Opinion
16-CR-358 (VEC)
11-29-2020
UNITED STATES OF AMERICA, v. JOSE MARRERO, Defendant.
MEMORANDUM OPINION AND ORDER
:
Defendant Jose Marrero moves for compassionate release based on preexisting medical conditions that elevate his risk of serious and potentially fatal complications should he contract COVID-19. While the Government concedes that Mr. Marrero's medical conditions constitute an extraordinary and compelling reason justifying his release, it nevertheless contends that his motion should be denied because a sentence reduction would not be consistent with the factors set forth in 18 U.S.C. § 3553(a). Although a close call, considering Mr. Marrero's apparent rehabilitation during his period of incarceration, the Court finds that a reduction of his sentence is warranted. Accordingly, Mr. Marrero's motion for compassionate release is GRANTED.
BACKGROUND
Mr. Marrero was arrested on January 26, 2016, after a search of his home revealed a loaded .25 caliber Lorcin firearm, three bags of marijuana, and multiple bags containing cocaine. Presentence Report ("PSR") ¶¶ 9-14. He was subsequently charged in a three-count indictment. Id. ¶ 1. Counts Two and Three of the Indictment charged that Mr. Marrero distributed and possessed with intent to distribute a detectable amount of cocaine and that he used and carried a firearm in connection with the narcotics offense, in violation of 21 U.S.C. § 841(b)(1)(C) and 18 U.S.C. § 924(c)(1)(A)(i), respectively; Count One charged Mr. Marrero with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Id. ¶¶ 2-4.
Mr. Marrero ultimately pled guilty to Count Two, possession with intent to distribute, in full satisfaction of the charges in the indictment. Id. ¶ 6; see also Judgment at 1, Dkt. 26. Based on a lengthy criminal history involving multiple drug offenses and a firearms offense, the Probation Department determined Mr. Marrero to be a career offender under the Guidelines and calculated his total offense level at 29 and his criminal history category at VI, resulting in a Guidelines range of 151 to 188 months. Id. ¶ 92; see also id. ¶¶ 32-58 (detailing Mr. Marrero's criminal history). The Government ultimately recommended a sentence of 151 months imprisonment followed by a three-year term of supervised release. Id. at 19.
On February 7, 2017, this Court sentenced Mr. Marrero to 90 months' imprisonment and a three-year term of supervised release. See Judgment at 2-3. In departing downward from the Guidelines range, the Court credited Mr. Marrero's cooperation with the Bronx District Attorney's Office in helping to exculpate a man wrongly convicted of murder. See Sentencing Hearing Tr. at 5, 7, 10, Dkt. 27. The Court also noted that Mr. Marrero's designation as a career offender under the Guidelines shifted his recommended sentence from approximately two to three years to 12.5 to 15.5 years, which the Court viewed as excessive even absent Mr. Marrero's cooperation. See id. at 10.
In May 2020, Mr. Marrero attempted to contact his former attorney, requesting that counsel file a motion for compassionate release on Mr. Marrero's behalf. See Dkt. 29. It is unclear when exactly Mr. Marrero submitted a request to the Bureau of Prisons ("BOP") for compassionate release, but by letter dated May 21, 2020, the Warden of FCI Danbury denied the request because Mr. Marrero failed to produce evidence of a terminal illness. See Dkt. 36. BOP also rejected his request for home confinement under the CARES Act. See id. Having exhausted his administrative remedies, by letter received July 16, 2020, Mr. Marrero requested that the Court appoint counsel to file on his behalf a motion for compassionate release or home confinement due to his medical issues. See Dkt. 30. The Court construed Mr. Marrero's letter as a motion requesting compassionate release and held in abeyance his request for counsel, ordering the Government to respond. See Dkt. 31.
In opposing Mr. Marrero's motion, the Government concedes that his medical issues establish an extraordinary and compelling reason justifying a sentence reduction but nevertheless argue that such a reduction would be inconsistent with the section 3553(a) factors, namely the seriousness of the offense and the need to protect the public from Mr. Marrero's future criminal conduct. See Gov't Resp. at 2, Dkt. 32. After the Government responded, counsel filed a supplemental submission in support of Mr. Marrero's motion. See Dkt. 34; Dkt. 37.
