United States v. Garcia-Hernandez

UNITED STATES OF AMERICA v. HERNAN GARCIA-HERNANDEZ

CRIMINAL ACTION No. 7:20-cr-01687-1

United States District Court, S.D. Texas, McAllen Division

September 13, 2021

OPINION AND ORDER

MICAELA ALVAREZ UNITED STATES DISTRICT JUDGE.

The Court now considers Movant Hernan Garcia-Hernandez's “Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A) (Compassionate Release) (Pro Se Prisoner).”^[1]Movant used a form motion to request compassionate release. Under the First Step Act of 2018 and 18 U.S.C. § 3582(c)(1)(A)(i), “[a] court, on a motion by the BOP [Federal Bureau of Prisons] or by the defendant after exhausting all BOP remedies, may reduce or modify a term of imprisonment, probation, or supervised release after considering the factors of 18 U.S.C. § 3553(a), if ‘extraordinary and compelling reasons warrant such a reduction.'”^[2]

I. Legal Standards

a. Appointment of Counsel

Prisoners have no right to counsel in post-conviction proceedings, ^[3] including for post-sentencing motions requesting modification of the sentence imposed.^[4] However, “[a]lthough a [movant] in a § 3582(c) motion does not have a statutory or constitutional right to appointment of counsel, the Court may appoint counsel in the interest of justice.”^[5] Generally, the Court should appoint counsel in the interest of justice when the issue to be decided is significant, complex, or exceptional, or when the movant is demonstrably severely hampered in presenting the movant's argument or investigating relevant facts.^[6] When the movant's motion does “not involve complicated or unresolved issues, ” the interests of justice are unlikely to require appointment of counsel.^[7] “[T]he single issue of . . . entitlement to sentence reduction” is unlikely to be legally complex or call for appointment of counsel in the interest of justice, ^[8] especially when the movant appears capable of adequately presenting their argument.^[9]

b. Timing and Exhaustion of Administrative Remedies

While the First Step Act authorize s a reduction in sentence-commonly referred to as compassionate release-Movant must first “fully exhaus[t] all administrative rights to appeal a failure of the Bureau of Prisons” to bring a motion for compassionate release on Movant's behalf, or 30 days must have lapsed since the warden of Movant's facility received Movant's administrative request, whichever is earlier.^[10] Movant can satisfy the exhaustion requirement in one of two ways: (1) availing of the Administrative Remedy Program, ^[11] or (2) submitting a compassionate release request to the warden, ^[12] in accordance with the requirements under those respective programs and regulations.^[13] “Courts have recognized these two options impose a mandatory requirement that a defendant submit a request to the warden of [the] facility before filing in court.”^[14] Furthermore, “[t]he statute is clear that the 30 day clock starts when the Warden receives the letter, not when the inmate sends it.”^[15] The exhaustion requirement is “mandatory” and that “[t]hose who seek a motion for compassionate relief under the First Step Act must first file a request with the BOP” and cannot obtain relief without doing so.^[16] This exhaustion requirement applies to new arguments or grounds for compassionate release developed after an earlier request for compassionate release.^[17] If Movant does not exhaust the administrative process, the Court cannot grant relief.^[18]

c. Extraordinary and Compelling Reasons to Grant Compassionate Release

“Prior to the passage of the First Step Act [of 2018], only the Director of the Bureau of Prisons (BOP) could file a motion for compassionate release, and that very rarely happened. [The First Step Act has] the intent of ‘increasing the use and transparency of compassionate release.'”^[19] The First Step Act authorizes a sentence reduction when “extraordinary and compelling reasons warrant such a reduction” with due consideration to sentencing factors, such as the seriousness of an inmate's offense and the need to prevent recidivism.^[20] The statute itself does not define what constitutes “extraordinary and compelling reasons, ”^[21] but the words used indicate the reasons must be “[b]eyond what is usual, customary, regular, or common” and involve so great a need that irreparable harm or injustice would result if the requested relief is not granted.^[22] The Court must “provide specific factual reasons, including but not limited to due consideration of the § 3553(a) [sentencing] factors, for its decision” on whether to grant a reduction in sentence, ^[23] but the Court's opinion need not be exhaustive or extensive, ^[24] and necessarily involves the exercise of judgment in weighing sentencing factors.^[25] Although some courts have considered their determination of whether to grant a sentencing determination bound by the United States Sentencing Commission Guidelines, ^[26] the Sentencing Guidelines are not binding on this Court generally^[27] or with respect to compassionate release.^[28] The Court's decision is unfettered by the Sentencing Guidelines or the commentary to the Sentencing Guidelines, and is instead bound only by the langua ge of 18 U.S.C. § 3582(c)(1)(A)(i) and “the sentencing factors in [18 U.S.C. §] 3553(a).”^[29] The nonbinding Sentencing Guidelines may be informative criteria, ^[30] but the Court makes its own determination.^[31]

