Opinion
1:13-cr-00426-FB-RER-1
10-11-2022
UNITED STATES OF AMERICA, v. GUILLERMO DE JESUS DIAZ OSORIO, Defendant.
For the United States: BREON PEACE United States Attorney Eastern District of New York By: HIRAL D. MEHTA Assistant United States Attorney For the Defendant: ALLEGRA W. GLASHAUSSER Federal Defenders of New York
For the United States:
BREON PEACE
United States Attorney
Eastern District of New York
By: HIRAL D. MEHTA
Assistant United States Attorney
For the Defendant:
ALLEGRA W. GLASHAUSSER
Federal Defenders of New York
MEMORANDUM AND ORDER
FREDERIC BLOCK, SENIOR UNITED STATES DISTRICT JUDGE
On June 29, 2022, Guillermo De Jesus Diaz Osorio filed his second motion seeking compassionate release under 18 U.S.C. 3582(c)(1)(A)(i). For the following reasons, Osorio-Diaz's motion is denied without prejudice to renew the motion should his circumstances change. by the ongoing COVID-19 pandemic. These risks did not rise to the level of extraordinary and compelling in Osorio Diaz's case, particularly since he had been vaccinated against the virus at that time. The Court has carefully considered the parties' arguments and the controlling legal framework and is unpersuaded that Osorio Diaz has now presented “extraordinary and compelling reasons” justifying his release. United States v. Brooker, 976 F.3d 228, 237 (2d. Cir 2020). He will serve the remainder of his 130-month sentence and will be eligible for release in May 2024.
Osorio Diaz renews his argument about the COVID-19 pandemic, adding that it has made his sentence more punitive, that he is of advanced age, poor health, has served 75% of his sentence, and needs to be home with his family. Osorio Diaz's arguments, whether considered individually or in combination, do not rise to the level of extraordinary and compelling. The pandemic undoubtedly has made the circumstances of incarceration more punitive. See, e.g., United States v. Rodriguez, 492 F.Supp.3d 306 (S.D.N.Y. 2020). However, this is a circumstance that has affected virtually every incarcerated individual, and in combination with the other factors presented by Osorio Diaz, does not rise to the level of extraordinary and compelling. Although the uncertainty of the pandemic caused Osorio Diaz emotional stress related to his family's well-being, this was unfortunately also a circumstance faced by practically every inmate. Also, at 63, Diaz Osorio has not yet reached the age considered elderly by the Bureau of Prisons. The medical problems from which he suffers, namely obesity, prediabetes, hypertension, and hyperlipidemia, have not changed since his prior motion and do not together rise to the level of a compelling health problem warranting release.
Where a criminal defendant seeks “decreased punishment, he or she has the burden of showing the circumstances warrant that decrease.” United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992). Here, Osorio Diaz has failed to meet his burden of establishing “extraordinary and compelling” circumstances. Brooker, 976 F.3d at 237.
CONCLUSION
For the foregoing reasons, the defendant's motion for compassionate release is DENIED.
SO ORDERED.