Opinion
3:13-cr-00299-BR
04-19-2021
UNITED STATES OF AMERICA, Plaintiff, v. FEDERICO MARTINEZ, Defendant.
SCOTT ASPHAUG Acting United States Attorney AMY E. POTTER Assistant United States Attorney 405 E. Eighth Avenue Suite 2400 Eugene, OR 97401 (541) 465-6771 Attorneys for Plaintiff LISA HAY Federal Public Defender ELIZABETH G. DAILY Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, OR 97204 (503) 326-2123 Attorneys for Defendant
OPINION AND ORDER
SCOTT ASPHAUG
Acting United States Attorney
AMY E. POTTER
Assistant United States Attorney
405 E. Eighth Avenue
Suite 2400
Eugene, OR 97401
(541) 465-6771
Attorneys for Plaintiff LISA HAY
Federal Public Defender
ELIZABETH G. DAILY
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, OR 97204
(503) 326-2123
Attorneys for Defendant BROWN, Senior Judge.
This matter comes before the Court on Defendant Federico Martinez's Motion (#252) For Reconsideration. The Court concludes the record is sufficiently developed, and, therefore, oral argument would not be helpful to resolve this Motion.
For the reasons that follow, the Court GRANTS Defendant's Motion to the extent that the Court reconsiders its March 1, 2021, Opinion and Order denying Defendant's Motion (#233) to Reduce Sentence. The Court, however, ADHERES to its denial of Defendant's Motion to Reduce Sentence.
BACKGROUND
On September 24, 2013, Defendant and three co-conspirators were charged in a Superseding Indictment with one count of Conspiracy to Distribute Heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C) and one count of Distribution of Heroin Resulting in Serious Bodily Injury in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
On December 23, 2014, Defendant pled guilty pursuant to a Plea Agreement to the one count of Conspiracy to Distribute Heroin.
On January 20, 2016, the Court sentenced Defendant to 135 months imprisonment and five years of supervised release.
On December 3, 2020, Defendant filed a Motion (#233) Under 18 U.S.C. § 3583(c)(1)(A)(i) For Early Release. On March 1, 2021, the Court issued an Opinion and Order in which it denied Defendant's Motion For Early Release.
On March 15, 2021, Defendant filed a Motion for Reconsideration in which he requests the Court to reconsider its March 1, 2021, Opinion and Order denying his Motion for Early Release on the grounds that the Court applied the incorrect legal standard and that the Court "misconstrued the nature of [Defendant's] vulnerability to COVID-19."
Later on March 15, 2021, Defendant also filed a Notice of Appeal to the Ninth Circuit Court of Appeals in which he appealed this Court's March 1, 2021, Opinion and Order. The Ninth Circuit has held the district court retains jurisdiction to decide a motion for reconsideration that is filed before a notice of appeal. See, e.g., United Nat'l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001)("The notice of appeal in this case did not . . . divest the district court of jurisdiction at the time it was filed because there was then a pending motion for reconsideration."). This Court, therefore, retains jurisdiction to decide Defendant's Motion for Reconsideration.
The Court took Defendant's Motion under advisement on April 12, 2021.
DISCUSSION
Defendant is currently housed at FCI Bastrop and has a projected release date of May 25, 2023. In his December 3, 2020, Motion For Early Release Defendant moved for an order reducing his sentence to time served and releasing him to home confinement pursuant to § 3582(c)(1)(A)(i) on the grounds that he suffers from serious medical conditions, he has lost members of his family to COVID, he would like to be able to assist his family, and he will not be a danger to the community.
In its March 1, 2021, Opinion and Order the Court denied Defendant's Motion For Early Release on the grounds that Defendant did not establish either that (1) he is suffering from "a serious physical or medical condition that substantially diminishes his ability to provide self-care within the environment of a correctional facility and from which he is not expected to recover" or (2) that his family circumstances constituted an extraordinary and compelling reason for early release. United States v. Martinez, 3:13-CR-00299-BR, 2021 WL 780898, at *3-*4 (D. Or. Mar. 1, 2021). The Court did not address whether Defendant would be a danger to the community because, as noted, the Court concluded Defendant did not establish that he suffers from a sufficiently serious medical condition or that his family circumstances are extraordinary and compelling.
I. Defendant's First Ground for Reconsideration
Defendant's first ground for reconsideration is that the Court applied the incorrect legal standard in its March 1, 2021, Opinion and Order. Specifically, Defendant points out that the Ninth Circuit recently concluded in United States v. Aruda, No. 20-10245, 2021 WL 1307884 (9th Cir. Apr. 8, 2021), that Application Note 1 to the United States Sentencing Guidelines (U.S.S.G.) § 1B1.13 is not an applicable policy statement for motions for compassionate release filed by defendants, and "[c]ourts . . . thus cannot treat the provision's categories of extraordinary and compelling reasons as exclusive or binding." Def.'s Reply at 2-3.
"'[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." Dillon v. United States, 560 U.S. 817, 824-25 (2010)(quoting 18 U.S.C. § 3582(b)). Compassionate release is an exception in extraordinary cases.
"For over thirty years, under the original statute, only the BOP Director could file a § 3582(c)(1)(A) motion for a sentence reduction on a defendant's behalf. However, as part of the First Step Act of 2018, [FSA] Congress amended § 3582(c)(1)(A) to allow a defendant to seek a reduction directly from the court." Aruda, 2021 WL 1307884, at *2. Specifically, the FSA amended 18 U.S.C. § 3582(c)(1)(A) to provide:
[T]he court . . . upon motion of the defendant after the defendant has fully exhausted all administrative [remedies] 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-FSA, 132 Stat. 5194, Pub. L. No. 115-391 (2018)(emphasis added).
(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.
Congress, however, did not provide any "statutory definition of 'extraordinary and compelling reasons.' Instead, Congress stated . . . the Sentencing Commission, 'in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction.'" Aruda, 2021 WL 1307884, at *3.
Application Note 1 to U.S.S.G. § 1B1.13, sets out the Sentencing Commission's policy statement regarding "[r]eduction[s] in [t]erm[s] of [i]mprisonment Under 18 U.S.C. § 3582(c)(1)(A)" as follows:
1. Extraordinary and Compelling Reasons.- . . . extraordinary and compelling reasons exist under any of the circumstances set
forth below:
(A) Medical Condition of the Defendant.--
* * *
(ii) The defendant is--
(I) suffering from a serious physical or medical condition,
* * *
that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and recover.
* * *
(C) Family Circumstances
That policy statement also requires the court to consider whether the defendant is "a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)" when a defendant satisfies the requirements of § 1B1.13(1). U.S.S.G. § 1B1.13(2). The Sentencing Commission, however, "has not updated § 1B1.13 since the [FSA] amended § 3582(c)(1)(A). The current version of § 1B1.13 refers only to motions filed by the BOP Director, and does not reference motions filed by a defendant as now allowed under § 3582(c)(1)(A)." Aruda, 2021 WL 1307884, at *3.(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.
