Opinion
1:19-CR-00094 EAW
2020-06-29
UNITED STATES of America, v. Marcello WIGGINS a/k/a Slurpy, Defendant.
Laura A. Higgins, U.S. Attorney's Office, Buffalo, NY, for United States of America. Parker Roy MacKay, Kenmore, NY, for Defendant.
Laura A. Higgins, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Parker Roy MacKay, Kenmore, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
BACKGROUND
On January 14, 2020, defendant Marcello Wiggins a/k/a Slurpy ("Defendant") appeared before the undersigned and pleaded guilty pursuant to a plea agreement to Counts 4, 5, and 7 of the Superseding Indictment charging violations of 21 U.S.C. § 841(a)(1) (possession with intent to distribute butyryl fentanyl), 18 U.S.C. § 924(c)(1)(A)(i) (possession of a firearm in furtherance of drug trafficking), and 21 U.S.C. § 841(a)(1) (possession with intent to distribute 28 grams or more of cocaine base), respectively. (Dkt. 34; Dkt. 35). Together, Counts 5 and 7 provide for a statutory mandatory minimum sentence of 10 years incarceration. (Dkt. 34 at ¶ 1). The plea agreement contemplated that Defendant would be a Career Offender under the Sentencing Guidelines based upon two prior drug convictions (id. at ¶ 8), and that the Guidelines would recommend a 262 to 327 month prison sentence (id. at ¶ 11). The Presentence Investigation Report dated April 6, 2020 ("PSR"), reached the same conclusion. (Dkt. 38 at ¶ 78). Defendant's sentencing is currently scheduled for September 17, 2020. (Dkt. 39).
On June 1, 2020, Defendant filed a motion to be released from custody pending sentencing. (Dkt. 42). The basis for Defendant's motion is the COVID-19 pandemic, and the possibility that he may have had his spleen removed in 2004 when he underwent surgery for a gunshot wound. (Dkt. 42-1 at ¶ 16). Defendant seeks release under 18 U.S.C. §§ 3143(a)(2) and 3145(c), and he also argues he should be released pursuant to 18 U.S.C. § 3142(i). (Id. at ¶¶ 24-26). The Government filed a response in opposition on June 15, 2020. (Dkt. 47). In addition, the United States Probation Office ("USPO") submitted a memorandum dated June 8, 2020, wherein it expressed its opposition to Defendant's release. (Dkt. 48).
ANALYSIS
Defendant's custody is governed by the Bail Reform Act, which provides that a court must detain a defendant who has been convicted of an "offense for which the maximum sentence is life imprisonment," 18 U.S.C. § 3142(f)(1)(B), or an "offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ( 21 U.S.C. 801 et seq. )," id. § 3142(f)(1)(C), unless (1) there is "a substantial likelihood that a motion for acquittal or new trial will be granted," id. § 3143(a)(2)(A)(i), or "an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person," id. § 3143(a)(2)(A)(ii), or "it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate," id. § 3145(c), and (2) there is "clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community," id. § 3143(a)(2)(B). Once convicted, a defendant bears the burden of proof to establish his entitlement to bail. United States v. Harris , 192 F. Supp. 3d 337, 346-47 (W.D.N.Y. 2016).
Here, Defendant does not argue that a motion for acquittal or new trial will be granted, nor does he contend that the Government will recommend no prison sentence. Thus, to obtain release Defendant must clearly show that there are exceptional reasons why his detention would not be appropriate, and he must further establish by clear and convincing evidence that he is not likely to flee or pose a danger to any other person or the community. Exceptional circumstances are determined on a case-by-case basis and involve the exercise of a judge's discretion in evaluating whether a defendant establishes a "unique combination of circumstances giving rise to situations that are out of the ordinary." United States v. DiSomma , 951 F.2d 494, 497 (2d Cir. 1991).
