Summary
denying compassionate release for individual who smoked "since he was fourteen years old, and is obese"
Summary of this case from United States v. SanchezOpinion
Criminal Case No. 18-cr-00130-PAB
2020-06-03
UNITED STATES of America, Plaintiff, v. 1. Rey GONZALEZ, Defendant.
Colleen Covell, U.S. Attorney's Office-Denver, Denver, CO, for Plaintiff. David Edward Johnson, Office of the Federal Public Defender-Denver, Denver, CO, for Defendant.
Colleen Covell, U.S. Attorney's Office-Denver, Denver, CO, for Plaintiff.
David Edward Johnson, Office of the Federal Public Defender-Denver, Denver, CO, for Defendant.
ORDER
PHILIP A. BRIMMER, Chief United States District Judge
This matter is before the Court on defendant Rey Gonzalez's Renewed and Updated Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582 (c)(1)(A) [Docket No. 61]. On April 16, 2020, Mr. Gonzalez filed his first motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Docket No. 58 at 1. The Court denied the motion without prejudice on the basis that Mr. Gonzalez had not exhausted his administrative remedies. Docket No. 59 at 3, 7. On May 14, 2020, Mr. Gonzalez filed this renewed motion for compassionate release. Docket No. 61. The United States responded on May 21, 2020, Docket No. 63, and Mr. Gonzalez filed a reply on May 26, 2020. Docket No. 65. The parties agree that Mr. Gonzalez has exhausted his administrative remedies and that his motion is ripe for resolution. Docket No. 61 at 2; Docket No. 63 at 4.
I. BACKGROUND
On November 1, 2018, Mr. Gonzalez pled guilty to possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii) and possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Docket No. 14; Docket No. 35. On January 24, 2019, Senior District Judge Wiley Y. Daniel sentenced Mr. Gonzalez to 120 months imprisonment. Docket No. 53. Mr. Gonzalez is currently incarcerated at FCI Oakdale I ("FCI Oakdale") in Oakdale, Louisiana. Docket No. 58 at 2. The United States represents that Mr. Gonzalez is scheduled for release in July 2026 "via a good conduct time release." Docket No. 63 at 1; Docket No. 63-1 at 10, ¶ 24 (affidavit of David Silva, Associate Warden of FCI Oakdale).
Mr. Gonzalez requests that he be released from prison to home confinement, probation, or supervised release due to health concerns related to the coronavirus (COVID-19) pandemic. Docket No. 58 at 3-5. Specifically, Mr. Gonzalez states that he is at an increased risk of complications from COVID-19 due to a heart murmur, his long history of smoking, and his obesity. Id. at 3-4. Mr. Gonzalez asserts that "obesity was found in a recent New York University (NYU) study to be the largest factor in whether COVID-19 patients required hospitalization." Docket No. 65 at 6.
Because the renewed motion [Docket No. 61] simply renews Mr. Gonzalez's original motion [Docket No. 58], the Court considers the substantive arguments made in the original motion.
According to the BOP website, as of May 28, 2020, there are currently 98 inmates and eight staff members at FCI Oakdale who are currently positive for COVID-19. See Federal Bureau of Prisons, COVID-19 Cases , https://www.bop.gov/coronavirus/. Eighty-eight inmates and ten staff members have recovered from COVID-19. Id. According to the BOP, seven inmates have died. Id. Mr. Gonzalez represents that FCI Oakdale has "the fifth-highest infection numbers" of all federal facilities. Docket No. 65 at 4.
Mr. Gonzalez represents that an eighth inmate died at the Oakdale prison camp, which is part of the Oakdale prison complex, after the BOP had begun to transition the inmate to home confinement. Docket No. 61 at 2. Mr. Silva's affidavit also represents that eight inmates have died at the FCI Oakdale complex. Docket No. 63-1 at 2, ¶ 5.
II. ANALYSIS
Section 3582(c)(1)(A) permits a district court to "reduce [a] term of imprisonment" in certain circumstances "upon motion of the Director of the Bureau of Prisons, or 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." Specifically, a court may order an inmate's release if the court finds that "extraordinary and compelling reasons warrant such a reduction; ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). The Sentencing Commission has identified four categories of "extraordinary and compelling" reasons that may warrant a sentence reduction:
(A) Medical Condition of the Defendant.–
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is–
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing 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.
(B) Age of the Defendant.– The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.–
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) 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.
