Opinion
No. 1:12-cr-00035-DAD-BAM
07-20-2020
UNITED STATES OF AMERICA, Plaintiff, v. BONNIE LYNNE RECINOS, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE UNDER 18 U.S.C. § 3582
(Doc. No. 121)
Pending before the court is defendant Bonnie Lynne Recinos's motion for a reduction of her sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). The motion is based upon the risks to defendant posed by the ongoing coronavirus ("COVID-19") outbreak. (Doc. No. 121.) For the reasons explained below, defendant's motion will be granted.
BACKGROUND
On April 10, 2017, following her plea of guilty to conspiracy to commit mail fraud and wire fraud in violation of 18 U.S.C. § 1349, the court sentenced defendant Recinos to the custody of the U.S. Bureau of Prisons ("BOP") for a 55-month term of imprisonment, to be followed by a 36-month term of supervised release. (Doc. Nos. 48, 108, 109.) The court also imposed the mandatory $100 special assessment and ordered defendant to make restitution to the victims of her fraudulent criminal conduct in the amount of $1,507,882.03. (Id.) Defendant is currently ///// serving her sentence at Federal Medical Center Carswell ("FMC Carswell") in Fort Worth, Texas. (See Doc. Nos. 121 at 1; 130 at 3, 5.)
According to the government, defendant began serving her sentence of imprisonment on September 6, 2017 and "has served approximately 32 months (59.1%) of the full sentence that was imposed." (Doc. No. 130 at 3.) According to defendant, she has served approximately 34 months of her sentence. (Doc. No. 121 at 3.) Both parties agree, however, that defendant's current anticipated release date under her original sentence is December 16, 2020, "taking into account [defendant's] qualifications for other BOP release programs." (Doc. No. 130 at 3; see also Doc. No. 121 at 3.).
On May 21, 2020, defendant filed the pending motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc. No. 121.) On June 4, 2020, the government filed its opposition to the motion, and on June 11, 2020, defendant filed her reply thereto. (Doc. Nos. 130, 131.)
LEGAL STANDARD
A court generally "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 824 (2010) ("'[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment' and may not be modified by a district court except in limited circumstances."). Those limited circumstances include compassionate release in extraordinary cases. See United States v. Holden, ___ F. Supp. 3d ___, 2020 WL 1673440, at *2 (D. Or. April 6, 2020). Prior to the enactment of the First Step Act of 2018 ("the FSA"), motions for compassionate release could only be filed by the BOP. 18 U.S.C. § 3582(c)(1)(A) (2002). Under the FSA, however, imprisoned defendants may now bring their own motions for compassionate release in the district court. 18 U.S.C. § 3582(c)(1)(A) (2018). In this regard, the FSA specifically provides that a court may
upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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 -18 U.S.C. § 3582(c)(1)(A)(i) and (ii).
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission [.]
If the BOP denies a defendant's request within 30 days of receipt of such a request, the defendant must appeal that denial to the BOP's "Regional Director within 20 calendar days of the date the Warden signed the response." 28 C.F.R. § 542.15(a). If the regional director denies a defendant's administrative appeal, the defendant must appeal again to the BOP's "General Counsel within 30 calendar days of the date the Regional Director signed." Id. "Appeal to the General Counsel is the final administrative appeal." Id. When the final administrative appeal is resolved, a defendant has "fully exhausted all administrative rights." See 18 U.S.C. § 3582(c)(1)(A).
