Opinion
CRIMINAL 2:16-336-2
12-15-2021
UNITED STATES OF AMERICA, Plaintiff, v. CRISTAL MARIE MONGE-MELENDEZ, Defendant.
MEMORANDUM OPINION & ORDER
JOHN D. RAINEY, SENIOR U.S. DISTRICT JUDGE
Pending before the Court are Defendant Cristal Marie Monge-Melendez's letter motion for compassionate release (D.E. 83) and Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1) (D.E. 88), to which the United States of America (the “Government”) has responded (D.E. 91).
I. BACKGROUND
In 2016, Defendant pled guilty to conspiracy to possess with intent to deliver 47.52 kilograms of methamphetamine. She has served approximately 63 months (58%) of her 108-month sentence and has a projected release date, after good time credit, of May 8, 2023. She now moves the Court to reduce her sentence to time served and substitute a condition of home confinement because her obesity makes her particularly vulnerable to severe illness or death should she contract COVID-19 while in prison. The Government opposes Defendant's motion because she has failed to exhaust her administrative remedies as required.
II. LEGAL STANDARD
The statute, 18 U.S.C. § 3582(c)(1)(A), authorizes a court to reduce a defendant's sentence under limited circumstances:
(c) Modification of an Imposed Term of Imprisonment.-The court may not modify a term of imprisonment once it has been imposed except that-
(1) in any case-
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant 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, 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-
(i) 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)(i) (emphasis added).
“Neither the [U.S. Sentencing Commission's compassionate-release] policy statement nor the commentary to it binds a district court addressing a prisoner's own motion under § 3582.” United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021). Although “not dispositive, ” the commentary to U.S.S.G. § 1B1.13 nonetheless “informs [the Court's] analysis as to what reasons may be sufficiently ‘extraordinary and compelling' to merit compassionate release.” United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021) (citing United States v. Rivas, - Fed. App'x -, 2020 WL 6437288, at *2 (5th Cir. Nov. 2, 2020)).
(A) Medical Condition of the Defendant.-
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia. (ii) The defendant is-
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process,
that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
(B) Age of the Defendant. -
The defendant is (i) at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less;
(C) Family Circumstances. -
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons. -
As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary or compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
U.S.S.G. § 1B1.13(1)(A), Application Note 1.
Even if “extraordinary and compelling reasons” for early release exist, the Guidelines' policy statements provide for a reduction in sentence only if a defendant “is not a danger to the safety of any other person or the community, as provided in 18 U.S.C. §3142(g).” U.S.S.G. § 1B1.13(2). Factors relevant to this inquiry include: (1) the nature and circumstances of the offenses of conviction, including whether the offense is a crime of violence, or involves a minor victim, a controlled substance, or a firearm, explosive, or destructive device; (2) the weight of the evidence; (3) the defendant's history and characteristics; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. See 18 U.S.C. § 3142(g).
The Court must also consider whether a reduction is consistent with the applicable section 3553(a) factors. See 18 U.S.C. § 3582(c)(1)(A); U.S.S.G. § 1B1.13. The applicable statutory factors include, among others: the defendant's history and characteristics; the nature and circumstances of the offense; the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; the need to deter criminal conduct and protect the public from further crimes of the defendant; the need to provide the defendant with, among other things, any needed medical treatment; and the various kinds of sentences available. See 18 U.S.C. §§ 3553(a)(1)-(7).
With respect to motions for compassionate release based on COVID-19:
A review of a motion for release based on COVID-19 is highly fact-intensive and dependent on the specific conditions of confinement and medical circumstances faced by the defendant. Hence, a prisoner cannot satisfy his burden of proof by simply citing to nationwide COVID-19 statistics, asserting generalized statements on conditions of confinement within the BOP, or making sweeping allegations about a prison's ability or lack thereof to contain an outbreak. . . . [T]he rampant spread of the coronavirus and the conditions of confinement in jail, alone, are not sufficient grounds to justify a finding of extraordinary and compelling circumstances. Rather, those circumstances are applicable to all inmates who are currently imprisoned and hence are not unique to any one person.United States v. Koons, 2020 WL 1940570, at *4 & n.8 (W.D. La. Apr. 21, 2020) (citing United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020)).
To be sure, courts around the country, in some exceptional cases, have granted compassionate release where the defendant has demonstrated an increased risk of serious illness if he or she were to contract COVID. . . . But that is certainly not a unanimous approach to every high-risk inmate with preexisting conditions seeking compassionate release.
