United States v. Lopez

United States of America, Plaintiff, v. Jorge Lopez, Defendant.

No. 09-cr-332-10

United States District Court, N.D. Illinois, Eastern Division

February 13, 2023

MEMORANDUM OPINION AND ORDER

Joan B. Gottschall, United States District Judge.

Jorge Lopez moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) based on his medical conditions, which include surgical-onset heart conditions (tachycardia and atrial fibrillation), surgical follow-up care directed by Lopez's doctors, and anxiety disorder for which he is still on medication. See ECF No. 2013 at 1-2. Evidence, described below, makes clear that Lopez is unable effectively to care for these medical needs in the prison setting. In accordance with a plea agreement, Lopez received a 15-year sentence, far below the advisory guidelines range due to his extensive cooperation and substantial assistance to the government. The Bureau of Prisons (“BOP”) projects that he will be released on June 4, 2025, meaning that he has served approximately 80% of his expected sentence.^[1]

Background

The 13-count third superseding indictment charged 11 defendants in a wide-ranging drugtrafficking and racketeering operation masterminded by Saul Rodriguez. See generally Third Superseding Indictment, ECF No. 274. Prior opinions have discussed the facts and charges in depth, and those summaries need not be repeated. See, e.g., United States v. Cardena, 842 F.3d 959, 971-72 (7th Cir. 2016); United States v. Sparkman, 973 F.3d 771, 772-73 (7th Cir. 2020). Lopez was charged in counts 12 and 13. Third Superseding Indictment 33-38; Plea Agmt. 1-2, ECF No. 1282-1. In his plea agreement, Lopez admitted, inter alia that he purchased wholesale quantities of cocaine from Rodriguez beginning in 2001, that in the same year he paid Rodriguez to arrange to kill a person he believed was responsible for his brother's murder, that he was involved in planning the kidnapping of a drug dealer in 2004 (Lopez did not personally participate in the kidnapping), and that he was involved in planning an attempted kidnapping in 2008. See Plea Agmt. 2-17.

Soon after his 2009 arrest, Lopez began assisting the government. Lopez not only provided testimony before a grand jury and at trial against several co-defendants but also helped the government in other matters. See Sent. Tr. 5, 7, ECF No. 2013-1; Mot. Compassionate Release 3, 4, ECF No. 2013; Resp. to Mot. Compassionate Release 4, ECF No. 2021. While he was cooperating, Lopez spent over four years in home detention, essentially house arrest, as a condition of pretrial release. Mot. Compassionate Release 5; ECF No. 65; ECF No. 99. No problems were reported. At sentencing, the court recommended to the BOP that those four years be credited toward Lopez's sentence. Sent. Tr. 11. (The BOP declined that recommendation. Mot. Compassionate Release 5.) Lopez ultimately pleaded guilty to count 13 charging him with possessing five kilograms or more of cocaine and one kilogram or more of heroin with intent to distribute. See Plea Agmt. 2; Third Superseding Indictment 34. This offense carried a 10-year mandatory minimum. See 21 U.S.C § 841(a)(1)(A), 846 (2009).

The extent and value of Lopez's cooperation are reflected in the extent of the downward departure the government requested at his 2013 sentencing. Under the presentence investigation report (“PSR”), ECF No. 1382, which the court adopted without objection, Sent. Tr. 4, Lopez received no adjustment for his role in the offense, making him an average participant in Rodriguez's operation. See PSR 10-11. Lopez had a criminal history score of zero. PSR 15. Even so, the advisory sentencing guidelines recommended a life sentence. PSR 31. However, Lopez's substantial assistance prompted the government to move for a downward departure and recommend a 15-year sentence. See U.S.S.G. § 5K1.1; 18 U.S.C. § 3553(e); Addendum to Plea Agmt. ¶ 16, Sept. 10, 2013, ECF No. 1399. The prosecutor stated:

[I]t's the Government's view that this sentence of 180 months does strike a balance between the extremely serious nature of the offense as well as the significant cooperation provided by Mr. Lopez. It also takes into account the 3553(a) factors, including Mr. Lopez's character, who he was then, who he has become now, and who I know he hopes to be in the future.

Sent. Tr. 5.

Agreeing, this court imposed the 15-year recommended sentence. Sent. Tr. 8; Judgment 2, ECF No. 1410.

Compassionate Release Motion

Lopez filed his compassionate release motion in November 2021. ECF No. 2013. After briefing was complete, the parties repeatedly supplemented the record with medical evidence and argument due to Lopez's rapidly evolving medical situation and changing conditions of confinement. See, e.g., ECF No. 2066, 2068, 2069, 2095, 2096, 2103, 2105.

Following a round of supplemental briefing that concluded on December 20, 2022, this court issued an order stating that it required evidence to substantiate certain allegations made in Lopez's most recent supplemental memorandum and set an emergency status hearing due to the very serious representations made by Lopez concerning the lack of medical care he was receiving. See Order, Jan. 5, 2023, ECF No. 2098. Despite receiving no assistance from staff at the facility where Lopez is housed (Lopez's counsel's repeated calls for assistance contacting him went unanswered), his lawyer submitted an affidavit from Lopez with handwritten annotations, on February 1, 2023. ECF No. 2103. The court ordered the government to file any response to the affidavit by February 8, 2023. ECF No. 2104. The government attached two exhibits to its response: (1) an administrative order authorizing Lopez's transfer from FCI-Ashland to FCI-Milan giving the reason for transfer as “Drug Abuse Program” and (2) an administrative detention order signed by Lopez and dated November 19, 2022, stating that Lopez requested a transfer to the special housing unit at FCI-Milan for his own protection.

ECF No. 2105 Ex. A, B. This order was approved by authorities at FCI-Milan. ECF No. 2105 Ex. B at 1.

The record contains over 2,000 pages of Lopez's prison medical records, some of which are redundant. The most recent records end in early October 2022, just before Lopez was transferred from FCI-Ashland in Kentucky to FCI-Milan in Michigan. See ECF No. 2090. Lopez's affidavit and the administrative detention order dated November 19, 2022, therefore constitute the only evidence the court has before it concerning his care and the conditions at FCI-Milan.

Lopez reported no medical issues other than seasonal allergies when he was sentenced in 2013. PSR 25. He underwent surgery on April 2, 2010, at Advocate Christ Medical Center in Chicago, at which time surgeons implanted surgical mesh to repair a hernia in Lopez's abdomen. See ECF No. 2017-1 at 83, 96. Subsequent notes state that the hernia was related to a gunshot wound. See, e.g., ECF No. 2017-1 at 8, 84, 110. Lopez and his doctors have subsequently raised concerns that the surgical mesh implanted in 2010 was defective and possibly the subject of a recall. See Mot. Compassionate Release 14-15; ECF No. 2014-1 at 93 (request for 2010 operative reports including notation seeking to identify the particular mesh implanted). As reported by the Food and Drug Administration (FDA), thousands of surgical meshes were recalled between 2005 and 2013. See FDA, Hernia Surgical Mesh Implants, https://www.fda.gov/medical-devices/implants-and-prosthetics/hernia-surgical-mesh-implants (retrieved Oct. 17, 2021), ECF No. 2013-4. These recalls have sparked the filing of thousands of lawsuits. See, e.g., In re Atrium Med. Corp. ProLite & ProLoop Hernia Mesh Prod. Liab. Litig., 600 F.Supp.3d 1340 (J.P.M.L. 2022); In re Covidien Hernia Mesh Prod. Liab. Litig., 481 F.Supp.3d 1348 (J.P.M.L. 2020); In re Ethicon Physiomesh Flexible Composite Hernia Mesh Prod. Liab. Litig., 254 F.Supp.3d 1381 (J.P.M.L. 2017).

Lopez tested positive for COVID-19 in December 2020; his chief symptom was coughing. ECF No. 2014-1 at 55 (Dec. 2, 2020). Lopez was housed at the federal correctional institution in Ashland, Kentucky (“FCI-Ashland”), at the time. On February 22, 2021, medical records state that Lopez's surgical wound had opened (1 cm.). ECF No. 2014 at 51. A second wound had opened by early March 2022, and drainage from the wound began to be noted. See id. at 49. Lopez was referred to an outside medical provider for an X-ray and a surgical consult. Id. After several diagnostic appointments, outside doctors noted that a “9.8 x 4.1 x 9cm masslike area” had developed in Lopez's abdominal wall, requiring surgery for a “[g]eneralized abdominal mass” and an infected hernioplasty mesh.” ECF No. 2017-1 at 90-93 (record of King's Daughters Medical Center visit on Aug. 16, 2021). During this period, Lopez, who had no prior history of mental illness, began having anxiety attacks for which he was prescribed anxiety medication he continues to take. ECF No. 2014-1 at 37.

Lopez's condition continued to deteriorate over the next year. See, e.g., ECF No. 2090 at 67. For example, a medical note dated April 6, 2022, states:

Jorge Lopez is a 49 y.o. male presenting in Consultation with open abdominal wound.... Patient states that he has had an open draining wound for over a year. The wound is around a 2 cm width with central deep ulceration. Wound is draining pus and blood and located midline a few inches above the umbilicus along the previous incision site. Patient denies fever or chills, but endorses a headache for which he takes Tylenol twice a day. Patient states that his abdominal pain is “uncomfortable” and limits his mobility.

ECF No. 2090 at 343. Records also show that Lopez was “profusely vomiting” on May 13, 2022; a BOP summary states that...