Under 18 U.S.C. § 3624(c)(2), the BOP may release an incarcerated defendant to home confinement "for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months." The Coronavirus Aid, Relief, and Economic Security Act ("the CARES Act"), Pub. L. 116-136, expands the BOP's authority to release incarcerated defendants without judicial intervention. The CARES Act allows the BOP to "lengthen the maximum amount of time" for which a prisoner may be placed in home confinement under § 3624(c)(2) "as the Director determines appropriate," assuming "the Attorney General finds that emergency conditions will materially affect the functioning" of the BOP. CARES Act, Pub. L. 116-136, Div. B, Title II, § 12003(b)(2) (2020). However, the BOP's authority in this regard is limited to "the covered emergency period." Id. The BOP's authority expires "30 days after the date on which the national emergency declaration terminates." Id. § 12003(a)(2). After the CARES Act was enacted, the Attorney General issued a memo instructing the BOP to "immediately review all inmates who have COVID-19 risk factors" beginning with those who are housed at facilities where "COVID-19 is materially affecting operations." Office of Att'y Gen., Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020). The BOP has acted on the Attorney General's guidance, including one case in which a sentenced prisoner was released to home confinement after serving less than half his sentence from a facility that reported no positive COVID-19 cases at the time of his release. See Hannah Albarazi, Paul Manafort Seeks Prison Release Over COVID-19 Fears, LAW360 (Apr. 14, 2020), https://www.law360.com/articles/1263706/paul-manafort-seeks-prison-release-over-covid-19-fears (noting that the prisoner's counsel had argued that the CARES Act "broadens the authority" of the BOP to release prisoners to home confinement); Khorri Atkinson, Paul Manafort Released From Prison Amid COVID-19 Fears, LAW360 (May 13, 2020), https://www.law360.com/articles/1273090/paul-manafort-released-from-prison-amid-covid-19-fears.
The applicable policy statement with respect to compassionate release in the U.S. Sentencing Guidelines sets out criteria and circumstances describing "extraordinary and compelling reasons." U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 1B1.13; see also United States v. Gonzalez, No. 2:18-cr-00232-TOR, 2020 WL 1536155, at *2 (E.D. Wash. Mar. 31, 2020) (noting that courts "universally" rely on U.S.S.G. § 1B1.13 to define "extraordinary and compelling reasons," even though that policy statement was issued before Congress passed the FSA and authorized defendants to file compassionate release motions). However, a large and growing number of district courts across the country have concluded that because the Sentencing Commission has not amended the Guidelines since the enactment of the FSA, courts are not limited by the pre-FSA categories described in U.S.S.G. § 1B1.13 in assessing whether extraordinary and compelling circumstances are presented justifying a reduction of sentence under 18 U.S.C. § 3582(c). See, e.g., United States v. Parker, ___ F. Supp.3d ___, 2020 WL 2572525, at *8-9 (C.D. Cal. May 21, 2020) (collecting cases); United States v. Rodriguez, 424 F. Supp. 3d 674, 681 (N.D. Cal. 2019).
The Sentencing Guidelines also require that to be granted a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A), the defendant must not pose "a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)." U.S.S.G. § 1B1.13(2).
In the past, when moving for relief under 18 U.S.C. § 3582(c), it was recognized that the defendant bore the initial burden of demonstrating that a sentence reduction was warranted. See United States v. Sprague, 135 F.3d 1301, 1306-07 (9th Cir. 1998). Although the Ninth Circuit has not specifically addressed the question of which party bears the burden in the context of a motion for compassionate brought pursuant to § 3582(c) as amended by the FSA, district courts that have done so have agreed that the burden remains with the defendant. See, e.g., United States v. Greenhut, No. 2:18-cr-00048-CAS, 2020 WL 509385, *1 (C.D. Cal. Jan. 31, 2020); United States v. Van Sickle, No. 18-cr-0250-JLR, 2020 WL 2219496, *3 (W.D. Wash. May 7, 2020).
ANALYSIS
As district courts have summarized, in analyzing whether a defendant is entitled to compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), the court must determine whether a defendant has satisfied three requirements:
First, as a threshold matter, the statute requires defendants to exhaust administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Second, a district court may grant compassionate release only if "extraordinary and compelling reasons warrant such a reduction" and "that such reduction is consistent with applicable policy statements issued by the Sentencing Commission. Id. Third, the district court must also consider "the factors set forth in Section 3553(a) to the extent that they are applicable." Id.Rodriguez, 424 F. Supp. 3d at 680; see also United States v. Ramirez-Suarez, 16-CR-00124-LHK-4, 2020 WL 3869181, at *2 (N.D. Cal. July 9, 2020); Parker, 2020 WL 2572525, at *4; United States v. Trent, Case No. 16-cr-00178-CRB-1, 2020 WL 1812242, at *2 (N.D. Cal. Apr. 9, 2020) (noting that as to the third factor, under 18 U.S.C. § 3582(c)(1)(A) release must be "consistent with" the sentencing factors set forth in §3553(a)).
