Opinion
Case No. 19-cr-20244-BB
02-08-2021
UNITED STATES OF AMERICA, Plaintiff, v. CLAUDIA MARCELINA OROZCO, Defendant.
ORDER ON MOTION FOR COMPASSIONATE RELEASE
THIS CAUSE is before the Court upon Defendant Claudia Marcelina Orozco's ("Defendant") Motion for Compassionate Release, ECF No. [48] ("Motion"). The Government filed its Response in Opposition, ECF No. [54] ("Response"), to which Defendant replied, ECF No. [55] ("Reply"). The Court has carefully reviewed the Motion, all opposing and supporting submissions, any relevant exhibits, the record in this case, the applicable law, and is otherwise fully advised. For the reasons discussed below, the Motion is denied.
I. BACKGROUND
On April 30, 2019, Defendant was indicted on seven counts: conspiracy to commit healthcare fraud and wire fraud in violation of 18 U.S.C. § 1349 (Count I) and healthcare fraud (Counts II - VII). ECF No. [3]. On August 19, 2019, Defendant pled guilty to Count I. ECF Nos. [22], [25], & [26]. On November 1, 2019, this Court sentenced Defendant to a term of imprisonment of 36 months, followed by 2 years of supervised release, and ordered Defendant to pay restitution in the amount of $2,763,679.00. ECF Nos. [35] & [36]. Defendant is currently housed at FDC Miami. ECF No. [48] at 1. Defendant is scheduled to be released from custody on September 20, 2022.
Defendant previously filed a Motion for Compassionate Release, arguing that her underlying medical conditions—namely, hypertension, heart arrythmia, anemia, and previous heart surgery—put her at an increased risk of infection. ECF No. [42]. This Court denied the motion, finding that Defendant failed to exhaust her administrative remedies with the BOP, the 18 U.S.C. § 3553(a) factors did not favor sentence modification and release, and Defendant failed to demonstrate "extraordinary and compelling reasons" justifying compassionate release. ECF No. [44]. Defendant thereafter filed a motion for reconsideration, ECF No. [45], which the Court also denied, ECF No. [46].
On December 29, 2020, Defendant filed the instant Motion and renewed her request for compassionate release. Defendant contends that her medical conditions have worsened, and extraordinary and compelling circumstances now exist that warrant granting her compassionate release and home confinement. Specifically, Defendant represents that she developed a second-degree type II heart block and "is in immediate need of a pacemaker to help control her abnormal and life threatening [sic] heart rhythms." ECF No. [48] at 2. While the BOP has offered to hospitalize Defendant so she may undergo surgery to implant the pacemaker, Defendant has refused treatment because she is concerned of contracting COVID-19 upon her return to FDC Miami. Id. The Government opposes Defendant's Motion. See ECF No. [54].
SARS-CoV-2, the novel coronavirus, and COVID-19, the disease it causes, have spread across the world and have impacted every person's life. The United States is currently reporting more confirmed cases of COVID-19 and resulting deaths than any other country, with 26,852,809 confirmed cases and 462,037 reported deaths as of February 8, 2021. The COVID-19 pandemic poses a serious danger to society at large. Moreover, COVID-19 poses a higher risk to incarcerated individuals who are unable to practice public health precautions that are otherwise available to the general public, such as social distancing practices.
Cases of Coronavirus Disease (COVID-19) in the U.S., Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated Feb. 8, 2021).
As a result of this dynamic, unpredictable, and unprecedented situation, Attorney General William Barr has urged the Bureau of Prisons ("BOP") to move vulnerable inmates out of penal institutions and into home confinement, where appropriate. See Mem. from Attorney Gen. William Barr for Dir. of Bureau of Prisons re: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020), https://www.justice.gov/file/1266661/download ("Memorandum"). The Memorandum identifies several facilities that have been particularly affected and should be given priority in the BOP's consideration of implementing home confinement, including FCI Oakdale, FCI Danbury, and FCI Elkton. Id. at 1. The Attorney General has made the express finding that extant emergency conditions are materially affecting BOP functioning and has directed the BOP to immediately maximize transfers to home confinement for all eligible inmates at the specifically named facilities and other similarly situated facilities where COVID-19 is materially affecting operations. Id. The Memorandum further directs the BOP to review all inmates who have COVID-19 risk factors, as established by the Centers for Disease Control and Prevention ("CDC"), to determine their suitability for home confinement, while also emphasizing the importance of protecting the public from individuals who may pose a danger to society, and recognizing the need to avoid over-burdening law enforcement with "the indiscriminate release of thousands of prisoners onto the streets without any verification that those prisoners will follow the laws when they are released . . . and that they will not return to their old ways as soon as they walk through the prison gates." Id. at 2-3. Finally, the Memorandum stresses the need for careful and individualized determinations regarding the propriety of releasing any given inmate to home confinement and discourages indiscriminate releases. Id. at 3.
II. DISCUSSION
"Generally, a court 'may not modify a term of imprisonment once it has been imposed.'" United States v. Pubien, 805 F. App'x 727, 729 (11th Cir. 2020) (quoting 18 U.S.C. § 3582(c)).
"The authority of a district court to modify an imprisonment sentence is narrowly limited by statute." [United States v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010)]. Section 3582(c) of Title 18 provides that the district court may not modify a defendant's imprisonment sentence except: (1) if the Bureau of Prisons files a motion and extraordinary or compelling circumstances warrant modification or if the defendant is at least 70 years old and has served 30 years in prison; (2) if the modification is expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) if the defendant's original sentencing range has subsequently been lowered as a result of an amendment to the Guidelines by the Sentencing Commission. 18 U.S.C. § 3582(c).United States v. Shaw, 711 F. App'x 552, 554-55 (11th Cir. 2017); see also United States v. Celedon, 353 F. App'x 278, 280 (11th Cir. 2009); United States v. Diaz-Clark, 292 F.3d 1310, 1316-18 (11th Cir. 2002). Thus, "[t]he law is clear that the district court has no inherent authority to modify a sentence; it may do so only when authorized by a statute or rule." United States v. Rivas, 800 F. App'x 742, 745 (11th Cir. 2020) (quoting United States v. Puentes, 803 F.3d 597, 605-06 (11th Cir. 2015)); see also United States v. Llewlyn, 879 F.3d 1291, 1296-97 (11th Cir. 2018) (quoting Dillon v. United States, 560 U.S. 817, 827 (2010)).
Defendant here seeks compassionate release, pursuant to § 3582(c)(1)(A), which states:
(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 [18 U.S.C. § 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).
As has been recognized by various courts, the Sentencing Commission ("Commission") has not implemented a new policy statement following the First Step Act. See United States v. Brown, 411 F. Supp. 3d 446, 449 n.1 (S.D. Iowa 2019) (collecting cases). Rather, the existing policy statement still assumes compassionate release "may be granted only upon motion by the Director of the Bureau of Prisons." U.S. Sent'g Guidelines Manual § 1B1.13 cmt. n.4 (U.S. Sent'g Comm'n 2018).
This leaves district courts in a conundrum. On the one hand, Congress unequivocally said it wishes to "[i]ncreas[e] the [u]se . . . of [c]ompassionate [r]elease" by allowing district courts to grant petitions "consistent with applicable policy statements" from the Sentencing Commission. § 3582(c)(1)(A) (emphasis added). On the other hand, the Commission—unable to take any official action—has not made the policy statement for the old regime applicable to the new one.Id. at 449.
While the Court of Appeals for the Eleventh Circuit has yet to address the issue, four other circuits have recognized that the Commission lacks an applicable policy statement for when a district court can grant compassionate release, and have accordingly held that § 1B1.13 does not apply to cases where a defendant files a motion for compassionate release, rather than the BOP. See United States v. Brooker, 976 F.3d 228, 234-36 (2d Cir. 2020) ("[T]hough motions by the BOP still remain under the First Step Act, they are no longer exclusive, and we read the Guideline as surviving, but now applying only to those motions that the BOP has made."); United States v. McCoy, 981 F.3d 271, 281-82 (4th Cir. 2020) ("By its plain terms, in short, § 1B1.13 does not apply to defendant-filed motions under § 3582(c)(1)(A)."); United States v. Jones, 980 F.3d 1098, 1108-09 (6th Cir. 2020) ("[T]he passage of the First Step Act rendered § 1B1.13 'inapplicable' to cases where an imprisoned person files a motion for compassionate release."); United States v. Gunn, 980 F.3d 1178, 1180-81 (7th Cir. 2020) ("[T]he Guidelines Manual lacks an 'applicable' policy statement covering prisoner-initiated applications for compassionate release. District judges must operate under the statutory criteria—'extraordinary and compelling reasons'—subject to deferential appellate review.").
See United States v. Abreu, No. 20-12208, 2020 WL 7774951, at *1 n.1 (11th Cir. Dec. 30, 2020) (noting that the Eleventh Circuit has "not issued a published opinion addressing several key issues about the First Step Act's recent amendments to § 3582(c)(1)(A)—like, for example, the standard of review, any procedural and jurisdictional requirements, or the definition of 'extraordinary and compelling circumstances'—although several cases have been classified for oral argument to resolve these questions. See, e.g., United States v. McKreith, appeal no. 20-10450; United States v. Bryant, appeal no. 19-14267; United States v. Friedlander, appeal no. 19-13347.").
Courts across the country . . . still rely on § 1B.1.13 for guidance as to the "extraordinary and compelling reasons" that may warrant a sentence reduction. See [United States v. Drummond, No. 1:97-cr-0019 (N.D. Ga. Sept. 27, 2019)] (viewing § 1B.1.13 as "non-binding guidance"); see also United States v. Solis, No. 16-015-CG-MU, 2019 WL 2518452, at *2-3 (S.D. Ala. June 18, 2019); United States v. Heromin, No. 8:11-cr-550-T-33SPF, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019). However, the Court is not limited to the technical requirements set forth in § 1B1.13 in assessing whether a defendant's application for compassionate release provides "extraordinary and compelling reasons" for a sentence reduction under § 3582(c)(1)(A)(i). See, e.g., [United States v. Ullings, No. 1:10-cr-00406, 2020 WL 2394096, at *2 (N.D. Ga. May 12, 2020)] (citing United States v. Perez, 451 F. Supp. 3d 288, 294 (S.D.N.Y. 2020)); United States v. Beck, 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019) ("While the old policy statement provides helpful guidance, it does not constrain the Court's independent assessment of whether 'extraordinary and compelling reasons' warrant a sentence reduction under § 3582(c)(1)(A)(i)."); [United States v. Beard, No. 1:16-CR-285-SCJ (N.D. Ga. June 25, 2020); United States v. Kowalewski, No. 2:13-CR-00045-RWS (N.D. Ga. Apr. 30, 2020); United States v. Hill, No. 1:05-CR-0081-LMM (N.D. Ga. June 10, 2020); United States v. Noble, No. 1:09-CR-315-MHC (N.D. Ga. Nov. 24, 2020)].United States v. Poulnott, --- F. Supp. 3d ---, No. 1:89-cr-00001-AT-ALC-1, 2020 WL 7974295, at *3 (N.D. Ga. Dec. 30, 2020).
Upon review, the Court agrees with the reasoning of the Circuit Courts across the country that district courts are not bound by § 1B1.13. The Court further notes that this reasoning seemingly complements the Eleventh Circuit's recent observation that the policy statement in § 1B1.13 "'notably' has not been updated since the passage of the First Step Act and refers only to motions filed by the Director of the Bureau of Prisons." United States v. Hewlett, No. 5:93-CR-00137-SLB-SGC-2, 2020 WL 7343951, at *4 (N.D. Ala. Dec. 14, 2020) (quoting United States v. Gist, No. 20-13481, 2020 WL 7227282, at *1 (11th Cir. Dec. 8, 2020)). Thus, while § 1B1.13 provides useful guidance for addressing motions for compassionate release, the Court concludes that it is not bound by this guidance.
Moreover, § 3582 delineates how this Court should analyze whether a defendant is entitled to a sentence modification.
First, when the defendant brings the motion himself, the Court must ascertain whether 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 [whether there has been a] lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(a). Second, the Court should "consider[] the factors set forth in section 3553(a) to the extent that they are applicable." Id. Third, the Court should turn to the "extraordinary and compelling reasons" test . . . . And fourth, the Court should determine whether the defendant poses a "danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)." Id.United States v. Stuyvesant, 454 F. Supp. 3d 1236, 1238 (S.D. Fla. 2020).
Thus, in order to grant Defendant's request pursuant to § 3582(c)(1)(A), the Court must: (1) find that Defendant has exhausted her administrative remedies with the BOP; (2) weigh the relevant § 3553(a) factors; (3) conclude that extraordinary and compelling reasons warrant compassionate release in this case; and (4) determine that Defendant is not a danger to the community. Moreover, Defendant bears the burden of establishing that compassionate release is warranted. See United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013) (explaining that "a defendant, as the § 3582(c)(2) movant, bears the burden of establishing that" compassionate release is warranted, but that, even where a defendant satisfies this burden, "the district court still retains discretion to determine whether a sentence reduction is warranted").
As an initial matter, the Court recognizes that Defendant has exhausted her administrative remedies with the BOP. Defendant's Motion represents that on November 25, 2020, Defendant's counsel faxed, e-mailed, and mailed a formal request for compassionate release to Warden E.K. Carlton at FDC Miami. ECF No. [48-1]. The Government, however, maintains that "BOP had not received the mailed version until December 9, 2020[,]" and, therefore, the thirty-day exhaustion period had not lapsed before Defendant filed her request on December 29, 2020. ECF No. [54] at 4-5. Even if Defendant did in fact submit a request for compassionate release with the BOP on December 9, 2020, well over thirty days have passed since Defendant filed the instant Motion. Requiring that Defendant now comply with regulatory requirements would result in unnecessary additional delay, especially if the BOP ultimately denies Defendant's request, or fails to respond within thirty days.
The applicable § 3553(a) factors include, among others: "(1) the nature and circumstances of the offense and the history and characteristics of the defendant," as well as "(2) the need for the sentence imposed — (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; [and] (C) to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a). At the time of sentencing, the Court concluded that a term of imprisonment of 36 months was appropriate in this case in light of these § 3553(a) considerations. To date, Defendant has served less than half of that sentence. Moreover, aside from her alleged medical conditions, most of which existed and were considered at the time of sentencing, ECF No. [35], Defendant has not shown further bases to persuade the Court that the sentence imposed should be modified based upon the factors set forth in § 3553(a). See United States v. Post, No. 15-cr-80055, 2020 WL 2062185, at *2 (S.D. Fla. Apr. 29, 2020) (noting "that much of the information that [the defendant] provide[d] in his Motion was before the Court at the time of his sentencing," and the Court imposed an appropriate sentence considering this information); United States v. Zamor, No. 17-20353-CR, 2020 WL 2062346, at *2 (S.D. Fla. Apr. 29, 2020) ("Crucially, [the defendant] has completed less than 40% of this sentence, and the applicable 18 U.S.C. § 3553(a) factors . . . do not warrant [his] release after serving less than half of his sentence."); United States v. Rodriguez-Orejuela, No. 03-cr-20774, 2020 WL 2050434, at *7 (S.D. Fla. Apr. 28, 2020) (noting that, in weighing the sentencing factors, "the Court's analysis is virtually unchanged from thirteen years ago."). Although Defendant represents that she has two handicapped children who are struggling in her absence, the Court is not persuaded that this alone warrants a modification of Defendant's sentence. Indeed, the record reveals that both children are being cared for by Defendant's mother and extended family members—the same individuals who Defendant plans on residing with if released. ECF Nos. [48-1] at 7, [48-4] at 2. As such, the Court concludes that a modification of Defendant's sentence is unwarranted at this time.
With regard to the "extraordinary and compelling reasons" analysis, Defendant fails to demonstrate that compelling circumstances exist under § 3582(c). CDC guidance indicates that adults of any age with the following health conditions are at increased risk of severe illness due to COVID-19: cancer, chronic kidney disease, chronic obstructive pulmonary disease, Down Syndrome, heart conditions, such as heart failure, coronary artery disease, and cardiomyopathies, immunocompromised from solid organ transplant, obesity, severe obesity, pregnancy, sickle cell disease, smoking, and type 2 diabetes. In addition, adults of any age with the following conditions might be at an increased risk for severe illness: asthma (moderate-to-severe), cerebrovascular disease, cystic fibrosis, hypertension or high blood pressure, immunocompromised state from blood or bone marrow transplant, immune deficiencies of HIV, use of corticosteroids, or use of other immune weakening medicines, neurologic conditions such as dementia, liver disease, overweight, pulmonary fibrosis, thalassemia, and type 1 diabetes.
People with Certain Medical Conditions, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last updated Feb. 3, 2021).
Id.
Defendant argues that new circumstances warrant reexamination of her eligibility for release because her heart condition has worsened. Specifically, on November 19, 2020, Defendant was hospitalized as a result of heart palpitations, dizziness, chest pains, and shortness of breath. ECF No. [48] at 2, 9. Following a medical examination, it was determined that Defendant developed a second-degree type II heart block, otherwise known as Mobitz Type II, and "is in immediate need of a pacemaker to help control her abnormal and life threatening [sic] heart rhythms." Id. at 2, 10. Notably, however, the BOP has offered to hospitalize Defendant so she can undergo surgery to implant the pacemaker. Id. at 2. Defendant has nonetheless refused medical treatment to rectify her condition because: (1) she will be required to quarantine for fourteen days upon her return to FDC Miami and is concerned she will contract COVID-19; and (2) while in quarantine, she will not be able to see or speak with her mother or two children, "her current support system." Id. at 2, 10.
Defendant's refusal to accept a recommended medical procedure to rectify her heart condition is not grounds for release from confinement. As the Government correctly argues, Defendant's preference to "privately address her need for a pacemaker" does not warrant a sentence modification. ECF No. [54] at 9. Additionally, a review of Defendant's medical records indicate that her condition is being actively and effectively managed within the BOP's medical facilities.
The Court is certainly sympathetic to Defendant's health conditions and her concerns regarding COVID-19 outbreaks in prison facilities, and notes that certain of her medical conditions—i.e., heart issues—are risk factors that are designated in the CDC's guidance. However, a review of Defendant's medical records do not suggest that her conditions are severe enough to warrant a sentence modification. Rather, Defendant's medical records show that her condition is stable and that she is otherwise being treated with medication. Defendant is twenty-six years old and fails to demonstrate that her present condition substantially diminishes her ability to provide self-care within the correctional facility.
See id.
Additionally, while the BOP website indicates that at FDC Miami, two inmates and thirty-nine staff members have tested positive for COVID-19, Defendant does not assert that she has been exposed to any individuals with COVID-19. Defendant also does not persuade the Court that current procedures in place or resources available at FDC Miami are insufficient to protect her and other at-risk individuals. Moreover, "the BOP Director has not found COVID-19 alone to be a basis for compassionate release." United States v. Harris, No. 2:12-cr-140-FtM-29DNF, 2020 WL 1969951, at *2 (M.D. Fla. Apr. 24, 2020) (citing United States v. Eberhart, No. 13-cr-313-PJH-1, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020) ("General concerns about possible exposure to COVID-19 do not meet the criteria for extraordinary and compelling reasons for a reduction in sentence . . . .")); see also United States v. Kelly, No. 2:03-cr-126-FtM-29, 2020 WL 2039726, at *1 (M.D. Fla. Apr. 28, 2020) (The "defendant does not allege any extraordinary or compelling circumstances to support compassionate release."). Based on the discussion above, the Court concludes that Defendant has not satisfied her burden of demonstrating that compassionate release is appropriate here.
COVID-19 Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Feb. 8, 2021).
Because Defendant's Motion fails to establish any extraordinary and compelling circumstances warranting a sentence reduction, the Court does not need to address the final consideration of whether Defendant poses a danger to the safety of others or to the community under to § 3142(g).
III. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [48], is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, on February 8, 2021.
/s/_________
BETH BLOOM
UNITED STATES DISTRICT JUDGE Copies furnished to: Counsel of Record