No question, the COVID-19 pandemic presents an extraordinary circumstance. However, it is a circumstance that exists both in and out of a jail setting, and indeed throughout the world. Thus, to establish exceptional circumstances based upon the COVID-19 pandemic, Defendant must show that there is something unique about his being incarcerated during this pandemic that gives rise to a situation out of the ordinary that would justify his release. Defendant has failed to meet this burden. He speculatively claims that he may have had his spleen removed in 2004 during surgery for a gunshot wound, and thus he may be immunocompromised. However, Defendant offers no corroboration for these claims—which serve as the crux of his pending motion. Defendant offers no medical records nor any third party's confirmation of the alleged spleen removal. In fact, the PSR states that Defendant "revealed that he is currently in good physical health" (Dkt. 38 at ¶ 97), and while there is reference to the 2004 surgery, there is no reference to Defendant's spleen being removed—only that his liver was lacerated (id. at ¶ 98).
In addition, Defendant has not shown that the conditions at the jail where he is housed are inadequate to stop the spread of this virus or that the jail is not taking appropriate steps in that regard. In fact, the Government proffers that the jail has had no confirmed cases of COVID-19 among its inmate population. (Dkt. 47 at 4). As this Court has acknowledged in other cases, it does not disagree that jail settings present unique challenges to combat the spread of this virus. See, e.g. , United States v. Schafer , No. 6:18-CR-06152 EAW, 2020 WL 2519726, at *4-5 (W.D.N.Y. May 18, 2020). However, being incarcerated and the general challenges that a jail faces in stopping the spread of COVID-19 does not, in and of itself, constitute exceptional circumstances justifying a defendant's release from custody. Defendant complains of the care he has received with respect to an infected tooth (Dkt. 42-1 at ¶¶ 20, 32), and then speculatively alleges that this means he would receive higher quality health care if released from prison (id. at ¶ 32). The Court is not convinced, particularly given that Defendant also admits that he does not have a primary care physician or any medical insurance. (Id. at ¶ 19).
More importantly though, even if Defendant could establish exceptional circumstances, Defendant's motion must be denied because he has failed to establish by clear and convincing evidence that he is not a danger to the safety of any other person or the community. Defendant has admitted that he possessed cocaine, heroin and fentanyl, and a quantity of a mixture containing butyryl fentanyl, with the intent to distribute these narcotics. (Dkt. 34 at ¶ 6(b) & (c)). Defendant—who was plainly prohibited from possessing a firearm based on his prior criminal convictions—possessed a semi-automatic pistol with a defaced serial number in furtherance of his drug trafficking activities. (Id. at ¶ 6(a) & (c)). When Defendant was approached by law enforcement on March 8, 2019, he was in an argument with a female and had his arms wrapped around her body—he then fled and was pursued on foot by law enforcement, whereupon he was apprehended. (Id. at ¶ 6(a)). About a month later, Defendant was arrested again, and found to be in possession of butyryl fentanyl, cocaine base, and a digital scale. (Id. at ¶ 6(d) & (e)). This conduct—all admitted to by Defendant as part of his plea—represents dangerous and harmful activity.
Moreover, Defendant's criminal history is horrible. Defendant's criminal history is perhaps best summed up in the USPO memorandum submitted in opposition to the pending motion:
Over [t]he last 22 years, Mr. Wiggins has accrued at least 20 arrests. His arrests include allegations/convictions for narcotics distribution, torturing animals, possessing stolen property, criminal contempt, burglary, tampering with evidence, and possession of firearms. He has been rearrested while on bail or some form of supervision on six occasions. It should be noted that both of Mr. Wiggins[’] federal arrests occurred while he was subject to release in local matters. Further, the instant offense is alleged to have occurred while the defendant had two pending local matters.
The defendant has managed to procure eight violations and revocations of supervision. The defendant's violations stem from the aforementioned rearrests, continued drug use (some of which occurred while subject to substance abuse treatment) and failing to comply with substance abuse treatment. The defendant's motion states that he could reside with his mother and grandmother, if he were released. The Court should be aware that Mr. Wiggins resided with his mother and grandmother at the time of his last nine arrests. It can be concluded that residing with his family has not been a deterrent for his criminal activity in the past.
