Opinion
3:16-cr-00158-BTM
10-25-2021
UNITED STATES OF AMERICA, Plaintiff, v. GREGORIO LARIOS-ORNELAS, Defendant.
ORDER DENYING MOTION FOR COMPASSIONATE RELEASE [ECF No. 122]
Honorable Barry Ted Moskowitz United States District Judge
Defendant Gregorio Larios-Ornelas is serving his 92-month sentence at Giles W. Dalby Correctional Facility ("DCF") for violation of 21 U.S.C. § 841(a)(1) (distribution of controlled substances). Larios-Ornelas now seeks to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). (ECF No. 122 ("Mot.")). The Court DENIES his motion without prejudice for the reasons below.
I. BACKGROUND
On March 13, 2017, Larios-Ornelas pled guilty to distributing controlled substances in violation of 21 U.S.C. §841 (a)(1). (ECF No. 118). He was sentenced to 92 months in Bureau of Prison ("BOP") custody to be followed by three years of supervised release. (ECF No. 121). To date, Larios-Ornelas has served about 85% of his sentence with a projected release date of August 11, 2022 with good time credits. (ECF No. 137-1 ("Ex. B"), 4).
On April 21, 2021, Larios-Ornelas requested compassionate release from the Warden due to COVID-19 concerns. (Mot., 16). While the Warden acknowledged that Larios-Ornelas had been diagnosed with medical conditions that "could possibly" make Larios-Ornelas more susceptible to COVID-19, he denied the request based on Larios-Ornelas's immigration status. Id. at 15. On July 6, 2021, Larios-Ornelas moved pro se for compassionate release. The Court ordered Federal Defenders to represent Larios-Ornelas and supplement his motion. (ECF Nos. 124; 132 ("Suppl. Br.")). Larios-Ornelas claims that his health conditions combined with the risk of COVID-19 constitute "extraordinary and compelling circumstances" warranting release. Specifically, Larios-Ornelas suffers from Type 2 diabetes, high blood pressure, and high cholesterol. (Mot., 4-5). The Government opposes Larios-Ornelas's motion. (ECF No. 136 ("Opp'n")).
Larios-Ornelas's immigration status has no impact on the Court's decision.
In his original motion, Larios-Ornelas claimed his obesity rendered him high risk for COVID-19. (Mot, 4). Counsel for Larios-Ornelas later clarified and conceded that Larios-Ornelas's BMI of 29.5 did not put him in the obese category recognized as a heightened risk. (ECF No. 142 ("Tr. 1"), 3:12-14).
Larios-Ornelas received the Janssen (Johnson & Johnson) vaccination on April 8, 2021. (ECF No. 152, 53) (under seal). As of October 14, 2021, there are no active cases of COVID-19 among inmates at DCF. COVID-19 Cases, BOP, https://www.bop.gov/coronavirus/ (last visited October 20, 2021).
On September 13, 2021,, the Court held a hearing on Larios-Ornelas's motion. The Court determined that more information was needed as to Larios-Ornelas's medical conditions and how contracting COVID-19 may impact his health in light of his vaccination status. The Court held an evidentiary hearing on October 4, 2021 where the Court and the parties examined Dr. Jacob Reddick, the Medical Director at DCF. (ECF No. 144). Following the evidentiary hearing, both parties filed supplemental briefings based on Dr. Reddick's testimony. (ECF Nos. 146; 147).
The Court thanks Dr. Reddick for taking the time to appear via videoconference and for providing quality medical care to DCF inmates.
II. LEGAL STANDARD
As amended by the First Step Act, 18 U.S.C. § 3582(c)(1)(A) provides that:
[T]he court, upon motion 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. . . 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).
The Ninth Circuit has held "the Sentencing Commission has not yet issued a policy statement 'applicable' to 3582(c)(1)(A) motions filed by a defendant" and "the Sentencing Commission's statements in U.S.S.G. § 1B1.13 may inform a district court. . . [but] are not binding." United[States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). The defendant bears the burden to put forward evidence establishing an entitlement to a sentence reduction. United States v. Bisel, 2021 U.S. Dist. LEXIS 154200, *6 (S.D. Cal. Aug. 16, 2021).
III. DISCUSSION
A. Exhaustion
Thirty days have lapsed since Larios-Ornelas initiated the administrative remedy process. (Mot., at 16). Therefore, Larios-Ornelas has satisfied the exhaustion requirement. See 18 U.S.C. § 3582(c)(1)(A).
B. Extraordinary and Compelling Reasons
Larios-Ornelas claims his medical conditions - namely, his Type 2 diabetes - create a heightened risk to COVID-19 and warrant his release. Furthermore, Larios-Ornelas claims his vaccination status is insufficient to mitigate against his heightened risk, especially in light of a new wave in the COVID-19 pandemic. (ECF No. 137 ("Reply"), at 6).
1. Type 2 Diabetes and COVID-19 Risks
Larios-Ornelas's diabetes has improved since arriving at DCF and is considered controlled and stable. (ECF No. 149 (Tr. 2"), at 35-36; 38:5-7). In Dr. Reddick's opinion, Larios-Ornelas can further improve his condition through lifestyle habits like diet and exercise. While Larios-Ornelas does not have complete control over his food intake at DCF, Dr. Reddick confirmed that, with self-control, there is no reason his diabetes cannot remain stable while in custody. (Id. at 27:12-15). Larios-Ornelas is also taking 2, 000 mg of Metformin per day to treat his diabetes. (Id. at 13:17-19). Although Type 2 diabetes is recognized as a COVID-19 risk factor, "courts have routinely concluded that chronic conditions that can be managed in prison-such as Type 2 diabetes-are not a sufficient basis for compassionate release." United States v. Rodriguez-Olmos, 2021 U.S. Dist. LEXIS 55968, *2 (S.D. Cal. Mar. 24, 2021).
Larios-Ornelas further claims the extreme pain in his groin area makes movement difficult and he would receive better care upon his release. Larios-Ornelas related these concerns to Dr. Reddick during an appointment on April 1, 2021. (ECF No. 152, 121) (under seal). Dr. Reddick immediately referred Larios-Ornelas to a urologist with whom he met on May 28. 2021. (Tr. 2, at 30:15). The urologist diagnosed Larios-Ornelas with Peyronie's disease, which is not considered a condition with an increased risk of severe outcomes from COVID-19. (Id. at 44:13-14). Despite Larios-Ornelas's pain, Dr. Reddick explained that there are exercises Larios-Ornelas can do to improve his diabetes that would not make his pain worse. (Id. at 42:4-7). Notably, Larios-Ornelas has not shown that he would receive better care or that his pain would improve upon his release. See United States v. Green, 2021 U.S. Dist. LEXIS 159964, *10 (S.D. Cal. Aug. 24, 2021) (denying compassionate release in part because petitioner presented no credible evidence he would receive better care outside of custody).
Dr. Reddick noted the two-month wait time to see the urologist was a "relatively normal" wait period, even for someone outside of custody. (Tr. 2, 31-32). Moreover, Dr. Reddick provided Larios-Ornelas with pain relievers during the wait period to treat his pain. Id. at 31:6-9.
Moreover, Larios-Ornelas's medical records indicate he is otherwise receiving adequate medical care while in custody. (ECF No. 152) (under seal).
2. Vaccination Status
Larios-Ornelas received the Johnson & Johnson vaccine on April 8, 2021. Therefore, Larios-Ornelas's vaccination status significantly mitigates the risk that he will contract COVID-19, even considering his underlying conditions. United States v. Grummer, 519 F.Supp.3d 760, 763 (S.D. Cal. Feb. 16, 2021). Larios-Ornelas claims that, despite his vaccination, he remains at risk due to a new COVID-19 strain (the "delta variant"). (Suppl. Br., 8:8-11). However, Dr. Reddick confirmed that vaccination still provides protection against the delta variant and that Larios-Ornelas, as a vaccinated individual, has developed "some immunity to the virus and is at less risk of severe complications than he was prior to getting the vaccine." (Tr. 2 at 21:6-15). See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html (last visited October 19, 2021). Currently, there is no COVID-19 outbreak among DCF inmates. As for DCF staff infections, Dr. Reddick noted that to his knowledge there would only be "one or two at the most." (id. at 45:13-14). The BOP and DCF have undergone vigorous efforts consistent with the Centers for Disease Control guidelines to ensure the safety of inmates. See https://www.mtctrains.com/wp-content/uploads/2020/04/CDC-Protocols-for-Prisons.pdf (last visited October 19, 2021). In that iight, the Court does not find Larios-Ornelas's risk of contracting COVID-19 constitutes an extraordinary and compelling circumstance meriting release.
However, the Court may reconsider his motion if a COVID-19 outbreak occurs at DCF or Larios-Ornelas is unable to receive a vaccine booster to improve his immunity. Larios-Ornelas does have diabetes and that makes him vulnerable to serious consequences from COVID-19. But he has been vaccinated, which lessens the risk, and the institution where he is confined does not have any current COVID-19 issues. So, extraordinary and exceptional circumstances do not presently exist. If that changes, and Larios-Ornelas is not provided with a booster, he can renew his motion and the Court will hear it on an expedited basis.
Because Larios-Ornelas has not provided extraordinary and compelling reasons meriting release, the court need not reach the § 3553 sentencing factors.
IV. CONCLUSION
The motion for release under § 3582(c)(1)(A) (ECF No. 122) is DENIED without prejudice.
IT IS SO ORDERED.