Opinion
1:17-cr-00438-VEC
03-08-2022
UNITED STATES OF AMERICA v. DAVID SANTIAGO
MEMO ENDORSED
NOTICE OF MOTION
HON. VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE
David Santiago will move this Court in the capacity Pro Se, before the-Honorable Judge Valerie E. Caproni in the United States Court For The Southern District Of New York, hereby presents this Motion for ah Order pursuant to 18 U.S.C. Sec 3582 (G) (1)(A)(i) to reduce his sentence to a time-served period of imprisonment, to be followed by a period of 5 years supervised release, with the first 12 to 18 months of supervised release to be served on home confinement. Or in the alternative, reduce but not eliminate Defendant's sentence. Defendant intends to file a reply to any opposition to this Motion.
Dated 2-21-2022
David Santiago
FPC Schuylkill
P.O. Box 670
Minersville, PA. 17954
Application DENIED. For the reasons already stated in the Court's June 29, 2020 Order, Petitioner fails to demonstrate "extraordinary and compelling reasons" warranting a sentence reduction. See Dt. 569 at 1-2; see also USA v. Santiago, No. 13-CR-811, Jan. 15, 2021 Order, Dt. 753 (denying Mr. Santiago's motion for a reduction in sentence based on the same health concerns).
The Court encourages Mr. Santiago, if he has not already done so, to get a COVID booster shot. A full COVID vaccine, with a booster shot, is highly effective at preventing serious illness or death from COVID.
It is further ordered that the medical records Petitioner submitted to the Court will be filed under seal.
The Clerk of Court is respectfully directed to mail a copy of this Order to Petitioner at: David Santiago, No. 69461-054, FCU Schuylkill, P.O. Box 670, Minersville, PA, 17954. The Clerk of Court is further directed to close the open motion at docket entry 675.
SO ORDERED.
MOTION IN SUPPORT
1. I submit this Motion in Support of the Motion to reduce Defendant's sentence pursuant to 18 U.S.C. Sec. 3582 (e)(1)(A)(i), the compassionate release statute, which, as amended by the First Step Act, allows the Court to reduce sentences for "extraordinary and compelling" reasons.
2. The rapid spread and dangers of COVID-19 are by now part of our collective knowledge, and policy makers recognize is especially dangerous within the confines of correctional institutions, in combination with Mr. Santiago's chronic Cellulitis/Venous Insufficiency, that manifest in episodes of leg swelling (red and hot to the touch), extreme pain, tempature of over 102, along with Obesity and Smoking Status, constitute extraordinary and compelling circumstances that warrant reduction of his sentence.
3. The Delta and Omicron-Variant quickly spread through the federal prison system, (as FCI Schuylkill is experiencing) DOJ continues to downplay the threat, and maintains it's policy of undercounting infections and deaths. As the week of 1-17-22, the Director of the FBOP, Michael Carvajal, unexpectantly resigned. Right after him, the Deputy Director of the BOP, Gene Beasley, announced his retirement.
The departures, while welcome in some senate chambers, are cause for alarm because the BOP is now facing another crisis as it battles the surging COVID-19 Omicron Variant. On December 10, 2021, there were 265 active COVID-19 infections among federal prisoners across the country...now, just a month later, that figure is at 3, 761 cases and climbing. If the past is any indication of how the BOP is reporting these numbers, it's grossly underestimated.
4. This policy of Deliberate Indifference has not had the desired effect, as more and more prisoner advocates and groups like the ACLU, and even some labor leaders for federal correctional officers, call an end to the policy of official "impunity" https://uclacovidbehindbars.org/delta-data-transparency. Omicron variant, has perpetuaued uncertainty. See Omicron Variant: What You Need To know, Ctrs, For disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant. html (last accessed Dec. 20, 2021). Or people who were not properly screened before being compelled to take the shot. www.very wellhealth.com.
5. The Court should grant relief based on the severity of Mr. Santiago's medical conditions and unique outbreaks of Cellulitis, if happens simultaneously to contracting this deadly disease C0VID-19, it could very well lead to an untimely death, for Mr. Santiago. This in combination with the HARSH CONDITIONS spent in quarantine and punitive punishment during lock-down/modified operations, coupled with inhumane treatment, while at Ft. Dix, and now at FCI Schuylkill, constitute extraordinary and compelling circumstances that warrant reduction of his sentence.
6. When this Court sentenced Mr. Santiago in 2018, it could not have foreseen the spread of this deadly pandemic, which has transformed the Court's intended sentence into a potential death sentence. David Santiago, respectfully moves this Court to reduce his sentence to a time-served period of imprisonment with a period of five years supervised release (with the first 12 to 18 months of supervised release to be served on home confinement) pursuant to 18 U.S.C. Sec. 3582 (C)(1)(A)(i). Or in the alternative, reduce but not eliminate Defendant's sentence.
7. Mr. Santiago respectfully asks this Court to consider this motion on an expidited basis, as each day in custody brings renewed risk to his life and health.
8. On March 31, 2015, David Santiago was sentenced to 128 months' imprisonment after pleading guilty to 18 U.S.C. Sec. 2118(D) Conspiracy to burglarize pharmacies of controlled substances, and 18 U.S.C. Sec. 2118(B) Burglary of pharmacy and ......aiding and abetting the burglary of a pharmacy. Also on December 13, 2018, David Santiago was sentenced to 60 more months imprisonment after pleading guilty to 18 U.S.C. Sec. 1962(d) Racketeering Conspiracy. Running consecutive to the 128 months, aggregated sentence procedure of 188 months. (See Exhibit A. Sentencing Monitoring Computation Data).
9. Mr. Santiago has been in federal custody in connection with the present offenses since October 30, 2013, which amounts to 99 months of actual incarceration. After accounting for good conduct time (846GCT), he has served the equivalent of an 127-month sentence(Not including "Earned Time Credits", for completing EBRR/PA) and is currently projected' for release on March 8, 2027, and home detention on September 8, 2026. (See Exhibit A also).
10. Mr. Santiago submitted a request for Compassionate Release, to the Warden of FCI Schuylkill on January 6, 2022, and his request was denied on January 20, 2022. (See Exhibit B). Mr. Santiago appealed this decision on January 26, 2022, and it was rejected on 1-28-22, so he refiled on 1-31-22, and it's pending. (See Exhibit B Also.)
The Court Should Reduce Mr. Santiago's Sentence Pursuant To The First Step Act Because Extraordinary And Compelling Reasons warrant reduction.
11. The Court is aware of Mr. Santiago's Cellulitis outbreaks, as well as his February 2018 hospitilization while in MDC Brooklyn. The Court is also aware, when on April 19, 2020, that his Cellulitis inflamed making him unable to walk, and he had a temp, of 102.7. Mr. Santiago's significant medical conditions, including severe Cellulitis, Obesity, and Former Habitual Marijuana/Cigarette Smoker Status, as well as Venous Insufficiency. Also he has severe recurring headaches since contracting COVID-19, and medical refuse to treat him for these headaches. At a time when the BOP has experienced outbreaks of COVID-19.
As FCI has experienced, on top of a Nation-Wide lock-down most threatening to those like Mr. Santiago, constitute ......"extraordinary and compelling reasons" for modification of Mr. Santiago's sentence.
12. The government is Directed to Concede that extraordinary and compelling circumstances exist when a defendant has a CDC listed High-Risk medical condition, such as Obesity/History of Smoking, which Defendant has, per the DOJ's internal memorandum directed to U.S. Attorneys, dated May 18, 2020. defendant found the DOJ directed in United states v. Firebaugh, No.16-20342-CR-UU (S.D. Fla. June 1, 2020) where the government properly filed a supplement making the Court aware.
13. The government will typically avoid making the Court aware of this DOJ Memorandum, assuming a defendant, usually Pro Se, will not know of it's existence. See e.g. U.S. v. Parish No. 2:07-CR-0758, U.S. Dist. LEXIS 61684(D. S.C. March 17, 2021)(upon remand to consider an internal guidance of the DOJ, "This Court was unaware of the DOJ internal guidance and therefore directed the government to provide information relating to it")("The government filed a [] response...disclosing for the first time a DOJ internal guidance...").
A. Procedural History Within The Compassionate Release Scope
14. On 5-28-20, Defendant David Santiago filed an "Emergency Motion For C.R.", arguing "Unprecedent Changes In Circumstance's That could Not Have Been Foreseen At the Time Of His Sentencing". Also arguing his "Cellulitis"/"Fevers" & Hospitilizations. The BOP's poor "action plan", to contain & mitigate the spread of C0VID-19 within it's facilities (which is relevant now), specifically photo's & video from Ft. Dix, showing prisoner's unability to social distance & no mask wearing. Also, the Court never intending for his sentence to carry out an unreasonable threat to death.
15. The government filed it's opposition to Defendants motion for sentence reduction per 18 U.S.C. Sec. 3582(C)(1)(A)(i) on 6-11-20. The government's main argument was the pharmacy burglaries, & failure to show "Extraordinary and Compelling" Circumstances Entitling him to release. .....Particularly, his serious & dangerous crimes, (leader in a violent racketeering orginization/home invasion robberies), 16. On 6-26-20, Defendant filed a brief in reply to the government's opposition, arguing the government's" Blatant distortion of the truth & layed out the foundation of the 370- man units with pipes dripping with urine, standing water with black mold throughout the unit. Also arguing his "Cellulitis", "Venous Insufficiency" & "Obesity".
17. On 6-29-20, The Honorable Judge Valerie Gaproni, denied Mr. Santiago's Motion for C.R., stating that there is no evidence that Cellulitis increased his risk of severe illness or death were he to contract COVID-19. Also stating that he does'nt currently have COVID-19 & is otherwise an healthy 36 year old. And that "His release at this point, after serving none of the sixty-month sentence imposed by this Court, would be an inadequate punishment for his crime; 3553(a) factors & long history of robberies. And that he would pose a significant danger to the community if he were released early.
18. Mr. Santiago's Motion was stayed in the Honorable Andrew G. Carter's Court, pending the result from his C.R. request from Honorable Judge Caproni. So on 6-20-20, Defendant filed a brief in reply to the government's response in opposition to his motion for C.R. Arguments were, that the sentence imposed by Judge Caproni should have been merged into one sentence and run concurrently. Also, as to whether the government in plea negotiations acted in bad faith, when they advised Mr. Santiago that if he plead guilty to the charges in front of Judge Carter's Court, that they Would Not Seek Career Offender Status against him, while knowing that they were bringing charges against him for the issue that His Honor could consider at sentencing, but chose not to use them against Defendant.
19. Also arguing the government's Double Dipping, as Mr. Santiago's conduct in the 2006 N.Y. Courts matter (sentenced to 5-years) and the 2013 federal matter were both related to the latter charge of the conduct that was brought to His honor's attention at his sentencing. .....And the additional 60-months to his 128 month sentence & the government waiting 4 years to charge him with the indictment in front of Your Honor, despite having this knowledge when they indicted Mr. Santiago in Case # 13-cr-811(ALC).
20. Furthermore, stating that Mr. Santiago was prejudiced by the government's plea manipulation of him. By stating that it would not Pursue a Career Offender Status at the time in Judge Carter's Court case, and later using those charges to Career Him Anyway. Motion was denied by Hon. Carter on 1-13-2021. (This circumstance itself presents an "Extraordinary and Compelling" reason to warrant an Modification/Reduction In Sentence, Per Brooker, 976 F.3d 228 at 237).
B. Mr. Santiago has exhausted the available administrative remedies.
21. Under the FSA, a defendant may bring a motion for compassionate release only after exhausting all administrative rights to .appeal a failure of the BOP to bring such a motion, or after the lapse of 30 days from the filing of such a motion with the Warden of the defendant's facility. 18 U.S.C. Sec. 3582(C)(1)(A) (i); U.S. v. Sturgis, 2020 U.S. Dist. LEXIS 219102 at *9 (W.D. N.Y. Nov. 23, 2020). Mr. Santiago submits with his motion for release, a response from the Warden of FCI Schuylkill, J. Sage, denying his motion for compassionate release. (See Exhibit B).
C. Mr. Santiago's medical conditions, along with other reasons in light of the COVID-19 pandemic, are extraordinary and compelling reasons for reduction of his sentence.
22. The First Step Act grants sentencing courts authority to reduce an otherwise final term of imprisonment for "extraordinary and compelling reasons" 18 U.S.C. See 3582(C)(1)(A)(i). The present ongoing global pandemic is an extraordinary circumstance beyond what most Americans have experienced in their lifetimes.
23. The grave risk to Mr. Santiago from continual incarceration provides a compelling reason for his immediate release to home .....confinement, and or reduction, but not eliminating his sentence. The statutory requirement for sentence reduction are that the Court: (1) find extraordinary and compelling reasons for the reduction; (2) consider the relevant sentencing factors under 18 U.S.C. Sec. 3553(a); and (3) ensure any reduction is consistent with applicable policy statements.
24. A Court receiving a motion brought directly by a defendant has full discretion to determine what factors constituted "extraordinary and compelling" reasons for relief under section 3582. The Second Circuit addressed that division in Brooker, ultimately concluding that a district court considering a motion for compassionate release brought by a defendant is not bound by the definition of extraordinary and compelling reasons for reduction contained in section 1B1.13, and is instead free to "consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release". (Brooker, 976 F.3d 228 at 237). "Nothing. ...in the now out-dated version of Guideline Sec. 1B1.13, limits the district court's discretion".
1.) Mr. Santiago's significant medical conditions, make him particularly susceptible to increased risk of serious injury or death as a result of COVID-19.
25. As the epicenter of this ongoing global crisis, nearly 1, 000, 000 people in the United States have died as a result of the COVID-19 pandemic (https;//www.nytimes.com/interactive/ 2020/us/coronavirus-us-cases.html). Also the 7-day average for cases is 187, 500 daily, and 2, 300 for deaths. On March 13, 2020, the President of the united States declared the COVID-19 outbreak a national emergency under the National Emergencies Act, 50 U.S.C. Sec 1601 et seq. As the Court is no doubt aware, the pandemic is still ongoing, (https://www.whitehouse.gov/presid ential-actions/proclemation-declaring-national-emergency-concer ning-novel»coronavirus-disease-covid-19-outbreak/.)
26. The CDC advises that the coronavirus is" spread mainly from person-to-person...[b]etween people who are in close contact with one another...[t]hrough respiratory droplets produced when an infected person coughs or sneezes, (https://www.cdc.gov/ coronavirus/2019-ncov/prepare/transmission.html). The droplets can land in the mouths or noses, or can be inhaled into the lungs, of people who are within-6 feet of the infected person. The coronavirus is highly contagious and those who are infected can spread the virus even if they are asymptomatic. Additionally, studies have shown that the coronavirus can survive from three hours to three days on various surfaces.)https://www.nih.gov/ news-events/news-releases/new-coronavirus/stable-hours-surfaces).
27. As of April 21, 2021, BOP reported 46, 483 inmates and 6, 250 staff have recovered from the virus, and 233 inmates and 4 staff have died from the virus. Moreover, the BOP has completed 110, 239 COVID-19 tests. (https://www.bop.gov/coronavirus/). These No. have increased since, Also as of January 21, 2022, there were 87 active COVID-19 cases at FCI Schuylkill out of a total population of 1, 083. COVID-19 Cases, BOP.
28. The BOP has acknowledged that these reported No. are low and that the actual No. of cases is likely higher.
Asked whether the BOP's figures could be relied upon as an acurate reflection of the No. of inmates and staff that are infected, BOP public information Supervisor Sue Allison acknowledged that "reporting cases while tied to positive cases does not necessarily account for unconfirmed non-tested cases", (https://www. forbes.com/sites/walterpavlo/2020/04/01.bureau-of-prisons -underreporting-outbreaks-in-prison/#268a97f7ba32).
29. It's clear that DOJ is persisting with it's policy of non-testing, or testing without placing the test swab far enough up the nasal passages to be effective, to reduce it's positives, and continues to undercount new cases on it's website. (FCI Schuylkill did this on 9-1-21, and again on 9-16-21).
30. Some people who are fully vaccinated will get COVID-19. The Delta variant is more contagious than previous variants of .....the virus that causes COVID-19. Overall, if there are more infections with SARS-COV-2(the virus that causes COVID-19) there will be more vaccine breakthrough infections, (www.cdc. com. 11-1-21). OMICRON, DELTA, and all other forms of COVID continue to make themselves at home in federal prison, and DOJ appears powerless to stop it.
31. Your Honor knows that the "Wildly Contagious OMICRON" variant, constitutes an Extraordinary and Compelling reason to grant relief. See United states v. Rose, 2022 U.S. Dist. LEXIS 706 (S.D.N.Y. Jan. 3, 2022). Where Your honor granted Mr. Rose's Compassionate Release Motion explaining at *2-3" The Court finds that the COVID-19 pandemic, including the wildly contagious Omicron variant, constitutes an extraordinary and compelling reason to grant the requested relief. See Brooker, 976 F.3d at 236 (noting 'district courts' discretion to consider whether any reasons are extraordinary and compelling"); United States v. Maya Arango, No. 15-CR-104, 2020 WL 3488909, at *2 (S.D.N.Y. June 26, 2020)(holding that the threat of COVID-19 may constitute an extraordinary and compelling reason supporting compassionate release); See also Compassionate Release Mot. DKT. 458 at 4-6 (collecting cases where courts found the COVID-19 pandemic constituted an extraordinary and compelling reason)."
Further stating:" When the Court sentenced Mr. Rose in September 2019, it did not anticipate the pandemic and the effects of the pandemic on incarcerated inmates, including Mr. Rose". As Mr. Santiago is in a lock-down now, no TV's, commissary, rec, and very limited movement. And locked in from 4:30 P.M. until 6:30 A.M. daily.
32. MMWR Morb Mortal Wkly Rep. 2021; 70: 1349 1354.DOI:https: //dx.doi.org/10.15585/mmwr.mm7038e3externalicon. This study notes that the five top risk factors for possible death are "History Of Smoking", Hypertension, "Obesity", being overweight, and diabetes. According to the Wall Street Journal, "there have been more than 1.89 million cases and at least 72, 000 hospitilizati-ons and 20, 000 deaths Among Fully Vaccinated People in the U.S. this year..." www.wsj.com, 11-22-21.
33. Dr. Jeffrey Shaman, an infectious disease expert at Columbia University explains: "The bottom line is that there are people out there shedding the virus who don't know that they're infected". To this day, inmates must share communal living spaces: cells, recreation rooms, dining halls, libraries, and exercise yards. To make matters worse, hand sanitizer, an effective disinfectant recommended by the CDC to reduce transmission is forbidden, "contraband" in BOP facilities because of it's alcohol content. (https://www.abajournal.com/news/article/when-purell-is-contraband-how-can-prisons-contain-coronavirus).
34. Attorney General Barr urged the Director of the BOP to prioritize home confinement for vulnerable individuals. (https:// www.justice.gov/file/1262731/download). On April 3, 2020, Attorney General Barr issued a memorandum directing the BOP to move prisoners into home confinement with due "dispatch".
35. On April 10, 2020, members of Congress wrote again to A.G. Barr, noting that "since the last time we wrote you, there have been at least eight deaths in BOP custody", all of which involved prisoners with "long-term, pre-existing medical conditions", and asked why BOP "did not see fit to take action concerning these individuals before it was too late", (https://www.justice.gov/ file/1262731/download).
36. Correctional institutions are among the most dangerous places to be during an epidemic because they create the ideal environment for transmission of contagious disease. Unfortunately, there is currently no cure for the virus, although medical treatments have improved. To stem the spread of the virus, people have been urged to practice "Social Distancing", and to wear masks.
37. Social distancing is particularly difficult in the penal setting, however. Especially now, at Camp Schuylkill as on 11-1-2021, Camp Administrator Ryan Miller took all of Camp 2 prisoners and moved them into Camp 1, and double bunked them, as there are over 100 prisoners in Camp 1 now, while Camp 2 sits empty. This was done as a form of punishment for them finding contraband on Camp grounds. So instead of taking Tv's, Rec. or commissary, .....Administrator Ryan Miller decides that contraband is worth risking/taking our lives, this amounts to "Cruel and Unusual Punishment" And "Deliberate Indifference"(See Prisoner Ruben Holton's message dated 12-14021, regarding this issue & the conditions we go through. (Mr. Holton is the Prisoner Liasion for us here at the Camp)). See Exhibit C.
2.) The Conditions at FCI Schuylkill during the COVID-19 pandemic present an extraordinary and compelling reason to reduce Mr. Santiago's current sentence.
38. The conditions at FCI Schuylkill prevent Mr. Santiago from taking adequate precautions to prevent contracting COVID-19, as several prisoner's are experiencing their second & even third COVID-19 infection. Mr. Santiago cannot adequately socially distance from his roomate, BOP is not testing inmates or staff regulerly. Mr. Santiago has not been given sanitation equipment including hand sanitizer, and staff members routinely enter the facility without masks. Inmates in Mr. Santiago's building share 1 water fountain, two phones, 1 ice machine, and five computer terminals.
39. March of 2021, FCI Schuylkill had the highest number of COVID-positive inmates of any federal correctional facility. (https://www.bop.gov/coronavirus(accessed on 3-12-21)). At this date, 3-12-21 data showed that up to as many as 609 inmates have been infected with COVID-19 at one time or another. The number of staff and inmates infected with COVID-19 at Schuylkill at one time or another, clearly shows that Mr. Santiago cannot rely on FCI Schuylkill to protect him from COVID-19, nor prevent the spread of COVID-19 among inmates and staff at the facility, as evidenced below also.
40. FCI Schuylkill is still operating at a "COVID-19 Operational Level Three", FCI Schuylkill, BOP, https://www.bop.gov/ locations/institutions/sch/(last visited Dec. 3, 2021), which is the most severe operational level and indicates that the medical isolation rate is at more than 7%, the facility vaccination rate is less than 50%, or the community transmission rate is at or .....greater than 100 per 100, 000 over the last seven days. As of December 3, 2021, visiting at FCI Schuylkill has been suspended.
41. "An unconfirmed report from FCI Medium Facility Schuylkill, 447 infected inmates, with 1100 completed tests"(Derek Gilna 12-13-21 Newsletter (dgilna1948@yahoo.com)"Schuylkill FCI, ... ...are inundated with 0MICRON, with cases sometimes in the hundreds, either diagnosed or undiagnosed"(1-10-22 Derek Gilna Newsletter) .".. .FCI Schuylkill..., with all these institutionsin Code Red, with full, or almost full lockdowns, and high levels of infection". (1-31-22- Derek Gilna Newsletter).
42. Since the beginning of the pandemic, a number of district courts have granted C.R. sentence reductions for inmates at FCI Schuylkill, finding that the conditions at the facility contributed to the extraordinary and compelling reasons that warrant sentence reductions. As other courts have found, including this Honorable Court that the conditions at FCI Schuylkill are incredibly dangerous to an inmate in Mr. Santiago's position, in light of the COVID-19 pandemic and present an extraordinary and compelling reason for a reduction in Mr. Santiago's current sentence.
43. U.S. v. Gileno, 2020 U.S. Dist LEXIS 47590(D. Conn. Mar. 19, 2020); U.S. v. Rountree, 2020 Dist. LEXIS 91064(N.D.N.Y. May 18, 2020); U.S. v. Galloway, 2020 Dist LEXIS 89689 (May 21, 2020 Dist. MD.); U.S. v. Sheafer, U.S. Dist LEXIS 114528(M.D.Pa. June 29 2020); U.S. v. Hardy, 2020 Dist. LEXIS 137564(Aug. 3, 2020 Dist MD.); U.S. v. Ramos, 2020 U.S. Dist. LEXIS 206344 (S.D.N.Y. Nov. 4, 2020); U.S. v. Way, 2020 U.S. Dist. LEXIS 237200 (E.D.Pa. Dec. 17, 2020); U.S. v. Lewis, 2021 U.S. Dist. LEXIS1662 (S.D.N.Y. Jan. 5, 2021); U.S. v. Clark, 2021 U.S. Dist. LEXIS 9975 (Dist. Conn. Jan. 20, 2021); U.S. v. Santana, 2021 U.S. Dist. LEXIS 86975 (S.D.N.Y. May 6, 2021); U.S. v. Diaz, 2021 U.S. Dist. LEXIS 55411 (E.D.N.Y. Mar. 23, 2021); U.S. v. Romero, 2021 U.S. Dist. LEXIS 73877 (S.D.N.Y. Apr. 16, 2021); U.S. v. Osorio-Perez, 2021 U.S. Dist. LEXIS 148006 (S.D.N.Y. Aug. 6, 2021); U.S. v. Johnson, 2021 U.S. Dist. LEXIS 231925 (E.D.N.Y. Dec. 3, 2021).
44. Showing the Court of several prisoners, where various Courts have granted compassionate release motions, due to the conditions at Schuylkill prison is an extraordinary and compelling reason warranting a reduction in sentence. Mr. Santiago has been through "serious" COVID-19 outbreaks at FCI Ft. Dix, where he contracted COVID-19 in December of 2020. Then transfer to FGI Schuylkill in November of 2021, just to go through another "serious" COVID-19 outbreak & lock-down, with no visits. On top of that, go through a" ational Lockdown" early this month, and now has no commissary, TV's, rec or outside activities & locked in all day until further notice, due to certain prisoners conduct. This is exacting a very harsh punishment of unbelievable proportions, for Mr. Santiago.
3.) Courts have found extraordinary and compelling reasons warranting relief in cases similar to Mr. Santiago's sufficient to reduce his current sentence.
45. Since the COVID-19 pandemic, numerous courts in this district and others have found extraordinary and compelling reasons warranting relief where a defendant presents evidence of a pre-existing condition that makes him more vulnerable to COVID-19, which is furhter exasperated by the increased risk of COVID-19 in prisons.
46. Accordingly, this Court has authority to consider whether the worsening global pandemic (Delta-Omicron-Variant/Breakthrough cases), combined with Other Relevant Circumstances in this case, including Mr. Santiago's obesity, cellulitis, and heavy former smoking status (Harsh conditions), present an extraordinary and compelling basis for a sentence reduction, regardless of whether BOP moves for compassionate release or whether the request falls within on of the existing categories to U.S.S.G. Sec. 1B1.13.
47. The Second Circuit has clarified that Sec. 1B1.13 "is not 'applicable' to compassionate release motions brought by defendants", rather than by the BOP, and "cannot constrain district courts discretion to consider whether any reasons are .....extraordinary and compelling" in such cases. United States v. Brooker, 976 F.3d 228, 236(2d Cir. 2020).
48. Mr. Santiago suffers from Cellulitis/Venous Insufficiency, that if he has an episode of Cellulitis, coupled with contracting COVID-19 at the same time, (which is highly likely as witnessed of FCI Schuylkill's excessive outbreaks & Mr. Santiago's recurring episodes of Cellulitis) could very well end with an untimely death.
49. Mr. Santiago has had a long and difficult history with Cellulitis. In the fall of 2017, he suffered a severe episode, whereas he had a temp, of 102.8 and heart rate of 118.
50. As a result of that episode, he was hospitalized at Kings-brook Jewish Miedical Center and received treatment for his right side Cellulitis. See Exhibit D, (9-26-17 clinical encounter, 9-26-17 discharge papers & 9-29-17 medical "return trip").
51. Mr. Santiago has had these episodes several times & has been in and out of sick-call & hospitals, where his most recent occurrence was 6-1-2020, with a temp, of 102.8, heart rate of 126, & Blood Pressure of 96/61. See exhibit E (6-1-20 clinical encounter). Also see other medical records in Exhibit F.
52. In addition to Cellulitis & venous Insufficiency, Mr. Santiago's Obesity, Former Smoker Status, Opioid Use Disorder & other health problems places him at increased risk for complications related to COVID-19. The CDC has classified adults with a Body Mass. Index ("BMI") of over 30.0 as Obese (https:// www.cdc.gov/obesity/data/obesity-and-covid-19.html).
53. The CDC has explained that people of any age who have serious underlying conditions, including former smoking status and obesity, are at higher risk for severe illness from COVID-19. People with Certain Medical Conditions, Center for Disease Control and Prevention, supra. See U.S. v. Ramos at 2020 U.S. Dist. LEXIS6 "Ramos' obesity, combined with his sinus bradycardia and human immunodeficiency virus, satisfy that requirement" .
54. U.S. v. Lewis at 2021 U.S. Dist. LEXIS 3" The Center For disease Control ("CDC") has identified Obesity as a condition causing increased risk for severe disease if one contracts COVID-19". U.S. v. Arias-Baez, 2021 U.S. Dist. LEXIS 45123(S.D. N.Y. Mar. 10, 2021) at *5 "Arias is a 32 year old Former Smoker who is medically Overweight and appears to suffer from untreated hypertension...the simultaneous presence of two underlying conditions, is at a significantly greater risk for hospitilization from COVID-19 than someone with only one such condition".
55. U.S. v. Cekaj, 2021 U.S. Dist. LEXIS 70390 (S.D.N.Y. Apr. 2021) At *3-4 "The CDC has identified obesity, diabetes and smoking as increased rosk factors for severe illness from COVID-19...The Government concedes that the Defendant's status as a former smoker renders Defendant at increased risk from COVID-19".
56. Mr. Santiago has been vaccinated, and the Government may contend that he has provided effective 'self-care' against the virus because he has received the COVID-19 vaccine, and he does not present any extraordinary and compelling reasons allowing compassionate release, (as was the case in U.S. v. Mansourov, 2021 U.S. Dist. LEXIS 243906 (D. Conn. Dec. 22, 2021)). The Court agreed that "an incarcerated person's vaccination status does not serve as a total bar to the relief Dr. Mansourov seeks.
57. See U.S. v. Flores, 97 Cr. 817 (DC), 2021 U.S. Dist. LEXIS WL 3682054, at *2 (S.D.N.Y. Aug. 19, 2021)(granting compassionate release motion and noting that "COVID-19 still presents a substantial risk, particularly in light of the uncertainties presented by the Delta Variant and breakthrough infections"); U.S. v. Reyes, No. 3:11cr1(JBA), 2021 U.S. Dist. LEXIS 99864, 2021 WL 2154714, *3 (D. Conn. May 26, 2012)("Although Mr. Reyes has received both doses of the vaccine that provides very substantial protection against COVID-19, newly available data describe "breakthrough infections" caused by COVID variants in vaccinated populations"). (https://www.cdc.gov/coronavirus/2019-ncov/variants.omicron-variant.html.).
58. See U.S. v. Johnson, 2021 U.S. Dist. LEXIS 231925 (E.D. N.Y. Dec. 3, 2021) an FCI Schuylkill prisoner, at 2021 U.S. Dist. LEXIS 13-14, explaining: Some courts have continued to find the risk of COVID-19 germane to their analysis of extraordinary and compelling circumstances, even where, as here, the defendant is vaccinated. See U.S. v. Salerno, No. 11-cr-65(JSR), 2021 U.S. Dist, LEXIS 169162, 2021 WL 4060354, at *6 (S.D.N.Y. Sept. 7, 2021)(agreeing that the Defendant's age and medical condition put him at risk for "a severe case of C0VID-19" even though he was vaccinated and had already recovered from COVID-19);
59. ...U.S. v. Sherrod, No. 19-CR-20139(AJT), 2021 U.S. Dist. LEXIS 147643, 2021 WL 3473236, at *5 (E.D. Mich. Aug. 6, 2021)(finding the risk of COVID-19 relevant to the court's "extraordinary and compelling" determination because "recent research reflects that 1) breakthrough infections are becomming more and more frequent, 2) a significant number of breakthrough infections may lead to so-called 'long C0VID' and 3) people[] who have underlying conditions and reside in congregate settings are at highest risk for severe illness, despite vaccination"), 60. See also U.S. v. Osorio Perez, 2021 U.S. Dist. LEXIS 148 006 (S.D.N.Y. Aug. 6, 2021). Explaining that his experience of contracting COVID-19 at FCI Schuylkill and suffering severe and lingering consequences from COVID-19 in December 2020 & his fear of reinfection. U.S. V. Secchiaroli, 2021 U.S. dist. LEXIS 29212 (W.D.N.Y. Feb. 17, 2021) 35 year old Defendant alleging that his infection has caused "irrepairable harm" and that the BOP & FCI Fort Dix were negligent & deliberately indifferent... it is conceivable that he could be re-infected and experience a severe case of COVID-19... Defendant's offense conduct was atrocious (sex offender), the Court found that his recidivism is unlikely because his health conditions and risk of infection during the pandemic will limit his mobility to interact with others.
4.) Harsh Conditions during the COVID-19 Pandemic behind bars; Reducing but Not Eliminating/Immediate Releasing Prisoner; And Other reasons Can be considered when granting a Defendant C.R.
61. Mr. Santiago has been under "Harsh Conditions" at FCI Schuylkill, and FCI Fort Dix. As of right now there is no visiting, rec, tv's, programming, commissary, as well as less food being served at Schuylkill. The milk is constantly spoiled, due to the coolers in the facility not working. Additionally, the Camp is crowded, specifically due to all prisoners living in Camp #1, double bunked, as Camp #2 sits empty.
62. Several Courts have recognized "harsh conditions" in reviewing motions for compassionate release. See U.S. v. Cruz, 2021 U.S. Dist. LEXIS 66485 (D. Conn. Apr. 6, 2021) at *7 "Courts reviewing motions for sentence modifications have additionally considered the extent to which onerous lock-downs and restrictions imposed by correctional facilities attempting to control the spread of the virus have made sentences "harsher" and more "punitive" than would otherwise have been the case".
63. See, e.g. U.S. v. Rodriguez, 2020 U.S. Dist. LEXIS 181004, at *7 (S.D.N.Y. Sept. 30, 2020); U.S. v. Robles, 2021 U.S. Dist. LEXIS 150046 (S.D.N.Y.Aug. 10, 2021) at *25 "Robles similarly qualifies for some reduction of sentence on this analysis. To date, he has spent more than 16 months in custody during C0VID-19, at FCI Fort Dix. (As so to with Mr. Santiago) The conditions at that facility, as elsewhere, have been restrictive in light of the pandemic, (acknowledging that more than 50% of FCI Fort Dix's inmates, including Robles, contracted the virus and that the prison has implemented "strict" protocols to curb the spread of the virus and reduce contagion rates).
64. U.S. v. Osorio-Perez at *5; (A Schuylkill prisoner) "Moreover, Mr. Osorio-Perez last seventeen months in custody have occurred during the lockdowns and related restrictions imposed by the BOP as a result of the COVID-19 pandemic resulting In a more severe term of imprisonment than the Court contemplated at the time of Mr. Osorio-Perez's sentencing hearing.
65. There were also three defendants incarcerated at Fort Dix, like Mr. Santiago, who received "Sentence Reductions", however .....not eliminating their sentences, due to their experience in FCI Fort Dix. See U.S. v. Newell, Burr Jr. & Lyons Jr., 2021 U.S. Dist. LEXIS 143059 (M.D. N.C. July 30, 2021). That the conditions of confinement at Fort Dix have been extremely difficult. The prison did a poor job responding to the difficulties posed by this contagious and potentially deadly virus in a congregate living situation. Despite having months of experience with the virus, prison officials made decisions in the fall of 2020 that allowed the virus to spread throughout the prison, and the number of cases at the prison skyrocketed over the winter-all while the number of cases at many other BOP facilities declined.
66. Further explaining, "the three defendants contend that the dire conditions they experienced at Fort Dix during the pandemic constitute an extraordinary and compelling reason to warrant a reduction in sentence. The Court agrees." Reducing Mr. Newell's sentence from 181 months to 172 months; reducing Mr. burr's sentence from 240 months to 231 months; and reduced Mr. Lyons sentence from 210 months to 204 months.
67. Mr. Santiago would be grateful, with any amount of reduction of his sentence, rather it be 6 months, a year, or less. Also, Defendant Santiago expects the government to argue that, even if the Court finds extraordinary and compelling circumstances in this motion for C.R. that the 3553(a) factors would weigh against him, focusing mainly on the perceived danger he presented at the time of his arrest, rather than how he's presented today, after serving 99 months of actual incarceration. (See U.S. v. Weissinger, 2021 U.S. Dist. LEXIS 106818 (8th Cir. Mo., June 2, 2021) at 2021 U.S. Dist. LEXIS 11&12) "18 U.S.C. Sec. 3553(a)(2)(D). This post-sentencing conduct and positive prison record "provides the most up-to-date picture of [his] history and characteristics."" Pepper v. United States 562 U.S. 476, 492, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (citing 18 U.S.C. Sec. 3553(a)(1)).
Mr. Santiago knows he has an serious/extensive criminal history, that does'nt mean that he should'nt, or don't deserve .....a reduction in sentence. His record and past conduct is just that, plain and simple "HIS PAST", he is strongly focused on his present conduct & character, as well as his positive goals of his future.
There are also cases of Judges granting Compassionate Release Motions, with prisoners with records similar & worse than Mr. Santiago's, as well as conduct.
69. 3553(a)(6): The need to avoid Unwarranted sentence Disparities among defendant's with similar records who have been found guilty of Similar Conduct. As Mr. Joel Prado, who was a member of the pharmacy burglary crew, had 9 convictions & was granted compassionate release & released from FCI Schuylkill. Also see U.S. v. Black, 2020 U.S. Dist. LEXIS 142523 (S.D. Ind. Aug. 10, 2021).
70. See U.S. v. Romero, he was found guilty by a jury of 18 U.S.C. Sec. 1962(d) (racketeering conspiracy), as well as other charges. He was also engaged in violence as a Member of 18 Park; See U.S. v. Jones, 2020 U.S. Dist. LEXIS 91444(S.D.N.Y. May 26, 2020). He was charged also with conspiracy to commit racketeering as part of the "Big Money Bosses" street gang, in violation of 18 U.S.C. Sec. 1962(d). With the Court stating "... the underlying conduct here was very serious. Mr. Jones was an Active Member of the Big Money bosses, a violent street gang that operated in the Bronx. He stored guns for the gang, sold marijuana in furtherance of the gang, and, most significantly, participated in an attempted murder on behalf of the gang.
71. In U.S. v. Lopez, 2021 U.S. Dist. LEXIS 36681 (S.D.N.Y. Feb. 26, 2021) he was designated as Career Offender & sentenced to 180 months, 82 months below the bottom of the advisory guidelines range (262-327). Without the career offender, his guideline range would've been 121-151 offense level 29, criminal history category IV. The Court modified his sentence to 121 months, even though he had an significant criminal history that escalated as he grew older, (as the government has pointed out in Mr. Santiago's previous motion). Mr. Lopez's criminal history with escalating criminal conduct, is pointed out at .....2021 U.S. Dist. LEXIS 19 from before 19 years of age to 29 years of age. See also U.S. v. Ford, 2021 U.S. Dist. LEXIS 124-585 (W.D. Lou. July 2, 2021).
A Sentence of Time Served with an Extended Period of Supervised Release is Sufficient To accomplish the Goals of Sentencing. Or in the Alternative, Reduce but not Eliminate Defendant's Sentence.
72. Defendant Santiago would also like to ask this Honorable Court, to also consider the way the government treated him in his plea negotiations & waiting nearly 4 years to charge him with the indictment, where he was sentenced to 60'months in Your Honor's Court, as an extraordinary and compelling reason/ circumstance to warrant an modification in sentence.
73. This was explained, early-on in this motion at #'s 18-20, as in U.S. v. Brooker, the Court can consider the "full-slate" of reasons, brought before the Court to consider by the Defendant .
74. Under all of the circumstances in this case, including Mr. Santiago's significant health conditions and his exemplary conduct in prison (2 minor incident reports over 54 months ago). This Court should conclude that the period of imprisonment that Mr". Santiago has served, along with a period of 5 years supervised release (with the first 12 to 18 months of supervised release to be served on home confinement), is suficient to satisfy the purpose of sentencing. Or in the alternative, Reduce but not Eliminate his Sentence.
75. Additionally, Mr. Santiago's exemplary conduct while in prison likewise supports the requested sentence reduction. Since his imprisonment almost 9 years ago, Mr. Santiago has served as a model prisoner. He has taken a number of continuing classes/courses to better himself and to prepare him for his eventual release from prison, and he has worked a number of jobs while in prison, despite his severe Cellulitis and other health conditions. (See Exhibit G). Specifically, he has completed 126 courses & counting, even earning his G.E.D. while in BOP Custody .....a great achievement that he is proud of, showing not only his seriousness about thinking of his productive future, but also his maturity, as he's applying the skills that he has developed, while being incarcerated. He is also currently enrolled in Housekeeping Vocational.
76. Furthermore, Mr. Santiago has a release plan to ensure his safe transition back into the community. Mr. Santiago's family are deeply concerned about his vulnerability to COVID-19 while in prison as a result of his Cellulitis outbreaks & temps. over 100-plus. He will live with his Wife, Katherine Guzman at 25 Fairmont Ave. Apt. C8 in Hackensack, N.J. 07601, away from former people, places, and things, where Mr. Santiago can safely quarantine fro 14 days once he is released.
77. He will seek a Medical Center/Hospital upon release and obtain services from a Doctor that can become his personal Doctor to treat and care for him. As his wife is looking for him a Doctor currently.
78. Additionally, there are several job offers available to him upon release, J&H Auto Body Shop LLC. 11-15 Bloomfield Ave. Patterson, N.J. 07503 Telephone # (973) 944-2003/(201) 790-6252, Email: JandHAutobody23@gmail.com. Also Route 80 Auto Specialist Inc. (Mechanic Body Shop), 870 Market St., Patterson, N.J. 07513. Boss: Aury Taveras, Phone (973) 527-5622. His second job will be with his Wife's business "Endless Glintz & Accessories, helping with packaging, marketing, invetory & stock.
79. Mr. Santiago has shown by his conduct while imprisoned that he is a different person/ changed man than when he was sentenced roughly nine years ago. Granting compassionate release would not endanger the community.
80. Certainly, an initial period of 12 to 18 months' home confinement (with permission to work) as part of a period of 5 years supervised release, will allow for sufficient monitoring and supervision to ensure his compliance with the Court's conditions and to ensure the safety of the community.
81. A thorough consideration of the 3553(a) factors in this case-including Mr. Santiago's significant health concerns in light of the COVID-19 pandemic, other reasons, stated within and his model conduct during his time in prison support Mr. Santiago's request for modification of his sentence. Specifically, a sentence of time-served period of imprisonment followed by a term of 5 years supervised release, with the first 12 to 18 months of supervised release to be served on home confinement will be sufficient, but not greater than necessary, to accomplish the purposes of sentencing. Or in the alternative, reduce but not eliminate his sentence.
Respectfully Submitted, David Santiago
FPC Schuylkill
P.O. Box 670
Minersville, PA. 17954
(Exhibit Omitted)