PHILIP R. MARTINEZ, UNITED STATES DISTRICT JUDGE

Antonio Franco, Jr., U.S. Attorneys, El Paso, TX, for United States of America.

Joseph Sib Abraham, Jr., Attorney at Law, El Paso, TX, for Defendant.

AMENDED ORDER GRANTING DEFENDANT'S MOTION FOR EARLY RELEASE PURSUANT TO 18 U.S.C. § 3582(c)(1)(A)(i)

PHILIP R. MARTINEZ, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Defendant Charles Andrew Arroyo, Jr.'s [hereinafter "Defendant"] "Motion for Early Release from Federal Prison" (ECF No. 145) [hereinafter "Motion"], filed pro se on April 8, 2020; the Government's "Response to Defendant's Motion for Early Release from Federal Prison Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)" (ECF No. 151) [hereinafter "Response"], filed under seal on May 8, 2020; and Defendant's "Reply to the Government's Response to Motion for Early Release Pursuant to § 3582(c)(1)(A)(i)" (ECF No. 154) [hereinafter "Reply"], filed through the representation of the Federal Public Defender of the Western District of Texas on May 15, 2020, in the above-captioned cause. In his Motion, Defendant requests that the Court reduce his term of imprisonment for "extraordinary and compelling reasons" pursuant to 18 U.S.C § 3582(c)(1)(A)(i). Mot. 1. After due consideration, the Court is of the opinion that Defendant's Motion should be granted for the reasons stated below, with his sentence reduced to time served.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 19, 2006, the grand jury entered a two-count indictment, charging Defendant with one count of Conspiracy to Possess a Controlled Substance with Intent to Distribute [hereinafter "Conspiracy Count"], in violation of 21 U.S.C. §§ 846 & 841(a)(1), and one count of Possession of a Controlled Substance with Intent to Distribute [hereinafter "Possession Count"], in violation of 21 U.S.C. § 841(a)(1). Superceding Indictment, Apr. 19, 2006, ECF No. 17. Both counts involved five kilograms or more of a mixture or substance containing a detectable amount of cocaine. Id. On July 17, 2006, the United States Magistrate Judge accepted Defendant's guilty plea as to the Conspiracy Count. R. & R. of Magistrate Judge Upon Def.'s Plea of Guilty, July 17, 2006, ECF No. 58.

On October 18, 2006, Defendant appeared before the Court for a sentencing hearing. See J. in a Criminal Case, Oct. 31, 2006, ECF No. 73. After accepting Defendant's guilty plea, the Court dismissed the Possession Count upon the Government's Motion. Id. For sentencing, U.S. Probation calculated that the sentencing guidelines in effect in 2006 set Defendant's total offense level at 34 with a criminal history category of VI. Presentence Investigation Report [hereinafter "PSR"] 15 (prepared Aug. 30, 2006, revised Sept. 28, 2006). Accordingly, U.S. Probation set the guideline sentence range at 262 to 327 months to serve, with a mandatory five years' supervised release pursuant to 21 U.S.C. §§ 846 & 841(b)(1)(A)(ii). Id. The Court sentenced Defendant to 210 months' imprisonment, with credit for time-served, and five years supervised release with the mandatory and standard conditions outlined in the Court's final judgment. J. in a Criminal Case. As of the date of this Order, Defendant's anticipated release date is November 20, 2022. See Federal Bureau of Prisons, Find an Inmate, https://www.bop.gov/inmateloc (last visited May 22, 2020) (search BOP Register No. 15364-179). Defendant has served approximately 85% of his sentence. Reply 18.

In his Motion, Defendant argues that he qualifies for early release pursuant to 18 U.S.C § 3582(c)(1)(A)(i) for various physical ailments that put him at a heightened risk of bodily harm should he contract COVID-19. Mot. 1. Therefore, he requests a reduction in his sentence to time served and that he be placed under home confinement at his mother's house in Forest Park, Georgia. Id. at 3. The Government opposes Defendant's request, arguing that Defendant cannot establish the "extraordinary and compelling reasons" necessary to qualify for early release pursuant to the statute, and that his criminal history indicates that he poses a continued threat to the community. Resp. 11 (citing sentencing factors outlined in 18 U.S.C. § 3553(a) ). Having decided to represent Defendant after the initial filings in this matter, the Federal Public Defender provided a thorough reply to each of the Government's arguments. See Reply.