DISCUSSION
I. Compassionate Release Standard
Pursuant to 18 U.S.C. § 3582(c)(1)(A), a court is authorized to modify a previously imposed term of imprisonment in only very limited circumstances. From its original enactment in 1984 until 2018, this provision provided BOP with "exclusive power over all avenues of compassionate release." United States v. Brooker, 976 F.3d 228, 231 (2d Cir. 2020). As amended by the First Step Act of 2018 ("FSA"), however, § 3582(c)(1)(A) now permits a defendant to bring a motion for compassionate release on his own behalf, after he "has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons 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." 18 U.S.C. § 3582(c)(1)(A); United States v. Fisher, No. 83-CR-150, 2020 WL 5992340, at *3 (S.D.N.Y. Oct. 9, 2020).
Today, assuming a defendant has satisfied the exhaustion requirement, the court "may reduce the 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." 18 U.S.C. § 3582(c)(1)(A). While § 3582(c)(1)(A) also requires that any sentence reduction be "consistent with applicable policy statements issued by the Sentencing Commission," the Second Circuit recently held that the FSA rendered U.S. Sentencing Guidelines Manual § 1B1.13 Application Note 1(D) inapplicable to compassionate release motions brought directly by a defendant. See Brooker, 976 F.3d at 230; see also id. at 238 n.5 (finding that a court considering a motion for compassionate release brought by a defendant need not consider BOP's guidance concerning what constitutes an extraordinary and compelling reason). "The amendment of the compassionate release statute by the FSA 'freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them' when seeking a sentence reduction." Fisher, 2020 WL 5992340, at *3 (quoting Brooker, 976 F.3d at 237).
II. Extraordinary and Compelling Reasons
Mr. Marrero contends that his chronic health conditions "place him at an increased risk of severe health consequences if he were to contract COVID-19," thereby demonstrating an extraordinary and compelling circumstance warranting his release. Def. Mem. at 2, Dkt. 37. The Government does not dispute the severity of Mr. Marrero's medical conditions and concedes that, "by virtue of his physical condition," Mr. Marrero has demonstrated an extraordinary and compelling reason justifying early release. See Gov't Resp. at 1. After reviewing his medical records, the Court agrees.
Mr. Marrero suffers from type 2 diabetes, hyperlipidemia, and hypertension. See Medical Records. According to his medical records, he has also been diagnosed as obese; his weight and height from January 2020 more accurately portray him as overweight, based on his BMI. See id. (listing weight as 190 pounds and height as 68 inches); BMI Calculator, NIH, https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm (last visited Nov. 25, 2020) (calculating BMI as 28.9, considered "overweight"). All of these medical conditions elevate Mr. Marrero's risk of severe illness or death were he to contract COVID-19. See People with Certain Medical Conditions, Ctrs. for Disease Control and Prevention (Nov. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (listing type 2 diabetes and obesity as conditions placing adult at "increased risk of severe illness" from COVID-19 and listing "hypertension" and "overweight" as conditions that might place adult at increased risk for severe illness from COVID-19); see also Jessica Ferguson et al., Characteristics and Outcomes of Coronavirus Disease Patients Under Nonsurge Conditions, Northern California, USA, March-April 2020, 26 Emerging Infectious Diseases 1679, 1680 (2020) (finding the most common concurrent conditions for hospital-admitted COVID-19 patients in study were "hypertension (36.1%), hyperlipidemia (34.7%), and diabetes (27.8%)").
Courts in this circuit have routinely found that conditions such as those afflicting Mr. Marrero are sufficient to establish extraordinary and compelling reasons justifying a sentence reduction during the ongoing COVID-19 pandemic. See, e.g., United States v. Franco, No. 12-CR-932, 2020 WL 4344834, at *3 (S.D.N.Y. June 24, 2020) (agreeing with other courts in finding that 41-year-old defendant with hypertension, obesity, and diabetes demonstrated extraordinary and compelling reasons justifying release during COVID-19 pandemic); United States v. Rountree, 460 F. Supp. 3d 224, 235 (S.D.N.Y. 2020) (concluding that defendant's diabetes and hypertension considered in context of COVID-19 pandemic established extraordinary and compelling circumstance); United States v. Daugerdas, No. 09-CR-581, 2020 WL 2097653, at *3 (S.D.N.Y. May 1, 2020) (determining that defendant's type 2 diabetes, obesity, hypertension, and high cholesterol collectively established extraordinary and compelling justification for early release); United States v. Zukerman, 451 F. Supp. 3d 329, 334-35 (S.D.N.Y. 2020) (granting compassionate release for older defendant with hypertension, obesity, and diabetes). In keeping with this Court's prior decisions and other courts that have considered the issue, the Court finds that Mr. Marrero's health concerns are an extraordinary and compelling reason justifying compassionate release.
III. Section 3553(a) Factors
Notwithstanding the presence of extraordinary and compelling circumstances warranting early release, the Court still must consider whether a sentence reduction is appropriate in light of the section 3553(a) factors. See 18 U.S.C. § 3582(c)(1)(A). Mr. Marrero argues that the COVID-19 pandemic and his rehabilitation while incarcerated have "altered th[e] balance" since the Court last considered these factors in imposing its original sentence in February 2017. Def. Mem. at 2. The Government, for its part, contends that a sentence reduction would not be consistent with the seriousness of Mr. Marrero's criminal conduct, especially because Mr. Marrero received an initial sentence significantly below the Guidelines range. See Gov't Resp. at 2. Further, the Government asserts that Mr. Marrero's lengthy criminal history, with multiple narcotics charges and gun-related offenses, indicates that he would still be a danger to the public upon his release. See id. After evaluating the section 3553(a) factors, the Court finds that reducing Mr. Marrero's sentence is consistent with the goals of sentencing and does not second-guess or relitigate this Court's original judgment. See United States v. Ebbers, 432 F. Supp. 3d 421, 429 (S.D.N.Y. 2020) (explaining that compassionate release is "not an opportunity to second guess or to reconsider whether the original sentence was just").
Accounting for good-time credits to his original 90-month sentence, Mr. Marrero is scheduled to be released on November 15, 2022. Gov't Resp. at 2. Having been incarcerated since his arrest on January 26, 2016, granting Mr. Marrero compassionate release as of the date of this Order would result in a sentence of approximately 58 months, significantly below the Guidelines range of 151 to 188 months. The Government argues that a sentence reduction to that extent would undermine the need to reflect the seriousness of Mr. Marrero's offense conduct. See id.
The Court does not discount the seriousness of Mr. Marrero's criminal conduct. Drug dealing is far from a victimless crime, even when not directly accompanied by violence; the impact of drugs on users and the community at large cannot be understated. Further, while Mr. Marrero pled guilty only to possession of cocaine with intent to distribute, he also admitted to illegally possessing a firearm in furtherance of his drug-dealing activities, and he was apprehended in this case because he sold a firearm to another drug dealer. See PSR ¶¶ 10, 12, 14.
Nevertheless, the Court reiterates its belief, as stated at Mr. Marrero's sentencing hearing, that the Guidelines sentence, driven by Mr. Marrero's classification as a career offender, was "excessive" as applied to his conduct, which could be described as "garden variety drug deal[ing]." Sentencing Hearing Tr. at 9-10. Crediting Mr. Marrero's assistance to the Bronx District Attorney's Office in exculpating a man wrongfully convicted of murder, which had been only partially credited in the favorable plea agreement offered by the Government, the Court decided to "split the difference between the bottom of the career offender guideline and the top of the guideline that would have otherwise applied but for" his status as a career offender. Id. at 10.
It is with this background in mind that the Court believes that a 58-month sentence for Mr. Marrero's drug-dealing activity does not discredit the seriousness of his offense. A sentence of this length is still approximately double the length of the sentence Mr. Marrero would have received absent his career-offender classification. See id. at 10 (noting sentence absent career-offender determination would have been two to three years). Furthermore, the Court could not have anticipated the change in conditions of confinement facing Mr. Marrero today due to the ongoing COVID-19 pandemic. The heightened restrictions placed on inmates to limit the spread of COVID-19, such as lockdowns and limited visiting privileges, as well as the significantly heightened risk to Mr. Marrero's life while incarcerated render his sentence more severe than intended when the Court first sentenced him. See, e.g., United States v. Pacheco, No. 12-CR-408, 2020 WL 4350257, at *2 (S.D.N.Y. July 29, 2020) ("[T]he conditions of [defendant's] confinement — which have included any number of serious restrictions designed to stem the spread of the virus — have been far harsher than the Court had reason to believe they would be when imposing [its original] sentence.").
The Court also believes that a sentence reduction would not undermine the goal of deterrence, and relatedly, the Court does not believe that Mr. Marrero is likely to pose a danger to the community upon his release. As the Court stated at his sentencing, the length of Mr. Marrero's sentence had little connection to the goal of deterrence, for it was and remains incumbent on Mr. Marrero to overcome his drug addiction and, in the process, to stay away from criminal activity. See Sentencing Hearing Tr. at 9-10. Whether the Court sentenced Mr. Marrero to 20 days or 20 years, his recidivism risk was and is tied directly to his drug habit more than anything else. This is as true today as it was four years ago; reducing Mr. Marrero's sentence by two years, therefore, has minimal bearing on whether he will be deterred from committing further crimes. Thus, Mr. Marrero's completed drug treatment and his ability to remain drug-free during his period of incarceration is a much better determinant of his likelihood to recidivate than the length of his sentence.
In arguing that Mr. Marrero's lengthy criminal history involving drug and firearm offenses, among others, "militate[s] against his early release and indicate[s] that he is a danger to the community," the Government quotes the Court's statement at sentencing that "the need to protect the public is significant given Mr. Marrero's tendency to return to drugs and guns when he is released." Gov't Resp. at 2 (quoting Sentencing Hearing Tr. at 9-10). But the Court made that statement in the context of determining that Mr. Marrero's future hinged entirely on his ability to kick his drug habit, which, at the time of sentencing, seemed unlikely given his history. See Sentencing Hearing Tr. at 9-10. The Government had previously concluded similarly, with Probation determining that Mr. Marrero's "involvement in the instant offense and his career offender status are directly related to his long drug abuse history." PSR at 19.
Circumstances appear to have changed dramatically since Mr. Marrero's sentencing, however. Mr. Marrero has completed drug treatment programs and has managed to remain clean and sober while imprisoned. See Def. Mem. at 3; Medical Records; Educ. Records. He also has avoided any disciplinary incidents throughout his period of incarceration. See Disc. Records. After years of failing to do so, it appears that Mr. Marrero has finally managed to tackle his drug addiction and put himself in position to enjoy a clean, crime-free life upon release. It is in this posture, therefore, that the Court ascertains that Mr. Marrero likely does not pose a threat to the public by virtue of further criminal behavior. At 55 years old and drug-free for the first time in years, Mr. Marrero is much less likely to recidivate today than when originally sentenced. See, e.g., United States v. Rice, No. 83-CR-150-3, 2020 WL 4505813, at *4 (S.D.N.Y. Aug. 5, 2020) ("[G]iven Defendant's advanced age and serious health problems, he is significantly less likely to recidivate.").
The Court's conclusion on this matter is bolstered by Mr. Marrero's reentry plan upon release, which has already been approved by the Probation Department. Mr. Marrero plans to live with his adult son Michael, who is willing and able financially to support his father until Mr. Marrero can obtain full-time employment. See Def. Mem. at 3. Mr. Marrero also has other family, including another son, who live near to Michael and who plan to support Mr. Marrero as he sets out on a law-abiding path. See id. at 4. In addition to supporting Mr. Marrero financially, this support network will be critical to ensuring that Mr. Marrero remains drug-free. Finally, the Court is modifying the conditions of supervised release to mandate that the first six months of Mr. Marrero's supervised release be served in home confinement. The Court finds that the risk to Mr. Marrero's health posed by COVID-19 and the possibility of a revocation of supervised release adequately ensure his expected compliance with this modified condition and sufficiently mitigate any risk to the community that he might otherwise pose.
CONCLUSION
For the foregoing reasons, Mr. Marrero's motion for compassionate release is GRANTED. Mr. Marrero's term of incarceration is reduced to time served plus not more than 14 days during which the Court understands he will be quarantined and tested for COVID-19. Mr. Marrero's original three-year term of supervised release will begin upon his release from imprisonment. The conditions of supervised release are modified to add as a special condition home confinement for the first six (6) months following his release from prison. All other aspects of the sentence, including all other conditions of supervision, remain unchanged and in effect. The Government and FCI Danbury are directed to release Mr. Marrero immediately upon the conclusion of his 14-day quarantine period or at such earlier date as he shall test negative for COVID-19.
SO ORDERED.
Dated: November 29, 2020
New York, NY
/s/ _________
VALERIE CAPRONI
United States District Judge