Opinion
Case No. 3:08-cr-304-JGC-4
10-01-2020
UNITED STATES of America, Plaintiff v. Raudell RODRIGUEZ-GONZALES, Defendant
Thomas P. Weldon, Ava Rotell Dustin, Guillermo J. Rojas, Office of the U.S. Attorney, Toledo, OH, for Plaintiff.
Thomas P. Weldon, Ava Rotell Dustin, Guillermo J. Rojas, Office of the U.S. Attorney, Toledo, OH, for Plaintiff.
ORDER
James G. Carr, Sr. U.S. District Judge
Pending in this criminal case is a motion by the defendant, Raudell Rodriguez-Gonzales, for compassionate release from custody under 18 U.S.C. § 3582 and the First Step Act of 2018. (Docs. 623 & 633).
Rodriguez-Gonzales, now 67 years old and an inmate of the Bureau of Prisons ("BOP") since 2008, contends that the COVID-19 pandemic, his advanced age, and his deteriorating physical condition justify the requested relief. The government opposes the motion (Doc. 637), and Rodriguez-Gonzales has replied (Doc. 642).
For the following reasons, I deny Rodriguez-Gonzales's motion. Background
In 2009, Rodriguez-Gonzales pled guilty of conspiring to possess with intent to distribute at least 1,000 kilograms but less than 3,000 kilograms of marijuana in violation of 21 U.S.C. § 846.
Under the Sentencing Guidelines, Rodriguez-Gonzales's total offense level was 34, and his criminal history was category VI. (PSR at ¶¶ 59 & 61). The government had filed an information under 21 U.S.C. § 8519(a)(1) that listed a prior felony drug conviction and, in turn, triggered a mandatory sentencing enhancement. (Doc. 232). At sentencing, I imposed a 240-month sentence on the conspiracy conviction. (Doc. 524).
The U.S. Court of Appeals for the Sixth Circuit affirmed Rodriguez-Gonzales's convictions and sentence on direct appeal. United States v. Rodriguez-Gonzales , 543 Fed. App'x 532 (6th Cir. 2013). Rodriguez-Gonzales thereafter sought postconviction relief on several occasions, but all were fruitless.
Rodriguez-Gonzales is now 67 years old, is incarcerated at the Federal Correctional Institution Oakdale II in Oakdale, Louisiana, and has a BOP projected release date of June 28, 2025. FED. BUREAU OF PRISONS , FIND AN INMATE , (2020), https://www.bop.gov/inmateloc/ (last visited Sept. 29, 2020 ).
On September 20, 2019, Rodriguez-Gonzales made a request for compassionate release because of his age and "medical conditions, related to aging proces [sic] experiencing deteriorating physical health." (Doc. 642-1, pgID 1). BOP denied that request on September 23, 2019, stating that Rodriguez-Gonzales did not qualify for compassionate release. (Id. ). Rodriguez-Gonzales renewed his request on February 19, 2020 and that request was denied on March 6, 2020. On March 11, 2020, Rodriguez-Gonzales submitted another request for compassionate release and this time he also cited the COVID-19 pandemic as the grounds for his requested relief. (Doc. 637-1). BOP denied that request on April 13, 2020. (Doc. 637-2).
On April 28, 2020, Rodriguez-Gonzales filed a pro se motion for a sentence reduction under the First Step Act. (Doc. 623). I appointed counsel to review Rodriguez-Gonzales's motion and file a position paper. (Non-document entry of May 25, 2020). Counsel's statement clarified that Rodriguez-Gonzales was seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A), which the First Step Act amended. (Doc. 633).
In Rodriguez-Gonzales's motion for compassionate release, he argues that the COVID-19 pandemic, his advanced age, and his deteriorating physical condition justify the requested relief. (See id. ).
Rodriguez-Gonzales contends that he is experiencing a serious deterioration of his physical and mental health because of the aging process. (See id. , pgID 4). Rodriguez-Gonzales points to his diabetes, high blood pressure, tremors and chronic headaches, arthritis in his knees and his back, and his severe lumbar pain as evidence of his deteriorating health. (See id. ).
Standard of Review
A court may, on motion by the BOP or by the defendant after exhausting all BOP remedies, reduce or modify a term of imprisonment after considering the factors of 18 U.S.C. § 3553(a), if the court finds "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i).
The Sentencing Commission implemented the directives of § 3582(c)(1)(A) in Guideline 1B1.13. That Guideline provides that a sentence reduction is appropriate if, as applicable in this case, the court finds that: 1) "[e]xtraordinary and compelling reasons warrant the reduction"; 2) "[t]he 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) "[t]he reduction is consistent with this policy statement." U.S.S.G. 1B1.13(1)(A), (2)-(3).