II. LEGAL STANDARD

A district court generally may not modify or reduce a sentence because "[a] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment." Dillon v. United States , 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (quoting 18 U.S.C. § 3582(b) ). However, "[a] court, on a motion by the BOP or by the defendant after exhausting all BOP remedies, may reduce or modify a term of imprisonment, probation, or supervised release after considering the factors of 18 U.S.C. § 3553(a), if ‘extraordinary and compelling reasons warrant such a reduction.’ " United States v. Chambliss , 948 F.3d 691, 692 (5th Cir. 2020) (quoting § 3582(c)(1)(A)(i) ). Such a reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." United States v. Cantu , 423 F.Supp.3d 345, 347 (S.D. Tex. 2019) (quoting § 3582(c)(1)(A)(i) ). Furthermore, "the defendant has the burden to show circumstances meeting the test for compassionate release." United States v. Stowe , No. CR H-11-803, 2019 WL 4673725, at *2 S.D. Tex. Sept. 25, 2019 (quoting United States v. Heromin , No. 8:11-CR-550-T-33SPF, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019) ).

III. ANALYSIS

Pursuant to 18 U.S.C. § 3582(c)(1)(A) and the United States Sentencing Commission's [hereinafter "USSC"] applicable policy statements, in order to obtain a sentencing reduction, a defendant must demonstrate that (1) they have exhausted administrative remedies; (2) their circumstances are extraordinary and compelling; (3) their release would pose no danger to any other person or to the community; and (4) relief is warranted in light of applicable sentencing factors. Here, the Court concludes that Defendant has met his burden to show each of these requirements. Accordingly, the Court is of the opinion that Defendant's Motion should be granted.

A. Exhaustion of Administrative Remedies

First, Defendant has exhausted his administrative remedies. See 18 U.S.C. § 3582(c)(1)(A) (allowing a court to act only after a defendant "has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the [d]efendant's behalf" or after thirty days have passed since the defendant initially requested the warden of his facility bring said motion). The Government concedes that Defendant made his request to the Warden on April 8, 2020, and that thirty days have now passed. Resp. 9 (noting that the Warden denied Defendant's request on April 27, 2020). Therefore, Defendant has met the exhaustion requirement.

B. Extraordinary and Compelling Reasons

Second, Defendant has shown that his circumstances are extraordinary and compelling. Congress provided that the USSC "shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). The USSC last issued a policy statement, U.S.S.G. § 1B1.13, on November 1, 2018, to define these extraordinary and compelling reasons. Although the USSC has not updated U.S.S.G. § 1B1.13 since the passage of the First Step Act, "courts have universally turned to U.S.S.G. § 1B1.13 to provide guidance on the ‘extraordinary and compelling reasons’ that may warrant a sentence reduction." United States v. McGraw , 2019 WL 2059488, at *2 (S.D. Ind. May 9, 2019) ; see United States v. Ebbers , 432 F.Supp.3d 421, 427 (S.D.N.Y. 2020) (" U.S.S.G. § 1B1.13's descriptions of ‘extraordinary and compelling reasons’ remain current, even if references to the identity of the moving party are not.").

As the Government argues, and Defendant concedes, Defendant's request does not conform with one of the typically cited reasons in the comments included in U.S.S.G. § 1B1.13. Resp. 10–11; Reply 11. Though Defendant provides ample evidence that he "suffer[s] from a serious physical or medical condition," he does not allege that his condition is "terminal" or "substantially diminishes ... [his] ability to provide self-care within the environment of a correctional facility." Resp. 12 (citing U.S.S.G. § 1B1.13, cmt. 1(A)). Yet as Defendant identifies, a number of courts have found extraordinary and compelling reasons "beyond the few the BOP traditionally relie[s] on" in light of the COVID-19 pandemic. Reply 11 (see, e.g., United States v. Muniz , 4:09-CR-199-1, ––– F.Supp.3d ––––, ––––, 2020 WL 1540325, at *1 (S.D. Tex. Mar. 30, 2020) (observing that the defendant "has been diagnosed with serious medical conditions that ... make him particularly vulnerable to severe illness from COVID-19")); see also U.S.S.G. § 1B1.13, cmt. 1(D) (permitting the possibility that "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons [provided in the guidelines]").

It is undisputed that Defendant suffers from various medical conditions related to his hereditary spherocytosis, which required that Defendant's spleen be removed at an early age. Reply 12–13. Defendant informs the Court that a splenectomy typically "renders the patient immunocompromised." Id. at 13 (citing Sepsis Alliance, Impaired Immune System (last updated Dec. 13, 2017), http://www.sepsis.org/sepisand/impaired-immune-system/). Subsequently, Defendant has suffered "frequent infections" including Hepatitis C. Id.

Defendant admits that there is no conclusive evidence that lacking a spleen makes a patient more susceptible to COVID-19, though the disease likely has a heightened impact on patients who are immunocompromised. Id. at 14 (citing Elise Merchant & Wendy Stead, No Spleen? What you need to know to stay health , Harvard Health Blog (Apr. 24, 2020), http://www.health.harvard.edu/blog/no-spleen-what-you-need-to-know-to-stay-healthy-2020042419641). Simultaneously, the Court is mindful that the rapid spread of COVID-19 inevitably limits the ability of science to keep pace with the immediate needs of those immunocompromised individuals currently incarcerated. It is possible that were Defendant, an immunocompromised individual, to contract COVID-19, he would be at a disproportionate risk of bodily harm or death in relation to his fellow inmates. Therefore, the Court is of the opinion that Defendant has provided extraordinary and compelling reasons sufficient to be considered for early release.

C. Danger to the Community

Third, Defendant would not pose a danger to any other person or the community. In determining whether a defendant is dangerous to the safety of others or the community, 18 U.S.C. § 3142(g) instructs the Court to assess: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. § 3142(g).

Defendant pleaded guilty to the Conspiracy Count, a nonviolent crime, of which his role was to transport 28.57 kilograms of cocaine supplied by a coconspirator. PSR ¶ 12 (citing Drug Enforcement Agency [hereinafter "DEA"] investigative reports). Additionally, the evidence against him was significant. On February 14, 2006, the date of Defendant's arrest, DEA agents observed him receive a "heavy bag" from the coconspirator while at a truck stop in El Paso, Texas. Id. at ¶ 6. The DEA agents had arrived at the truck stop while actively surveilling the coconspirator. Id. Next, the DEA agents observed Defendant drive away from the truck stop. Id. Thereafter, an El Paso County Sherriff's Deputy [hereinafter "County Deputy"] stopped Defendant for a suspected traffic violation on Interstate Highway 10 in El Paso, Texas. Id. at ¶ 7. After conducting a records check, the County Deputy discovered that Defendant had an outstanding traffic warrant. Id. The County Deputy then received Defendant's consent to search the vehicle, which led to the discovery of the 28.57 kilograms of cocaine. Id. Defendant denied knowledge of the cocaine, though the coconspirator admitted that he personally was aware that the heavy bag contained cocaine when the two exchanged it at the truck stop. Id. at ¶ 8. Defendant agreed to these facts when he pleaded guilty to the Conspiracy Count. Id. at ¶ 13. Though the evidence against him may have been significant, the Court is inclined to give greater weight to the nonviolent nature of Defendant's crime when considering his eligibility for early release.

Conversely, Defendant is a career offender, with a criminal record that includes convictions for past violent crimes. At age nineteen, Defendant pleaded guilty to felony armed robbery in which case the Information alleged that three co-defendants, by means of force and fear, took personal property from the person, possession and immediate presence of the victim. PSR ¶ 31. After a probated five-year sentence with 365 days custody as a condition thereof, which was revoked following Defendant's escape from the county jail, Defendant was sentenced to a prison term of two years. Id.

At the age of thirty, Defendant pleaded guilty to criminal negligent homicide after an autopsy revealed that Defendant's six-month-old daughter had died from blunt force trauma to the head. Id. at ¶ 32. For this offense, Defendant was sentenced to six months in custody. Id. These two past violent criminal convictions do present some cause for concern.

The Government also highlights Defendant's past gang association alleging that Defendant's "record of violent crime began at age 19 as a member of the Salinas street gang involved in a shooting." Resp. 15. Significantly, while Defendant was charged with Attempted Murder in connection with a drive-by shooting, Defendant was eventually convicted on a nolo contendere plea of Driving Under the Influence, with the Attempted Murder charge being dismissed. PSR ¶ 30. While admittedly one of the four subjects in the vehicle when the victim was shot, Defendant was not convicted for assaultive conduct, individually or as a party. Beyond the Criminal Complaint and Defendant's sentence to 40 hours in an Anti-Gang Program, there is nothing to suggest that the Defendant had gang associations. See id. Further, the underlying offense was committed over twenty-nine years ago, when the Defendant was nineteen years old. Id. Finally, contrary to the Government's assertion, Defendant's conviction for alien smuggling is not a conviction involving violence, notwithstanding the serious nature of the transgression. See PSR ¶ 33; Resp. 15. In short, the Court concludes that the Government's assertion regarding Defendant's "record of violent crime" takes editorial license not supported by the record. See Resp. 15.

At this time, Defendant is almost fifty years old. One of his violent offenses occurred during his teenage years, and he has shown a willingness to participate in rehabilitation programs while incarcerated. See Resp. 18 (identifying Defendant's completion of various treatment programs and classes, as well as leadership roles he has filled). Additionally, Defendant's age and medical conditions make it less likely that he will commit violent acts in normal circumstances, let alone while subject to the strict limitations of home confinement. The Government argues that Defendant still poses a risk to public safety, citing that Defendant has the second highest PATTERN score assessing an inmate's safety risk, and is incarcerated at a high security prison. Resp. 16 & n.8. Simultaneously, the Court concludes that it is a minimal likelihood that an ill, middle-aged man, with a record of "no disciplinary actions whatsoever in nearly a decade," would revert to the criminal ways of his younger self. See Reply at 18 (arguing that "his age and medical conditions make [Defendant] an unlikely recidivism risk"). Therefore, the Court concludes that Defendant will not pose a danger to any other person or the community, especially if restricted to home confinement.

D. Section 3553(a) Factors

Fourth, relief is warranted in light of the applicable sentencing factors. Pursuant to 18 U.S.C. § 3582(c)(1)(A), a court may "reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable." These factors include:

(1) The need for the sentence imposed to, among other factors, reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, and to afford adequate deterrence to criminal conduct;

(2) The kinds of sentences available;

(3) The kinds of sentences and the sentencing range established for the applicable category of offense and defendant;

(4) Any pertinent policy statement guidelines issued by the Sentencing Commission;

(5) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(6) The need to provide restitution to any victims of the offense.

§ 3553(a). Having considered these factors, the Court concludes that a sentence reduction is suitable in Defendant's case.

Defendant pleaded guilty to an offense that carries a statutory minimum sentence of ten years. 21 U.S.C. §§ 846 & 841(b)(1)(A)(ii). It was his extensive criminal past that resulted in his criminal history category of VI, setting the guideline range at 262 to 327 months to serve. PSR ¶ 61. At Defendant's sentencing hearing, the Court determined that a sentence of 210 months was sufficient but not greater than necessary to accomplish the purposes of the sentencing statute. Though a meaningful variance below the guideline range, Defendant's sentence was still well above the statutory minimum.

