Opinion
17-cr-169 (JGK)
10-03-2023
UNITED STATES OF AMERICA v. ENRICO RUBANO, Defendant.
MEMORANDUM OPINION AND ORDER
JOHN G. KOELTL, DISTRICT JUDGE
The defendant, Enrico Rubano, moves for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), alleging that there are extraordinary and compelling circumstances that justify his release. The defendant asks the Court to replace the remainder of his sentence with supervised home confinement.
The defendant pleaded guilty to three counts of conspiracy in violation of 18 U.S.C. § 1349 to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1346. The Pre-Sentence Report in this case indicated that the defendant participated in a conspiracy to defraud his employer, the American Federation of Television and Radio Artists ("AFTRA") Retirement Fund and the Screen Actors Guild and American Federation of Television and Radio Artists ("SAG-AFTRA") Health & Retirement Funds (the "Funds"). The conspiracy resulted in a loss to the Funds of over $3 million and the receipt by the defendant of over $900,000 in kickbacks. The severity of the crime was enhanced by the fact that the defendant abused his position of trust with the Funds and obstructed justice in an effort to cover up his crimes. At sentencing, the Court determined a Guideline Sentencing Range for the defendant of 87 to 108 months. See June 16, 2022 Sentencing Tr., ECF No. 341 ("Tr.") at 16. In determining the appropriate sentence to impose at sentencing, the Court carefully considered the factors listed in 18 U.S.C. § 3553(a) (2) and downwardly varied to a sentence of principally 48 months' imprisonment. See Tr. 16-19. The Court considered the seriousness of the offense, the magnitude of the fraud, the abuse of the position of trust, and the obstruction of justice. See Tr. 17. The Court also thoroughly considered mitigating factors, including the defendant's addiction, mental health concerns, and the defendant's representation that he was critical to the care of his wife, children, and elderly parents. See Tr. 17-18. The defendant was ordered to begin service of his sentence on October 7, 2022. See ECF No. 349.
Now, with less than a year of his sentence completed, the defendant moves to reduce his sentence to time served based on the medical conditions of his wife and one of his twin children, conditions the Court considered in imposing the original sentence. Moreover, the defendant has received or expects to receive various credits toward the completion of his sentence. He expects to receive a one-year reduction for his successful completion of the intensive residential substance abuse treatment program of the Bureau of Prisons and additional credits from the successful completion of programming under the First Step Act. Upon receipt of such credits, the defendant will be scheduled to be released on or about December 3, 2024, and will be eligible for home detention placement on or about July 11, 2024. See Gov't Opp'n 6 n.2, ECF No. 354.
Section 3582(c)(1)(A) provides that a district court may reduce a sentence after considering the factors set forth in Section 3553(a), to the extent they are applicable, provided that the defendant has exhausted administrative remedies and has demonstrated an "extraordinary and compelling reason" that justifies the sentence reduction. See 18 U.S.C. § 3582(c)(1)(A)(i). The factors in Section 3553(a) are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence to reflect the appropriate purposes of punishment; (3) the kinds of sentences available; (4) the sentencing guidelines range; (5) any policy statement by the Sentencing Commission; (6) avoiding disparate sentences among similarly situated defendants; and (7) the need to provide restitution. 18 U.S.C. § 3553(a).
Unless otherwise noted, this Memorandum Opinion and Order omits all internal alterations, citations, footnotes, and quotation marks in quoted text.
A district court has broad discretion in determining whether a defendant has shown an extraordinary and compelling reason for a sentence reduction. See United States v, Brooker, 976 F.3d 228, 237 (2d Cir. 2020). "The only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation alone shall not be considered an extraordinary and compelling reason." Id. at 237-38 (citing 28 U.S.C. § 994(t)).
In this case, the defendant exhausted his administrative remedies. A defendant "may not move for compassionate release in court until the [defendant] exhausts his administrative remedies or 30 days elapse from the BOP's receipt of his request for compassionate release, whichever comes first." United States v. Pichardo, No. 17-cr-512, 2020 WL 3819602, at *1 (S.D.N.Y. July 8, 2020) (citing 18 U.S.C. § 3582(c)(1)(A)). The defendant argues that he has exhausted his administrative remedies because his consultant sent a letter by United States Mail and facsimile to the Warden at FCI Morgantown seeking assistance in bringing a motion for sentence reduction on the defendant's behalf. See Root Decl., EOF No. 357, Ex. 1. The defendant did not receive a response from the Bureau of Prisons ("BOP") within thirty days of April 27, 2023, the date that the BOP allegedly received the letter by facsimile. The Government argues that as of about July 5, 2023, the BOP reported that it had no records of the defendant's request. But the defendant has presented sufficient evidence that the letter was sent by facsimile on April 27, 2023, see Root Decl., ECF No. 357, Ex. 1, and the Government has not provided evidence to the contrary. The defendant did not receive a response from the BOP within thirty days of April 27, 2023, and therefore, the defendant has exhausted his administrative remedies.
The Court is also prepared to accept that the defendant has presented extraordinary and compelling reasons for release. Pursuant to Booker, the Court has broad discretion in determining whether a defendant has shown an extraordinary and compelling reason for a sentence reduction. 976 F.3d at 237. The defendant in this case points to his daughter's recent diagnosis of autism; delays in her physical, cognitive, social, and emotional development; difficulty sleeping; and recent febrile seizure, which resulted in hospitalization. See Def.'s Mot., ECF No. 352, Exs. 3-10. The defendant also points to his wife's fibromyalgia, post-traumatic stress disorder, pregnancy complications, insomnia, depressive disorder, and body pain and weakness. See id., Exs. 6, 7, 11-14. The defendant represents that his wife does not have any family members or friends who are able to provide her with assistance, and that she is likely to lose her job because the care of her daughter interferes with her work hours. The Court is prepared to accept that the defendant has shown extraordinary and compelling circumstances based on the medical conditions of his wife and one of his young twins.
However, the defendant has failed to show that immediate release is consistent with the factors set forth in Section 3553(a). At the time of sentencing, the Court carefully considered all of the 3553(a) factors and arrived at a sentence that included a substantial downward variance. See Tr. 16-19. The sentence was sufficient but no greater than necessary to comply with the purposes set forth in section 3553(a)(2), including to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment. See id. The offenses involved a significant fraud against welfare funds, and it was accomplished through the defendant's gross abuse of his position of trust that was exacerbated by his obstruction of justice. See Tr. 17. The Court carefully considered the mitigating factors that the defendant again emphasizes, including the health of the defendant's wife and one of his children. See Tr. 17-18. But those factors did not warrant a lesser sentence at the time the sentence was imposed and do not warrant a lesser sentence now. The sentence the defendant seeks would not be sufficient to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). See United States v. Aller, No. 00-cr-977, 2022 WL 912749 (S.D.N.Y. Mar. 29, 2022); United States v. Castillo, 545 F.Supp.3d 104 (S.D.N.Y. 2021).
CONCLUSION
The Court has considered all of the arguments of the parties. To the extent not specifically discussed above, the arguments are either moot or without merit. The defendant's application for a reduction of sentence is denied. The Clerk is directed to close ECF No. 352.
SO ORDERED.