Opinion
No. 1:13-cr-00420-NONE
01-11-2021
UNITED STATES OF AMERICA, Plaintiff, v. ELIEZAR AGUILAR-MADRIZ, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE
(Doc. No. 117)
Pending before the court is defendant Eliezar Aguilar-Madriz's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). The motion is largely based on defendant's medical condition and the risks allegedly posed to him by the ongoing coronavirus ("COVID-19") pandemic. (Doc. No. 117.) For the reasons explained below, defendant's motion will be denied.
BACKGROUND
On February 28, 2014, defendant Aguilar-Madriz was charged by way of a superseding indictment in six counts: conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count One); distribution of 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two); use of a minor in committing a drug trafficking offense, distribution of 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, heroin, and marijuana, and aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1), 861(a)(1), and 18 U.S.C. § 2 (Counts Three and Four); and possession with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and marijuana and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (Counts Five and Six). (Doc. No. 35.) On March 30, 2015, pursuant to the parties' plea agreement, defendant entered a plea of guilty to Count Three of the superseding indictment. (Doc. Nos. 64 at 2; 70.)
The presentence report prepared in defendant's case summarized his offense conduct, reporting that between January and November 2013, defendant supplied various amounts of methamphetamine on several occasions and heroin on one occasion to undercover agents. (Doc. No. 77 (Presentence Report) at 5-6.) Defendant was found to be responsible for the sale of 3.9 kilograms of methamphetamine and 25.4 grams of heroin. (Id. at 7.) In addition, defendant used his minor son to count the money received following one of the illegal drug transactions. (Id. at 5, 14.) It was ultimately determined that under the advisory U.S. Sentencing Guidelines defendant Aguilar-Madriz's adjusted offense level was 33 and his criminal history placed him in category I, resulting in an advisory sentencing guideline range calling for a term of imprisonment of between 135 and 168 months. (Id. at 14.) The U.S. Probation Office recommended that a sentence of 135 months be imposed. (Id.) Defendant's counsel argued for a sentence of not more than 120 months. (Doc. No. 88 at 3.) On June 29, 2015, the sentencing judge varied downward from the advisory guideline range and sentenced defendant to 120 months in prison and imposed the $100 mandatory special assessment. (Doc. Nos. 89; 90 at 2-3.) No term of supervised release was imposed in light of the defendant's near certain deportation following the service of his sentence.
Defendant was found to be "safety valve" eligible in part because he was not a leader in committing his offense and he did not have any prior criminal convictions. (Doc. No. 77 (Presentence Report) at 7, 14.) Thus, the sentencing court was not required to impose the mandatory minimum sentence of 10 years, although the presentence report noted the presence of aggravating factors, such as defendant's involvement of his minor son in the offense conduct, which in the probation officer's view supported a sentence within the advisory guideline range, nonetheless. (Id. at 14.)
Defendant is currently serving his sentence at the Big Spring Correctional Institution located in Big Spring, Texas ("CI Big Spring"), a U.S. Bureau of Prisons' ("BOP") private, contract facility, with a projected release date of June 25, 2022. See Find an inmate, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/inmateloc/ (last visited Jan. 5, 2021.) On November 23, 2020, defendant filed the pending motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc. No. 117.) On December 14, 2020, the government filed its opposition to the motion, and on December 21, 2021, defendant filed his reply thereto. (Doc. Nos. 123, 129.)
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, 452 F. Supp. 3d 964, 968 (D. Or. 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 [BOP] 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, 451 F. Supp. 3d 1194, 1197 (E.D. Wash. 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, 461 F. Supp. 3d 966, 978-79 (C.D. Cal. 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, at *1 (C.D. Cal. Jan. 31, 2020); United States v. Van Sickle, No. 18-cr-0250-JLR, 2020 WL 2219496, at *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, 461 F. Supp. 3d at 973-74; United States v. Trent, 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
On June 9, 2020, defendant submitted an administrative request to the facility administrator at D. Ray James Correctional Institution ("CI DRJ")—where defendant was incarcerated at that time—seeking an immigration hearing to have his "Public Safety Factor" classification removed so he could be eligible for compassionate release. (Doc. No. 117-1 at 6-7.) That request was denied on June 15, 2020. (Id. at 5.) The government submits additional documentation demonstrating that defendant submitted an administrative request seeking his compassionate release on June 11, 2020 and that the facility administrator at CI DRJ denied that request a week later, on June 18, 2020. (Doc. No. 123-1 at 8-9, 11.) In that denial, the facility administrator noted that defendant failed to provide "proposed released plans," including where he would live, how he would support himself, and how he would receive and pay for medical treatment. (Id. at 11.) The facility administrator stated that if defendant had "additional information which could be considered extraordinary or compelling," any further request should be submitted to the facility administrator's office. (Id.) On July 23, 2020, defendant's counsel submitted an administrative request to the facility administrator at CI DRJ seeking defendant's compassionate release. (Doc. No. 117-1 at 10-11.) As of the date that the pending motion for compassionate release was filed, defendant represents that no response has been received to his counsel's July 23, 2020 administrative request. (Doc. No. 117 at 17.)
