Opinion
5:18-CR-215
2021-02-23
UNITED STATES of America, v. Abner PERALTA, Defendant.
OF COUNSEL: MICHAEL F. PERRY, ESQ., Ass't United States Attorney, HON. ANTOINETTE T. BACON, Acting United States Attorney for the Northern District of New York, 100 South Clinton Street, P.O. Box 7198, Syracuse, NY 13261. OF COUNSEL: FRANK POLICELLI, ESQ., OFFICE OF FRANK POLICELLI, Attorneys for Defendant, 10 Steuben Park, Utica, NY 13501.
OF COUNSEL: MICHAEL F. PERRY, ESQ., Ass't United States Attorney, HON. ANTOINETTE T. BACON, Acting United States Attorney for the Northern District of New York, 100 South Clinton Street, P.O. Box 7198, Syracuse, NY 13261.
OF COUNSEL: FRANK POLICELLI, ESQ., OFFICE OF FRANK POLICELLI, Attorneys for Defendant, 10 Steuben Park, Utica, NY 13501.
ORDER DENYING RELEASE
DAVID N. HURD, United States District Judge
I. INTRODUCTION
On February 3, 2020, a jury found defendant Abner Peralta ("Peralta" or "defendant") guilty of one count of conspiracy to distribute and to possess with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846 and of one count of possession with intent to distribute a controlled substance in violation of § 841(a)(1). The jury also unanimously found that defendant's conduct on the second count involved 28 grams or more of a mixture or substance containing cocaine base. Id. § (b)(1)(B).
On July 29, 2020, Peralta was sentenced to the statutory mandatory minimum sentence of 60 months’ imprisonment to be followed by four years of supervised release. Dkt. No. 161. Because the COVID-19 pandemic was in full swing, the Court ordered defendant to self-surrender to the Bureau of Prisons ("BOP") no later than September 8, 2020. See Dkt. No. 165.
On January 19, 2021, Peralta moved under 18 U.S.C. § 3582(c) for immediate release from BOP custody. Dkt. Nos. 174-75. According to defendant's submissions, his complex medical history places him at heightened risk of severe illness or death from COVID-19. Id. The United States of America (the "Government") opposed the motion. Dkt. No. 177. Thereafter, the Court entertained supplemental briefing on certain issues raised by the parties’ memoranda. Dkt. Nos. 178-80. The motion will be considered on the basis of the submissions without oral argument.
II. LEGAL STANDARD
"[A] court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Bess , 455 F. Supp. 3d 53, 56 (W.D.N.Y. 2020) (citation omitted). As relevant here, a recent amendment to 18 U.S.C. § 3582(c) provides a mechanism for a sentence reduction upon a finding of, inter alia , "extraordinary and compelling reasons." Id. § 3582(c)(1)(A)(i). This statutory amendment, which occurred as part of the First Step Act of 2018, has quickly become known as the "compassionate release" provision. It provides in relevant part:
the court, ... 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 extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Historically, this provision of § 3582(c) did not permit trial courts to consider a motion for relief brought directly by a defendant. The original statute, unlike the current law, "gave BOP exclusive power over all avenues of compassionate release." United States v. Brooker , 976 F.3d 228, 231 (2d Cir. 2020). As the Second Circuit recently observed, "BOP used this power sparingly, to say the least." Id.
Congress also delegated authority to the U.S. Sentencing Commission ("USSC") to "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). The USSC, in turn, generated a policy statement on the compassionate release provision. It provides that:
The court may reduce a term of imprisonment ... if, after considering the factors set forth in 18 U.S.C. § 3553(a), ... the court determines that—
(1)(A) Extraordinary and compelling reasons warrant the reduction; or
(B) The defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned;
(2) The defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g) ; and
(3) The reduction is consistent with this policy statement.
U.S.S.G. § 1B1.13.
The Application Note to U.S.S.G. § 1B1.13 further defines the categories of "extraordinary and compelling reasons" that, in the Sentencing Commission's view, would justify compassionate release:
(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 (i) is 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 and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
U.S.S.G. § 1B1.13 app. n.1.
