Opinion
6:20-CR-06046 EAW
2023-04-04
UNITED STATES of America, v. John RIVERA-BANCHS, Defendant.
Everardo A. Rodriguez, Government Attorney, Meghan K. McGuire, U.S. Attorney's Office, Rochester, NY, for United States of America.
Everardo A. Rodriguez, Government Attorney, Meghan K. McGuire, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Defendant John Rivera-Banchs (hereinafter "Defendant") has filed a pro se motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 288). For the reasons set forth below, the motion is denied.
I. BACKGROUND
Defendant—who is 59 years old (Dkt. 278 at 2)—pleaded guilty on April 15, 2022, pursuant to the terms and conditions of a plea agreement, to count eight of the superseding indictment charging possession with intent to distribute and distribution of 500 grams or more of cocaine in violation of 21 U.S.C. § 841 (Dkt. 264). The parties agreed as part of the plea agreement that Defendant's relevant conduct for purposes of count eight involved at least 2 kilograms but less than 3.5 kilograms of cocaine, and the factual basis of the plea related to Defendant's sale of cocaine to a confidential informant on seven separate occasions between July 2019 and February 2020, as well as distribution of cocaine to another drug dealer during that same time period. (Id. at ¶ 4). The plea was entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) with an agreed-upon prison sentence of 60 to 63 months. (Id. at ¶ 10). On July 22, 2022, the undersigned accepted the plea agreement and sentenced Defendant at the low end of the calculated Sentencing Guidelines range to 60 months in prison with four years of supervised release to follow. (Dkt. 280; Dkt. 281). This 60-month prison sentence reflected the mandatory minimum sentence under the statute.
The fact that Defendant was sentenced to the statutory mandatory minimum sentence "does not preclude a district court from reducing a term of imprisonment on a motion for compassionate release." United States v. Halvon, 26 F.4th 566, 570 (2d Cir. 2022).
Defendant is currently housed at FCI Cumberland in Maryland, and his scheduled release date is March 25, 2024. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited April 2, 2023). According to the Bureau of Prison's ("BOP") website tracking COVID-19 cases in its facilities, FCI Cumberland is at Operational Level 1 with no inmates or staff currently testing positive for COVID-19. See BOP COVID-19 Statistics, https://www.bop.gov/coronavirus/ (last visited April 2, 2023).
Operational Level 1 is the least restrictive of the three ratings that the BOP applies to its facilities, and it is defined by a medical isolation rate of less than two percent and new community positive cases of less than 100 per 100,000 over the last seven days. See COVID-19 Modified Operations Plan & Matrix, https://www.bop.gov/coronavirus/ (last visited April 2, 2023).
Defendant bases his motion for compassionate release on the COVID-19 pandemic and his health conditions, including diabetes. (Dkt. 288). Defendant's motion goes into great detail about conditions at FCI Cumberland that he contends make it exceedingly difficult to prevent the spread of COVID-19. Defendant acknowledges that he previously contracted COVID-19 while housed at the Monroe County Jail and recovered, but he contends that this "does not mean he will be so lucky next time." (Id. at 2). Defendant also admits that he has refused to be vaccinated to protect against COVID-19, but contends that this is due to unspecified religious beliefs. (Id. at 11, 13; Dkt. 299 at 3; see also Dkt. 300 at 19, 52 (medical records documenting Defendant's refusal of Moderna vaccine)).
The government opposes Defendant's motion, arguing that Defendant "cannot have it both ways" by refusing to be vaccinated against COVID-19 but then claiming that his risk of contracting COVID-19 constitutes extraordinary and compelling circumstances. (Dkt. 292 at 5-6). The government also contends that consideration of the factors set forth at 18 U.S.C. § 3553(a) warrant denying the motion. (Id. at 8-9).
In addition, the United States Probation Office ("USPO") has submitted a memorandum dated February 22, 2023, noting among other things that Defendant is classified as Care 1 (Healthy or Simple Chronic Care) and that while he takes medication to control his Type II diabetes mellitus he is not insulin dependent. (Dkt. 298).
Defendant has filed reply papers further arguing in support of his motion for compassionate release. (Dkt. 294; Dkt. 299). Defendant also objects to the government's filing as untimely. (Dkt. 294 at 5; Dkt. 299 at 1).