The court concludes that defendant has exhausted his administrative remedies, or in the alternative, that defendant is excused from exhausting those administrative remedies. First, the government concedes that defendant has exhausted his administrative remedies. (Doc. No. 123 at 4.) Because a failure to exhaust administrative remedies where such is required is normally viewed as an affirmative defense that must be pled and proven, the government's concession as to exhaustion is dispositive of the issue. Second, the court observes that defendant was and is confined at a contracted, private prison facility, as opposed to a BOP facility. See, e.g., United States v. Jepsen, 451 F. Supp. 3d 242, 245-46 (D. Conn. 2020) (concluding that exhaustion was satisfied where defendant was housed at a privately operated facility because he was "essentially caught in a 'Catch-22'; neither the warden . . . nor the BoP will consider his request because of his designation to . . . a non-BOP facility"); see also United States v. Rivera, No. 2:17-CR-256 JCM, 2020 WL 5437725, at *3 n.4 (D. Nev. Sept. 10, 2020) (where the government conceded the defendant was "not subject to the exhaustion requirement" because he was held in a private facility); United States v. Dimas, No. 20-CR-365 DMS, 2020 WL 4697966, at *2 (S.D. Cal. Aug. 13, 2020) (government conceding that the defendant "met the exhaustion requirements" because he was held in a private facility). Here, it is unclear whether defendant can appeal any denial of his request for compassionate release to the BOP's Regional Director and then the General Counsel. See note 2, above. If not, defendant has exhausted all the administrative remedies that are available to him. For both of these reasons, the court concludes that administrative exhaustion has been satisfied here and will turn to address the merits of defendant's pending motion below.
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, 451 F. Supp. 3d 392, 405-06 (E.D. Pa. 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 consider 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, 445 F. Supp. 3d 22, 24 n.1 (N.D. Cal. Apr. 10, 2020).
Because defendant Aguilar-Madriz is 63 years old, (see Doc. No. 77 (Presentence Report) at 3), these age and age-related factors are irrelevant to the court's disposition of the pending motion.
Here, defendant Aguilar-Madriz argues that extraordinary and compelling reasons warranting his compassionate release exist due to medical conditions. To qualify for compassionate release, defendant must demonstrate that he is suffering from some "serious" medical condition "that substantially diminishes [his] ability . . . to provide self-care" in CI Big Spring and the medical condition is one "from which he . . . is not expected to recover." U.S.S.G. § 1B1.13, cmt. n.1 (A)(ii). More specifically here, defendant argues that his age of 63 years old, type 2 diabetes, obesity, and hyperlipidemia (or high cholesterol)—combined with the risk posed to him by COVID-19—justify his compassionate release. (Doc. No. 117 at 18-20.)
At the time of defendant's sentencing, it was noted that he suffered from diabetes and pain in his knees and feet, both of which required him to take medication. (Doc. No. 77 (Presentence Report) at 9 ("He reported no additional medical problems.").) Moreover, defendant's height was listed at 5'6" and his weight as 180 pounds in 2015. (Id. at 3.) Defendant's prison medical records provide an up-to-date picture of his current condition. Those records reflect that defendant suffers from type 2 diabetes, hyperlipidemia, unspecified hypertension, and benign prostatic hyperplasia (BPH), commonly known as an enlarged prostate gland. (Doc. No. 121 at 7 (sealed).) Further, at one point in 2019, defendant's blood glucose levels elevated to the point of him requiring him to receive insulin injections on three consecutive days. (Id. at 3; see also Doc. No. 117 at 18 (erroneously arguing that this medical event occurred "[i]n May of [2020]").) It does not appear that defendant suffered any other events like the one in 2019 with respect to his type 2 diabetes. Defendant is prescribed 850 mg dosages of Metformin for that condition—and it appears that he is instructed to take that medication three times a day, although the handwritten medical notes submitted in support of the motion are difficult for the court to decipher. (Doc. Nos. 121 at 9 (sealed).) Defendant is also prescribed several other medications, including Lisinopril which the court understands is medication that is used to treat hypertension and/or high blood pressure. (Id.) Additionally, defendant appears to be under chronic care for both his hypertension and diabetes. (Id. at 11.) Defendant received two chronic care checkups in 2020 and both times the prison medical staff noted the level of "control" over his hypertension and diabetes. (Id.) On February 26, 2020, defendant's hypertension was listed as "fair" and his diabetes was listed as "good." (Id.) On July 2, 2020—well after the onset of the COVID-19 pandemic—it was noted that defendant's hypertension was "good" and his diabetes was also "good." (Id.) Finally, in addition to his diabetes and hypertension, defendant has gained weight since he began serving his prison sentence: in July 2020 he weighed 200 pounds. (Id. at 11.). Therefore, because defendant's height is 5'6" (Doc. No. 77 (Presentence Report) at 3), his body mass index (BMI) is 32.3 and he is considered to be medically obese. See Adult BMI Calculator, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_calculator/bmi_calculator.html (last visited Jan. 5, 2021).
