Opinion
15 CR 204 (RJD)
2023-08-18
UNITED STATES of America, v. Angelo GIGLIOTTI, Defendant.
Andres Palacio, DOJ-USAO, Brooklyn, NY, Joy Margaret Lurinsky, Margaret Gandy, Nicole M. Argentieri, Government Attorney, Brendan G. King, United States Attorney's Office, Brooklyn, NY, Nicole M. Argentieri, Government Attorney, U.S. Department of Justice, Washington, DC, James M. Miskiewicz, United States Attorneys Office, Central Islip, NY, for United States of America.
Andres Palacio, DOJ-USAO, Brooklyn, NY, Joy Margaret Lurinsky, Margaret Gandy, Nicole M. Argentieri, Government Attorney, Brendan G. King, United States Attorney's Office, Brooklyn, NY, Nicole M. Argentieri, Government Attorney, U.S. Department of Justice, Washington, DC, James M. Miskiewicz, United States Attorneys Office, Central Islip, NY, for United States of America.
MEMORANDUM & ORDER
DEARIE, District Judge.
Angelo Gigliotti moves under 18 U.S.C. § 3582(c)(1)(A)(i) for compassionate release or a reduction in the 20-year statutorily mandated sentence I imposed upon him in June 2107. For the reasons discussed below, I grant Mr. Gigliotti's motion and reduce his sentence to a term of ten years.
BACKGROUND
Following a jury trial in 2016, Mr. Gigliotti was convicted of conspiracy to import cocaine, two counts of importing cocaine, conspiracy to possess cocaine with intent to distribute and attempted possession of cocaine. The conviction arose out of his involvement, with other family members, in a scheme to import the controlled substance from Costa Rica and distribute it in the United States. The drug was typically hidden in packages containing food for the restaurant the family operated; Mr. Gigliotti's role included communicating with the Costa Rican supplier and arranging for payment.
Based on trial evidence that included a ledger of cocaine-related payments, the Department of Probation estimated that Mr. Gigliotti was responsible for 120 kilograms of cocaine, see Presentence Report ("PSR") at ¶24, a figure I adopted at sentencing. Transcript of Sentencing, June 22, 2017 ("ST"), ECF No. 273, at 12. I also agreed generally with Probation's calculation of a guidelines offense level of 36, see PSR at ¶35, ST at 13, but as an essentially academic exercise I assigned Mr. Gigliotti a criminal history category of II, rather than the III proposed by Probation. ST at 13. The dispositive fact in Mr. Gigliotti's criminal history, which triggered the mandatory minimum sentence of 20 years, was his 2006 SDNY conviction for a marijuana distribution conspiracy. See 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II). In that case, agents recovered more than 100 kilograms of marijuana and Mr. Gigliotti received (and served) a five-year sentence.
At Mr. Gigliotti's sentencing in this case, I remarked three times that in my judgment, the statutorily required 20-year term was excessive. See ST at 20, 21, 23 (stating that the mandatory 20 years was "excessive," "greater than necessary" and "more than necessary" to achieve the legitimate sentencing objectives). Despite having no meaningful discretion because of the statutory minimum, I was deeply affected by the account of Mr. Gigliotti's difficult childhood, marked, to paraphrase counsel, by the toxic combination of mental disease, addiction, and physical abuse. ST at 22. I was also impressed that I had released Mr. Gigliotti on bail and he did not disappoint me, and by several other indica of a basic decency. ST at 23. Finally, although Mr. Gigliotti's role in the criminal conspiracy was not insignificant, the evidence showed him to be a part-time participant while also running his own successful construction company.
Only 18 months after I sentenced Mr. Gigliotti, in December 2018, Congress passed the First Step Act. Relevant here, as the government does not dispute, see Gov. Opp. June 14, 2022 (ECF 341) at 2, Section 401 of the First Step Act lowered the mandatory minimum applicable to a defendant in Mr. Gigliotti's position (convicted of possessing more than five kilograms of cocaine while having one prior drug conviction) from 20 to 15 years. See First Step Act, 132 Stat 5194, § 401 (codified at 21 U.S.C. 841(b)(1)(A)). The change, however, was not retroactive. Id. at § 401(c); United States v. Bryant, 991 F.3d 452, 456 (2d Cir. 2021) (explaining that Section 401 of the First Step Act only applies to defendants that had not yet been sentenced at the time the Act was passed).
Mr. Gigliotti, who is now 43 years of age, has been in custody for just over seven years, since his remand following the guilty verdict on July 22, 2016. In a June 2023 memorandum to me, Probation reports that while incarcerated, Mr. Gigliotti has completed a drug education program and a wide range of coursework (including a labor material apprenticeship, ACT Workkeys, law library and tutoring training, anger management, small business management, real estate and mortgages, ceramics, and picture framing). Probation further reports that Mr. Gigliotti has not committed any disciplinary infractions during his time in prison. Finally, he has a "low" security classification and is assessed as a "minimum risk recidivism level."
LEGAL STANDARD
Title 18, U.S.C. § 3582(c)(1)(A) (i) authorizes a district court to "reduce a term of imprisonment . . . if it finds that extraordinary and compelling reasons warrant such a reduction." The fullest breadth of my sentencing discretion is available when I entertain a motion under this section. See United States v. Jones, 17 F.4th 371, 374 n.3 (2d Cir. 2021) (courts are "free to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them") (cleaned up) (quoting United States v. Brooker, 976 F.3d 228, 235-37 (2d Cir. 2020)); id. at 237-38 ("the only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation alone" is insufficient); United States v. Brian Chan, 90 CR 1019 (RJD), Mem. & Order, 645 F.Supp.3d 71, 81 (E.D.N.Y. Jan. 6, 2022) (describing Brooker's "full slate" standard as a "clarion call to rethink sentence reduction").
