Opinion
17-CR-167 (JMF)
05-11-2021
UNITED STATES OF AMERICA, v. ALEXANDER FERNANDEZ, Defendant.
MEMORANDUM OPINION AND ORDER
:
Defendant Alexander Fernandez moves, with the assistance of appointed counsel, for compassionate release. See ECF Nos. 76, 79, 91. Upon review of the parties' papers, the motion is denied substantially for the reasons set forth in the Government's response. See ECF No. 92. In brief, Mr. Fernandez's argument — which depends largely, if not entirely, on the risks relating to COVID-19 — falls short both because he has been fully vaccinated with the Pfizer vaccine and because he tested positive to, and recovered from, COVID-19. See ECF No. 91, at 2. As a result, he "now has significant protection against serious illness or death should he contract COVID-19." United States v. Singh, No. 4:15-CR-00028-11, 2021 WL 928740, at *3 (M.D. Pa. Mar. 11, 2021); see also, e.g., United States v. Matera, No. 02-CR-743 (JMF), ECF No. 452, at 1-2 (S.D.N.Y. June 3, 2020) (denying a motion for compassionate release in part because the defendant had tested positive to, and recovered from, COVID-19). Thus, whether the issue is considered in reference to the existence of "extraordinary and compelling reasons" justifying relief under 18 U.S.C. § 3582(c)(1)(A), or to the sentencing factors set forth in 18 U.S.C. § 3553(a), the result is the same: Mr. Fernandez fails to show that relief is warranted due to the risks of COVID-19. See Singh, 2021 WL 928740, at *3 & n.36 (citing cases).
Separate and apart from that, several other considerations relevant to the Section 3553(a) analysis weigh strongly against relief, including but not limited to:
• the egregious nature of Mr. Fernandez's offense (which prompted the Court to note at sentencing that it might have imposed a higher sentence but for the statutory maximum);See ECF No. 92, at 1-3, 7-8; see also https://www.bop.gov/coronavirus/ (last visited May 11, 2021) (reporting, at present, zero positive inmates and only two positive staff members and that 36% of the inmate population (410 out of 1,136) is fully vaccinated).
• the nature of Mr. Fernandez's criminal history;
• the relatively small portion of the sentence that Mr. Fernandez has served to date (barely twenty percent); and
• the fact that conditions at FCI Cumberland, where Mr. Fernandez is incarcerated, are not that bad at the moment and appear to be improving.
Accordingly, the motion is denied. That denial, however, is without prejudice to a new application "should future evidence demonstrate that new COVID-19 variants render the [Pfizer] vaccine significantly less effective at preventing serious illness or death from COVID-19, such that [Mr. Fernandez] is at a substantial risk of serious illness or death from a COVID-19 infection." Singh, 2021 WL 928740, at *4.
The Clerk of Court is directed to terminate ECF Nos. 76 and 91.
SO ORDERED. Dated: May 11, 2021
New York, New York
/s/_________
JESSE M. FURMAN
United States District Judge