A. Administrative Exhaustion
Here, the parties do not dispute that defendant has exhausted her administrative remedies prior to filing her pending § 3582 motion. (Doc. Nos. 130 at 4; 121 at 3.) Accordingly, the court will turn to the merits of defendant's motion.
B. Extraordinary And Compelling Reasons
"Extraordinary and compelling reasons" warranting compassionate release may exist based on a defendant's medical conditions, age and other related factors, family circumstances, or "other reasons." U.S.S.G. § 1B1.13, cmt. n.1 (A)-(D). Even though the catch-all of "other reasons" was included in the policy statement at a time when only BOP could bring a compassionate release motion, courts have agreed that it may be relied upon by defendants bringing their own motions under the FSA. See, e.g., United States v. Kesoyan, No. 2:15-cr-236- JAM, 2020 WL 2039028, at *3-4 (E.D. Cal. Apr. 28, 2020) (collecting cases).
Thus, the medical condition of a defendant may warrant compassionate release where he or she "is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory)," though "[a] specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required." U.S.S.G. § 1B1.13, cmt. n.1 (A)(i). Non-exhaustive examples of terminal illnesses that may warrant a compassionate release "include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia." Id. In addition to terminal illnesses, a defendant's debilitating physical or mental condition may warrant compassionate release, including when:
The defendant isId. at cmt. n.1 (A)(ii). Where a defendant has moderate medical issues that otherwise might not be sufficient to warrant compassionate release under ordinary circumstances, some courts have concluded that the risks posed by COVID-19 tips the scale in favor of release in particular situations. See, e.g., United States v. Rodriguez, No. 2:03-cr-00271-AB, 2020 WL 1627331 at *10-11 (E.D. Pa. Apr. 1, 2020) ("Without the COVID-19 pandemic—an undeniably extraordinary event—Mr. Rodriguez's health problems, proximity to his release date, and rehabilitation would not present extraordinary and compelling reasons to reduce his sentence. But taken together, they warrant reducing his sentence.").
(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.
Compassionate release may also be warranted based on a defendant's age and other related factors. In these situations, "extraordinary and compelling reasons" exist where a "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." U.S.S.G. § 1B1.13, cmt. n.1(B). In determining a defendant's projected release date, courts may take into account any "good time credits" awarded to the defendant by BOP for "exemplary" behavior in prison as set forth in 18 U.S.C. § 3624(b)(1). See, e.g., United States v. Burrill, No. 17-cr-00491-RS, 2020 WL 1846788, at *1 n.1 (N.D. Cal. Apr. 10, 2020).
Here, defendant Recinos argues that extraordinary and compelling reasons warranting her compassionate release exist because of: 1) her age (59 years old); 2) her serious health problems; 3) and the conditions at FMC Carswell related to the COVID 19 pandemic. Defendant asserts that she "suffers from multiple sclerosis ("MS"), hypertension (high blood pressure), and asthma," for which she takes medications daily, including an immunosuppressant drug to treat her MS, and inhalers for her asthma. (Doc. No. 121 at 7, 8 - sealed.) Defendant contends that she is "at a higher risk of contracting COVID-19 and developing severe complications and/or dying from the disease," and because MS is incurable, she also "suffers a medical condition from which she 'is not expected to recover.'" (Id. at 9.) In addition, defendant argues that "the conditions reported at FMC Carswell, where a 30-year old inmate has already died from COVID-19, make it impossible for [her] to adequately care for and protect herself despite her vulnerable condition." (Id.) Thus, defendant argues that she falls within the scope of the "medical condition scenario" in the Sentencing Commission's policy statement, U.S.S.G. § 1B1.13, cmt. n.1 (A)(ii). (Id. at 9-10.)