(D) Other Reasons.– As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
U.S.S.G. § 1B1.13, cmt. n.1. In his original motion, Mr. Gonzalez does not argue that he is entitled to release under a specific section; rather, he asserts that "[t]he COVID-19 situation at Oakdale, in conjunction with [his] health issues and lack of violent criminal history, constitute ‘extraordinary and compelling reasons’ to grant him relief." Docket No. 58 at 5. In his reply, he appears to argue that he is eligible for release under subsection D, which "allows for a finding of an ‘extraordinary and compelling reason’ beyond the examples given in Subsection A." Docket No. 65 at 3. The Court construes this as a concession that Mr. Gonzalez does not fit the criteria set out in subsection A, and construes the motion for compassionate release as arising under subsection D.
Mr. Gonzalez argues that U.S.S.G. § 1B1.13 is not binding on the Court in light of the First Step Act, Docket No. 65 at 2, but also argues that he is entitled to release under subsection D of the guidelines’ accompanying commentary. Id. at 3. Insofar as Mr. Gonzalez argues that U.S.S.G. § 1B1.13 is not binding, the Court disagrees. "The First Step Act did not change the substantive standards governing compassionate release. A proposed sentence reduction still must be supported by: (1) extraordinary and compelling reasons; (2) applicable policy statements issued by the Sentencing Commission ; and (3) the factors set forth in 18 U.S.C. § 3553(a)." United States v. Edington , No. 19-cr-00174-REB-1, 2020 WL 2744140, at *2 (D. Colo. May 27, 2020) (quotation and alteration marks omitted) (emphasis added). "If the policy statement needs tweaking in light of [the First Step Act], that tweaking must be accomplished by the [Sentencing] Commission, not by the courts." United States v. Lynn , 2019 WL 3805349, at *4 (S.D. Ala. Aug. 12, 2019).
Mr. Gonzalez does not argue that he fits under subsections B or C. See Docket No. 58; Docket No. 65.
Subsection D allows for release pursuant to extraordinary or compelling reasons, other than those set out in subsections (A)-(C), "[a]s determined by the Director of the Bureau of Prisons." U.S.S.G. § 1B1.13, cmt. n.1(D). "[T]he BOP has issued Program Statement 5050.50 (2019), which lists factors which the BOP uses in determining whether extraordinary and compelling reasons exist for compassionate release." United States v. Turns , 2020 WL 2519710, at *3 (S.D. Ohio May 18, 2020). "BOP Program Statement 5050.50 identifies several nonexclusive factors to determine whether ‘other’ extraordinary and compelling reasons exist: the defendant's criminal and personal history, nature of his offense, disciplinary infractions, length of sentence and amount of time served, current age and age at the time of offense and sentencing, release plans, and ‘[w]hether release would minimize the severity of the offense.’ " United States v. Saldana , 807 Fed.Appx. 816, 819(10th Cir. Mar. 26, 2020) (quoting BOP Program Statement 5050.50 at 12 (2019)).
Mr. Gonzalez does not specifically argue that these subsection D factors weigh in favor of compassionate release, but instead argues that his health issues, combined with the COVID-19 pandemic, constitute extraordinary and compelling reasons for his compassionate release. See Docket No. 58; Docket No. 65. However, because the list of factors set out in Program Statement 5050.50 is nonexclusive, Saldana , 807 Fed.Appx. 816, 819, the Court will consider whether Mr. Gonzalez has met his burden "to prove that [his] medical conditions create extraordinary and compelling reasons warranting a sentence reduction." Edington , 2020 WL 2744140, at *4.
"The existence of the COVID-19 pandemic no doubt can be described as ‘extraordinary’ insofar as it is ‘[b]eyond what is usual, customary, regular, or common.’ " Id. at *3 (quoting United States v. Rodriguez , 2020 WL 1627331 at *7 (E.D. Pa. April 1, 2020) ). "However, because the apposite test is stated in the conjunctive, the dangers presented by the pandemic – which impact us all, worldwide – also must be ‘compelling’ in [the movant's] particular circumstances." Id. ; see also United States v. Bolze , 2020 WL 2521273, at *7 (E.D. Tenn. May 13, 2020) ("[T]he COVID-19 pandemic cannot present an extraordinary and compelling reason alone because the policy statement directs courts to consider individual reasons for compassionate release, not general threats to the prison population.").
