Opinion
6:16-CR-06024 EAW
12-01-2020
UNITED STATES of America, v. Victor RIVERA, Defendant.
Everardo A. Rodriguez, U.S. Attorney's Office, Rochester, NY, for United States of America. James P. Vacca, One East Main Street, Rochester, NY, for Defendant.
Everardo A. Rodriguez, U.S. Attorney's Office, Rochester, NY, for United States of America.
James P. Vacca, One East Main Street, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court is a pro se motion filed by defendant Victor Rivera (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 185). For the reasons set forth below, Defendant's request is denied.
II. BACKGROUND
Defendant, who was convicted pursuant to a plea agreement of violating 21 U.S.C. § 846 by conspiring to possess with intent to distribute 500 grams or more of cocaine, was sentenced by this Court on August 1, 2018, to 96 months in prison to be followed by four years supervised release. (Dkt. 141; Dkt. 157). Defendant contends that compassionate release is warranted because of the COVID-19 pandemic, his age (he is 56 years old), and his pre-existing medical conditions (a history of hypertension, sleep apnea, and high cholesterol). (Dkt. 185 at 5). Defendant is currently housed at Federal Correctional Institution Allenwood (Low) ("FCI Allenwood (Low)"), and he is scheduled to be released on December 16, 2022. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Nov. 25, 2020). According to statistics published on a Bureau of Prisons ("BOP") website, FCI Allenwood (Low) has had very little spread of COVID-19, with only two staff members currently testing positive, no inmates currently testing positive, and one inmate and one staff member previously testing positive but recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Nov. 29, 2020). That same website indicates that 170 inmates at FCI Allenwood (Low) have had COVID-19 tests completed, two inmates have pending tests, and four inmates have had positive tests. Id. According to the government, the inmate-population at FCI Allenwood (Low) is 988. (Dkt. 189 at 8).
The sentence imposed was within the calculated Guidelines range of 87 to 108 months in prison, based on an offense level 27 and a criminal history category III. (Dkt. 158; see Dkt. 152 at ¶ 85).
Defendant states that he is 56 years old at one point in his motion (Dkt. 185 at 5), but then at another point he indicates that he is 60 years old (id. at 6). The Court has reviewed Defendant's date of birth in the Presentence Investigation Report and confirmed that Defendant is 56 years old. (See Dkt. 152 at 3).
Obviously these numbers do not add up (four inmates testing positive in one section of the website, with only one inmate listed as testing positive in another section of the website). But still, the numbers reported reflect very little infiltration of COVID-19 within FCI Allenwood (Low).
Also submitted in support of the pending motion was a supplement to the motion (Dkt. 190), along with two letters from Defendant's family members and an affidavit from a fellow inmate. (Dkt. 187; Dkt. 188; Dkt. 191). Defendant also submitted a letter requesting appointment of counsel. (Dkt. 192).
The government has opposed Defendant's motion, arguing that he has failed to demonstrate extraordinary and compelling circumstances, and the factors set forth in 18 U.S.C. § 3553(a) do not justify a sentence reduction. (Dkt. 189). The government cites to the factual basis of Defendant's plea agreement, wherein he admitted to being involved in a drug trafficking conspiracy with his two sons and others from May 2015 through February 2016, involving at least 2 kilograms but less than 3.5 kilograms of cocaine; and wherein he acknowledged possessing numerous loaded firearms to protect the cocaine and cocaine base stored at his residence as part of the drug trafficking conspiracy. (See Dkt. 141 at ¶ 5). The government also includes information provided by BOP counsel about various safeguards implemented at FCI Allenwood (Low) to protect against the spread of COVID-19. (Dkt. 189 at 8-10).
The Court also received a memorandum from the United States Probation Department dated September 24, 2020, recommending against the requested relief. (Dkt. 196). That memorandum noted the existence of Defendant's pre-existing medical conditions cited in his motion, as well as some others, and it also noted that Defendant has not incurred any disciplinary infractions while incarcerated. (Id. ).
III. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... 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 ... 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). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term.
The Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020).
The government does not oppose Defendant's application on exhaustion grounds, as he filed a request with the Warden at FCI Allenwood (Low) for release and that request was denied on June 8, 2020. (Dkt. 189 at 3). See United States v. Wen , 454 F. Supp. 3d 187, 194 (W.D.N.Y. 2020) (as a claim-processing rule, § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional and thus subject to the doctrines of waiver and equitable estoppel). Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.
The Court will assume arguendo that Defendant's pre-existing conditions place him at an increased risk of becoming seriously ill from the virus that causes COVID-19. However, in and of itself, this increased risk does not constitute extraordinary and compelling reasons justifying a reduction in Defendant's sentence, particularly given that the situation with COVID-19 appears well-controlled at FCI Allenwood (Low). While the Court acknowledges the difficulties in controlling the spread of this virus in a prison setting, the virus exists both inside and outside the prison walls. If released, Defendant would still be facing a risk of COVID-19. The Court cannot conclude based on this record that Defendant has established extraordinary and compelling reasons to justify a sentence reduction.
The Centers for Disease Control and Prevention notes on its website: "We are learning more about COVID-19 every day. The below list of underlying medical conditions is not exhaustive and only includes conditions with sufficient evidence to draw conclusions; it is a living document that may be updated at any time, subject to potentially rapid change as the science evolves." See Coronavirus Disease 2019 (COVID-19): People with Certain Medical Conditions , Ctrs. for Disease Control & Prevention (Nov. 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. Some of Defendant's medical conditions fall within the types of conditions that, at a minimum, may increase the risk of serious illness from the virus that causes COVID-19. Id.
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Even if Defendant could establish extraordinary and compelling reasons justifying a reduction in his sentence, the Court views the § 3553(a) factors as fatal to Defendant's motion. By his own admission, Defendant was involved in a dangerous drug trafficking conspiracy that utilized numerous firearms to promote its activities. This was not Defendant's first conviction. His criminal history dates back to 1998, with the seriousness of Defendant's convictions escalating as he grew older. (Dkt. 152 at ¶¶ 69-74). In June 2015, Defendant pleaded guilty to a felony drug-trafficking state court crime based on events occurring in November 2014 (id. at ¶ 73), and in May 2015, he pleaded guilty to a misdemeanor crime involving stolen property based on events occurring in December 2014 (id. at ¶ 74). At the time of the instant offense, Defendant was under a conditional discharge for the May 2015 misdemeanor and on pretrial release for the state court felony drug-trafficking crime. (Id. at ¶ 76; Dkt. 189 at 12). Defendant's background and offense conduct reflect his dangerousness to the community. While the Court acknowledges the progress at rehabilitation that Defendant appears to be making while incarcerated, the Court concludes that reducing Defendant's sentence because of the current pandemic would undermine the fairness and purpose of the original prison sentence in this case, which was imposed just over two years ago and which Defendant is not scheduled to complete for another two years. See United States v. Roney , 833 F. App'x 850, 854, No. 20-1834 (2d Cir. Nov. 2, 2020) ("[C]ourts regularly consider whether compassionate release would be consistent with § 3553(a) by considering how early release would impact the aims of the original sentence.").
In sum, the Court appreciates that Defendant is concerned about the pandemic and being housed in a correctional facility with certain medical conditions that may place him at an increased risk for serious illness from the virus causing COVID-19. Moreover, the Court recognizes that prison settings can present challenges in thwarting the spread of this virus. However, on the record before the Court, a reduction of Defendant's prison sentence is not warranted.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 185) is denied, as is his related request for appointment of counsel (Dkt. 192).
SO ORDERED.