Opinion
17 Cr. 666 (PKC)
02-09-2021
UNITED STATES OF AMERICA, v. EDWIN COLON, Defendant.
ORDER
Defendant Edwin Colon has filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc 34.) He also moves for the appointment of counsel. (Doc 35.) Colon is serving a sentence of principally 168 months imprisonment and is incarcerated at the Federal Correctional Institution, Fort Dix, located in Fort Dix, New Jersey. He has served approximately 38 months, or 23 percent of his sentence, and is expected to be released on December 26, 2029 per the BOP website.
See Find an inmate, Federal Bureau of Prisons (last accessed February 9, 2021), https://www.bop.gov/inmateloc/.
Section 3582(c)(1)(A) of title 18 provides that "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," a court may reduce such defendant's sentence if it finds that "extraordinary and compelling circumstances warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). The Court has broad discretion and may consider all circumstances in combination or isolation. See United States v. Brooker, 976 F.3d 228, 237-38 (2d Cir. 2020). The Court must also consider the "factors set forth in section 3553(a) to the extent that they are applicable." 18 U.S.C. § 3582(c)(1)(A); see also United States v. Roney, 2020 WL 6387844, at *1 (2d Cir. Nov. 2, 2020) ("Prior to reducing a defendant's term of imprisonment, however, a district court must consider the factors set forth in section 3553(a) to the extent they are applicable.") (summary order; quotation marks omitted).
Colon submitted a request for a sentence reduction to the Bureau of Prisons on November 13, 2020. (Doc 36 at 5.) More than thirty days have passed, and the government does not contest administrative exhaustion. (Doc 38 at 2.) Upon release, Colon plans to live with his sister in Brooklyn, New York.
Colon argues that his present health concerns put him at a heightened risk of a severe case of COVID-19. He is 50 years of age and asserts that he suffers from hypertension, obesity, high cholesterol, and foot, shoulder and knee issues. He currently takes two medications for his hypertension, and one for his high cholesterol. Current CDC guidance states that adults who are overweight or suffer from hypertension "might be at an increased risk for severe illness from COVID-19."
See People with Certain Medical Conditions, Centers for Disease Control and Prevention (last updated Feb. 3, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html.
The Court accepts that a person at liberty has greater control than an incarcerated person over his surroundings and can quarantine, practice social distancing and use personal protective equipment as he sees fit. Also, in the event that Colon contracted the Covid-19 virus, he would have greater control over the course of his medical treatment if he were at liberty rather than incarcerated. The Court also acknowledges that FCI Fort Dix was recently in the midst of a COVID-19 outbreak. Currently, the BOP reports that 186 inmates and 36 staff members at the facility have tested positive for the virus.
See George Woolston, FCI Fort Dix sees 2nd COVID outbreak as active cases top 450, Burlington County Times (January 5, 2021), https://www.burlingtoncountytimes.com/story/news/2020/12/30/fci-fort-dix-sees-2nd-covid-outbreak-active-cases-top-450-prison-coronavirus-new-jersey/4092150001/.
See Covid-19 Cases, Federal Bureau of Prisons (last updated February 9, 2021) https://www.bop.gov/coronavirus/. --------
Taking full account of Colon's medical condition, the conditions at FCI Fort Dix, and the section 3553(a) factors, the motion will be denied.
On October 30, 2017, Colon was charged in a single count indictment with conspiracy to distribute, and possess with intent to distribute, one kilogram and more of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). (Doc 1.) On January 11, 2018, he entered a guilty plea to the lesser included offense of conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. As the Presentence Report (Doc 11 ("PSR")) sets out, Colon began purchasing large quantities of heroin from a drug trafficker in Colombia as early as September 2014. (PSR at ¶ 8.) On two occasions in 2015, he purchased 15 kilograms of heroin from a trafficker in the Bronx, New York. (Id. at ¶ 10.) Each time he purchased heroin, he did so on consignment, selling the heroin to others to pay his dealer. (Id.)
As part of his plea agreement, Colon and the government agreed to a stipulated guidelines range of 168 to 210 months' imprisonment. The Court sentenced him to 168 months. In its statement of reasons, the Court noted that Colon was being held responsible for selling at least 36 kilograms of heroin, or 70 pounds - a substantial amount that undoubtedly ruined families and created addicts. (Doc 15 (Sentencing Tr.) at 13.) He also had two prior convictions for selling or importing heroin, both of which involved serving time in prison. (Id. at 11.) The Court acknowledged Colon's struggles with addiction and his family support, and felt that the sentence of 168 months, at the lowest end of the Guidelines range, was appropriate to protect the public and deter him from engaging in similar crimes in the future. (Id. at 14.)
The Court has considered the need to protect the public from further crimes of Colon, who now has been convicted of charges involving heroin distribution three times. It has also taken account of all of the other section 3553(a) factors, including the seriousness of the offense, the need for just punishment, and Colon's history and characteristics, including his admirable post-conviction conduct thus far. The Court has also considered the time he has served in prison to date, his medical conditions, including hypertension, high cholesterol and obesity. The Court has also considered the conditions at his BOP facility and the on-going Covid-19 pandemic. Though FCI Fort Dix has struggled with containing the virus, they have consulted with several organizations on implementing a BOP plan to mitigate the COVID-19 risk within the prison. See Wragg v. Ortiz, 462 F. Supp. 3d 476, 508 (D. N.J. 2020). Taking all considerations both in isolation and in combination, the Court concludes that Colon has not demonstrated an extraordinary and compelling reason to reduce his sentence. MOTION FOR APPOINTMENT OF COUNSEL
Mr. Colon also moves to have the court appoint him counsel in connection with his motion for a sentence reduction. However, "there is no statutory right to counsel under the Criminal Justice Act in connection with a § 3582(c) motion, and. . . the provision of such counsel should rest in the discretion of the district court." United States v. Cirineo, 372 F. App'x 178, 179 (2d Cir. 2010) (summary order) (citing United States v. Reddick, 53 F.3d 462, 464-65 (2d Cir. 1995)). "The merits of a motion for compassionate relief are a significant factor in the exercise of that discretion." United States v. Ramos, No. 14-cr-484 (LGS), 2020 WL 6801918, at *1 (S.D.N.Y. Nov. 19, 2020) (quoting Reddick, 53 F.3d at 465 n.2) (internal quotation marks omitted). In light of the merits of Colon's brief as discussed above, as well as the factors set out in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986), the Court concludes that appointment of counsel is not appropriate. CONCLUSION
For these reasons, Colon's motions for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), and for the appointment of counsel are DENIED. The Clerk is directed to terminate the motions (Docs 34, 35).
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
February 9, 2021