Opinion
Case No.: 13cr2530-JAH
08-28-2020
UNITED STATES OF AMERICA, Plaintiff, v. ANGEL MANUEL OCON, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE (Doc. No. 63)
INTRODUCTION
Pending before the Court is Defendant Angel Manuel Ocon's ("Defendant") motion to reduce his sentence of imprisonment in light of the increasing risks to health that the coronavirus disease ("COVID-19") poses to incarcerated persons. See Doc. No. 63. Defendant seeks compassionate release pursuant to 21 U.S.C. § 3582(c)(1)(A). Id. Having carefully considered the pleadings, and for the reasons set forth below, Defendant's motion is DENIED.
BACKGROUND
On July 11, 2013, a one-count information charged Defendant with Importation of Methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. See Doc. No. 13. On December 5, 2013, Defendant pleaded guilty to the one-count information. Doc. No. 28. On July 28, 2014, the Court sentenced Defendant to the custody of Bureaus of Prisons ("BOP") for 77 months, followed by 4 years of supervised release. See Doc. No. 44.
On March 20, 2020, while on supervised release, the Probation Officer filed a petition for a warrant with the Court alleging that Defendant submitted a positive drug test and failed to submit a testing sample. Doc. No. 47. The Court elected to take no action. Id. On May 14, 2020, the Probation Officer filed another petition for a warrant with the Court alleging that Defendant submitted multiple positive drug tests, used a devise to circumvent drug testing, and failed to submit a testing sample as directed. Doc. No. 49. The Court granted the no-bail bench warrant. Id. On June 16, 2020, Defendant admitted to violating conditions of supervised release, and the Court in turn revoked Defendant's supervised release. Doc. No. 59. Defendant was sentenced to a below-Guideline sentence of 4 months in custody, followed by 30 months of supervised release. Id.
On August 10, 2020, Defendant filed the present 18 U.S.C. § 3582 motion, and seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A). Doc. No. 63. On August 14, 2020, the Plaintiff United States of America ("Government") filed an opposition to Defendant's motion. See Doc. No. 65. On August 17, 2020, Defendant filed a reply. Doc. No. 66.
LEGAL STANDARD
A court generally may not correct or modify a prison sentence once it has been imposed, unless expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure. United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Defendant seeks modification of her sentence under the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). The amendment to § 3582(c)(1)(A) provided prisoners with two direct routes to court: (1) file a motion after fully exhausting administrative appeals of the BOP's decision not to file a motion, or (2) file a motion after "the lapse of 30 days from the receipt ... of such a request" by the warden of the defendant's facility, "whichever is earlier." 18 U.S.C. § 3852(c)(1)(A). Thereafter, upon considering the applicable factors set forth in section 3553(a), the court may determine whether "extraordinary and compelling reasons warrant such a reduction" and "that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id; U.S.S.G. § 1B1.13(1)(A) & cmt. 1. "Exhaustion occurs when the [Bureau of Prisons] denies a defendant's application[.]" United States v. Mondaca, 2020 WL 1029024, at *2 (S.D. Cal. Mar. 3, 2020) (internal citations omitted) A defendant who has not "requested compassionate release from the [Bureau of Prisons] [or] exhausted his administrative remedies" is not entitled to a reduction of her term of imprisonment. United States v. Solis, 2019 WL 2518452, at *2 (S.D. Ala. June 18, 2019).
DISCUSSION
In analyzing whether Defendant is entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A), the Court will determine whether the following three requirements are satisfied. First, Defendant must exhaust his administrative remedies. Second, Defendant must establish that the 18 U.S.C. § 3553 (a) sentencing factors "are consistent with" granting a motion for compassionate release. United States v. Trent, 2020 WL 11812242, at *2 (N.D. Cal. 2020). Third, Defendant must demonstrate that "extraordinary and compelling reasons"- as defined by the applicable Sentencing Commission policy statement—"warrant... a reduction." 18 U.S.C. § 3582(c)(1)(A)(i).
A. Exhaustion of Administrative Remedies
As an initial matter, the Court finds Defendant satisfied the exhaustion of administrative remedies prior to bringing his motion for compassionate release. On August 6, 2020, Defendant applied for compassionate release with the Warden of the Central Arizona Florence Correctional Complex (a contract facility). Doc. No. 63-1 at Exh. B. The Warden denied Defendant's application and noted that because Defendant is in the custody of the United States Marshal Service at a contract facility, the BOP would not evaluate him for compassionate release. Id. at Exh. C. Accordingly, the Court deems Defendant properly exhausted his administrative remedies pursuant to § 3582(c)(1)(A).
B. Section 3553(a) Factors
The compassionate release statute requires courts to consider § 3553(a) factors in determining whether to reduce a defendant's sentence. See 18 U.S.C. § 3582(c)(1)(A). Those factors include, among other things, the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant and to provide the defendant with needed medical care in the most effective manner; and the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a).
Looking to the factors, the sentence imposed on Defendant must reflect the seriousness of the offense. Defendant argues that in light of COVID-19, a time served sentence is sufficient, but not greater than necessary to accomplish the goals of sentencing. See Doc. No. 63 at 20. However, the nature and circumstances of the offense do not support Defendant's argument. Defendant breached the Court's trust by committing repeated violations while on supervised release. Among other violations, Defendant failed to appear for drug testing on numerous occasion, tested positive for cocaine and methamphetamine, and attempted to circumvent the drug testing by altering his urine specimen. It is also important to note that the Court properly considered the § 3553(a) and § 3583(g) factors before imposing a below guideline range sentence of 4 months in custody. Moreover, in the Court's view, a time served sentence reduction would also not adequately reflect the seriousness of Defendant's offense of conviction, promote respect for the law, provide just punishment, or afford adequate deterrence to criminal conduct. United States v. Shayota, 2020 WL 2733993, at *1 (N.D. Cal. May 2020). Accordingly, a reduction in Defendant's sentence to time served is inconsistent with the policy considerations and the factors set for in § 3553(a).
C. Extraordinary and Compelling Reasons
Notwithstanding Defendant's inability to overcome the § 3553(a) factors, Defendant argues his medical condition presents "extraordinary and compelling" reasons to warrant compassionate release. Doc. No. 63 at 6.
A court may reduce a defendant's sentence if it finds "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). A defendant fulfills one of the numerous "extraordinary and compelling reasons" by "suffering from a serious physical or medical condition...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. U.S.S.G. § 1B1.12 cmt. 1(A)(ii). The Sentencing Commission also requires that the defendant not pose a danger to the safety of the community. Id. at 1B1.13(2).
Here, Defendant argues that extraordinary and compelling reasons exist for his compassionate release because: 1) he suffers from asthma, hypertension, hepatitis C, and diagnosed mental health conditions (ADHD, anxiety, and depression); and 2) Defendant is at a higher risk of contracting COVID-19 as a result of his medical conditions. See Doc. No. 63 at 6-15. The Government counters by arguing that: 1) Defendant's asthma is described as "mild intermittent"; 2) Defendant's hepatitis C is described as asymptomatic and requires no medical attention; 3) Defendant's mental health conditions are not recognized as COVID-19 risk factors; and 4) the medical records provided indicate that Defendant is receiving the appropriate medications at the facility to manage his medical conditions. Doc. No. 65 at 14-18.
Although the Court is mindful that individuals with certain medical conditions can be more vulnerable to COVID-19, Defendant fails to persuade the Court that his medical conditions qualify as "extraordinary and compelling" reasons for release within the context of 18 U.S.C. § 3582 (c)(1)(A) and U.S.S.G. § 1B1.13. First, Defendant argues his asthma is an established CDC risk factor that increases his likelihood of contracting COVID-19. See Doc. No. 63 at 7. However, according to the Centers for Disease Control and Prevention, "moderate to severe" asthma is the only listed form of asthmas that creates a "higher risk of getting very sick from COVID-19." See https://www.cdc.gov/coronvirus/2019-ncov/need-extra-precautions/asthma.html (last visited August 24, 2020). Moreover, the CDC reports there is not information as to whether hepatitis C or mental health conditions create an increased risk to COVID-19. Id. As for Defendant's reported hypertension, a distinction exists between hypertension and pulmonary hypertension, with the latter being a medical condition specific to the lungs. See United States v. Barry House, 2020 WL 2557031, at *2 (N.D. Cal. May 2020) (Denying a defendant's motion for compassionate release and noting that "while pulmonary hypertension is a risk factor, [the Defendant] appears to have essential, and not pulmonary, hypertension."). Second, Defendant is only 50 years old and is not in a high risk age group that would make him more vulnerable to contracting COVID-19. See United States v. Smeltzer, 2020 WL 2797493, at *2 (S.D. Cal. May 2020) (defendant who is "48 years old and reflects no medical condition that would specifically make him more vulnerable to contract COVID-19" cannot demonstrate extraordinary and compelling reasons for compassionate release). Lastly, Defendant does not dispute the government's representation that Defendant's medical conditions are appropriately managed at the facility. Doc. No. 65 at 16.
Under the present conditions at Central Arizona Florence Correctional Complex, Defendant is neither terminally ill nor subject to a serious medical condition "that substantially diminishes the ability...to provide self-care within the environment of a correctional facility and from which he [] is not expected to recover." U.S.S.G. § 1B1.13. While Defendant suffers from various medical conditions, he has not demonstrated how the conditions amount to extraordinary and compelling reasons for release under § 3582 (c)(1)(A)(i). See United States v. Luck, 2020 WL 3050762, at *2 (N.D. Cal. June 2020) ("Chronic conditions that can be managed in prison are not a sufficient basis for compassionate release.") (citations omitted); see also United States v. Eberhard, 2020 WL 1450745, at *2 (N.D. Cal. 2020) ("General concerns about possible exposure to COVID- 19 do not meet the criteria for extraordinary and compelling reasons for a reduction in sentence set forth in the Sentencing Commission's policy statement.").
CONCLUSION
For the reasons set forth above, Defendant's motion for compassionate release is DENIED without prejudice.
IT IS SO ORDERED. DATED: August 28, 2020
/s/_________
Hon. John A. Houston
United States District Judge