The Government argues that "Defendant's criminal conduct as discussed above underscores his lack of respect for the law, and the need to afford an adequate deterrence to criminal conduct." Resp. 16. Defendant correctly counters that his criminal history was already reflected in his sentence. Reply 19. Additionally, Defendant has served approximately 85% of his sentence, a period that is already longer than he would have served had he been sentenced to the statutory minimum. The Court is mindful that at sentencing, it determined that 210 months to serve reflected Defendant's past and was an adequate deterrence to criminal conduct. Yet today, the context of Defendant's incarceration has changed. The COVID-19 pandemic presents a new risk of harm that acutely impacts Defendant more than similarly situated defendants. 18 U.S.C. § 3582(c)(1)(A)(i) exists to permit the Court to reconsider its sentencing decision in extraordinary and compelling circumstances such as these. This case-specific inquiry leads the Court to conclude that Defendant's sentence should be reduced.

Defendant has already served a significant amount of time in prison for a nonviolent offense. The corrective benefits of requiring Defendant to complete his sentence do not outweigh the potential harms Defendant would be exposed to were he to remain in custody. It is possible that similarly situated defendants who share common characteristics with Defendant would not receive the same relief.

Therefore, after due consideration, the Court is of the opinion that extraordinary and compelling reasons warrant a reduction of Defendant's sentence. Defendant's sentence should be reduced to time served, a sentence that is sufficient but not greater than necessary to accomplish the purposes of the sentencing statute.

Additionally, before Defendant may be released from custody, the parties must work with U.S. Probation to create a release plan for the Court's review and approval. Consistent with Defendant's Motion, the release plan must include a period of home confinement.

IV. CONCLUSION

Accordingly, IT IS ORDERED that Defendant Charles Andrew Arroyo, Jr.'s "Motion for Early Release from Federal Prison" (ECF No. 145) is GRANTED.

IT IS FURTHER ORDERED that Defendant Charles Andrew Arroyo, Jr.'s sentence shall be reduced to a term of time served as to Count One of the Superceding Indictment (ECF No. 17) in this case, effective the date of his release pursuant to the conditions of this Order.

IT IS FURTHER ORDERED that Defendant Charles Andrew Arroyo, Jr.'s sentence in the cause United States v. Arroyo , No. 04-CR-1512-PRM (W.D. Tex. Oct. 19, 2006) shall also be reduced to a term of time served, for the reasons stated in this order.

The Court takes NOTICE that in the cause United States v. Arroyo , 10-CR-14-RC-ZJH (E.D. Tex. Mar. 1, 2011), Defendant Charles Andrew Arroyo, Jr. was sentenced to a term of eight (8) months' imprisonment, to run consecutive to the terms of imprisonment in the above-captioned cause and in United States v. Arroyo , No. 04-CR-1512-PRM (W.D. Tex. Oct. 19, 2006).

The Court additionally takes NOTICE that Defendant Charles Andrew Arroyo, Jr. may not be released from Bureau of Prisons custody until he serves the remainder of his sentence in United States v. Arroyo , 10-CR-14-RC-ZJH (E.D. Tex. Mar. 1, 2011), or the sentence in that cause is otherwise reduced to time served.

Thus, IT IS FURTHER ORDERED that no later than fourteen (14) days before Defendant Charles Andrew Arroyo, Jr. becomes eligible for release, the parties and U.S. Probation shall meet and confer, and jointly file a proposed order governing the terms and conditions of Defendant Charles Andrew Arroyo, Jr.'s release for the Court's review and approval.

IT IS FURTHER ORDERED that the terms and conditions of Defendant Charles Andrew Arroyo, Jr.'s release shall include a period of home confinement.

IT IS FURTHER ORDERED that U.S. Probation conduct the necessary inspections for all possible locations suitable for Charles Andrew Arroyo, Jr.'s placement upon his release. The Court ADVISES counsel that though Defendant suggests that a suitable placement may be with his mother in Forest Park, Georgia, the Court shall require a detailed assessment before making that determination.

IT IS FURTHER ORDERED that this order shall supercede the Court's "Order Granting Defendant's Motion for Early Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)" (ECF No. 156).

IT IS FINALLY ORDERED that the Clerk shall send a copy of this order to the chambers of the Honorable Ron Clark, U.S. District Judge for the Eastern District of Texas.