The Court granted the government's motion for an extension of time to file its response until March 3, 2023. (Dkt. 290). Although the government filed a response by the extended deadline (Dkt. 291), it then filed an amended response the following day (a Saturday) correcting an error in its initial filing (Dkt. 292). The government has filed two certificates of service pertaining to mailing its responses to Defendant—one reflecting service on Defendant by the next business day after its amended filing—Monday, March 6, 2023—and the other reflecting service on March 24, 2023. (Dkt. 293; Dkt. 296). It appears the government may have served its responses a second time when Defendant filed a reply on March 20, 2023, indicating that he had not received the responses. (Dkt. 294 at 5). In any event, notwithstanding Defendant's objections to the filings as untimely, the Court will accept them.
II. 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 [BOP] . . . , or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] . . . 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 defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney, No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd, 833 F. App'x 850 (2d Cir. 2020).
Although the statute references the Sentencing Commission's policy statements, 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).
Here, the government does not dispute that Defendant has fully exhausted his administrative remedies and, therefore, the exhaustion requirement does not bar the relief sought by Defendant. However, the Court concludes that Defendant has failed to establish extraordinary and compelling reasons, and further that the § 3553(a) factors do not support the relief sought by Defendant.
Although Defendant has established that his existing medical conditions present a risk factor for severe illness or death from COVID-19, the Court disagrees with Defendant that he has sufficiently established extraordinary and compelling circumstances so as to justify a reduction in his sentence. COVID-19 appears to be at least as well if not better controlled now than it was in April 2022, when Defendant entered into the agreement with the government to request that this Court sentence him to 60-63 months in prison. At that time, Defendant's current medical conditions were known and he had recently recovered from COVID-19. (See Dkt. 288 at 2 ("On January 4th, 2022, defendant tested positive for COVID-19 while at the Monroe County Jail ('MCJ')."); see also Dkt. 300 at 17 (medical records documenting positive COVID test on January 4, 2022)). Thus, the Court is hard-pressed to conclude that these same medical conditions now constitute extraordinary and compelling circumstances, when at the time of his plea Defendant knowingly agreed to the sentence that was imposed.
Moreover, while Defendant cites to his religious beliefs as preventing him from getting vaccinated, these beliefs are not specified in any detail. While Defendant certainly is free to choose not to be vaccinated, he cannot then cite to his increased risk of COVID-19 to justify being released from prison before the time required by statute and that he agreed with the government should be imposed. See United States v. Norville, No. 10 CR 1046, 2021 WL 1731778, at *2 S.D.N.Y. May 3, 2021 ("Nor is the Court persuaded that Norville's religious beliefs, which would compel him to decline vaccination were it offered, constitute extraordinary and compelling circumstances, at least in light of Norville's age and health . . . . [T]he Court has not found any authority suggesting that Norville's religious circumstances are extraordinary or compelling warranting release."); see also United States v. Crockett, No. 19-CR-86, 2022 WL 1186571, at *7 (E.D. Wisc. Apr. 20, 2022) ("Courts have generally held that a prisoner who declines the vaccine may not then obtain release based on the risk of severe illness from COVID-19. Some courts have assumed the outcome could be different for prisoners who decline the vaccine for religious reasons. However, courts directly addressing the issue have not been receptive to such arguments." (citations omitted)); United States v. Anderson, No. 2:16-CR-00305, 2021 WL 5985134, at *2 (D. Nev. Dec. 16, 2021) ("Anderson is choosing not to take that step [of receiving a vaccine], and he is free to make that decision. However, refusing vaccination because of religious belief does not weigh in favor of compassionate release."), aff'd, No. 22-10007, 2022 WL 2828783, at *1 (9th Cir. Jul 20, 2022) ("The record does not support Anderson's claim that the district court effectively required Anderson to disobey his religious beliefs in exchange for compassionate release. Rather, the court merely explained that, although Anderson was entitled to refuse the vaccine, it would not treat his unvaccinated status as favoring compassionate release."). On the whole, Defendant has failed to establish extraordinary and compelling reasons justifying his requested relief.
In addition, given the underlying nature of Defendant's conviction, the Court continues to believe that the 60-month prison sentence was reasonable and appropriate. Defendant has a criminal history dating back to the age of 22, several prior felony convictions (including multiple drug convictions), and his criminal history category was calculated as III. (Dkt. 278 at ¶¶ 87-92). Defendant admits that he was involved in dealing large quantities of cocaine, a dangerous drug that harms communities. Thus, even if Defendant could establish extraordinary and compelling circumstances, the § 3553(a) factors do not work in Defendant's favor. To grant Defendant's release would significantly undermine the fairness and purpose of the original sentence.
III. CONCLUSION
For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 288) is denied.
SO ORDERED.