If I find that extraordinary and compelling reasons are present, I must also satisfy myself that a sentence reduction is consistent with the factors set forth in 18 U.S.C. § 3553(a), to the extent they apply. See § 3582(c)(1)(A); Jones, 17 F.4th at 374 (explaining that "extraordinary and compelling reasons are necessary—but not sufficient—for a defendant to obtain relief under § 3582(c)(1)(A)" because the "district court must also consider the factors set forth in § 3553(a) before granting relief").
Section 3582 also requires movants to exhaust administrative remedies before seeking relief in the district court. Mr. Gigliotti filed a request for sentencing reduction asserting the same grounds advanced here with the warden of his BOP facility on April 14, 2022, which the warden denied on April 29, 2022. See ECF No. 340 at 12, 13. Accordingly, the exhaustion requirement is satisfied.
DISCUSSION
The driving force of Mr. Gigliotti's motion is the Congressional decision, albeit not retroactive, to lower the recidivist mandatory minimum sentence applicable to a defendant in his shoes today. The government clings to its usual position that non-retroactive changes in sentencing law are categorically ineligible for consideration for compassionate release purposes. As I have previously discussed, however, the Congressional decision not to make a sentencing change retroactive, while sparing courts the avalanche of applications and re-sentencings, does not act as a per se bar to considering the effect of that change, in an individual defendant's case, as part of the "extraordinary and compelling" equation for § 3582(c)(1)(A)(i) purposes. See United States v. Kevin Haynes, 456 F.Supp.3d 496, 516 (E.D.N.Y. 2020) (collecting authorities so holding). Indeed, although the Second Circuit has not squarely held, as have some other Circuits, that a non-retroactive change in the law may be considered for compassionate release purposes, I read the Second Circuit's "full slate" standard (announced in Brooker only several months after I issued Haynes) as encompassing such legislative events. See also Concepcion v. United States 597 U.S. 481, 142 S. Ct. 2389, 2403, 2402, 213 L.Ed.2d 731 (2022) ("the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act," recognizing that subsequently updated laws are "evidence of society's judgment of the seriousness of an offense") (cleaned up).
See, e.g., United States v. McGee, 992 F.3d 1035, 1047 (10th Cir. 2021) (although "Congress chose not to afford relief to all defendants" by making the First Step Act retroactive, there is no "indication that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants") (cleaned up); United States v. Ruvalcaba, 26 F.4th 14, 24 (1st Cir. 2022) (district courts may consider non-retroactive amendments to mandatory minimum sentencing laws in "extraordinary and compelling" equation). At least two other circuits, however, have held to the contrary. See, e.g., United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021) (reasoning that treating a non-retroactive amendment as compelling or extraordinary would undermine Congressional intent) United States v. Crandall, 25 F.4th 582, 585 (8th Cir. 2022) (same).
Mindful that Concepcion involved motions under Section 404 rather than the First Step Act generally, I find that the principles it announces about resentencing plainly echo those emphasized by the Second Circuit in Brooker when discussing a district court's sentencing discretion under the compassionate release statute.
The government further argues that even if I may consider the statutory change, Mr. Gigliotti has failed to present any additional individualized circumstances that would tip the "extraordinary and compelling" equation in his favor. His motion, according to the government, is therefore indistinguishable from a request for relief made by any other defendant affected by this same non-retroactive change in sentencing law. After careful consideration I find that sufficient additional circumstances unique to Mr. Gigliotti do exist and that, in combination with the lowering of the applicable statutory minimum, do meet the section 3582(c)(1)(A)(i) threshold.
Principally, the change in law at issue here involves a sentence that I believed to be excessive when imposed. I could not then, and do not now, find that the § 3553 factors required a sentence of the length the statute required me to impose; the subsequent amending of that statute is, therefore, an extraordinary and compelling circumstance with respect to Mr. Gigliotti because, through section 3582(c)(1)(A)(i), it frees me to impose upon Mr. Gigliotti the sentence I believed was appropriate initially. Certainly my instincts about the man have been validated by his unblemished disciplinary record and solid record of rehabilitative study. Weighing these facts along with the seriousness of Mr. Gigliotti's crimes and the personal background and characteristics of Mr. Gigliotti presented to me in his initial sentencing submissions, I find that the sentencing objectives of Section 3553(a) are satisfied in this case by a sentence of ten years. Accordingly, the motion for sentence reduction (ECF No. 340) is granted, the sentence of 20 years is vacated, and a reduced term of ten years is imposed. An amended judgment shall issue. SO ORDERED.
To be clear, in granting relief I have not accepted the totality of the arguments on "extraordinary and compelling" presented in Mr. Gigliotti's motion. For example, he emphasizes that the prior conviction triggering the recidivist statute was an offense involving marijuana, and points to the trend toward decriminalization at the state level and the proposal to do the same at the federal level. See generally National Council of State Legislatures, Cannabis Overview, May 2022, https://www.ncsl.org (reporting that more than half the states have decriminalized recreational use of small quantities of marijuana); H.R. 3617 - 117th Congress (2021-2022): Marijuana Opportunity Reinvestment and Expungement Act | Congress.gov | Library of Congress (reporting that a bill to decriminalize marijuana passed the House of Representative in its 2020-2021 term but died in the Senate). Even accepting that society's views about recreational use of small quantities of marijuana have changed, however, Mr. Gigliotti's crime was a large-scale commercial operation from which agents seized more than 100 kilograms of the controlled substance. Mr. Gigliotti also argues, as have many on my compassionate release docket, that his conditions of his confinement, a Covid diagnosis, and his spouse's poor health should enter the discussion but I have repeatedly declined to find such circumstances truly extraordinary and compelling and again do so here.