The courts that granted compassionate release on those bases largely have done so for defendants who had already served the lion's share of their sentences and presented multiple, severe, health concerns. . . . Fear of COVID doesn't automatically entitle a prisoner to release.Thompson, 984 F.3d at 434-35 (collecting cases) (footnotes and citations omitted).
“In general, the defendant has the burden to show circumstances meeting the test for compassionate release.” United States v. Stowe, 2019 WL 4673725, at *2 (S.D. Tex. Sept. 25, 2019).
III. ANALYSIS
A. Exhaustion Requirements
The Government opposes compassionate release because Defendant has failed to exhaust her administrative remedies within the BOP before petitioning the Court for a sentence reduction as required. Her motion states, “On October 23, 2020, Ms. Melendez submitted a request to the Warden of FCI Tallahassee for compassionate release in light of her underlying health condition and the ongoing COVID-19 pandemic.” D.E. 88, p. 3 (emphasis added). Her request was not based on any medical condition that she suffers, however, but instead based upon the COVID-19 pandemic generally, her progress while incarcerated, and her desire to be released to help her family. See D.E. 83-1, p. 11. The Court finds that because Defendant has failed to demonstrate her compliance with the exhaustion requirements under § 3582, her motion is not ripe for review, and the Court is without jurisdiction to grant it. See generally, Ross v. Blake, 136 S.Ct. 1850, 1856-57 (2016); see also see also United States v. Reeves, 2020 WL 1816496, at *2 (W.D. La. Apr. 9, 2020) (“While the Court is well aware of the effects the Covid-19 pandemic . . ., § 3582(c)(1)(A) does not provide this Court with the equitable authority to excuse Reeves' failure to exhaust his administrative remedies or to waive the 30-day waiting period.”); United States v. Clark, 2020 WL 1557397, at *3 (M.D. La. Apr. 1, 2020) (denying motion for compassionate release based on fears of contracting COVID-19 in prison where defendant conceded he had not exhausted administrative remedies).
B. COVID-19 Concerns
The Court further finds that, even if Defendant's request to the Warden did satisfy the exhaustion requirements under § 3582, her medical condition is not extraordinary and compelling.
Defendant is 26 years old and obese (BMI = 31.9). According to the Centers for Disease Control and Prevention's (CDC) most recent COVID-19 risk factor list, “obesity (BMI ≥30 kg/m2 but < 40 kg/m2) . . . can make you more likely to get severely ill from COVID-19.” People with Certain Medical Conditions, CDC (Oct. 14, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. Defendant, however, is fully vaccinated against COVID-19. While the vaccine is not 100% effective at preventing infection, it substantially reduces the risk of serious illness or death from COVID-19, even in patients like Defendant with high-risk medical conditions like obesity.
“Now that COVID-19 vaccinations are being administered throughout the Bureau of Prisons, compassionate release motions generally lack merit.” United States v. Reed, 2021 WL 2681498, at *4 (E.D. Pa. June 30, 2021). Courts in this district have repeatedly denied compassionate release to inmates who have been vaccinated against COVID-19, “finding that ‘vaccination significantly reduces [the] risk of contracting COVID-19 or experiencing complications related to a COVID-19 infection.'” United States v. Rodriguez, 2021 WL 2635381, at *4 (S.D. Tex. June 25, 2021) (quoting United States v. Beltran, 2021 WL 398491, at *3 (S.D. Tex. Feb. 1, 2021) (denying compassionate release to inmate with underlying health conditions who had received first vaccine dose), and citing United States v. Schad, 2021 WL 1845548, at *3 (S.D. Tex. May 5, 2021) (denying compassionate release to 32-year-old inmate with aortic valve transplant and history of cerebrovascular disease who received both doses of the vaccine); United States v. Fisch, 2021 WL 1537274, at *1 (S.D. Tex. Apr. 19, 2021) (denying compassionate release to high-risk inmate who was offered and refused the vaccine); United States v. Wedding, 2:19-CR-1693 (S.D. Tex. Apr. 8, 2021) (denying compassionate release to inmate who developed asymptomatic COVID-19 infection three weeks after receiving second vaccine)). Because Defendant is “at little-to-no risk of severe COVID-19 [] after receiving [her] second [vaccine] dose, there are no ‘extraordinary and compelling reasons' justifying a compassionate release in this case.” See United States v. Groom, 2021 WL 1220225, at *2 (S.D. Ohio Apr. 1, 2021).
