United States v. Bueno-Sierra

1

UNITED STATES OF AMERICA, Plaintiff, v. JORGE ELIECER BUENO-SIERRA, Defendant.

No. 93-cr-00567-BLOOM

United States District Court, S.D. Florida

April 27, 2023

ORDER ON DEFENDANT'S PETITION UNDER 18 U.S.C § 3582(c)(1)(A)

BETH BLOOM, UNITED STATES DISTRICT JUDGE.

THIS CAUSE is before the Court on Defendant's Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A). ECF No. [385]. Defendant filed a Proposed Release Plan that contains letters of support and Defendant's medical records. ECF No. [386]. Plaintiff (“Government”) filed a Response in opposition. ECF No. [387]. The Court has carefully reviewed the Motion and Response, the Proposed Release Plan, the record in this case and the applicable law and is otherwise fully advised. For the reasons set forth below, the Motion is granted.

I. BACKGROUND

A federal grand jury indicted Defendant in a six-count superseding indictment charging Defendant with conspiracy to import cocaine in violation of 21 U.S.C. § 952(a) (Count 1); conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (Count 2); importation of cocaine in violation of 21 U.S.C. § 952(a) and 960(a)(1), (b) (Counts 3 and 5); and possession with intent to distribute cocaine in violation of 21 U.S.C. § 952(a) and 960(a)(1), (b) (Counts 4 and 6). ECF No. [57]. On October 7, 1994, Defendant was convicted of Counts 1 through 4. ECF No. [162].^[1]

At sentencing, the Court sentenced Defendant to a term of life in prison as to each of Counts 1-4, to be served concurrently. ECF No. [214] at 114; see also ECF No. [192]. Defendant's conviction and sentence were affirmed on appeal by the Eleventh Circuit. United States v. Bueno-Sierra, 99 F.3d 375, 380 (11th Cir. 1996). The United States Supreme Court denied certiorari on March 31, 1997. Bueno-Sierra v. United States, 117 S.Ct. 1347, 1347 (1997). Defendant is currently housed at USP Lompoc, California. ECF No. [385] at 6.

In the Motion, Defendant states he is over 70 years old; has served 352 months of his sentence; that his counselor, Officer G. Widmer, determined that Defendant is not a danger to the safety of any other person or the community; and that there are extraordinary and compelling reasons for release. ECF No. [385] at 2-4. As to those reasons, Defendant asserts that he has been diagnosed with a terminal illness;^[2] has “a serious physical or medical condition; a serious functional or cognitive impairment; or deteriorating physical or mental health because of the aging process that substantially diminishes [Defendant's] ability to provide self-care within the environment of a correctional facility” and Defendant is “not expected to recover from [the] condition.” Id. at 4. In addition, Defendant asserts that he is experiencing a serious deterioration in physical or mental health because of the aging process, and that there are “other extraordinary and compelling reasons for [Defendant's] release.” Id. In particular, Defendant directs the Court to his attached medical record, which details the procedures he underwent due to a medical condition that requires him to “even start using [diapers].” Id. at 5. In addition, Defendant represents that he is using a wheelchair and a walker. ECF No. [385-1] at 2.

In support of the Motion, Defendant filed a Proposed Release Plan/Memorandum in Support. ECF No. [386] (“Proposed Release Plan”). The Proposed Release Plan states that Defendant would live with his son, Jorge Mario Bueno Ruge (“Ruge”), in Bogota, Colombia. Defendant represents that he “will receive support from [his] sons and daughter.” ECF No. [386] at 2.

Attached to the Proposed Release Plan is Defendant's medical paperwork, which reflects that, on November 24, 2022, a medical provider suspected Defendant suffered from Fournier's Gangrene. ECF No. [386] at 41. On December 1, 2022, Defendant underwent surgery for that suspected condition. Id. at 14. As of December 2, 2022, Defendant suffered from a scrotal and perineal abscess, “scrotal swelling with [the] approximate size of [a] mango,” urinary retention, and experienced testicular and penile pain. ECF No. [386] at 11. Defendant rated the pain in his groin as a 2 on a 1-10 pain scale, with 10 presumably being the worst possible pain. Id. A December 2, 2022 assessment states that Defendant has signs of “some cellulitis.” Id.

On December 5, 2022, Defendant presented with bleeding in the left scrotum following the operation. Id. at 14. In addition, Defendant continued to suffer from scrotal swelling and experienced Penrose drain. Id. The December 5, 2022 assessment notes that Defendant is a 75-year-old man with a history of hyperlipidemia and who has undergone right hip surgery, has benign prostatic hypertrophy, anemia, diabetes, scrotal hematoma, and severe constipation. Id. at 30, 106. The December 5, 2022 assessment also states that “[patient is] presenting with modified independence while using SPC for gait training today and demonstrating good standing balance for brief don/doffing and standing hygiene tasks.” Id. at 16. The December 5, 2022 assessment recommends that Defendant return to the correctional facility when “medically appropriate,” and that Defendant is “without further PT needs at this time.” Id. Defendant takes a several medications to treat his numerous conditions. Id. at 17, 18, 21.

In a “Letter in Support of Jorge Eliecer Bueno Sierra's (#43039-004) Petition for Clemency and Commutation of Sentence,” Ruge represents that his father's health has been deteriorating, citing some of the conditions described above, and adds that Defendant has no teeth and lost his dentures during his transfer to Lompoc. ECF No. [386] at 9.

The Proposed Release Plan also contains a letter of recommendation dated March 10, 2021 from G. Widmer, Counselor of D Cell House in USP Atlanta, Georgia (“Widmer Letter”). ECF No. [386] at 5. The Widmer Letter generally describes Defendant as a model prisoner who seeks educational opportunities, helpful to prison staff, and as someone who seeks to mentor younger inmates. Id. The Widmer letter endorses Defendant's release from detention. Id.

The Motion indicates that Defendant submitted a request for compassionate release to the warden of the institution where he is incarcerated but does not indicate when Defendant did so. ECF No. [385] at 3. However, Defendant represents, and the record confirms, that the BOP rejected Defendant's request for compassionate release as of January 6, 2023. Id.; see also id. at 7. In a memorandum dated January 6, 2023, B. Birkholz, warden of the Lompoc federal correctional facility, explained that the BOP would not be pursuing a request for compassionate release on Defendant's behalf. Id. Birkholz explains that “it was determined [Defendant] failed to provide specific information under a qualifying category, which would warrant submission of a RIS request.” Id.

II. LEGAL STANDARD

“Generally, a court ‘may not modify a term of imprisonment once it has been imposed.'” United States v. Pubien, No. 19-12078, 2020 WL 897402, at *2 (11th Cir. Feb. 25, 2020) (quoting 18 U.S.C. § 3582(c)).

“The authority of a district court to modify an imprisonment sentence is narrowly limited by statute.” [United States v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010)]. Section 3582(c) of Title 18 provides that the district court may not modify a defendant's imprisonment sentence except: (1) if the Bureau of Prisons files a motion and extraordinary or compelling circumstances warrant modification or if the defendant is at least 70 years old and has served 30 years in prison; (2) if the modification is expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) if the defendant's original sentencing range has subsequently been lowered as a result of an amendment to the Guidelines by the Sentencing Commission. 18 U.S.C. § 3582(c).

United States v. Shaw, 711 Fed.Appx. 552, 554-55 (11th Cir. 2017); see also United States v. Celedon, 353 Fed.Appx. 278, 280 (11th Cir. 2009); United States v. Diaz-Clark, 292 F.3d 1310, 1316-18 (11th Cir. 2002). Thus, “[t]he law is clear that the district court has no inherent authority to modify a sentence; it may do so only when authorized by a statute or rule.” United States v. Rivas, No. 19-11691, 2020 WL 398708, at *4 (11th Cir. Jan. 23, 2020) (quoting United States v. Puentes, 803 F.3d 597, 605-06 (11th Cir. 2015)); see also United States v. Llewlyn, 879 F.3d 1291, 1296-97 (11th Cir. 2018) (quoting Dillon v. United States, 560 U.S. 817, 827 (2010)).

Here, Defendant seeks relief under the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A), which provides:

(c) Modification of an imposed term of imprisonment.- The court may not modify a term of imprisonment once it has been imposed except that-

(1) in any case-

(A) 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 . . . if it finds that-

(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

and that such a reduction is

...