Opinion
CRIMINAL ACTION NO. 17-193 SECTION "E"
04-01-2021
UNITED STATES OF AMERICA v. DELIO ALFREDO LOPEZ-LOPEZ
ORDER AND REASONS
Before the Court is Defendant Delio Alfredo Lopez-Lopez's Motion to Reduce or Modify his Sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). For the reasons set forth below, the motion is DENIED.
R. Doc. 455.
BACKGROUND
Lopez-Lopez was sentenced on August 3, 2019. He is currently serving a sixty-month prison sentence on convictions for conspiracy to distribute methamphetamine mixture and possession of a firearm by an illegal alien.
R. Doc. 423.
R. Doc. 423.
Defendant has served forty-one months of his sentence and is projected to be released from Correctional Institute Reeves III, in Pecos, Texas, on December 19, 2021. The Government acknowledges Defendant has exhausted his administrative remedies as they relate to compassionate release by submitting two requests to the warden of his facility—first on July 14, 2020 and again on January 29, 2021. After more than thirty days passed following his first request, Defendant filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) on January 12, 2021.
R. Doc. 470 at 1.
Id. at 6.
Id; see also R. Doc. 455.
Defendant is 45 years old. Defendant argues his release is warranted based on the risk of COVID-19's spread and his medical conditions (obesity and pre-existing lung damage). Defendant notes the absence of any incident reports while he has been incarcerated, that he is a nonviolent offender, and he is categorized as having a low recidivism risk. Defendant also provides evidence of his completion of a Drug Abuse Education Course and a Basic Law and Immigration Course in preparation for his reentry into society.
R. Doc. 328 at 5.
R. Doc. 455 at 2.
Id. at 4.
R. Doc. 455-2.
LAW AND ANALYSIS
18 U.S.C. § 3582(c) provides courts "may not modify a term of imprisonment once it has been imposed," except in limited circumstances. As relevant in this case, 18 U.S.C. § 3582(c)(1)(A)(i) provides courts may, upon motion of a defendant or upon motion of the Director of the Bureau of Prisons, reduce a term of imprisonment, "after considering the factors set forth in [18 U.S.C.] § 3553(a)," if "extraordinary and compelling reasons warrant such a reduction." Defendant has not presented extraordinary and compelling reasons justifying a reduction in his sentence.
Id. § 3582(c)(1)(A).
I. Lopez-Lopez has exhausted administrative remedies.
Courts may consider a motion for a reduction in sentence on the basis of extraordinary and compelling reasons only if the exhaustion requirements of § 3582(c)(1)(A) are met. If a defendant submits a request for compassionate release to the warden of his facility, and thereafter there is a "lapse of 30 days from the receipt of such a request by the warden of the defendant's facility," the exhaustion requirements of § 3582(c)(1)(A) are satisfied, and the Court may consider a motion for compassionate release filed by the defendant. In this case, Defendant represents he filed a request for compassionate release with the warden of his facility on July 14, 2020, over thirty days before he filed his motion for compassionate release. The Government agrees the exhaustion requirements of § 3582(c)(1)(A) are satisfied. Accordingly, the Court assumes Lopez-Lopez has properly exhausted his administrative remedies, and the Court will proceed to evaluating Lopez-Lopez's request for compassionate release on the merits.
See id.
Id.
R. Doc. 455 at 3.
R. Doc. 470 at 6.
II. Lopez-Lopez must present "extraordinary and compelling reasons" warranting a reduction in sentence.
According to Section 3582(c)(1)(A)(i), a district court may reduce a defendant's term of imprisonment if the court finds "extraordinary and compelling reasons warrant such a reduction" and "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The United States Sentencing Commission's relevant policy statement, found in Section 1B1.13 application note 1 of the United States Sentencing Guidelines Manual, sets forth three specific circumstances considered "extraordinary and compelling," as well as a catchall provision:
1. Extraordinary and Compelling Reasons.--Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the circumstances set forth below:
(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 (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.
(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 and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 cmt. n.1 (U.S. SENTENCING COMM'N 2018).
Lopez-Lopez bears the burden of establishing he is eligible for a sentence reduction under § 3582(c)(1)(A)(i). In this case, Lopez-Lopez is not suffering a terminal illness and is not yet 65 years old. Lopez-Lopez does not allege outstanding family circumstances. Subsections (A), (B), and (C) are not at issue. Only subsection (D) of the policy statement is relevant in this case.