According to the U.S. Centers for Disease Control and Prevention ("CDC"), defendant is at higher risk of severe illness were he to contract COVID-19 because of his BMI/obesity and his type 2 diabetes. See Coronavirus Disease 2019 (COVID-19): People Who Are at Increased Risk for Severe Illness, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-increased-risk.html (last visited Jan. 5, 2021). Because it appears that defendant suffers from essential hypertension (and not pulmonary hypertension), a point not disputed by the parties, he "might" be at higher risk of severe illness from COVID-19 because of that condition. Id. Last, defendant is at some higher risk due to his age as well, but that relative risk is compared to younger individuals: "Older adults are at greater risk of requiring hospitalization or dying if they are diagnosed with COVID-19." Id. (stating that 50 to 64-year-old individuals who contract COVID-19 are four times more likely to require hospitalization and 30 times more likely to die compared to 18 to 29-year-old individuals). Thus, defendant suffers from several comorbidities placing him at greater risk of suffering a severe illness if he were to contract COVID-19. As the CDC recognizes, "[t]he more underlying medical conditions someone has, the greater their risk is for severe illness from COVID-19." Id.
While the CDC does not recognize high cholesterol as an at-risk category for COVID-19, that condition is discussed generally under the hypertension and/or high blood pressure category.
The potential risk to defendant from COVID-19 must be assessed in light of the current medical evidence before the court. On July 19, 2020, it was documented by prison medical staff that defendant displayed, for at least four days, several "influenza-like" symptoms, including a temperature above 100 degrees, a cough, a headache, and wheezing in the lungs. (Doc. No. 121 at 18 (sealed).) As a result, defendant was recommended to be placed in a "one man cell[.]" (Id.) The following day, defendant received chest x-rays revealing some abnormal density in his right lung, which was noted by medical staff as being consistent with pneumonia. (Id. at 41-43.) The prison medical records before the court reflect that a test was administered to defendant on that same date (July 20, 2020) and two days later (July 22, 2020) the results of that test appear to reflect that defendant tested positive for COVID-19. (Id. at 36.) Then, about two weeks later, on August 7, 2020, it appears defendant tested negative for COVID-19. (Id. at 35.) The only other meaningful medical documentation before the court, dated after August 7, 2020, with respect to defendant's current condition is a record reflecting that his body temperature was recorded to be 98.5 degrees, or normal, in mid-October 2020. (Doc. No. 128 at 9 (sealed).) Other than that, the court is not able to locate—nor do the parties cite—any medical evidence regarding defendant's medical condition after August 2020. Nonetheless, it does appear that defendant continues to receive care since his latest COVID-19 negative test result in August 2020, and nothing in those medical records suggests that his condition has worsened or that he failed to recover from his virus related symptoms which appeared in mid-July 2020. (See id. at 9-10 (preventative health risk assessment dated September 2020 and influenza vaccine form dated October 2020).) If anything, the most recent medical evidence suggests that defendant is doing relatively well.
The reason the court says that this "appears" to be the case is that the medical records are not completely clear to the court and the parties have not focused in their briefing on whether or not defendant Aguilar-Madriz tested positive for the virus while serving his term of imprisonment. Specifically, at the cited page of the medical records a LabCorp report reflecting test for COVID-19 administered to defendant on July 20, 2020 reports the: result as "Detected;" the "Flag" as "Abnormal;" and the "Reference Interval" as "Not Detected." (Doc. No. 121 at 36 (sealed).) Based upon that report the court is presuming that the test of defendant was positive for the virus.