The commentary to Guideline 1B1.13 sheds light on what constitutes "extraordinary and compelling circumstances. "Provided the defendant meets the requirement of subdivision (2)," Comment 1 begins, "extraordinary and compelling circumstances exist under any of the circumstances set forth below":
(A) Medical Condition of the Defendant
* * *
(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.
U.S.S.G. § 1B1.13, App. Note 1A(ii)(I), (III).
Discussion
A. Rodriguez-Gonzales Has Exhausted His Administrative Remedies
As a preliminary matter, the government argues that Rodriguez-Gonzales has failed to exhaust his administrative remedies before filing his motion for compassionate release. (Doc. 637, pgID 2-3). According to the government, Rodriguez-Gonzales filed a "Request for Sentence Reduction" on March 11, 2020, and the institution where he is serving his sentence responded on April 13, 2020. (Id. ). The government argues that Rodriguez-Gonzales must have either (a) fully exhausted all administrative rights to appeal a failure of the BOP to bring a motion on the defendant's behalf, or (b) 30 days must have lapsed since the receipt of such a request by the warden of the prison. 18 U.S.C. § 3582(c)(1)(A).
However, Rodriguez-Gonzales points out that he first made a request for compassionate release because of his age and deteriorating health on September 20, 2019. (Doc. 642-1, pgID 1). And on September 23, 2019 BOP denied that request, stating that Rodriguez-Gonzales did not qualify for compassionate release. (Id. ).
Rodriguez-Gonzales has satisfied the administrative requirement of waiting 30 days after sending his request to the prison. 18 U.S.C. § 3582(c)(1)(A). Rodriguez-Gonzales first requested relief in September 2019, and because the underlying reasons for that request are substantially the same as the reasons behind the instant motion Rodriguez-Gonzales has satisfied the administrative requirements under 18 U.S.C. § 3582(c)(1)(A).
B. Extraordinary and Compelling Circumstances
Rodriguez-Gonzales advances two separate arguments for compassionate release. First, he argues that he is at a heightened risk of serious complications due to COVID-19 because of his advanced age. Second, Rodriguez-Gonzales argues that compassionate release is warranted independent of COVID-19 because of his age and deteriorating health. I am not persuaded by either argument.
1. COVID-19
To support his argument that compassionate release due to COVID-19 is warranted, Rodriguez-Gonzales points to CDC guidance that individuals over the age of 65 are at heightened risk of complications due to the disease. (Doc. 623-1, pgID 1). Rodriguez-Gonzales asserts that as an incarcerated individual, he is at special risk for infection given that disease control is challenging in the prison setting. (Doc. 633, pgID 5).
Rodriguez-Gonzales argues that uncontrolled flu outbreaks and the H1N1 epidemic of 2009 illustrate how jails and prisons are ineffective at dealing with viral outbreaks. (Id. , pgID 6). And Rodriguez-Gonzales presents data from Chinese and Iranian prisons to show how quickly COVID-19 can spread within a prison population. (Id. ).
Moreover, Rodriguez-Gonzales asserts that the largest outbreaks of COVID-19 in the United States are tied to jails and prisons. (Id. ). Rodriguez-Gonzales points to Marion Correctional Institution in Ohio, which reported nearly two thousand positive cases of COVID-19 in April 2020. (Id. ). Rodriguez-Gonzales also presents FCI Elkton as an example of how cases of COVID-19 are underreported in prisons and how deadly that is. (Id. ).
Turning to FCI Oakdale II, where Rodriguez-Gonzales is serving his sentence, Rodriguez-Gonzales asserts that there has been at least one confirmed inmate death from COVID-19. (Id. ). And Rodriguez-Gonzales asserts that FCI Oakdale I, which is a separate facility but located on the same road as FCI Oakdale II, has seen over 200 confirmed positive cases and seven inmate deaths. (Id. ).
In the government's response, it does not dispute that COVID-19 is a serious disease. Instead, the government argues that potential COVID-19 exposure is not an extraordinary and compelling reason to grant release. (Doc. 637, pgID 3). The crux of the government's argument is that the existence of COVID-19 in society at large and the mere possibility that COVID-19 could spread within a prison is not enough to justify compassionate release. (Id. ).
The government asserts that the current risk of contracting COVID-19 at Oakdale II is low. (Id. , pgID 4). And the government argues that Rodriguez-Gonzales has not shown that his medical needs will not be met if he contracts COVID-19 while incarcerated. (Id. ).
