Opinion
CRIMINAL NO. 6:19-6-2
2021-01-06
UNITED STATES of America, Plaintiff, v. Schara FUENTES, Defendant.
Patricia Hubert Booth, United States Attorneys Office, Corpus Christi, TX, Financial Litigation, U S Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff.
Patricia Hubert Booth, United States Attorneys Office, Corpus Christi, TX, Financial Litigation, U S Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff.
MEMORANDUM OPINION & ORDER
JOHN D. RAINEY, SENIOR U.S. DISTRICT JUDGE
Pending before the Court is Defendant Schara Fuentes’ Motion for Compassionate Release (D.E. 89) and Supplemental Memorandum in Support (D.E. 91), to which the United States of America (the "Government") has responded (D.E. 92, 99) and Defendant has replied (D.E. 93-1, 97).
Defendant's Unopposed Motion for Leave to File a Reply Memorandum (D.E. 93) is GRANTED .
I. BACKGROUND
In January of 2019, Defendant and her boyfriend/codefendant Ronnell Ray Green were arrested after Victoria Police Department Special Crimes Unit officers executing a search warrant at their shared residence seized approximately 1.9 kilograms of marijuana, multiple scales and plastic baggies, and five curved metal castings used to transport bulk narcotics inside vehicle tires. A ledger was also found that depicted a breakdown of narcotics Defendant had on hand and showed her to be in possession of 91 pounds (41.28 kilograms) of marijuana in January of 2018. Additionally, $8,373 in U.S. currency, wrapped in rubber bands, was found in the defendants’ shared vehicle. Upon Green's arrest, officers located a loaded Taurus, .38 caliber revolver tied to the drawstring of the undershorts he was wearing. A search of their cell phones revealed videos of Defendant and Green using and/or handling various kinds or narcotics, flashing gang signs with their hands, and participating in illegal activities. The phones also contained images of Defendant's minor children (ages 12 and 14) handling narcotics and claiming gang affiliation.
Green is a confirmed member of the criminal street gang Five Deuce (5-2) Crips.
Defendant eventually pled guilty to conspiracy to possess with intent to distribute less than 50 kilograms of marijuana. The Presentence Investigation Report (PSR) calculated her base offense level at 18 based on the 1.9 kilograms of marijuana seized during the execution of the search warrant plus the 41.28 kilograms reflected in the drug ledger. She also received a 2-level enhancement because Green possessed a dangerous weapon. With a base offense level of 18 and a criminal history category of IV, Defendant's Guidelines sentencing range was 37 to 36 months. The Court granted a downward variance based on her waiver of appellate rights and sentenced her to 30 months’ imprisonment, to be followed by 2 years’ supervised release.
Defendant's criminal history included prior convictions for possession of marijuana two ounces or less (two convictions); forgery; failure to identify a fugitive from justice; and possession of a controlled substance (hydrocodone).
Defendant has served approximately 20 months (67%) of her sentence and has a projected release date, after good time credit, of July 23, 2021; however, she is scheduled for release to a halfway house on January 27, 2021. She now moves the Court to reduce her sentence to time served and/or order her release to home confinement because her underlying medical conditions (type 2 diabetes, marked obesity, and hyperlipidemia ) make her particularly vulnerable to severe illness or death should she contract COVID-19 in prison.
II. LEGAL STANDARD
The statute, 18 U.S.C. § 3582(c), provides:
(c) Modification of an Imposed Term of Imprisonment.— The court may not modify a term of imprisonment once it has been imposed except that—
(1) in any case—
(A) 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—
(i) 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)(i) (emphasis added).
The relevant Sentencing Commission policy statement provides that the court may reduce a term of imprisonment and grant release if, "after considering the factors set forth in 18 U.S.C. § 3553(a) ... the court determines that extraordinary and compelling circumstances warrant the reduction" and that "[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)." U.S.S.G. § 1B1.13. "In general, the defendant has the burden to show circumstances meeting the test for compassionate release." United States v. Stowe , 2019 WL 4673725, at *2 (S.D. Tex. Sept. 25, 2019).
III. ANALYSIS
A. Exhaustion
Defendant submitted a request for compassionate release to the warden at FPC Bryan on May 25, 2020, which was denied on June 15, 2020. D.E. 89-10, 89-11. The Government does not dispute that Defendant has fulfilled the exhaustion requirement of 18 U.S.C. § 3582(c)(1)(A).
B. Extraordinary and Compelling Circumstances
The applicable United States Sentencing Commission policy statement provides that extraordinary and compelling reasons for early release exist where:
(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(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 is (i) 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;
(C) Family Circumstances. –
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons. –
As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary or compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
U.S.S.G. § 1B1.13(1)(A), Application Note 1.
"A review of a motion for release based on COVID-19 is highly fact-intensive and dependent on the specific conditions of confinement and medical circumstances faced by the defendant." United States v. Koons , 455 F.Supp.3d 285, 290 (W.D. La. 2020) (citing United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020) ).
Defendant is 36 years old. Her medical records from the BOP indicate that she suffers from type 2 diabetes mellitus, severe obesity, and hyperlipidemia. D.E. 89-1. According to the Centers for Disease Control and Prevention (CDC), adults of any age who are obese or suffer from type 2 diabetes are at an increased risk of severe illness or death from COVID-19. People with Certain Medical Conditions , CDC.GOV (Dec. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. While not identified by the CDC, hyperlipidemia is the third most common co-morbidity reported in COVID-19 fatalities tracked by the New York State Department of Health. N.Y. STATE DEP'T OF HEALTH , https://covid19tracker.health.ny.gov/views/NYS-COVID19-Tracker/NYSDOHCOVID-19Tracker-Fatalities?% 3Aembed=yes&% 3Atoolbar=no&% 3Atabs=n (last visited Jan. 4, 2021).
"It is especially important for people at increased risk of severe illness from COVID-19, and those who live with them, to protect themselves from getting COVID-19." People with Certain Medical Conditions , CDC.GOV (Dec. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. "Social distancing [staying at least 6 feet from other people] should be practiced in combination with other everyday preventive actions to reduce the spread of COVID-19, including wearing masks, avoiding touching your face with unwashed hands, and frequently washing your hands with soap and water for at least 20 seconds." Social Distancing , CDC.GOV (Nov. 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.
Defendant states that she is unable to take adequate precautions against COVID-19 while incarcerated, such as social distancing, and she does not have access to a medical grade mask or gloves in performing her assigned duties as an orderly, which include cleaning the bathrooms used by the approximately 150 women in her unit. Fuentes Decl., D.E. 89-9. Defendant also told prison doctors that being limited to only one hour of exercise per week due to prison lockdown conditions has made it difficult to control her weight and diabetes. See id. ; Clinical Encounter, D.E. 89-8.
Courts have held that, for inmates like Defendant who have certain underlying health conditions, "nothing could be more extraordinary and compelling than this pandemic." United States v. Rodriguez , 451 F.Supp.3d 392, 394 (E.D. Pa. 2020) (granting compassionate release to defendant who was "especially vulnerable" to COVID-19 due to his diagnoses of "Type 2 diabetes mellitus with diabetic neuropathy, essential hypertension, obesity, and ‘abnormal liver enzymes in a pattern most consistent with non-alcoholic fatty liver disease’ "); see also United States v. Muniz , ––– F.Supp.3d ––––, ––––, 2020 WL 1540325, at *2 (S.D. Tex. Mar. 30, 2020) (finding extraordinary and compelling circumstances where "Defendant has been diagnosed with serious medical conditions that, according to reports from the Center[s] for Disease Control, make him particularly vulnerable to severe illness from COVID-19 ... includ[ing] inter alia, end stage renal disease, diabetes, and arterial hypertension"); United States v. Kendon , No. 2:16-cr-542, D.E. 39, pp. 3–4 (S.D. Tex. May 26, 2020) (granting compassionate release because diabetes and hypertension put the defendant "at risk for suffering life threatening illness due to COVID-19").
The Government argues that Defendant's COVID-19 concerns do not qualify as extraordinary and compelling under U.S.S.G. § 1B1.13(1)(A) and that the BOP is successfully employing practices to keep the prison population at low risk for COVID-19 spread. While the BOP's efforts are commendable, the Court does not find this argument persuasive. See United States v. Castillo , 2020 WL 2820401, at *4 (S.D. Tex. May 29, 2020) ("[I]t is apparent that cases of COVID-19 have spread rapidly through the federal prison system ... despite the BOP's commendable efforts to stop the virus from spreading."). Moreover, Defendant is scheduled to be transferred to an unidentified Residential Reentry Center (RRC) next month, which could potentially be even more dangerous given that RRCs accept frequent transfers of inmates who spend at least part of their time in the community. See Liliana Segura, How the Coronavirus Became a Death Sentence at a Geo Group Halfway House , THE INTERCEPT (July 3, 2020), https://theintercept.com/2020/07/03/halfwayhouse-pandemic-coronavirus-geo-group/.
The Court finds that Defendant's underlying medical conditions of type 2 diabetes, severe obesity, and hyperlipidemia, combined with her inability to provide self-care by practicing social distancing and other protective measures against COVID-19 within the environment of a correctional facility, constitute extraordinary and compelling reasons for early release.
