Opinion
1:17-CR-00095 EAW
2021-03-10
UNITED STATES of America, v. Armando Ernesto ABARCA, Defendant.
Michael Jason Adler, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Michael Jason Adler, U.S. Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Defendant Armando Ernesto Abarca (hereinafter "Defendant") has filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 178). For the reasons set forth below, the motion is denied.
To the extent Defendant relies on the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act"), Pub. L. 116-136, § 12003, 134 Stat. 281 (2020), and asks that the Court release him to home confinement, this Court does not have the authority to grant Defendant's request for relief under the CARES Act. See , e.g. , United States v. Moore-Brown , No. 3:17-CR-129, 2020 WL 2306855, at *1, *5 (M.D. Pa. May 8, 2020) ("The determination of which inmates qualify for home confinement under the CARES Act is with the [Bureau of Prisons] Director."); see also United States v. Sawicz , 453 F. Supp. 3d 601, 602-04 (E.D.N.Y. 2020) (explaining that the CARES Act expanded the maximum amount of time that the Bureau of Prisons Director may designate for a prisoner to spend in home confinement so long as the Attorney General makes certain findings concerning emergency conditions, which Attorney General Barr made in a memorandum dated April 3, 2020).
I. BACKGROUND
Defendant pleaded guilty pursuant to the terms and conditions of a plea agreement on August 23, 2018, of conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846. (Dkt. 51; Dkt. 52). On December 12, 2018, the undersigned sentenced Defendant to 168 months in prison. (Dkt. 65; Dkt. 66). This sentence was at the low end of the calculated Guidelines range. (See Dkt. 67).
Defendant is currently housed at Federal Correctional Institution Victorville Medium I ("FCI Victorville") in Victorville, California, and his scheduled release date is June 8, 2029. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited March 8, 2021). According to the BOP's website tracking COVID-19 cases in its facilities, four inmates at FCI Victorville are currently testing positive for COVID-19. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited March 8, 2021).
Defendant asks that this Court reduce his sentence to time served because of the extraordinary and compelling circumstances that exist due to the COVID-19 pandemic. (Dkt. 178 at ¶ 2). Defendant states that he has already been infected with COVID-19, he felt "awful" while infected, and is concerned about becoming reinfected. (Id. at ¶ 23).
The government opposes Defendant's motion on several grounds. First, the government contends that Defendant failed to exhaust his administrative remedies, and therefore the request must be denied. (Dkt. 180 at 6-8). Second, the government argues that Defendant has failed to establish extraordinary and compelling circumstances. (Id. at 8-14). In making that argument, the government disputes Defendant's contention concerning the symptoms from which he suffered when previously infected with the virus causing COVID-19, instead contending that he was asymptomatic as reflected by his medical records. (Id. at 11). Finally, the government argues that the factors set forth at 18 U.S.C. § 3553(a) require denial of the motion. (Id. at 14-16).
Defendant has filed a reply arguing that this Court should accept his representation that he filed a request for compassionate release without requiring proof of the same. (Dkt. 182 at 2-3). This argument appears to contradict the representation Defendant made in his initial motion papers wherein he acknowledged that he had "yet to formally request compassionate release through the Bureau of Prisons...." (Dkt. 178 at ¶ 19). In his reply, Defendant further expounds upon his concerns about contracting COVID-19 again, particularly in view of the presence of variants of the virus. (Dkt. 182 at 1-4).
Also submitted in connection with Defendant's motion is a memorandum from the United States Probation Office ("USPO") dated February 18, 2021. (Dkt. 183). The USPO notes, among other things, that Defendant reported being in good health during the presentence investigation, that the facility where he is housed has one of the highest COVID-19 vaccination rates among Bureau of Prisons facilities, and that Defendant's prior criminal history includes a felony drug offense and a felon in possession of a weapon conviction while on probation (namely, felon in possession of tear gas, a misdemeanor state court conviction). (Id. ).
II. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the [BOP] ..., or 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 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 section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term. "The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney , No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd , 833 F. App'x 850 (2d Cir. 2020).
Although the statute references the Sentencing Commission's policy statements, the Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020).
Defendant has failed to establish that he complied with the exhaustion requirements of the statute. Indeed, in his initial motion papers, Defendant admitted that he had not filed a formal request with the Bureau of Prisons. This Court has concluded that § 3582(c)(1)(A) ’s exhaustion requirement is a claim-processing rule, not a jurisdictional prerequisite, but its exhaustion requirements are nonetheless mandatory and may not be excused by the Court except under limited circumstances. See United States v. McIndoo , ––– F. Supp. 3d ––––, ––––, 2020 WL 2201970, at *5-9 (W.D.N.Y. May 6, 2020) ; United States v. Wen , 454 F. Supp. 3d 187, 192-96 (W.D.N.Y. 2020). Accordingly, Defendant's motion must be dismissed without prejudice for failure to exhaust.
However, the Court further notes that even if the Court were to reach the merits of the application, Defendant has wholly failed to establish extraordinary and compelling circumstances or that the § 3553(a) factors warrant compassionate release. Defendant cites to his fear of COVID-19 in the context of a prison setting, but this fear alone does not establish extraordinary and compelling circumstances. For instance, Defendant has presented no evidence that he is at a heightened risk of serious illness from COVID-19, and indeed, it appears based on the government's representation as to the content of Defendant's medical records, that Defendant was asymptomatic when previously infected with the virus. Moreover, Defendant was involved in a massive drug trafficking operation involving kilograms upon kilograms of cocaine. Considered in the context of Defendant's prior criminal history and the unsatisfied length of the originally imposed prison term, it is evident that granting compassionate release is not consistent with the § 3553(a) factors and it would seriously undermine the fairness and purpose of the original sentence.
III. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) is denied for failure to exhaust, but the Court further finds that even if it were to reach the merits, the motion would be denied for the reasons articulated above.
SO ORDERED.