I agree with the government. Rodriguez-Gonzales has failed to show that he meets the requirements for compassionate relief because of the COVID-19 pandemic. Although the CDC does consider people in Rodriguez-Gonzales's age group to be at an increased risk of severe effects if infected, it does not "substantially diminish the ability of the defendant to provide self-care within the environment of a correctional facility," Note 1A(ii)(I).
Moreover, as of this date, Oakdale II FCI reports only a single inmate who has contracted Covid-19 and nine staff members, https://www.bop.gov/coronavirus/ (last visited Sept. 29, 2020 ). Rodriguez-Gonzales has not alleged that he has been, or is likely to be, exposed to that inmate or those staff members. This minimal incidence of COVID-19 in FCI Oakdale II suggests that the institution has been effective in protecting inmates to date.
2. Advanced Age and Deteriorating Health
I also find that, "extraordinary and compelling circumstances" do not exist based on the Age of Defendant Note to Guideline § 1B1.13.
As the Note requires, Rodriguez-Gonzales "is at least 65 years old." He has also "served at least 10 years or 75 percent of his ... term of imprisonment, whichever is less." Rodriguez-Gonzales has served nearly twelve years of his sentence, which is less than 180 months (representing 75% of his sentence).
But the Note also requires that I find that Rodriguez-Gonzales "is experiencing a serious deterioration in physical or mental health because of the aging process." That does not appear to be the case based on the medical evidence presented.
"Whether a defendant is experiencing ‘a serious deterioration in physical or mental health because of the aging process,’ a criterion that is part of the Age of Defendant Note, is a fact-intensive analysis[.]" United States. v. Ebbers , 432 F. Supp. 3d 421, 428 (S.D.N.Y. 2020). To qualify for relief under this provision, "a defendant need not have lost all ability to provide self-care or be suffering a terminal illness[.]" ( Id. ). The Age of Defendant Note does require, however, "the age-related deterioration to be ‘serious.’ " ( Id. ).
There is no dispute that Rodriguez-Gonzales currently suffers from multiple severe and chronic medical conditions. Indeed, he lists the following conditions in his reply: chronic sinus inflammation, an enlarged prostate, herpes viral infection, high cholesterol, hyperparathyroidism, neuralgia and neuritis, diabetes, hemorrhoids, skin ailments, acid reflux, ulcers, hypertension, mild dementia, and varicose veins. Rodriguez-Gonzales also requires an inhaler and is at a heightened risk of heart disease or stroke.
The government argues that Rodriguez-Gonzales has not established that his health condition is extraordinary and compelling. Specifically, the government asserts that while Rodriguez-Gonzales may suffer from serious medical conditions, he has not established that his conditions are not being managed by BOP.
Having considered the parties’ arguments in light of the evidence of record – and in particular the BOP treatment records from January 2020 onward – I find that Rodriguez-Gonzales has not proved that his age-related deterioration has "substantially diminishe[d]" his ability "to provide self-care within the environment of a correctional facility." U.S.S.G. § 1B1.13(1)(A)(ii).
To the contrary, what little evidence exists on this point tends to show that, notwithstanding Rodriguez-Gonzales's many severe and chronic ailments, he is able to care for himself within the prison. BOP has instituted extensive measures to protect inmates from COVID-19 infection. Physicians associated with BOP are also regularly monitoring and effectively treating Rodriguez-Gonzales's many conditions. And BOP has not had to transfer Rodriguez-Gonzales to any external facility to receive care.
And Rodriguez-Gonzales's citation to supportive caselaw from outside of this circuit does not change my opinion because those cases are distinguishable.
For example, the defendant in United States v. Mondaca , No. 89-CR-06555, 2020 WL 1029024 (S.D. Cal. Mar. 3, 2020), was almost eighty years old and placed on suicide watch after being assaulted by other inmates. At the time of his release, the defendant had been withdrawn to his cell out of fear of interaction with other inmates and had become increasingly vulnerable to victimization within that correctional facility. The defendant in United States v. Cantu-Rivera , No. 89-cr-204, 2019 WL 2578272 (S.D. Tex. June 24, 2019) had also served 30 years in prison and had "an extraordinary degree of rehabilitation," including over 4,000 hours of teaching while in federal prison and extensive volunteer service in BOP's suicide watch program.
Thus, because Rodriguez-Gonzales has not demonstrated any "extraordinary or compelling reason" for release, I deny his request to reduce his sentence. (Docs. 623 & 633).
Conclusion
Under these circumstances, Rodriguez-Gonzales has failed to show that "[e]xtraordinary and compelling reasons warrant" the reduction of his sentence.
It is, therefore,
ORDERED THAT:
Rodriguez-Gonzales's motion (Doc. 623) and supplemental motion (Doc. 633) for compassionate relief be, and hereby are, denied.
So ordered.