United States v. Ennis, EP-02-CR-1430-PRM-1, 2020 WL 2513109, at *4 (W.D. Tex. May 14, 2020) ("[T]he defendant has the burden to show circumstances meeting the test for compassionate release." (citing United States v. Stowe, No. CR H-11-803 (1), 2019 WL 4673725, at *2 (S.D. Tex. Sept. 25, 2019))); United States v. Wright, Crim. Action No. 16-214-04, 2020 WL 1976828, at *6 (W.D. La. Apr. 24, 2020) (holding the petitioner has the "burden of showing the necessary circumstances, or a combination of circumstances, that would warrant relief under the compassionate release statute").
R. Doc. 470.
R. Doc. 455.
Subsection (D) requires a finding of extraordinary and compelling reasons to justify a reduction of sentence. The Fifth Circuit explains that some courts have granted compassionate release for "other reasons" in exceptional cases "where the defendant has demonstrated an increased risk of serious illness if he or she were to contract COVID." The First Step Act amended § 3582(c) to allow not only the BOP but also a defendant to bring a motion arguing extraordinary and compelling reasons warrant a reduction in the defendant's sentence. Lopez-Lopez argues extraordinary and compelling reasons exist for compassionate release because of the risks a COVID-19 infection might pose to his health. Lopez-Lopez alleges he is obese, as he is five feet, six inches tall and weighs 220 pounds. The Government concedes that Defendant's height and weight, as alleged in his petition, would place him in the obese category, however, the Government argues that Defendant did not attach any supporting documentation to confirm his current BMI. However, the Government obtained and supplied Lopez-Lopez's BOP health records, attached as Exhibit A. Defendant's medical records confirm his Body Mass Index ("BMI") is 38.1. The records also reflect Defendant weighed 222 pounds as of May 16, 2020. The Fifth Circuit in United States v. Thompson found the defendant's medical conditions, hypertension and high cholesterol, could not be considered "extraordinary" because a significant portion of the United States population suffers from those conditions. The same is true of Defendant's obesity. Roughly 42% of Americans are obese. The Court does not find Defendant's obesity constitutes an "extraordinary" circumstance.
United States v. Thompson, 984 F.3d 431, 434 (5th Cir. 2021) (discussing cases).
R. Doc. 455.
Id. at 2.
R. Doc. 470 at 12.
R. Doc. 474-1.
Id.
984 F.3d 431, 434 (5th Cir. 2021).
CENTERS FOR DISEASE CONTROL, https://www.cdc.gov/obesity/data/adult.html (last visited March 31, 2021).
Lopez-Lopez also alleges he suffers from pre-existing lung damage as a result of the H1 flu virus. Lopez-Lopez alleges, as a result of the H1 flu virus, he was comatose for fourteen days, remained in the hospital for three weeks after regaining consciousness, was confined to a wheelchair for several weeks due to his weakened state, fluids were drained from his lungs, and he was prescribed an inhaler which is no longer required.
R. Doc. 455 at 2.
Id.
Obesity and chronic lung disease are on the Centers for Disease Control's ("CDC") list of COVID-19 risk factors. Lopez-Lopez's medical records reflect he is obese but include no entries reflecting he has about pre-existing lung damage. Plaintiff points only to his Presentence Investigation Report, which notes as part of the description of his own physical condition, that Defendant reported he was admitted to Baptist Hospital in New Orleans, Louisiana, on December 19, 2013. Defendant's BOP medical records contain no evidence17- that Defendant has existing lung damage. The Government represents Defendant received his first of two doses of the COVID-19 vaccine on February 27, 2021, and "should receive his second shot on March 20, 2021." At the time of this order, Defendant has likely been fully vaccinated against COVID-19.
CENTERS FOR DISEASE CONTROL, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited March 30, 2021).
R. Doc. 474-1.
R. Doc. 328 at 27.
R. Doc. 474-1.
See R. Doc. 470-3.
R. Doc. 470 at 13.
Lopez-Lopez's lack of evidence regarding his pre-existing lung damage, along with the fact that he should now be fully vaccinated against COVID-19, convince the Court he is not particularly vulnerable to severe illness from COVID-19 and his condition does not warrant a finding of "extraordinary and compelling" circumstances.
CONCLUSION
IT IS ORDERED that Delio Alfredo Lopez-Lopez' Motion for Compassionate is DENIED.
R. Doc. 455.
New Orleans, Louisiana, this 1st day of April, 2021.
/s/ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE