United States v. Marmolejos

UNITED STATES OF AMERICA v. THOMAS MARMOLEJOS, Defendant.

No. 99 Cr. 1048-3 (DC)

United States District Court, S.D. New York

August 30, 2021

AUDREY STRAUSS, Esq.

United States Attorney for the

Southern District of New York

By Marguerite Boughton Colson, Esq.

Assistant United States Attorney

THOMAS MARMOLEJOS

Defendant Pro Se

MEMORANDUM DECISION

DENNY CHIN United States Circuit Judge

On February 1, 2002, defendant Thomas Marmolejos^[1] was convicted of, inter alia, conspiracy to commit Hobbs Act robbery and extortion; conspiracy to commit murder-for-hire; substantive murder-for-hire; conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin; using and carrying firearms in violation of § 924(c); and murder in the course of a § 924(c) violation, in violation of 18 U.S.C. § 924(j). Presentence Investigation Report ("PSR") ¶ 10-17. On September 19, 2002, I sentenced Marmolejos to life imprisonment; the conviction and sentence were affirmed by the Second Circuit. United States v. Marmolejos, 112 Fed.Appx. 779, 784 (2d Cir. 2004), cert. denied, Gomez v. United States, 546 U.S. 868 (2005). Marmolejos, proceeding pro se, now moves for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), as modified by the First Step Act (the "FSA"), Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). Dkt. No. 260 ("Motion"). He contends that the growing COVID-19 pandemic has made his sentence much more punitive than intended; he has substantial risk of serious illness or death if he contracts COVID-19 and/or new strains, regardless of his age or health condition; he has achieved extraordinary rehabilitation progress during the two decades of incarceration; the life sentence is excessively harsh; and the 18 U.S.C. § 3553(a) factors as applied in his particular case support sentence reduction. Motion at 1.

For the reasons set out below, the motion is DENIED.

BACKGROUND

The facts are set forth in detail in prior decisions of the Court. See Marmolejas v. United States, No. 05 Civ. 10693 (DC), 2010 WL 3452386, at **1-2 (S.D.N.Y. Sept. 2, 2010); United States v. Gomez, 644 F.Supp.2d 362, 366-67 (S.D.N.Y. 2009). Here, I repeat only the most salient facts.

A. Marmolejos's Crimes, Conviction, and Sentencing

In May 1998, Marmolejos and two other individuals (Jamie Gomez and Jonny Martinez) were hired by the Reyes heroin organization -- a large-scale heroin organization that supplied kilogram quantities of heroin in the Bronx and in Manhattan from 1996 to 1999 -- to kill Johan Pena-Perez and Nilton Duran, who had allegedly turned against the organization by stealing its heroin and cash. PSR ¶¶ 29, 31-32.

For his part, Marmolejos operated a minivan with a secret compartment that contained firearms. PSR ¶ 35. The secret compartment could only be operated from the driver's seat. Tr. at 995-96. On May 25, 1998, Marmolejos drove Gomez and Martinez and some personnel of the Reyes heroin organization to look for Pena-Perez and Duran. PSR ¶ 33. The group waited four to five hours outside a building in the Bronx for Pena-Perez and Duran to exit the building, but they did not. Id.

On May 26, 1998, the next day, Marmolejos drove the same group to the same location to wait again, for six hours or more. Tr. at 334, 404, 424, 428; PSR ¶ 34. Finally, Pena-Perez and Duran exited the building, got inside a Toyota Camry, and drove away. PSR ¶ 34. Marmolejos drove the minivan to follow the Camry, while members of the hit team removed several firearms and silencers from the secret compartment. PSR ¶ 35. When the Camry stopped at a red light, Gomez, armed with a Cobray 9-millimeter machine gun, and Martinez, armed with a .357 revolver, got out of the minivan, approached the Camry, and fired into the vehicle, killing Pena-Perez and wounding Duran. Id.

After the Camry lurched forward and crashed, Duran fled the scene pursued by an armed Gomez, who fired five additional shots before he was arrested by several plainclothes officers with the New York City Police Department. PSR ¶ 36; Tr. at 459. Meanwhile, Marmolejos drove the other individuals in the minivan off the scene and discarded the weapons. Tr. at 693-94; PSR ¶ 36. Later that evening, Marmolejos collected $37, 000 from members of the Reyes heroin organization for the shooting of Pena-Perez. Tr. at 694-95.

Marmolejos was arrested on June 4, 1998, inside the same minivan that he had driven to the murder scene. PSR ¶ 39. The minivan had been painted a different color and re-stocked with a 9-millimeter pistol, a 10-millimeter semi-automatic weapon, silencers, and ammunition. Id.

On February 1, 2002, a jury convicted Marmolejos of conspiracy to commit Hobbs Act robbery and extortion in violation of 18 U.S.C. § 1951 (Count One); conspiracy to commit murder-for-hire in violation of 18 U.S.C. § 1958 (Count Two); substantive murder-for-hire in violation of 18 U.S.C. § 1958 (Count Three); conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. § 846 (Count Four); murder while engaged in a major drug conspiracy in violation of 21 U.S.C. §848(e)(1)(A) (Count Five); using and carrying firearms in relation to the narcotics offenses and crimes of violence charged in Counts One through Five in violation of 18 U.S.C. § 924(c) (Count Six); murder in the course of a § 924(c) violation, in violation to 18 U.S.C. § 924(j) (Count Seven); and possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k) (Count Eight). PSR ¶¶ 10-17. On July 25, 2002, I vacated the conviction on Count Five on inconsistency grounds. See United States v. Gomez, 210 F.Supp.2d 465, 479 (S.D.N.Y. 2002).

On September 19, 2002, I sentenced Marmolejos to life imprisonment, followed by a consecutive ten-year term of imprisonment and three years of supervised release, and $700 in special assessments. Sent'g Tr. at 34. The total offense level was 43 and there was a Criminal History Category of I, resulting in a mandatory Guidelines sentence of life imprisonment. PSR ¶¶ 71-83.

Marmolejos appealed his convictions and sentence, but the Second Circuit affirmed the judgment in all respects. Marmolejos, 112 Fed.Appx. at 784. Post-appeal, Marmolejos filed a series of motions for relief, all of which were denied. See, e.g., United States v. Marmolejos, No. 99 CR. 1048 (DC), Dkt. No. 241 (denying the second or successive motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C § 2255); United States v. Marmolejos, No. 99 CR. 1048 (DC), Dkt. No. 201 (denying the Rule 60(b)(4) motion for relief from the denial of the motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255); Marmolejas v. Mukasey, No. 08 Civ. 59 (KKC), 2008 WL 1776593 (E.D. Ky. 2008) (denying the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241); Marmolejas, 2006 WL 2642130, at *8 (denying the motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel).

B. Marmolejos's Request for Compassionate Release

On December 15, 2020, Marmolejos filed a request with the Warden at his facility to reduce his sentence, and the Warden denied the request on February 10, 2021. Dkt. No. 260-1, 260-2. On June 30, 2021, Marmolejos filed the instant pro se motion for compassionate release to reduce his life sentence to time served or a sentence of a term of years pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Motion at 1, 27.

Marmolejos is presently 52 years old and has served approximately 260 months (21.66 years) of his life sentence. Motion at 1.

DISCUSSION

A. Applicable Law

Pursuant to 18 U.S.C. § 3582(c)(1)(A), as modified by the FSA, a court may reduce a defendant's sentence on motion of the Director of the Bureau of Prisons (the "BOP") or the defendant himself. See United States v. Gil, No. 90 Cr. 306 (KMW), 2020 WL 2611872, at *1 (S.D.N.Y. May 22, 2020); United States v. Patterson, No. 17 Cr. 118-6 (KPR), 2020 WL 2571044, at *2 (S.D.N.Y. May 21, 2020). A defendant may move for compassionate release himself only after he has "fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf or lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A). On a motion for compassionate release, the defendant bears the burden of demonstrating circumstances that warrant a sentence reduction. See Patterson, 2020 WL 2571044, at *2. A court may reduce a sentence if, "after considering the factors set forth in section 3553(a) to the extent they are applicable," it finds that there are "extraordinary and compelling reasons [that] warrant a reduction." 18 U.S.C. § 3582(c)(1)(A).

Courts were previously constrained by U.S. Sentencing Guidelines Manual § 1B1.13, but the Second Circuit has now held that courts have discretion to "consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release." United States v. Brooker, 976 F.3d 228, 230, 237 (2d Cir. 2020); see also United States v. Ciprian, No. 11 Cr. 1032 (PAE), 2021 U.S. Dist. LEXIS 18698, at *5 (S.D.N.Y. Feb. 1, 2021) ("[T]he Court is not constrained by [. . .] Sec. 1B1.13's enumeration of extraordinary and compelling reasons."). Congress has only limited district courts' discretion in that rehabilitation alone cannot qualify as an "extraordinary and compelling reason." 28 U.S.C. § 994(t).

If a defendant shows extraordinary and compelling reasons to warrant a sentence reduction, the court still must consider the applicable factors set forth in 18 U.S.C. § 3553(a). See United...