(Dkt. 48 at 1-2). As he must, even Defendant concedes that he "is a career offender under the sentencing guidelines and has a long criminal history that is replete with convictions for drug-related activities, abuse of illegal substances, and poor adjustment to probation supervision." (Dkt. 42-1 at ¶ 31). However, he argues that there is no evidence that he actually "used" the firearm against another person or during a drug sale, and he cites to his lifelong residency in the area and family ties, his commitment to remaining sober, and his incentive to not jeopardize the benefits of his plea agreement. (Id. at ¶¶ 31-33). The Court has considered these arguments as well as all the factors set forth at 18 U.S.C. § 3142(g). However, based primarily on the offense conduct and Defendant's criminal history, it is apparent that Defendant cannot establish by clear and convincing evidence that he would not pose a danger if released. Defendant was detained by Magistrate Judge Schroeder because of his risk of danger while under a presumption of innocence. (Dkt. 27). Now that he has admitted that he engaged in the charged criminal conduct, detention is even more warranted.
Finally, the Court rejects Defendant's reliance on 18 U.S.C. § 3142(i) to support his request for release. This provision falls within the section of the Bail Reform Act dealing with detention prior to trial, not after conviction and prior to sentencing. The Court acknowledges that courts appear divided on the applicability of § 3142(i) in the post-conviction context. Compare United States v. Morris , 452 F. Supp. 3d 484, 485–88 (N.D. Tex. Apr. 6, 2020) (discussing split among courts as to whether 3142(i) applies post-plea, and concluding that it does not), and United States v. Hartsell , 448 F. Supp. 3d 975, 976–78 (N.D. Ind. Mar. 25, 2020) ("3142(i) applies to pretrial detainees, but not those who have pleaded guilty and merely await sentencing."), with United States v. Kennedy , 449 F. Supp. 3d 713, 716–18 (E.D. Mich. Mar. 27, 2020) (concluding that 3142(i) applies to the defendant who had pled guilty and was awaiting sentencing rather than trial), reconsideration denied , 2020 WL 1547878 (E.D. Mich. Apr. 1, 2020). However, as this Court has previously held, it finds more persuasive the reasoning of those courts that have found § 3142(i) is not applicable post-plea. See United States v. Williams , 467 F. Supp. 3d 106, 109–10, No. 1:18-CR-00123 EAW (W.D.N.Y. June 16, 2020) ; United States v. Greene , 453 F. Supp. 3d 608, 610–11, No. 6:19-CR-06147 EAW, (W.D.N.Y. Apr. 9, 2020) ; see also United States v. Paulino , 19 Cr. 54 (PGG), 2020 WL 1847914, at *5 n.3 (S.D.N.Y. Apr. 13, 2020) ("Because Paulino has pled guilty, his reliance on Section 3142(i) is misplaced." (citations omitted)); United States v. McDuffie , 451 F. Supp. 3d 281, 283 (S.D.N.Y. Apr. 3, 2020) ("Although defense counsel brings this motion pursuant to 18 U.S.C. § 3142(i), which allows for temporary pre-trial release for a ‘compelling reason,’ the motion is governed by 18 U.S.C. § 3145(c), which applies when a defendant is awaiting sentencing."). Nonetheless, and in any event, for all of the reasons that Defendant's release is not appropriate under §§ 3143(a)(2) and 3145(c), the Court similarly concludes that Defendant's release is not warranted "for another compelling reason."
CONCLUSION
For the foregoing reasons, Defendant's motion to be released pending sentencing (Dkt. 42) is denied. Defendant makes certain unsupported claims in his motion that the conditions within the Bureau of Prisons are better than the local jail facility where he is housed. The Court is ready to sentence Defendant at his convenience. Therefore, in the event that Defendant would like an earlier sentencing date than September 17, 2020, his counsel should contact the undersigned's chambers so that an earlier date may be scheduled.
SO ORDERED.