The government counters that defendant's medical conditions are not recognized by the Centers for Disease Control as high-risk factors for becoming severely ill from COVID-19. (Doc. No. 130 at 3-4.) In particular, the government contends that it is not clear from defendant's medical records that her asthma, which is recognized by the CDC as a high-risk factor, is severe or even moderate. (Id. at 9-10.) The government also argues that MS and general hypertension are not listed by the CDC as high-risk factors. (Id. at 9-10.) However, on June 25, 2020—after the government filed its response—the CDC updated its list of risk factors, and hypertension is now so listed. See People Who Are at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/ people-at- higher-risk.html (last reviewed July 16, 2020). Nevertheless, the government argues that having these health conditions alone is not sufficient to warrant compassionate release.
In reply, defendant argues that her medical conditions are an extraordinary and compelling reason warranting a reduction of her sentence because she faces "a much higher risk of suffering severe illness or death from COVID-19" due to her comorbidity, her asthma (regardless of the degree), and her incarceration. (Doc. No. 131 at 2-6.) Defendant contends that whether or not her medical conditions are listed by the CDC as high risk factors is not consequential because the CDC's "guidelines are everchanging," and that the government fails to "acknowledge that much of what we know is consistently changing. COVID-19 transmission, and those factors that puts one at risk is a constantly moving target." (Id. at 2.) Defendant also contends that the government has understated the substantial risks posed by her incarceration at FMC Carswell in particular and that "it is very possible" that the inmate who died at FMC Carswell contracted COVID-19 while at that prison. (Id. at 6-7.)
In light of recent developments at FMC Carswell, the court finds this to be a close case as to whether defendant has satisfied her burden of showing that "extraordinary and compelling reasons" warrant compassionate release. Hypertension and asthma, both of which defendant suffers from, are high risk factors in connection with COVID-19 and there is no doubt that defendant's multiple sclerosis condition is long-standing and serious. Moreover, there has been one death of a prisoner at FMC Carswell related to COVID-19, although that prisoner had recently been transferred to that prison from a local jail and was immediately quarantined. (Doc. Nos. 130 at 5; 130-1 at 10.) Most importantly from the court's point of view, when the government filed its response to defendant's motion, there were no confirmed active COVID-19 cases among any prisoners or staff members at FMC Carswell. (See Doc. No. 130 at 5.) However, as of July 16, 2020, the BOP now reports that 177 prisoners and 3 staff members at that prison are now confirmed as active COVID-19 cases. See https://www.bop.gov/coronavirus/ (last reviewed July 16, 2020). Thus, it appears that the in a mere month and a half, the active COVID-19 virus cases at FCM Carswell went from 0 to 180. This development has convinced the court that the defendant's medical conditions and the fact that some of those conditions place her at higher risk of becoming seriously ill if infected by COVID-19, when considered in combination with the outbreak of the virus at her institution of confinement, constitute extraordinary and compelling reasons warranting a reduction of her sentence.
C. Consistency With the § 3553(a) Factors
Finally, any relief to be granted pursuant to 18 U.S.C. § 3582(c)(1)(A) must be consistent with the sentencing factors set forth in §3553(a). Trent, 2020 WL 1812242, at *2; see also Parker, 2020 WL 2572525, at *11.
Title 18 U.S.C. § 3553(a) provides that, in determining the sentence to be imposed, the court shall consider: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence, protect the public from further crimes of the defendant and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; the kinds of sentences available; the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines; any pertinent policy statement issued by the Sentencing Commission; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense.
As noted above, defendant Recinos is currently serving a 55-month sentence on her conviction for conspiracy to commit mail fraud and wire fraud in violation of 18 U.S.C. § 1349. The offense, in which she played an aggravating role, was an extremely serious one. Defendant's innocent victims lost over $1.5 million dollars due to her fraud. Indeed, the government contends because defendant "was a leader in an elaborate $1.5 million fraud scheme" that operated for three years (Doc. No. 130 at 11-12) (citing U.S.S.G. § 1B1.13(2)), she is a danger to the community and is not entitled to compassionate release.