Decisions across the country overwhelmingly agree that the risk posed by COVID-19 to a vaccinated inmate is not an extraordinary and compelling reason for release. See, e.g., United States v. Burks, 2021 WL 1394857, at *3-4 (W.D. N.C. Apr. 13, 2021); United States v. Gomez-Vega, 2021 WL 1339394, at *3 (D.N.M. Apr. 9, 2021); United States v. Burks, 2021 WL 1291935, at *2 (D. Minn. Apr. 7, 2021); United States v. Jones, 2021 WL 1172537, at *2 (E.D. La. Mar. 29, 2021); United States v. Miller, 2021 WL 1115863, at *2 (E.D. Mich. Mar. 24, 2021); 2021 WL 1110593, at *1 (W.D. Pa. Mar. 23, 2021); United States v. Decano, 2021 WL 1095979, at *6 (D. Haw. Mar. 22, 2021); United States v. Williams, 2021 WL 1087692, at *3 (D. Minn. Mar. 22, 2021); United States v. Gabbard, 2021 WL 1037724, at *3 (E.D. Mich. Mar. 18, 2021); United States v. Kosic, 2021 WL 1026498, at *2 (S.D.N.Y. Mar. 17, 2021); United States v. Stewart, 2021 WL 1011041, at *1 (D. Haw. Mar. 16, 2021); United States v. Godoy-Machuca, 2021 WL 961780, at *2 (D. Ariz. Mar. 15, 2021); United States v. Williams, 2021 WL 966028, at *3 (W.D. N.C. Mar. 15, 2021); United States v. Roper, 2021 WL 963583, at *4 (E.D. Pa. Mar. 15, 2021); United States v. Cardoza, 2021 WL 932017, at *1 (D. Or. Mar. 11, 2021); United States v. Poupart, 2021 WL 917067, at *1 (D. Conn. Mar. 10, 2021); United States v. Johnson, 2021 WL 863754, at *2 (W.D. Ky. Mar. 8, 2021); United States v. Shepard, 2021 WL 848720, at *5 (D.D.C. Mar. 4, 2021); United States v. Lipscomb, 2021 WL 734519, at *2 (M.D. Fla. Feb. 25, 2021); United States v. Cortez, 2021 WL 689923 (D. Ariz. Feb. 23, 2021); United States v. Wakefield, 2021 WL 640690, at *3 (W.D. N.C. Feb. 18, 2021); United States v. Grummer, 2021 WL 568782, at *2 (S.D. Cal. Feb. 16, 2021); United States v. Ballenger, 2021 WL 308814, at *4 (W.D. Wash. Jan. 29, 2021).
C. Post-Sentencing Rehabilitation
Defendant emphasizes that, in the five years she has been incarcerated, she has successfully completed the residential drug abuse program (RDAP); obtained her GED; completed two college-credited courses; completed the 40-hour drug class; graduated from a 9-month, 12-step, Christ-centered drug abuse program and gone on to become one of the leaders of the program; completed chapel classes; completed the LEAN program, and worked as a call center agent for UNICOR for two years. Defendant's efforts at rehabilitation are commendable; however, while the Court is permitted to consider post-sentencing rehabilitation in determining whether to grant an eligible defendant a sentence reduction, it is not authorized to grant a reduction based upon post-sentencing rehabilitation alone. U.S.S.G. § 1B1.10, app. n.1(B)(iii)).
D. § 3553(a) Factors
Defendant's Guideline sentencing range was 168-210 months. The Court previously considered the factors set forth in § 3553(a) and granted a downward variance based on the nature of the offense, as well as Defendant's age and lack of a prior criminal history, ultimately sentencing her to 108 months. Having reconsidered the § 3553(a) factors, the Court finds that a 63-month sentence would not reflect the seriousness of the offense, promote respect for the law, or provide just punishment for the offense. The Court further finds that a sentence of home confinement would be inappropriate in this case, given that Defendant was arrested and her bond defaulted after she removed her ankle monitor while on pretrial release, .
IV. CONCLUSION
For the foregoing reasons, Defendant's letter motion for compassionate release (D.E. 83) and Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1) (D.E. 88) are DENIED.
It is ORDERED this 15th day of December, 2021.