Opinion
1:18-cr-00180-NE-SKO
01-14-2022
UNITED STATES OF AMERICA, Plaintiff, v. ARIC MATTHEW SALAZAR, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE
(DOC. 42)
Aric Salazar has filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). He contends that he should be released because his health conditions put him at high risk of serious illness or death from a coronavirus (“COVID-19”) reinfection. (Doc. 42 at 6, 22-34.) For the reasons explained below, Defendant's motion will be denied.
BACKGROUND
On August 16, 2018, a grand jury returned a single-count indictment against Defendant charging him with receipt and distribution of material involving the sexual exploitation of minors in violation of 18 U.S.C. material involving the sexual exploitation of minors in violation of 18 U.S.C.§ 2252(a)(2). (Doc. 11.) Defendant pled guilty to this offense on May 20, 2019, and Judge Lawrence J. O'Neill sentenced Defendant to 120 months imprisonment followed by a 180-month term of supervised release. (Docs. 33, 34.) This sentence was nearly three years below the low end of the U.S. Sentencing Commission's Guideline range for Defendant, which was 151-188 months. (Doc. 28. Presentence Report (“PSR”) at ¶ 83.)
Defendant is currently serving his 120-month sentence at Lompoc FCI with a projected release date of November 23, 2027 with application of good conduct time. Find an inmate, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited December 27, 2021.) To date, he has served approximately 31 months of his 120-month sentence.
Defendant filed the pending motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) on May 13, 2021. (Doc. 42.) The government opposed the motion on June 15, 2021, (Doc. 50), and Defendant filed a reply on July 7, 2021, (Doc. 57).
LEGAL STANDARD
A court generally “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 824 (2010) (“‘[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment' and may not be modified by a district court except in limited circumstances.”). Those limited circumstances include compassionate release in extraordinary cases. See United States v. Holden, 452 F.Supp.3d 964, 968 (D. Or. 2020). Prior to the enactment of the First Step Act of 2018 (“the FSA”), motions for compassionate release could only be filed by the Bureau of Prisons (“BOP”). 18 U.S.C. § 3582(c)(1)(A) (2002). Under the FSA, however, imprisoned defendants may now bring their own motions for compassionate release in the district court. 18 U.S.C. § 3582(c)(1)(A) (2018). In this regard, the FSA specifically provides that a court may upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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, may reduce the term of imprisonment (and may 3 impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if it finds that
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the [BOP] that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]18 U.S.C. § 3582(c)(1)(A)(i) and (ii).
Under 18 U.S.C. § 3624(c)(2), the BOP may release an incarcerated defendant to home confinement “for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” The Coronavirus Aid, Relief, and Economic Security Act (“the CARES Act”), Pub. L. 116-136, expands the BOP's authority to release incarcerated defendants without judicial intervention. The CARES Act allows the BOP to “lengthen the maximum amount of time” for which a prisoner may be placed in home confinement under § 3624(c)(2) “as the Director determines appropriate, ” assuming “the Attorney General finds that emergency conditions will materially affect the functioning” of the BOP. CARES Act, Pub. L. 116-136, Div. B, Title II, § 12003(b)(2) (2020). However, the BOP's authority in this regard is limited to “the covered emergency period.” Id. The BOP's authority expires “30 days after the date on which the national emergency declaration terminates.” Id. § 12003(a)(2). After the CARES Act was enacted, the Attorney General issued a memo instructing the BOP to “immediately review all inmates who have COVID-19 risk factors” beginning with those who are housed at facilities where “COVID-19 is materially affecting operations.” Office of Att'y Gen., Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020). The BOP has acted on the Attorney General's guidance, including one case in which a sentenced prisoner was released to home confinement after serving less than half his sentence from a facility that reported no positive COVID-19 cases at the time of his release. See Hannah Albarazi, Paul Manafort Seeks Prison Release Over COVID-19 Fears, Law360 (Apr. 14, 2020), https://www.law360. com/articles/1263706/paul-manafort-seeks-prison-release-over-covid-19-fears (noting that the prisoner's counsel had argued that the CARES Act “broadens the authority” of the BOP to release prisoners to home confinement); Khorri Atkinson, Paul Manafort Released From Prison Amid COVID-19 Fears, Law360 (May 13, 2020), https://www.law360.com/articles/1273090/paulmanafort-released-from-prison-amid-covid-19-fears.
The policy statement with respect to compassionate release in the U.S. Sentencing Guidelines sets out criteria and circumstances describing “extraordinary and compelling reasons.”