At sentencing, defendant was found responsible for a loss amount in excess of $1.5 million and less than $3.5 million and to have been an organizer or leader in the fraudulent investment conspiracy, resulting in an offense level of 26 under the Sentencing Guidelines ("U.S.S.G."). (Doc. No. 103 at 8.) Given the defendant's complete lack of criminal history of any kind she was a Category I criminal history, resulting in an advisory sentencing guideline range calling for a term of imprisonment between 63 and 78 months. (Id . at 17.) Pursuant to the parties' plea agreement, the government argued for a sentence at the low end of the guidelines, 63 months. (Doc. No. 107). However, in the presentence report the probation officer recommended that the court vary downward in consideration of the § 3553(a) factors to a sentence of 48 months as providing just punishment for the offense as well as adequate deterrence, while potentially allowing for the repayment of restitution. (Id. at 16-18.) In particular the mitigating circumstances noted by the probation officer in recommending a downward variance included the defendant's age, lack of prior arrest history or evidence of past criminal conduct, her significant and serious medical problems requiring ongoing treatment and medication monitoring, and favorable performance while under Pretrial Services supervision in this case. (Id. at 16.) The probation officer also opined that "[i]f not for the ongoing nature of the offense conduct, the current offense could be described as aberrant" and that "it appears unlikely [defendant] would be involved in similar criminal conduct" in the future. (Id.) The undersigned ultimately did vary downward in light of its consideration of the § 3553(a) factors, but only to a sentence of 55 months imprisonment. (Doc Nos. 108, 109.)
In light of the presentence report's thoughtful analysis and recommendation, it cannot be said that the granting of a sentence reduction in this case would be inconsistent with the factors set out in § 3553(a). The fact that the undersigned originally imposed a sentence with a slightly less significant downward variance at the time of the original sentencing does not impact that conclusion. Moreover, "'[t]he length of the sentence remaining is an additional factor to consider in any compassionate release analysis,' with a longer remaining sentence weighing against granting any such motion." United States v. Shayota, No. 1:15-cr-00264-LHK-1, 2020 WL 2733993 at *6 (N.D. Cal. May 26, 2020) (quoting United States v. Connell, ___ F. Supp. 3d ___, 2020 WL 2315858, at *6 (N.D. Cal. May 8, 2020)). Here, although defendant has served approximately 60% of her originally imposed sentence, the parties agree that she qualifies for other BOP release programs and is scheduled for release in just under 5 months from today. Given her complete lack of criminal history and the other factors cited therein, there is also little reason to question the presentence report's conclusion that defendant is unlikely to reoffend and that her release would not pose a danger to the community. Finally, no unwarranted sentencing disparity would result from a reduction in defendant's sentence since her co-defendant, who was less culpable than defendant in this criminal conspiracy, was sentenced to the custody of the BOP for a six month term of imprisonment. See United States v. Jamil, No. 1:15-cr-00264-LHK-4, 2020 WL 2614877 at *4 (N.D. Cal. May 21, 2020).
CONCLUSION
For the foregoing reasons, defendant's motion (Doc. No. 121) is granted. The sentence previously imposed of a 55-month term of imprisonment is reduced to a sentence of 48-month term of imprisonment pursuant to 18 U.S.C. § 3582(c)(1)(A) and for the reasons explained above. All terms and conditions of the previously imposed 36-month term of supervised release remain in full force and effect. IT IS SO ORDERED.
Available relief under § 3582(c)(1)(A) includes both compassionate release as well as "a reduction in sentence." United States v. Parker, ___ F. Supp. 3d ___, 2020 WL 2572525, at *1 (C.D. Cal. May 21, 2020) (quoting United States v. Marks, ___ F. Supp. 3d ___, n.3, 2020 WL 1908911, at *3 n.3 (W.D.N.Y. Apr. 20, 2020). Here, the court reduces defendant's sentence in a manner that, if the release date previously anticipated by the parties is correct, should result in defendant's immediate release from custody.
Dated: July 20 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE