii. a serious physical or medical condition, a serious functional or cognitive impairment, or 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;
iii. the defendant is at least 65 years old, experiencing a serious deterioration in physical or mental health because of the aging process, and has served at least 10 years or 75
percent of his or her term of imprisonment, whichever is less;
iv. the death or incapacitation of the caregiver of the defendant's minor child or minor children;
v. 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; and
vi. as determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than those listed above.
U.S.S.G. § 1B1.13 cmt. 1. However, by its terms, § 1B1.13 only applies to cases in which the Director of the Bureau of Prisons brings the motion under 18 U.S.C. § 3582(c)(1)(A), and the Second Circuit has interpreted it as such. United States v. Giddens , No. 20-3270, 2021 WL 5267993, *2 (2d Cir. Nov. 12, 2021) (citing United States v. Brooker , 976 F.3d 228, 235-36 (2d Cir. 2020) ). Therefore, at least in this Circuit, when a motion for compassionate release is brought by the defendant, a district court has total discretion to determine what constitutes an "extraordinary and compelling" reason. Id. ; see also United States v. Kimbell , No. 21-288, 2021 WL 5441249, at *1 (2d Cir. Nov. 22, 2021) ("The determination as to what constitutes extraordinary and compelling reasons warranting a reduction is committed to the sound discretion of the district court."); Brooker , 976 F.3d at 237 ("[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.").
Even if the court finds "extraordinary and compelling reasons," it must also "consider[ ] the factors set forth in [ 18 U.S.C. §] 3553(a) to the extent that they are applicable." 18 U.S.C. § 3582(c)(1)(A) ; United States v. Jones , 17 F.4th 371, 371 (2d Cir. 2021) ("[E]xtraordinary and compelling reasons are necessary—but not sufficient—for a defendant to obtain relief under § 3582(c)(1)(A)."). These factors include "the nature and circumstances of the offense and the history and characteristics of the defendant," "the need for the sentence imposed," "any pertinent policy statement," and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a). Then, after having considered the § 3553(a) factors, the court may still decide to deny the defendant's motion. See 18 U.S.C. § 3582(c)(1)(A)(i) ("[T]he court ... may reduce the term of imprisonment ....") (emphasis added).
II. Application
Alamo did not submit evidence with his motion showing that he first requested the warden of his facility to bring a motion for compassionate release on his behalf. However, the Government confirmed in its opposition that Alamo did make such a request to the Bureau of Prisons. See [ECF No. 60], at 6. It has now been more than 30 days since Alamo made that request, and the Bureau of Prisons has not brought a motion on his behalf. Thus, Alamo has standing to bring this motion.
Because Alamo is not 70 years old, he is only entitled to relief under the statute if he can show the existence of "extraordinary and compelling reasons." In this case, the Court does not find that extraordinary or compelling circumstances exist to reduce Alamo's sentence, or to permit him to continue his sentence on home confinement. Although Alamo argues that he has a higher risk from COVID-19 due to certain underlying health conditions, he presents no medical evidence to support a determination that exposure to COVID-19 given his described underlying medical issues presents a risk to his well-being of such a magnitude as to constitute an extraordinary and compelling condition warranting compassionate release. It is relevant to note, in this regard, that according to the Bureau of Prisons’ website, there are currently only two active COVID-19 cases at Alamo's facility. Bureau of Prisons, COVID-19 Update, https://www.bop.gov/coronavirus/ (last visited Feb. 24, 2022). This fact undermines his contention that his continued incarceration puts him at risk.
Alamo's inability to participate in a drug rehabilitation program is also not an extraordinary or compelling circumstance; rather, it is a consequence of the situation that is currently being faced by all prisoners. United States v. Robinson , No. 17-cr-124 (PAE), 2022 WL 507445, at *4 (S.D.N.Y. Feb. 18, 2022) (inability to participate in drug rehabilitation program because of COVID-19 is an issue of general applicability and thus does not rise to an extraordinary and compelling circumstance).
In any event, the consideration of the Section 3553(a) factors would drive the Court to conclude that there are meaningfully compelling reasons to deny his petition. Alamo was not a small-time, low-level drug dealer, but a middleman with significant responsibilities in a major trafficking operation. He was arrested with nearly four kilograms of fentanyl, and had a substantial additional quantity in his apartment, along with heroin, Quinine, and machinery used for the packaging of those drugs. The large quantity of fentanyl that he possessed manifests an indifference to the tragic deaths attributable to that drug by its users. To make matters worse, this was not his first arrest as a drug dealer, but his second, showing that he clearly knew that his actions were wrong, but he chose to engage in the conduct anyway. In short, the has not persuaded the Court that he is entitled to a sentence reduction.
CONCLUSION
For the foregoing reasons, Alamo's motion is DENIED .
SO ORDERED.