U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13; see also United States v. Gonzalez, 451 F.Supp.3d 1194, 1197 (E.D. Wash. 2020) (noting that courts “universally” rely on U.S.S.G. § 1B1.13 to define “extraordinary and compelling reasons, ” even though that policy statement was issued before Congress passed the FSA and authorized defendants to file compassionate release motions). However, the Ninth Circuit recently held “that the current version of U.S.S.G. §1B1.13 is not an ‘applicable policy statement[ ]' for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.” United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). “In other words, the Sentencing Commission has not yet issued a policy statement ‘applicable' to § 3582(c)(1)(A) motions filed by a defendant.” Id. The Ninth Circuit clarified that “[t]he Sentencing Commission's statements in U.S.S.G. § 1B1.13 may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.” Id. (citing United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020)).
The Sentencing Guidelines also require that to be granted a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A), the defendant must not pose “a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2).
In so holding, the Ninth Circuit joined the five other circuits who have addressed this issue and have unanimously held “that U.S.S.G. § 1B1.13 only applies to § 3582(c)(1)(A) motions filed by the BOP Director, and does not apply to § 3582(c)(1)(A) motions filed by a defendant.” Id.; see, e.g., United States v. Brooker (Zullo), 976 F.3d 228, 237 (2d Cir. 2020) (“[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release. Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court's discretion.”); United States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020) (“In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define ‘extraordinary and compelling' without consulting the policy statement §1B1.13.”); Gunn, 980 F.3d at 1181 (“[T]he Guidelines Manual lacks an ‘applicable' policy statement covering prisoner-initiated applications for compassionate release. District judges must operate under the statutory criteria-‘extraordinary and compelling reasons'-subject to deferential appellate review.”); United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020) (“In short, we agree with the Second Circuit and the emerging consensus in the district courts: There is as of now no ‘applicable' policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.'” (citation omitted)); United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021) (“We therefore agree with the district court that under the second part of § 3582(c)(1)(A)'s test, its finding that extraordinary and compelling reasons warranted a reduction in Maumau's case was not constrained by the Sentencing Commission's existing policy statement, U.S.S.G. § 1B1.13.”).
In the past, when moving for relief under 18 U.S.C. § 3582(c), courts recognized that the defendant bore the initial burden of demonstrating that a sentence reduction was warranted. See United States v. Sprague, 135 F.3d 1301, 1306-07 (9th Cir. 1998). The Ninth Circuit has not specifically addressed the question of which party bears the burden in the context of a motion for compassionate brought pursuant to § 3582(c) as amended by the FSA. District courts considering the question agree that the burden remains with the defendant. See, e.g., United States v. Greenhut, No. 2:18-cr-00048-CAS, 2020 WL 509385, at *1 (C.D. Cal. Jan. 31, 2020); United States v. Van Sickle, No. 18-cr-0250-JLR, 2020 WL 2219496, at *3 (W.D. Wash. May 7, 2020).
ANALYSIS
As district courts have summarized, in analyzing whether a defendant is entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), the Court must determine whether a defendant has satisfied three requirements:
First, as a threshold matter, the statute requires defendants to exhaust administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Second, a district court may grant compassionate release only if “extraordinary and compelling reasons warrant such a reduction” and “that such reduction is consistent with applicable policy statements issued by the Sentencing Commission. Id. Third, the district court must also consider “the factors set forth in Section 3553(a) to the extent that they are applicable.” Id.Rodriguez, 424 F.Supp.3d at 680; see also United States v. Ramirez-Suarez, 16-CR-00124-LHK-4, 2020 WL 3869181, at *2 (N.D. Cal. July 9, 2020); Parker, 461 F.Supp.3d at 973-74; United States v. Trent, No. 16-cr-00178-CRB-1, 2020 WL 1812242, at *2 (N.D. Cal. Apr. 9, 2020) (noting that as to the third factor, under 18 U.S.C. § 3582(c)(1)(A) release must be “consistent with” the sentencing factors set forth in §3553(a)).
A. Administrative Exhaustion
Under 18 U.S.C.§ 3582(c)(1), an innate may only file a motion for sentence reduction after the BOP has denied his request or after thirty days have passed since BOP received the request. The government concedes that Defendant has complied with this requirement by submitting a request for compassionate release to his Warden on July 18, 2020, which was denied on October 14, 2020. (Doc. 50 at 4.) Because a failure to exhaust administrative remedies where such is required is normally viewed as an affirmative defense, the government's concession on this point is dispositive. Therefore, the Court will address the merits of Defendant's motion.
B. Extraordinary and Compelling Reasons
“Extraordinary and compelling reasons” warranting compassionate release may exist based on a defendant's medical conditions, age and other related factors, family circumstances, or “other reasons.” U.S.S.G. § 1B1.13, cmt. n.1 (A)-(D). Even though the catch-all of “other reasons” was included in the policy statement at a time when only BOP could bring a compassionate release motion, courts have agreed that it may be relied upon by defendants bringing their own motions under the FSA. See, e.g., United States v. Kesoyan, No. 2:15-cr-236-JAM, 2020 WL 2039028, at *3-4 (E.D. Cal. Apr. 28, 2020) (collecting cases).
The medical condition of a defendant may warrant compassionate release where he or she “is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory), ” though “[a] specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required.” U.S.S.G. § 1B1.13, cmt. n.1 (A)(i). Non-exhaustive examples of terminal illnesses that may warrant a compassionate release “include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.” Id. In addition to terminal illnesses, a defendant's debilitating physical or mental condition may warrant compassionate release, including when: 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.Id. at cmt. n.1 (A)(ii). Where a defendant has moderate medical issues that otherwise might not be sufficient to warrant compassionate release under ordinary circumstances, some courts have concluded that the risks posed by COVID-19 tips the scale in favor of release in particular situations. See, e.g., United States v. Rodriguez, 451 F.Supp.3d 392, 405-06 (E.D. Pa. 2020) (“Without the COVID-19 pandemic-an undeniably extraordinary event-Mr. Rodriguez's health problems, proximity to his release date, and rehabilitation would not present extraordinary and compelling reasons to reduce his sentence. But taken together, they warrant reducing his sentence.”).
Compassionate release may also be warranted based on a defendant's age and other related factors. In these situations, “extraordinary and compelling reasons” exist where a “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.” U.S.S.G. § 1B1.13, cmt. n.1(B). In determining a defendant's projected release date, courts may take into account any “good time credits” awarded to the defendant by BOP for “exemplary” behavior in prison as set forth in 18 U.S.C. § 3624(b)(1). See, e.g., United States v. Burrill, 445 F.Supp.3d 22, 24 n.1 (N.D. Cal. 2020).
Defendant is 37 years old, so his age is not a pertinent consideration for the purposes of the “extraordinary and compelling” analysis.
Defendant argues that he is particularly vulnerable to COVID-19 due to his type 2 diabetes, hyperlipidemia, essential (primary) hypertension, and slight obesity. (Doc. 42-1 at 1, 53.) Defendant's medical records also indicate that he has already contracted and recovered from COVID-19 with mild symptoms at worst and no apparent complications. (Doc. 42-1 at 108- 112.) On March 3, 2021, Defendant was offered the COVID-19 vaccine and refused to take it. (Doc. 42-1 at 58, 81.)
Medical records show that defendant reported having no symptoms while he was quarantined for COVID-19 (see Doc. No. 42-1 at 108-109); defendant now claims that he did experience some symptoms, such as cough, muscle pain, and loss of taste and smell, and he hid these symptoms for fear of being placed in solitary confinement. (Doc. No. 42 at 27.) It is uncontested, however, that defendant recovered from COVID-19 with no serious effects.
Defendant's hypertension, diabetes, and obesity may place him at a greater risk of suffering severe illness if he were to contract COVID-19 again. See generally People with Certain Medical Conditions, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited December 27, 2021). However, Defendant's refusal to get vaccinated against COVID-19 artificially elevates this risk. In cases where an inmate cites the risk of contracting COVID-19 as a basis for relief but refuses to receive a vaccine, courts across the country “have nearly uniformly denied compassionate release” because such refusal “undercuts [an inmate's] fear of infection.” United States v. Thomas, 14-cr-00228, 2021 WL 1813192, at *1 (E.D. Cal. May 6, 2021) (citing United States v. Robinson, 17 Cr. 611-7 (AT), 2021 WL 1565663, at *3 (S.D.N.Y. Apr. 21, 2021) (collecting cases)). Courts have sometimes excused vaccine refusal where defendants have demonstrated a specific medical risk associated with taking the COVID-19 vaccine. See United States v. Oles, 10-cr-00126, 2021 WL 2333635, at *2 (D. Or. June 8, 2022) (ordering release where a defendant with underlying health conditions experienced an allergic reaction to the first dose of the Moderna vaccine and followed CDC guidance to opt out of a second dose).
Defendant claims that he refused the Moderna vaccine because he had previously experienced adverse reactions to influenza vaccinations. (Doc. 57 at 8). But Defendant offers no actual evidence of such adverse reactions aside from his refusal of the flu and COVID-19 vaccines in 2020 and 2021. (See Docs. 42-1 at 44, 57-1 at 3.) In fact, medical records show that Defendant received the flu vaccine in February 2020 without any documented complications. (Doc. 54 at 159.) Defendant also offers no support for his allegation that he was advised by a medical professional against taking the COVID-19 vaccine, (Doc. 42 at 33), and later states that he did not take the vaccine because he was “not adequately informed of what could occur from the vaccinations” and was “not encouraged” by prison staff to take the vaccine. (Doc. 57 at 22.) These assertions are insufficient to establish that the COVID-19 vaccine is medically contraindicated for Defendant. See United States v. Arciero, No. CR 13-001036 SOM, 2021 WL 2369403, at *4 (D. Haw. June 9, 2021), reconsideration denied, No. CR 13-01036 (01) SOM, 2021 WL 2462278 (D. Haw. June 16, 2021), aff'd, No. 21-10177, 2021 WL 5986873 (9th Cir. Dec. 16, 2021), and aff'd, No. 21-10177, 2021 WL 5986873 (9th Cir. Dec. 16, 2021) (denying compassionate release where defendant refused COVID-19 vaccine due to an allergy but did not provide any evidence that she was actually allergic to the COVID-19 vaccine or anything in it); see also United States v. Rollness, No. CR06--041RSL, 2021 WL 4476920, at *5 (W.D. Wash. Sept. 30, 2021) (holding that defendant's decision to decline the [COVID-19] vaccine weighs against compassionate release on the basis of vulnerability to COVID-19 where defendant failed to provide documentation supporting his alleged vaccine-related injuries); United States v. Beard, No. 1:16-CR-00046-NONE, 2021 WL 5054413 (E.D. Cal. Nov. 1, 2021) (finding that a defendant's refusal to take the COVID-19 vaccine undercut his alleged fears of infection where defendant refused only because he had “reservations and questions” regarding the safety of the vaccine).
Furthermore, any risk that Defendant may face in a second bout with COVID-19 is mitigated by other factors. First, Defendant is only 37 years old, which does not place him in a higher risk category. See People with Certain Medical Conditions, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited December 27, 2021) (“Older adults are more likely to get severely ill from COVID-19. More than 81% of COVID-19 deaths occur in people over age 65.”) Second, Defendant's hypertension and diabetes are currently being managed with medication. (Doc. 54 at 1, 53.) Finally, Defendant has recently indicated that he has requested and plans to receive the COVID-19 vaccine. (Doc. 64 at 3-4.)
Moreover, as of January 9, 2022, it appears that the Bureau of Prisons is reporting that only 8 inmates and 9 staff members are currently suffering from active infections with the virus causing COVID-19 at Lompoc FCI. See COVID-19, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/coronavirus/ (last visited January 9, 2022). Though current CDC guidelines as to testing and the manner of counting “active cases” may underreport this number, there is no evidence challenging these figures.
Based on the medical evidence before the Court, Defendant is not “suffering from a serious physical or medical condition” sufficient to warrant compassionate release. See U.S.S.G. § 1B1.13, cmt. n.1 (A)(ii). Therefore, his motion will be denied on this basis.
C. Consistency With the § 3553(a) Factors
Because the pending motion fails to establish extraordinary and compelling reasons justifying compassionate release, the Court need not address whether any reduction in Defendant's sentence would be consistent with consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a). Nonetheless, the Court notes that Defendant's 120-month sentence is nearly three years lower than the guidelines range of 151-188 months, and Defendant has only served approximately 20% of his already-reduced sentence. No. further reduction is warranted in this case, as the granting of Defendant's motion would not reflect the seriousness of Defendant's offense of conviction, promote respect for the law, provide just punishment, or afford adequate deterrence to criminal conduct. See § 3553(a); see also United States v. Purry, No. 2:14-cr-00332-JAD-VCF, 2020 WL 2773477, at *2 (D. Nev. May 28, 2020); United States v. Shayota, No. 1:15-cr-00264-LHK-1, 2020 WL 2733993, at *5-6 (N.D. Cal. May 26, 2020) (“The length of the sentence remaining is an additional factor to consider in any compassionate release analysis, with a longer remaining sentence weighing against granting any such motion.” (citation omitted)).
CONCLUSION
For the reasons explained above, the Court concludes that Defendant has not demonstrated that “extraordinary and compelling reasons” exist warranting his compassionate release from prison. Moreover, the Court finds that the granting of release at this time is not consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a). Accordingly, Defendant's motion for compassionate release (Doc. 42) is DENIED.
IT IS SO ORDERED.