C. Danger to the Community
Even if "extraordinary and compelling reasons" for early release exist, the Guidelines’ policy statements provide for a reduction in sentence only if a defendant "is not a danger to the safety of any other person or the community, as provided in 18 U.S.C. § 3142(g)." U.S.S.G. § 1B1.13(2). Factors relevant to this inquiry include: (1) the nature and circumstances of the offenses of conviction, including whether the offense is a crime of violence, or involves a minor victim, a controlled substance, or a firearm, explosive, or destructive device; (2) the weight of the evidence; (3) the defendant's history and characteristics; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. See 18 U.S.C. § 3142(g).
The Government argues that Defendant's criminal history, combined with the nature and circumstances of the instant offense, demonstrate that she is a danger to others. According to the Government, Defendant's actions in encouraging her young teenagers to involve themselves in gang and drug trafficking behavior will have grave consequences for her own children and quite possibly the children of others. Defendant responds that she has no history of violence. If granted compassionate release, she plans to live with her mother, a registered nurse who has lived in the same house for more than 30 years and is willing and able to financially support Defendant indefinitely. Moreover, the special conditions of her supervised release include substance abuse testing and treatment as well as parenting classes, which further mitigate the particular dangers perceived by the Government.
The Court does not disagree that Defendant's criminal history is troubling; however, the offense of conviction was non-violent, she has no history of violence, and her most recent conviction before the current offense was five years ago. See supra , Part I, n.3. She is currently being housed at a minimum security prison camp facility and has received two disciplinary infractions while in custody, both of which were minor and non-violent. Based on this record, the Court finds that Defendant's early release to home confinement would not pose a danger to the safety of any other person or the community.
According to her August 13, 2020 Progress Report, Defendant has received two incident reports for prohibited acts since arriving at FPC Bryan: (i) Mail Abuse, Disrupt Monitoring and (ii) Phone Abuse-Disrupt Monitoring. D.E. 91-1. Defendant explains that the infractions were the result of a frantic effort to contact Green (who was not on her approved contacts list) using three-way telephone/mail to determine whether he and his family were safe from COVID-19.
D. Section 3553(a) Factors
The Court must also consider whether a sentence reduction is consistent with the applicable section 3553(a) factors. See 18 U.S.C. § 3582(c)(1)(A) ; U.S.S.G. § 1B1.13. The applicable statutory factors include, among others: the defendant's history and characteristics; the nature and circumstances of the offense; the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; the need to deter criminal conduct and protect the public from further crimes of the defendant; the need to provide the defendant with, among other things, any needed medical treatment; and the various kinds of sentences available. 18 U.S.C. §§ 3553(a)(1)-(7).
The offense of conviction, while serious, was a nonviolent drug offense. In light of the circumstances set forth above, the Court concludes that a sentence of time served, representing 20 months in prison, adequately reflects the seriousness of the offense, promotes respect for the law, and provides just punishment. Consistent with its finding that she is not a danger to any person or the community, the Court further concludes that this sentence serves as adequate deterrence and to protect the public from further crimes by Defendant.
Finally, the Court may also consider "post-sentencing conduct of the defendant that occurred after imposition of the term of imprisonment in determining whether a reduction in the defendant's term of imprisonment is warranted." U.S.S.G. § 1B1.10, Application Note 1(B)(iii). As set forth supra , Defendant currently works as an orderly at FPC Bryan. According to her Summary Reentry Plan – Progress Report, she "has consistently earned average and above work evaluations during this period of incarceration." D.E. 91-1, p. 2. She also is currently enrolled in GED classes and is on the waitlist for drug education classes. See id.
The Court finds that the section 3553(a) factors, as considered in the specific context of the facts of Defendant's case, warrant a reduction in her sentence.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Compassionate Release (D.E. 89) is GRANTED . Defendant is re-sentenced to a term of credit for time served in the BOP, followed by a term of 30 months’ supervised release.
The BOP is ORDERED to release Defendant from its custody immediately; however, the BOP is authorized to quarantine Defendant for a period of up to 14 days at an appropriate BOP facility prior to such release, upon a determination by the BOP that such quarantine is necessary in the interests of protecting the public from the spread of COVID-19.
As a condition of supervised release, Defendant is ORDERED restricted to her residence at all times (home detention), except for medical necessities as approved by the Probation Officer, court appearances, or other activities specifically approved by the Court, for a period of six (6) months. Defendant will be monitored by the form of location monitoring technology at the discretion of the Probation Office for that period of time and must follow the rules and regulations of that location monitoring program. Defendant must pay the costs of the program based on ability to pay as determined by the Probation Officer. The Probation Officer will initiate the monitoring program as soon as practicable and when deemed appropriate given the current COVID-19 outbreak.
It is so ORDERED this 6th day of January, 2021.