The LabCorp report for the COVID-19 test administered on August 3, 2020 with the results reported August 7, 2020, indicates as follows: result as "Not Detected;" no entry under "Flag;" and the "Reference Interval" as "Not Detected." (Doc. No. 121 at 35 (sealed).) Based upon that report the court is presuming that the test administered to the defendant in August 2020 indicated he was no longer positive for the virus.
Although not stated as such in the pending motion or in his reply brief, defendant essentially moves for compassionate release based on the possibility of reinfection because it appears that he tested positive for COVID-19 in July 2020. In this regard, many courts have "err[ed] on the side of caution to avoid potentially lethal consequences" because "the science is unclear on whether reinfection is possible." United States v. Yellin, No. 3:15-cr-3181-BTM-1, 2020 WL 3488738, at *13 (S.D. Cal. June 26, 2020) (finding extraordinary and compelling reasons exist where a COVID-positive inmate at FCI Terminal Island, who did not develop severe symptoms, suffered from a combination of medical conditions that placed him at risk of serious complications from COVID); see also United States v. Hanson, 470 F. Supp. 3d 1197, 1202 (D. Or. 2020) ("[T]here is no current scientific evidence to indicate that a 'recovered' COVID-19 patient is immune from reinfection, as several courts have recently acknowledged. . . . [T]he Court remains concerned about FCI Terminal Island's ability to provide adequate care in light of defendant's complex medical needs. The Court is not convinced that FCI Terminal Island has been successfully mitigating the risk of reinfection, given the high numbers of infected inmates and Defendant's own contraction of the virus."). Other courts have taken the position that uncertainty surrounding the danger of reinfection "cuts against compassionate release," in part because it is the defendant's burden to establish that "extraordinary and compelling reasons" justifying compassionate release exist. See United States v. Molley, No. CR15-0254-JCC, 2020 WL 3498482, at *3 (W.D. Wash. June 29, 2020).
Because of his age, type 2 diabetes, obesity, and hypertension, combined with the risk of reinfection from COVID-19, the court concludes that defendant has and is "suffering from a serious physical or medical condition . . . from which he . . . is not expected to recover." See U.S.S.G. § 1B1.13, cmt. n.1 (A)(ii). Even so, the remaining question is whether defendant Aguilar-Madriz's medical conditions "substantially diminish[] [his] ability . . . to provide self-care" at CI Big Spring. See id.
Based on the current evidence of record before the court, defendant has not carried his burden of demonstrating that he is significantly hindered in providing himself with care while incarcerated. See Greenhut, 2020 WL 509385, at *1 ("The defendant bears the initial burden to put forward evidence that establishes an entitlement to a sentence reduction."). It appears that defendant likely suffered a moderate illness from COVID-19, even though the prison medical staff initially noted only that he suffered from "influenza-like" symptoms prior to his positive COVID-19 test results. The court does not find that defendant merely had pneumonia, given that he tested positive for COVID-19 less than a week after the onset of his symptoms. (See Doc. No. 121 at 41-43 (sealed).) Rather, the court will assume that, as indicated by the test results, that defendant did in fact suffer from COVID-19 in July of 2020. Nonetheless, the dearth of medical evidence dated after defendant's second COVID-19 test on August 7, 2020—which came back negative—indicates that he appears to have recovered from the virus. (Doc. No. 128 at 9 (sealed: listing a normal body temperature).) The evidence before the court simply does not show that defendant is in severe physical condition or otherwise experiencing a deterioration in health. See United States v. McCollough, No. 15-cr-00336-001-PHX-DLR, 2020 WL 2812841, at *2 (D. Ariz. May 29, 2020) ("Since Defendant has contracted COVID-19, the relevant questions concern (1) the course of his illness, (2) the state of his health, (3) his prognosis, and (4) the adequacy of the care and treatment being provided to him in BOP given his pre-existing conditions. . . . There is no evidence that the circumstances surrounding Defendant's health or treatment are extraordinary or compelling.").