After the FSA amended § 3582(c)(1)(A) district courts across the country were split on whether § 1B1.13(1) was an "applicable policy statement[] issued by the Sentencing Commission" as to motions for compassionate release filed by defendants rather than by the BOP. This Court concluded in its March 1, 2021, Opinion and Order as well as in other compassionate-release cases that "the policy statement in U.S.S.G. § 1B1.13[] is [merely] advisory rather than mandatory in the context of motions for compassionate release" brought pursuant to § 3582(c)(1)(A) by defendants rather than by the BOP. Martinez, 2021 WL 780898, at *2. See also United States v. Willis, 3:02-cr-00120-BR, Opin. and Order (#227) issued Jan. 13, 2021; United States v. Brito, 3:08-cr-00473-BR, Opin. and Order (#118) issued Jan. 16, 2021. Thus, this Court concluded it would only consider the criteria set out in § 1B1.13 as advisory when evaluating Defendant's Motion for Compassionate Release rather than treating § 1B1.13 as binding. The Ninth Circuit noted in Aruda:
(1) the text of § 3582(c)(1)(A) . . . only requires courts to consider "applicable" policy statements by the Sentencing Commission; (2) the text of U.S.S.G. § 1B1.13, . . . begins "[u]pon motion of the Director of the Bureau of Prisons"; (3) the text of Application Note 4 to § 1B1.13, . . . states . . . "[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A)"; (4) the text of
Application Note 1(D) to § 1B1.13, . . . is a catch-all provision allowing only the "Director of the Bureau of Prisons" to determine "other" extraordinary and compelling reasons; and (5) the legislative history of the First Step Act's compassionate-release amendment . . . sought to expand and expedite compassionate-release motions because they had seldom been brought by the BOP.Aruda, 2021 WL 1307884, at *4 (citations omitted). The Ninth Circuit concluded "the Sentencing Commission has not yet issued a policy statement applicable to § 3582(c)(1)(A) motions filed by a defendant," and, therefore, "the current version of U.S.S.G. § 1B1.13 is not an 'applicable policy statement[ ]' for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant." Id. The Ninth Circuit, however, also concluded the "Sentencing Commission's statements in U.S.S.G. § 1B1.13 may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding." Id. (citing United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020)).
As noted, this Court concluded in its March 1, 2021, Opinion and Order that § 1B1.13 was advisory rather than mandatory. The Court, therefore, considered the criteria set out in § 1B1.13, but the Court did not consider it binding. Because this Court evaluated the criteria in § 1B1.13 in the manner approved by the Ninth Circuit in Aruda, the Court concludes it did not err in this regard and that this Court's mere consideration of the criteria in § 1B1.13 is not a basis to reverse or to amend its March 1, 2021, Opinion and Order.
II. Defendant's Second Ground for Reconsideration
Defendant asserts the Court erred when it failed to find his medical condition did not satisfy the extraordinary and compelling standard because even though Defendant is only 36, he is obese and he has demonstrated a "family predisposition to serious illness from COVID-19 as confirmed by the death of his younger brother, who was obese." Def.'s Br. at 1.
The Application Note to U.S.S.G. § 1B1.13(1)(A), which the Court may consider in reaching its decision, provides an extraordinary or compelling reason for compassionate release exists when a defendant is "suffering from a serious physical or medical condition . . . 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." The Ninth Circuit has not decided whether obesity alone constitutes an extraordinary and compelling reason for compassionate release, and, as noted, district courts are divided as to whether obesity alone is sufficient. In its March 1, 2021, Opinion and Order the Court noted two cases in this district in which judges concluded younger inmates with obesity did not satisfy the extraordinary and compelling standard. In the first case District Judge Michael W. Mosman found a defendant who was 32 years old and suffered from obesity, inflammatory bowel disease, and "medical issues related to a heart murmur" did not suffer from medical conditions that were sufficiently serious to establish an extraordinary and compelling reason for compassionate release. United States v. Holt, No. 3:18-CR-00297-MO, 2021 WL 496774, at *1 (D. Or. Feb. 10, 2021). Judge Mosman concluded: "Given those health conditions and [the defendant's] relatively young age, I am not convinced that he has demonstrated circumstances that rise to the level of "extraordinary and compelling." Id. In the second case District Judge Ann L. Aiken reached a similar conclusion and found the 37-year-old defendant was obese but did not have other COVID risk factors sufficient to satisfy the extraordinary and compelling standard. United States v. Chambers, No. 6:16- CR-00377-AA, 2020 WL 7625232 (D. Or. Dec. 22, 2020).
In addition, some district courts in other circuits have reached similar conclusions. See, e.g., United States v. Vadakin, No. 3:9-cr-010 (JBA), 2020 WL 4818440, at *4 (D. Conn. Aug. 17, 2020)(denying compassionate release on the basis that although "Defendant's obesity does increase his risk of severe illness, it is unclear if he has any other compromising conditions that would predispose him to significant risk."); United States v. Kerrigan, No. 16-cr-576 (JFK), 2020 WL 2488269, at *3 (S.D.N.Y. May 14, 2020)(finding the defendant failed to articulate an extraordinary and compelling reason for compassionate release when he was "significantly younger than 65 years old, and while obesity . . . may indicate 'high risk' according to the CDC, none of the other medical issues [asserted] indicate that he suffers from other primary risk factors looked to by courts, such as asthma, diabetes, or immunocompromization."). Moreover, courts in other districts have also concluded chronic but relatively mild conditions do not satisfy the extraordinary or compelling standard. See, e.g., United States v. Whiteman, No. 15-00298, 2020 WL 4284619, at *1 (E.D. Pa. July 27, 2020)(mild obesity and hypertension of the 42-year-old defendant did not establish extraordinary circumstances); United States v. Pena, No. 2:15-CR-72-PPS, 2020 WL 3264113, at *3 (N.D. Ind. June 17, 2020)("Even considering Pena's obesity, sleep apnea, kidney failure seven years ago, and family history of cancer and diabetes in the midst of the COVID-19 pandemic, it still does not meet the extraordinary and compelling standard.").
Defendant, however, cites two cases from other districts in his Motion for Reconsideration in which courts concluded defendants with obesity and without other medical conditions satisfied the extraordinary and compelling standard for compassionate release. See United States v. Howell, No. 16-20101-1, 2021 WL 457550 (E.D. Mich. Feb. 9, 2021)("This Court finds that Defendant's obesity, which places him at increased risk of a serious outcome if he contracts COVID-19, constitutes an extraordinary and compelling circumstance weighing in favor of granting his request for compassionate release."). See also United States v. Gonzalez, No. 3:19-CR-00090 (VAB), 2020 WL 7024905, at *4 (D. Conn. Nov. 30, 2020)("[O]besity, taken alone, may constitute an extraordinary and compelling reason for release."). The court in Gonzalez, however, also noted courts in the Second Circuit "are divided as to whether obesity may constitute an extraordinary and compelling reason warranting compassionate release where no other medical conditions are alleged, 'especially when there was no indication that obesity was not being handled adequately at the inmate's institution.'" Gonzalez, 2020 WL 7024905, at *4 (compiling cases and quoting United States v. Colon, No. 3:97-cr-48 (SRU), 2020 WL 6049215, at *6 (D. Conn. Oct. 12, 2020)).
In the absence of clear guidance from the Ninth Circuit and in the exercise of its discretion, the Court adheres to the conclusion in its March 1, 2021, Opinion and Order that Defendant's obesity is insufficient to establish an extraordinary and compelling reason for compassionate release under the circumstances of this case.
As noted, Defendant also asserts he has demonstrated a "family predisposition to serious illness from COVID-19 as confirmed by the death of his younger brother, who was obese," and that the Court should consider that predisposition in its evaluation. Defendant, however, does not cite any cases in which a court has considered an individual's alleged family predisposition to serious illness from COVID-19. Defendant also has not provided any scientific authority for his assertion that the death of a family member from COVID-19 establishes a family predisposition to serious illness from COVID-19 or that a family predisposition to serious illness from COVID-19 is recognized by medical authorities. The Court, therefore, declines to consider Defendant's alleged "family predisposition" to COVID-19 in the absence of any scientific, medical, or legal authority.
On this record the Court declines to reverse or to amend its conclusion in its March 1, 2021, Opinion and Order that Defendant has not established an extraordinary and compelling reason for compassionate release exists in this case.
CONCLUSION
For these reasons, the Court GRANTS Defendant's Motion (#252) For Reconsideration to the extent that the Court reconsiders its March 1, 2021, Opinion and Order denying Defendant's Motion (#233) Under 18 U.S.C. § 3583(c)(1)(A)(i) For Early Release. The Court, however, ADHERES to its denial of Defendant's Motion Under 18 U.S.C. § 3583(c)(1)(A)(i) For Early Release.
IT IS SO ORDERED.
DATED this 19th day of April, 2021.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge