Opinion
6:16-CR-06024 EAW
12-22-2020
UNITED STATES of America, v. Chayanne RIVERA, Defendant.
Everardo A. Rodriguez, U.S. Attorney's Office, Rochester, NY, for UNITED STATES OF AMERICA. Paul J. Vacca, Jr., Rochester, NY, for Defendant Chayanne Rivera.
Everardo A. Rodriguez, U.S. Attorney's Office, Rochester, NY, for UNITED STATES OF AMERICA.
Paul J. Vacca, Jr., Rochester, NY, for Defendant Chayanne Rivera.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Pending before the Court are pro se motions filed by defendant Chayanne Rivera (hereinafter "Rivera") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 179; Dkt. 194). For the reasons set forth below, Rivera's motions are denied.
II. BACKGROUND
Rivera was convicted pursuant to a plea agreement entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) of violating 21 U.S.C. § 846 by conspiring to possess with intent to distribute 280 grams or more of cocaine base. (Dkt. 105). This Court sentenced Rivera on October 27, 2017, to the agreed-upon mandatory minimum sentence of 120 months in prison to be followed by five years supervised release. (Dkt. 119; Dkt. 120). Rivera contends that compassionate release is warranted because of the COVID-19 pandemic and his pre-existing health conditions of hypertension and proctitis for which he takes medication that "seriously compromises" his immune system. (Dkt. 179). In support of his motion, Rivera has submitted a letter dated May 29, 2020, from Jillian Moore, M.D., a family care practitioner, who states that Rivera was last seen by her office in May 2015, and his medical condition of proctitis was managed by a medication that impacts his immune system. (Id. at 7). According to Dr. Moore, Rivera's condition and medication "put him at risk of severe COVID risk...." (Id. ).
When Rivera initially filed his motion, he was housed at United States Penitentiary Canaan ("USP Canaan"), where he had been incarcerated since the start of his sentence (id. at 5), but he was moved to Metropolitan Detention Center Brooklyn ("MDC Brooklyn"), prompting Rivera to file a further motion in November 2020, wherein he contends that the conditions at MDC Brooklyn are placing him at an increased risk of becoming seriously ill from COVID-19 (Dkt. 194). Rivera has subsequently filed additional letters in support of his arguments about the conditions at MDC Brooklyn. (Dkt. 200; Dkt. 201).
The government filed a response to Rivera's initial motion (Dkt. 183) and then at the Court's direction provided a further response after Rivera filed the motion based on his transfer to MDC Brooklyn (Dkt. 202). The government opposes Rivera's motion on the ground that he has not established the requisite "extraordinary and compelling" reasons justifying a sentence reduction. (Dkt. 183 at 7-10). The government contends that Rivera's medical conditions are considered stable and well controlled, and instead it has been Rivera who has not been compliant with his medications. (Id. at 7). The government also argues in its initial response that the conditions at USP Canaan do not warrant Rivera's early release (id. at 8-10), although those arguments were mooted by Rivera's transfer to MDC Brooklyn. Furthermore, the government argues that consideration of the factors set forth at 18 U.S.C. § 3553(a) warrant denial of the motion, detailing Rivera's admissions that he possessed numerous firearms to protect the drugs that were kept at his residence and the residence where he stored and sold drugs. (Id. at 11). The government also cites to the factual basis for Rivera's plea, wherein he admitted to being involved in a drug trafficking conspiracy with his father and brother between May 2015 and February 2016, and as part of that conspiracy he packaged and sold drugs, including to a confidential informant on at least three occasions. (Id. at 2-3). In its further submission in response to Rivera's motions, the government states that Rivera was transferred to MDC Brooklyn for "population management reasons," and that his claims about the COVID-19 safety protocols at MDC Brooklyn are incorrect. (Dkt. 202).
In addition to the government, the United States Probation Office ("USPO") has responded to Rivera's motions at the direction of the Court, indicating that it is does not believe Rivera meets the criteria for compassionate release. (Dkt. 181). Included with the USPO's response were Rivera's medical records from the Bureau of Prisons ("BOP"). (Dkt. 182). Similarly, the USPO provided additional information at the Court's request after Rivera filed his additional motion based on his transfer to MDC Brooklyn. (Dkt. 199).
III. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... 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 ... 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). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term.
The Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020). Therefore, to the extent the government argues that Rivera does not fit within the Sentencing Guideline's definition of "extraordinary and compelling" (see Dkt. 183 at 4-5, 8), the Court does not find that argument particularly relevant.
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The government does not oppose the application on exhaustion grounds as Rivera submitted a request to the Warden at USP Canaan and the request was denied. (Dkt. 183 at 7 n.2). See United States v. Wen , 454 F. Supp. 3d 187, 194 (W.D.N.Y. 2020) (as a claim-processing rule, § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional and thus subject to the doctrines of waiver and equitable estoppel). Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.
Rivera is 30 years old. (Dkt. 113 at 3). He is scheduled to be released on August 24, 2024. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Dec. 22, 2020). According to statistics published by the BOP, MDC Brooklyn currently has 95 inmates who have tested positive for the virus causing COVID-19 and 11 staff members currently testing positive. No inmate or staff have died according to the website, and 55 inmates and 45 staff have recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Dec. 22, 2020). The BOP also indicates that 1,236 inmates have been tested for COVID-19, 51 inmates have pending test results, and 151 inmates have had positive tests. Id. The inmate population at MDC Brooklyn is 1,293, see Locations—MDC Brooklyn , Fed. Bureau of Prisons https://www.bop.gov/locations/institutions/bro/ (last visited Dec. 22, 2020), thus suggesting that most if not all of the facility's population has been administered a COVID-19 test.
Of note, there is a litigation pending in the Eastern District of New York related to MDC Brooklyn where former U.S. Attorney General Loretta Lynch has been appointed as a mediator. See Federal Defenders of New York, Inc. v. Federal Bureau of Prisons , No. 19 Civ. 660 (MKB), Dkt. 42 (E.D.N.Y. Mar. 24, 2020). According to the docket, at the most recent status conference held on December 18, 2020, among the issues discussed was the repeated failure of staff at MDC Brooklyn to wear masks. (See id. at 12/18/2020 Minute Entry). There has been a series of reports about this litigation and the conditions at MDC Brooklyn in the New York Law Journal. See, e.g. , Jane Wester, Lawyers ‘Terrified’ to Return to Brooklyn's MDC Amid COVID-19 Outbreak, Federal Defenders Say , New York Law Journal (December 4, 2020), https://www.law.come/newyorklawjournal/.
In view of the foregoing, and notwithstanding the information provided by the government and the USPO suggesting appropriate safety protocols are being followed at MDC Brooklyn, the Court is not able to resolve on this record the true nature of the conditions at MDC Brooklyn. Similarly, notwithstanding the BOP medical records, the Court cannot just discount the letter supplied by Rivera's former physician, suggesting that he is at increased risk of serious illness from COVID-19. That does not mean that Rivera is among the most vulnerable to this virus, but the Court is not able to accurately assess the extent of any increased risk based on the current record. In order to resolve these issues, the Court would likely need to engage in further fact finding.
However, the Court does not need to do that because the factors set forth at 18 U.S.C. § 3553(a) do not support a sentence reduction. By his own admission, Rivera was involved in a dangerous drug trafficking conspiracy that utilized numerous firearms—including an AK 47 style assault rifle and a sawed off double barreled shotgun—to promote its activities. Rivera makes various claims in his motion papers that he has no history of violence (see, e.g. , Dkt. 201 at 2), and the Court acknowledges that this was Rivera's first conviction (see Dkt. 113 at ¶¶ 65-68), but he is a drug trafficker who possessed firearms to further his illegal activity. Drug traffickers possessing firearms constitutes especially dangerous activity and it unfortunately generates a significant amount of violence in this community.
Moreover, Rivera's drug trafficking involved significant amounts of drugs—as represented by the mandatory minimum sentence of 10 years that was required to be imposed for his crime of conviction. The Court imposed that agreed-upon mandatory minimum sentence, and the undersigned believes that caution should be exercised in reducing any such sentence on the grounds of compassionate release. In other words, in granting a sentence reduction here, the Court would not just be changing a sentence imposed at its discretion, but rather it would be changing a sentence mandated by Congress. This is not to say that a motion for compassionate release could not be granted under such circumstances, and indeed, the Second Circuit has recognized just that. See Brooker , 976 F.3d at 231, 238 (in case involving 15-year mandatory minimum sentence, remanding denial of compassionate release motion to the district court because it incorrectly concluded it was constrained by Sentencing Guideline application note). However, just because it can be done, does not mean that it should be. At a minimum, this is a factor that should be taken into account pursuant to § 3553(a).
Based on its consideration of all the § 3553(a) factors, the Court concludes that reducing Rivera's sentence because of the current pandemic would undermine the fairness and purpose of the original prison sentence in this case. See United States v. Roney , 833 Fed.App'x 850, 854, No. 20-1834, (2d Cir. Nov. 2, 2020) ("[C]ourts regularly consider whether compassionate release would be consistent with § 3553(a) by considering how early release would impact the aims of the original sentence."). The Court reaches this conclusion assuming arguendo that the conditions at MDC Brooklyn are as claimed by Rivera, and that his current health conditions place him at increased risk of serious illness from COVID-19.
IV. CONCLUSION
For the foregoing reasons, Rivera's motions for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 179; Dkt. 194) are denied.
SO ORDERED.