Opinion
03-CR-294 (JPO)
06-12-2020
UNITED STATES OF AMERICA v. RAMIRO LOPEZ IMITALO, Defendant.
ORDER
:
Defendant Ramiro Lopez-Imitalo is serving a 40-year sentence for heroin trafficking offenses, imposed by Judge Robert P. Patterson Jr. in 2006. Proceeding pro se, Defendant has filed a motion for compassionate release under the First Step Act, 18 U.S.C. § 3582(c)(1)(a)(i), arguing that the risks created by the COVID-19 pandemic justify his immediate release. The Court has reviewed the parties' written submissions on Defendant's motion, which the Government has opposed. (See Dkt. Nos. 172, 174.)
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti, No. 02 Cr. 743, 2020 WL 497987, at *1 (S.D.N.Y. Jan. 15, 2020). A district court is permitted to reduce a term of imprisonment if, after considering the factors in 18 U.S.C. § 3553(a), "it 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 First Step Act allows a court to reduce a sentence in this manner "upon motion of the defendant" either "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 after "the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." Id.
The Court agrees with the Government that the Court lacks statutory authority to grant Defendant's motion at the present time due to the statute's explicit exhaustion requirement. As a legal matter, the Court finds persuasive the analyses by Judge Furman in United States v. Roberts, No. 18 Cr. 528, 20 WL 1700032, at *2-*3 (S.D.N.Y. April 8, 2020), and Judge Sullivan in United States v. Ogarro, No. 18 Cr. 373, 20 WL 1876300, at *2-*5 (S.D.N.Y. April 14, 2020).
Defendant concedes that he has not exhausted his administrative remedies with the Bureau of Prisons. (See Dkt. No. 172 at 9-10.) He does not allege that he has submitted a request for compassionate release with the BOP. Had he submitted such a request, this Court could consider Defendant's motion after 30 days. However, absent such a request to the BOP, this Court lacks statutory authority to grant relief under § 3582(c)(1)(a)(i).
Accordingly, Defendant's motion for compassionate release is denied without prejudice.
The Government is directed to serve a copy of this order on Defendant by mail.
SO ORDERED. Dated: June 12, 2020
New York, New York
/s/_________
J. PAUL OETKEN
United States District Judge