Further, defendant was receiving medical care at his prior institution of confinement (CI DRJ), although the court recognizes that he was transferred to a different prison sometime after this motion was filed—and that there are no medical records from his new prison of confinement (CI Big Spring) submitted in connection with the pending motion. Nonetheless, based upon the record before the court, defendant's chronic conditions appear to be well-managed by prison medical staff. See United States v. Ayon-Nunez, No. 1:16-cr-00130-DAD, 2020 WL 704785, at *3 (E.D. Cal. Feb. 12, 2020) ("Chronic conditions that can be managed in prison are not a sufficient basis for compassionate release."). Finally, according to the BOP, CI Big Spring is currently reporting 18 active cases of COVID-19 among inmates and zero active cases among staff. See COVID-19 , FEDERAL BUREAU OF PRISONS, https://www.bop.gov/coronavirus/ (last visited Jan. 9, 2021) (use geographical map to select CI Big Spring). Accordingly, in this case, the active COVID-19 cases at CI Big Spring do not tip the scales in favor of defendant's release because the presence of the virus appears relatively controlled at this point and defendant has already contracted the virus and recovered from it. In certain situations, an inmate's inability to take proper precautions against contracting COVID-19 might be relevant to a determination of his or her ability to provide self-care for purposes of assessing whether compassionate release is appropriate. See United States v. Gorai, No. 2:18-cr-00220-JCM, 2020 WL 1975372, at *3 (D. Nev. April 24, 2020) ("the presence of COVID-19 . . . necessitates a more expansive interpretation of what self-care means" and therefore, the inability of individuals at high risk of becoming severely ill from COVID-19 to practice appropriate hygiene, wear a mask, and maintain social distancing may constitute an inability to provide self-care under some circumstances). But here, defendant has not presented any evidence to indicating that CI Big Spring has failed to take measures to reduce the spread of the virus or that the conditions of his confinement make it impossible for him to adequately maintain social distancing.
While the undersigned does not necessarily accept these reported numbers at face value in light of current CDC guidelines with respect to both testing and the manner of counting "active cases," there is also no evidence before the court challenging those reported numbers in this case.
CI Big Spring has a total population of 1,395 inmates. CI Big Spring, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/locations/ci/bsc/ (last visited Jan. 5, 2021). Moreover, CI Big Spring should not be confused with the BOP's own Big Spring Federal Correctional Institution located in the same city, which previously suffered from a significant COVID-19 outbreak.
The undersigned has recognized that, in certain circumstances, extraordinary and compelling reasons may exist even where a particular facility is not reporting any positive COVID-19 cases, but only if the inmate's medical condition is extremely severe. See United States v. Heffington, No. 1:93-cr-05021-NONE, 2020 WL 4476485, at *7 (E.D. Cal. Aug. 4, 2020) (collecting cases). However, the court declines to make such a finding here because defendant Aguilar-Madriz's medical condition, while serious, is not extremely severe at the moment.
While there is still some unknown risk to defendant due to the possibility that he could be re-infected with COVID-19 and contract a severe illness as a result, that speculative possibility by itself does not provide an adequate basis upon which the court could conclude that defendant is currently "substantially diminishe[d]" in "provid[ing] self-care" inside CI Big Spring. See U.S.S.G. § 1B1.13, cmt. n.1 (A)(ii). Therefore, in this case, the court does not find extraordinary and compelling reasons justifying compassionate release pursuant to § 3582(c)(1)(A).
It is defendant's burden to demonstrate that he satisfies the standard as set forth by the relevant policy statement under the U.S. Sentencing Guidelines. Here, there is no doubt that defendant suffers from serious comorbidities that put him at greater risk of suffering a severe illness from COVID-19 (even though he has already tested positive for the virus and apparently was fortunate enough to display only moderate symptoms). However, extraordinary and compelling reasons do not exist based upon the present record to warrant defendant's release.
C. Consistency With the § 3553(a) Factors
Because the pending motion fails to establish extraordinary and compelling reasons justifying compassionate release in this case, the court need not address whether any reduction in defendant's sentence would be consistent with consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a). Nonetheless, the court does note that defendant Aguilar-Madriz has served over 85 months in prison, or approximately 83% of his total sentence accounting for good time credits. (Doc. No. 123-1 at 4.) Defendant had no criminal record prior to his conviction in this case. (Doc. No. 77 (Presentence Report) at 8.) Defendant's sole disciplinary infraction while in prison is not particularly serious, and certainly not so serious as to deny his release based on consideration of that fact alone. (Doc. No. 129 at 8 (arguing that defendant borrowed a fellow prisoner's cell phone to call his family).) On the other hand, defendant's offense conduct in this case was extremely serious and involved the distribution of a substantial amount of controlled substances. In addition, he involved his minor son in his drug trafficking criminal conduct and nonetheless received a below guideline sentence. Were defendant to establish extraordinary and compelling reasons justifying his compassionate release based on medical necessity, the question of whether consideration of § 3553(a)'s sentencing factors would support a sentence reduction despite the seriousness of his underlying offense conduct would be a close question.
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.
CONCLUSION
For the reasons explained above, the court concludes that defendant has not demonstrated that "extraordinary and compelling reasons" exist warranting his compassionate release from prison. Accordingly, defendant's motion for compassionate release (Doc. No. 117) is denied. IT IS SO ORDERED.
Dated: January 11 , 2021
/s/_________
UNITED STATES DISTRICT JUDGE