Importantly, neither the USSC's policy statement nor the Application Note have been updated since Congress amended § 3582(c) as part of the First Step Act of 2018. Brooker , 976 F.3d at 233-34. Thus, § 1B1.13 "still refers in multiple places to BOP having the exclusive authority to bring a compassionate release motion before the court." Id. at 234. One glaring example is Application Note 1(D), which appears to reserve to the Director of the BOP the discretion to determine whether other, unenumerated circumstances might rise to the level of "extraordinary and compelling" reasons warranting relief.
Confronted with these outdated guidance documents, other courts in this circuit have concluded that U.S.S.G. § 1B.13 remains "helpful in defining a vague standard." United States v. Ebbers , 432 F. Supp. 3d 421, 426 (S.D.N.Y. 2020). However, the Second Circuit has also made clear that the changes to § 3582(c) wrought by the First Step Act of 2018 "freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release." Brooker , 976 F.3d at 237.
As Brooker explained, "[t]he only statutory limit on what a court may consider to be extraordinary and compelling is that ‘[r]ehabilitation ... alone shall not be considered an extraordinary and compelling reason.’ " Brooker , 976 F.3d at 237-38 (quoting 28 U.S.C. § 994(t) ); see also United States v. Roney , 833 F. App'x 850 (2d Cir. 2020) (summary order) ("The determination as to what constitutes extraordinary and compelling reasons warranting a reduction is committed to the sound discretion of the district court.").
Even so, "[t]he defendant has the burden to show he is entitled to a sentence reduction." Ebbers , 432 F. Supp. 3d at 426. Accordingly, to obtain relief under this provision a defendant must show (1) he has exhausted his administrative remedies; (2) "extraordinary and compelling reasons" warrant a reduction of his sentence; (3) he is not a danger to others or to the community; and (4) a reduction would be consistent with the factors set forth in § 3553(a). See, e.g. , United States v. Rodriguez , 492 F. Supp. 3d 306, 309–10 (S.D.N.Y. Sept. 30, 2020).
III. DISCUSSION
Peralta contends that he suffers from various health issues that place him at increased risk of severe illness or death if he were to become infected with COVID-19. As defendant explains, he suffers from severe asthma, high blood pressure, a Body Mass Index above 30, severe allergies, keratoconus, a history of smoking, and chronic back pain from a workplace injury.
The Government responds that Peralta has already tested positive for COVID-19 and recovered without incident. In the Government's view, defendant's successful recovery strongly indicates that treatment available to defendant at the USP Lewisburg facility is adequate for someone with defendant's medical history. And because defendant has already recovered from the virus, there is little risk he will become re-infected, "at least for the next several months."
The Government further argues that defendant's motion overstates his true risk of severe illness from COVID-19 because it exaggerates the significance of his medical history. Finally, the Government points out that defendant is likely to be vaccinated in the "several-month window in which his natural immune response is expected to keep him safe from COVID-19."
Peralta replies by acknowledging that he was quarantined for COVID-19 but claims that he never tested "positive" for the virus. Instead, defendant argues that the test came back "inconclusive." In defendant's view, the fact that he did not suffer from any severe symptoms suggests he has not yet contracted the virus. According to defendant, the "BOP is covering up for their inaccuracies."
Upon review, Peralta's motion for relief will be denied. As an initial matter, defendant's opening brief failed to alert the Court that BOP had already quarantined him for COVID-19. That fact remains true whether the test at issue came back "positive" or only "inconclusive," as defendant claims in his reply. If defendant did not actually contract COVID-19 at that time, a review of his medical history confirms that his conditions do not place him at any particularly severe risk of complications. If, on the other hand, defendant did contract COVID-19 at that time, his recovery without incident demonstrates that the BOP facility where he is housed is equipped to handle a COVID-19 patient with defendant's combination of pre-existing conditions. In short, defendant has not identified "extraordinary and compelling" reasons that would warrant a sentence reduction under § 3582(c)(1)(A)(i).
IV. CONCLUSION
Therefore, it is
ORDERED that
1. Peralta's motion for compassionate release is DENIED.
IT IS SO ORDERED.