United States v. DeJesus

UNITED STATES OF AMERICA, v. GEORGE DEJESUS, Defendant.

No. 6 Cr. 12 (ER)

United States District Court, S.D. New York

April 19, 2022

OPINION & ORDER

Edgardo Ramos, U.S.D.J.

George DeJesus is currently serving a 360-month sentence, which Judge William H. Pauley III imposed on September 28, 2007, at FCI Fairton in New Jersey, and according to Bureau of Prisons (“BOP”) records, he is scheduled to be released in May of 2032. Before the Court is his pro se motion for compassionate release pursuant to 18 U.S.C. § 3582(c). Doc. 97. 'The Government opposes the motion. For the reasons set forth below, DeJesus' motion is GRANTED.

I. BACKGROUND

A. Prior Proceedings

On June 21, 2006, a jury in the Southern District of New York found DeJesus guilty on one count of conspiracy to distribute heroin and one count of using and carrying a firearm in furtherance of a drug trafficking crime in violation of 21 U.S.C. § 846 and 18 U.S.C. § 924(c). See Docs. 1, 20; June 21, 2006 Jury Verdict. DeJesus, born in June 1982, was 19 years old in 2001 when he became involved in the heroin trafficking organization for which he was convicted. See Doc. 36-2 at 6-7. The superseding indictment, filed June 8, 2006, charged DeJesus, a/k/a Georgito, with conspiring to distribute one kilogram and more of a mixture containing heroin from October 2001 through December 2003. See Doc. 20. Although he was young, DeJesus played a major role in the organization: in approximately 2001, DeJesus and others threatened co-conspirators with violence in attempt to recover heroin believed to be stolen, and in approximately May 2002, DeJesus oversaw the work of other co-conspirators packaging heroin at a stash house in the Bronx. Id. Also in May 2002, DeJesus directed a co-conspirator to retrieve a revolver that was brandished in the course of a drug-related confrontation. Id. At trial, the jury found DeJesus guilty of conspiring to distribute one kilogram and more of heroin, and of possessing, but not brandishing, a firearm. Doc. 106 at 1.

The government also filed a prior felony information, indicating that in September 1999, DeJesus had been convicted of attempted criminal sale of a controlled substance in the third degree, in violation of New York Public Law § 220.39, and therefore was subject to enhanced penalties under 21 U.S.C. § 841(b)(1)(A), which at the time increased the mandatory minimum sentence for the narcotics conspiracy from ten years to twenty years.^[1] Doc. 8. In 1999, when DeJesus was 17, he had attempted to sell two glassines of heroin to an undercover New York City Police Department (“NYPD”) officer. Doc. 106 at 2.

On September 28, 2007, Judge Pauley sentenced DeJesus to 300 months' imprisonment for the drug charge and 60 months' imprisonment for the firearm charge, to be served consecutively. See September 28, 2007 Minute Entry; Doc. 43. According to the pre-sentence report, the evidence established that DeJesus led a drug trafficking organization that sold hundreds of bags of heroin on a daily basis. Doc. 106 at 2. At the sentencing, Judge Pauley remarked that there was “overwhelming evidence” that “DeJesus was a leader and organizer of that vast and long-running heroin distribution enterprise on Boynton Avenue” in the Bronx. Doc. 106 at 2-3. Based on the quantity of heroin involved, Judge Pauley calculated the Guidelines range to be 30 years' to life imprisonment for Count One, with a mandatory minimum penalty of 20 years based on DeJeus' prior narcotics offense, to be followed by a mandatory, consecutive term of imprisonment of 5 years for Count Two. Doc. 106 at 3. However, Judge Pauley determined that a downward variance from the Guidelines “was warranted so that DeJesus would have some portion of his life to make a contribution to society on his release.” DeJesus v. United States, No. 06 Cr. 12 (WHP), 2017 WL 6343678, at *1 (S.D.N.Y. Dec. 11, 2017), cjd, 757 Fed.Appx. 39 (2d Cir. 2018).

B. Post-Trial Appeals and Motions

On October 3, 2007, DeJesus filed a timely notice of appeal of both his conviction and sentence. The Second Circuit affirmed the judgment of conviction, but remanded for resentencing in light of United States v. Williams, 558 F.3d 166 (2d Cir. 2009), cert. granted, judgment vacated, 562 U.S. 1056 (2010), and abrogated by Abbott v. United States, 562 U.S. 8 (2010) (holding five-year mandatory minimum sentence for possession of a firearm in furtherance of a drug trafficking crime did not apply where a defendant was subject to ten-year mandatory minimum for the drug trafficking offense arising out of the same criminal transaction as the firearm offense). U.S. v. DeJesus, 314 Fed.Appx. 386, 389 (2d Cir. 2009). DeJesus' motion for resentencing before the trial court was deemed moot after Williams was abrogated in light of the Supreme Court's decision in Abbott v. United States. United States v. DeJesus, No. 06 Cr. 12 (WHP), 2011 WL 5924351, at *2 (S.D.N.Y. Nov. 28, 2011), oj'd, 509 Fed.Appx. 12 (2d Cir. 2013). DeJesus appealed Judge Pauley's denial of his motion for resentencing, which the Second Circuit affirmed. United States v. DeJesus, 509 Fed.Appx. 12, 14 (2d Cir. 2013). His petition for a writ of certiorari to the Supreme Court was denied on October 7, 2013. DeJesus v. United States, 571 U.S. 947 (2013).

On approximately March 25, 2014, DeJesus filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Doc. 60. DeJesus raised three claims:

(1) that resentencing was warranted under Alleyne v United States, 570 U.S. 99, 113 (2013) (holding that any “fact that increases a sentencing floor . . . forms an essential ingredient of the offense”), because the trial court had not properly instructed the jury on its required findings as to drug quantity; (2) that trial counsel rendered ineffective assistance; (3) and that appellate counsel rendered ineffective assistance. DeJesus v. United States, No. 06 Cr. 12, 2017 WL 6343678, at *1 (S.D.N.Y. Dec. 11, 2017), aff'd, 757 Fed.Appx. 39 (2d Cir. 2018). Judge Pauley appointed counsel for DeJesus and conducted an evidentiary hearing in January 2017. Id.; see also Doc. 85. On December 11, 2017, Judge Pauley denied the motion, finding that DeJesus had procedurally defaulted his Alleyne claim, and that his ineffective assistance of counsel claims were meritless. Specifically, Judge Pauley did not credit DeJesus' claim that his trial counsel had failed to communicate a five-year plea offer from the government to him. Id. at *4 (“DeJesus's trial counsel testified credibly to conveying the five-year offer and advising DeJesus to take it.”) Judge Pauley also rejected all of DeJesus' other ineffective assistance claims as to both his trial and appellate counsel. Id. at *5-6. Ihe Second Circuit affirmed Judge Pauley's decision on December 3, 2018. DeJesus v. United States, 757 Fed.Appx. 39, 41-42 (2d Cir. 2018).

C. The Instant Application

DeJesus submitted a request for a reduction in sentence under § 3582(c)(1)(A) pursuant to the First Step Act to the warden of FCI Fairton on June 9, 2020, arguing that extraordinary and compelling circumstances due to the pandemic and changes to sentencing laws warranted a reduction in this sentence. See Doc. 107. The request was denied on June 23, 2020. See id. He filed the instant motion for sentence reduction pursuant to the First Step Act and for compassionate release on March 2, 2021. Doc. 97. On March 12, 2021, the Probation Department issued a supplemental presentence report indicating that DeJesus was not eligible for a reduction in sentence under the First Step Act and the Fair Sentencing Act of 2010. Doc. 98. On March 31, 2021, DeJesus filed a motion to clarify that his motion was for compassionate release rather than sentencing reduction. Doc. 99. On August 13, 2021, DeJesus' case was reassigned to this Court. Doc. 100. The Court thereafter set a briefing schedule. Doc. 101.

In support of his motion, DeJesus has submitted multiple certificates for courses he has completed, a letter of support from his BOP corrections counselor, and a letter with an offer of employment. See Doc. 96.

II. LEGAL STANDARD

18 U.S.C. § 3582

Although a court may not normally “modify a term of imprisonment once it has been imposed, ” there are certain limited exceptions, including “compassionate release.” See United States v. Roberts, No. 18 Cr. 528 (JMF), 2020 WL 1700032, at *1 (S.D.N.Y. Apr. 8, 2020) (internal quotation marks and citation omitted). Under 18 U.S.C. § 3582, a court may reduce a prisoner's sentence when it finds that there are “extraordinary and compelling reasons” that warrant such a reduction, but one of two conditions must first occur: Either the BOP Director may move the court to release the prisoner; or, alternatively, the prisoner himself may move the court, but only after he has fully exhausted all administrative rights. See 18 U.S.C. § 3582(c)(1)(A).

Prior to the First Step Act, sole authority rested with the BOP to determine what reasons, for purposes of compassionate release, are “extraordinary and compelling.” See U.S.S.G. § 1B1.13 (“BOP Policy Statement”), Application Note 1(D). The BOP Policy Statement includes as an “extraordinary and compelling” reason the existence of “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.” U.S.S.G § 1B1.13 cmt. 1(A)(ii)(I). It also permits the Court to consider whether the incarcerated person “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” Id. at § 1B1.13(2). However, the Second Circuit in United States v. Brooker recently ...