The Coronavirus Disease 2019 (COVID-19) pandemic in and of itself and its relationship to prisons or associated fears of contracting the illness do not warrant compassionate release, ^[32] but of course “[i]t would be odd to deny [compassionate release] to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”^[33] Accordingly, Movant must identify individualized extraordinary and compelling reasons for compassionate release, ^[34] such as a combination of risk-enhancing medical conditions^[35] or advanced age and associated impediments.^[36] Furthermore, “[t]he law closely guards the finality of criminal sentences against judicial change of heart”^[37] and an increased individual vulnerability to illness persists whether or not an inmate is incarcerated, so Movant must show some indicia that a sentence reduction is the better course than continued imprisonment, ^[38] but the Court is mindful that “courts around the country have recognized that the risk of COVID-19 to people held in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.”^[39]

Even if the Court does find “extraordinary and compelling reasons” to warrant a sentence reduction, Movant will not necessarily be entitled to compassionate release. The Court has a duty to^[40] “conside[r] the factors set forth in section 3553(a) to the extent that they are applicable.”^[41] For example, the Court considers “the nature and circumstances of the offense and the history and characteristics of the defendant”^[42] and “the need to protect the public from further crimes.”^[43]“Eligibility for resentencing under the First Step Act, however, does not equate to entitlement. The district court has broad discretion in deciding whether to resentence.”^[44] For example, when an outsize proportion of the sentence imposed remains to be served, such as 23 months remaining on a 27-month custodial sentence, a reduction in sentence likely contravenes the § 3553(a) factors and will preclude compassionate release.^[45]

Lastly, the Court does not consider whether to modify a sentence imposed to a sentence of home confinement. Section 603(a) of the First Step Act of 2018 leaves the discretion to release a prisoner to home confinement exclusively with the United States Attorney General.^[46] Furthermore, “[d]ecisions regarding prisoner designations, including release to home confinement, are reserved exclusively to BOP, as they involve specialized determinations uniquely within its expertise.”^[47]

II. Analysis

The Court first turns to Movant's request for appointment of counsel.^[48] Movant submitted his request for compassionate release to the warden^[49] and to the Court, ^[50] included a discussion of his medical ailments^[51] and records, ^[52] and did not elaborate on his need for appointed counsel. Accordingly, the Court does not find that the single issue of whether Movant is entitled to a reduction in sentence calls for appointment of counsel.^[53] The Court also does not find that Movant is severely impeded in presenting his argument.^[54] The Court DENIES Movant's request for appointed counsel.

The Court next turns to the issue of mandatory administrative exhaustion. Movant included an electronic mail message, dated August 10, 2021, in which he requests compassionate release due to COVID-19 and his pre-existing medical conditions.^[55] On August 24th, the warden signed a response in which he denies compassionate release and instructs Movant to seek relief directly from the courts.^[56] However, the warden's denial was not actually a final administrative decision.^[57]Nevertheless, Movant's motion for compassionate release was not filed in this Court until September 10th, which is greater than thirty days since Movant's August 10th administrative request for compassionate release. Accordingly, because more than thirty days have elapsed since Movant's request, ^[58] the Court holds that Movant is entitled to be considered by the Court for compassionate release.

The Court next turns to the grounds to grant compassionate release. Movant explains that he suffers from “‘Severe Asma' with Asleep Aminia that if coming in contack with ‘DELTA INFECTION' PANDEMIC can lead to severe medical problem and possibly death [sic].”^[59]Movant...