Mr. Gonzalez represents that he suffers from a heart murmur, has been a smoker since he was fourteen years old, and is obese. Docket No. 58 at 3-4. The Centers for Disease Control and Prevention ("CDC") has indicated that individuals with "serious" heart conditions, including "heart failure, coronary artery disease, congenital heart disease, cardiomyopathies, and pulmonary hypertension," are at higher risk of developing severe illness from COVID-19. See Centers for Disease Control and Prevention, Groups at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html#serious-heart-conditions (last accessed June 3, 2020). Mr. Gonzalez asserts that he has a heart murmur that he was diagnosed with as a child. Docket No. 58 at 3. However, Mr. Gonzalez does not provide any documentation corroborating his heart murmur, such as medical records, and has not submitted any additional information concerning this heart murmur, such as whether he takes any medication for the heart murmur and the extent to which that medication controls his symptoms, whether his heart murmur causes him any noticeable complications, or whether the heart murmur is "innocent" or "abnormal." See National Heart, Lung, and Blood Institute, Heart Murmur , https://www.nhlbi.nih.gov/health-topics/heart-murmur (last accessed June 3, 2020) ("Murmurs may be harmless, also called innocent, or abnormal."). Mr. Gonzalez concedes that he has been unable to provide medical records to support his motion, but asserts that this is not for lack of due diligence, but rather due to difficulties in obtaining his medical records due to the COVID-19 pandemic. Docket No. 65 at 5. While the Court does not doubt that circumstances surrounding COVID-19 might hinder Mr. Gonzalez's ability to obtain copies of his medical records, the fact that Mr. Gonzalez's claims are unsupported by evidence regarding the severity of his heart murmur prevents the Court from finding that this medical condition constitutes an extraordinary or compelling circumstance warranting early release. Edington , 2020 WL 2744140, at *4 ; see also United States v. Delgado , 2020 WL 2542624, at *3 (N.D. Tex. May 19, 2020) (finding that inmate did not establish grounds for compassionate release where the inmate had "failed ... to provide the Court any medical records (particularly recent ones) to establish how immunocompromised he may now be"). "[T]he Court must consider every prisoner individually and should be cautious about making blanket pronouncements that categories of prisoners ... warrant compassionate release, even given the unique circumstances of the COVID-19 pandemic." Id.
Mr. Gonzalez argues that his obesity constitutes an extraordinary and compelling reason for compassionate release. Docket No. 58 at 4; Docket No. 65 at 6. According to the CDC, individuals who are "[s]evere[ly]" obese are at higher risk of complications resulting from COVID-19. See Centers for Disease Control and Prevention, Groups at Higher Risk for Severe Illness , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html#severe-obesity) (last accessed June 3, 2020). The CDC defines severe obesity as "a body mass index (BMI) of 40 or above." Id. Mr. Gonzalez claims that his BMI is 33.9. Docket No. 65 at 6. While Mr. Gonzalez asserts that his BMI is "well over the score of 30, which is the threshold for obesity," id. , it does not rise to the level of "severe obesity" as defined by the CDC as an independent high-risk COVID-19 category. Other courts have used this threshold to determine whether an inmate's obesity, in conjunction with the risk of contracting COVID-19, warrants relief. See United States v. Bleicher , 2020 WL 2744606, at *3 (D.N.J. May 27, 2020) (declining to find extraordinary and compelling circumstances warranting release upon finding that the defendant's health did "not place him at significantly greater risk of complications from COVID-19" where the "[d]efendant's BMI of 37.7 [did] not rise to a ‘severe’ level of obesity as defined by the CDC"); United States v. Abbey , 2020 WL 2468767, at *3 (C.D. Ill. May 13, 2020) ("While a BMI of 34.2 qualifies as obese, it does not meet the definition for severe obesity.").
This number is based on Mr. Gonzalez's height and weight as set out in his presentence report. See Docket No. 44 at 19, ¶ 64; see also Docket No. 65 at 6.
Even where an inmate does meet the "severe obesity" threshold, courts still must consider whether the inmate's obesity, in light of the surrounding circumstances, constitutes compelling and extraordinary circumstance warranting release. See United States v. Peaks , 2020 WL 2214231, at *2 (E.D. Mich. May 7, 2020) (denying motion for compassionate release of inmate with high blood pressure and a BMI of 44 because "his medical conditions, in light of his relatively young age and access to medication, do not fall in the category of ... other reasons, under the guidelines.").
Mr. Gonzalez argues that his circumstances are analogous to those in United States v. Delgado , 457 F.Supp.3d 85, (D. Conn. Apr. 30, 2020), in which the court granted an inmate's motion for compassionate release. Id. 457 F.Supp.3d at 92–93, . The Court finds that Delgado is distinguishable. In Delgado , the inmate seeking compassionate release had a BMI of 40.2 – classifying him as "severely obese" under the CDC guidelines. Id. 457 F.Supp.3d at 88–89, . Moreover, in addition to his obesity, the inmate suffered from "severe obstructive sleep apnea," which also placed him at a higher risk of developing complications due to COVID-19. Id. 457 F.Supp.3d at 90–91, . Critically, in Delgado , the inmate had supported his claims with substantial medical record evidence. Id. Given that a compassionate release analysis is an individual, fact-based inquiry, these factual differences distinguish Delgado from this case. The Court finds that Mr. Gonzalez has failed to demonstrate that his medical conditions create extraordinary and compelling reasons to grant him compassionate release.
Because Mr. Gonzalez does not make any substantive argument regarding risks associated with his smoking history, see Docket No. 58 at 3-4 (simply stating that "[s]mokers are particularly vulnerable to COVID-19"), the Court finds that Mr. Gonzalez has not met his burden to prove that his history as a smoker justifies compassionate release.
In addition, the Court finds that the other compassionate release factors under subsection D – the defendant's criminal and personal history, nature of his offense, disciplinary infractions, length of sentence and amount of time served, current age and age at the time of offense and sentencing, release plans, and ‘[w]hether release would minimize the severity of the offense,’ " Saldana , 807 Fed.Appx. 816, 819 – do not weigh in favor of release. Mr. Gonzalez indicates that his release plan is to live with his parents in Sterling, Colorado, who reside near his ex-girlfriend and children. Docket No. 58 at 10. However, Mr. Gonzalez has a lengthy criminal history, having been convicted of driving under the influence, second-degree burglary of a dwelling, and possession and distribution of a controlled substance, among other convictions, in addition to the convictions for which he is currently incarcerated. Docket No. 44 at 13-17. Mr. Gonzalez's current sentence is 120 months imprisonment, and although he is currently scheduled for an early release in 2026 due to good behavior, Docket No. 63-1 at 10, ¶ 24, he has served only a fraction of his original sentence. The Court finds that releasing Mr. Gonzalez now would minimize the seriousness of his offenses. Cf Bleicher , 2020 WL 2744606, *4 ("Reducing Defendant's sentence to such a relatively short time period would certainly fail to ‘reflect the seriousness of the offense’ ") (quoting 18 U.S.C. § 3553(a)(2) ). Thus, the Court concludes that Mr. Gonzalez has not demonstrated extraordinary and compelling circumstances under U.S.S.G. § 1B1.13, cmt. n.1(D) so as to entitle him to release under 18 U.S.C. § 3582(c)(1)(A). The Court is cognizant of the fact that FCI Oakdale is one of the federal prisons that has been hardest hit by COVID-19. But the number of COVID-19 cases at FCI Oakdale cannot itself warrant release where the inmate has otherwise failed to demonstrate that he is entitled to compassionate release. See United States v. Cooper , 2020 WL 2572496, at *2 (E.D. La. May 21, 2020) (recognizing "that FCI Oakdale, where [the inmate] is housed, is one of the BOP facilities that is ‘experiencing significant levels of infection’ " but finding that the inmate had failed to demonstrate extraordinary and compelling reasons for release); United States v. Dison , 2020 WL 2564677, at *4 (S.D. Ala. May 20, 2020) (finding that alleged severe asthma, in conjunction with FCI Oakdale outbreak, may constitute compelling reason for release, but denying compassionate release due to inmate's failure to provide any evidence of severe asthma ). To hold otherwise would be to hold that every inmate currently housed at FCI Oakdale is entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A).
In his reply, Mr. Gonzalez points to additional evidence that he argues warrants his compassionate release, such as (1) "news reports ... that the warden of the Oakdale complex, Rodney Myers, has been removed from his position by the Bureau of Prison" and that a higher number of COVID-19 cases are present at FCI Oakdale than have been reported by the BOP; (2) an OSHA complaint filed by Ronald Morris, "a union leader for staff at the facility, ... alleging that inmates who are known to have tested positive are not isolated and continue to work in food service"; and (3) a news report that the COVID-19 test used by FCI Oakdale "misses nearly half the positive cases detected by another common test." Docket No. 65 at 5; see also Docket No. 65-1 (the OSHA complaint). Even assuming that the news reports and allegations in the OSHA complaint are true, while they are troubling, the court can only consider individual circumstances, not general threats to the prison population. Bolze , 2020 WL 2521273, at *7.
The Court has determined that Mr. Gonzalez has failed to establish that compelling and extraordinary circumstances exist justifying compassionate release. Accordingly, the motion will be denied.
III. CONCLUSION
ORDERED that defendant Rey Gonzalez's Renewed and Updated Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582 (c)(1)(A) [Docket No. 61] is DENIED .