United States v. Moreira

UNITED STATES OF AMERICA, Plaintiff, v. HECTOR MOREIRA, Defendant.

CRIMINAL ACTION No. 06-20021-01-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

November 25, 2020

MEMORANDUM AND ORDER

On October 5, 2007, the Court sentenced defendant to life in prison. On September 24, 2020, defendant filed a Motion To Reduce Sentence - First Step Act (Doc. #767), which seeks compassionate release under 18 U.S.C. § 3582. On November 2, 2020, pursuant to District of Kansas Standing Order No. 20-8, the Office of the Federal Public Defender notified the Court that it does not intend to enter an appearance to represent defendant. For reasons stated below, the Court dismisses defendant's motion.

Factual Background

On March 20, 2007, defendant pled guilty to conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, 500 grams or more of cocaine, and a detectable amount of marijuana, possession with intent to distribute and distribution of 50 grams or more of methamphetamine, distribution of five grams or more of methamphetamine, possession with intent to distribute 500 grams or more of cocaine and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), (b)(1)(A)(viii), (b)(1)(D), 846 and 18 U.S.C. § 2. See Petition To Enter Plea Of Guilty An Order Entering Plea (Doc. #322). Because defendant pled guilty to an offense under 21 U.S.C. § 841(b)(1)(A), he faced a statutory range of 10 years to life in prison. See 21 U.S.C. § 841(b)(1)(A)(viii). The Court attributed 4.89 kilograms of actual methamphetamine to defendant for a base offense level of 38 under the United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(c)(1). See Presentence Investigation Report ("PSR"), ¶ 91. The Court applied a two-level enhancement because defendant possessed a firearm, a four-level enhancement because defendant was an organizer or leader of criminal activity that involved five or more participants and a two-level enhancement for obstruction of justice because defendant recklessly created a substantial risk of death or serious bodily injury to another person while fleeing from law enforcement. Id., ¶¶ 92, 94, 95. Despite the Court's application of an enhancement for obstruction of justice, it granted defendant a two-level reduction for acceptance of responsibility. Id., ¶ 97. The total calculated offense level was 44, but the Sentencing Guidelines do not include ranges for offense levels above 43. Id., ¶ 101. Based on a total offense level of 44 and a criminal history category I, defendant's guideline range was life in prison. Id., ¶ 123. On October 5, 2007, the Court sentenced defendant to life in prison. Defendant appealed, and the Tenth Circuit affirmed. See Mandate (Doc. #589). On March 17, 2009, the United States Supreme Court denied a writ of certiorari. See Letter (Doc. #605).

Defendant filed post-conviction motions challenging his conviction and sentence, but the Court denied relief. See Memorandum And Order (Doc. #668) filed October 13, 2010 (overruling defendant's motion to vacate under Section 2255); Memorandum And Order (Doc. #754) filed August 1, 2016 (overruling defendant's motion to reduce sentence). The Tenth Circuit denied defendant's motion to file a second or successive motion under Section 2255, dismissed his appeal of the Court's ruling on his Section 2255 motion, and affirmed the Court's dismissal of his motion to reduce sentence. See Order (Doc. #753) filed July 21, 2016 (denying defendant's motion tofile second or successive motion under Section 2255), Order (Doc. #727) filed February 3, 2014 (same), Order (Doc. #684) filed March 24, 2011 (denying motion for certificate of appealability of ruling on Section 2255 motion), Mandate (Doc. #762) filed March 2, 2017 (affirming district court decision dismissing defendant's motion to reduce sentence).

Defendant currently is confined at USP Terre Haute, a Bureau of Prisons ("BOP") facility in Terre Haute, Indiana. USP Terre Haute houses 1,269 inmates. See USP Terre Haute, https://www.bop.gov/locations/institutions/thp (last visited Nov. 23, 2020). As of November 23, 2020, 97 inmates and five staff members at USP Terre Haute had tested positive for COVID-19. See COVID-19 Cases, https://www.bop.gov/coronavirus (last visited Nov. 23, 2020). Two of the inmates who contracted COVID-19 have died. See id. Overall, 91 inmates and five staff members who had tested positive have recovered. See id.

Defendant is 40 years old. He asks the Court to grant compassionate release because (1) as a first-time offender, his life sentence is higher than necessary, (2) he has successfully participated in BOP rehabilitation programs, (3) at USP Terre Haute, he is at risk of contracting COVID-19 because of hypertension and (4) he needs to care for his father, who lives in Guatemala and has been diagnosed with colon cancer.

Analysis

A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See 18 U.S.C. § 3582(b)-(c); United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Congress has set forth only three limited circumstances in which a court may modify a sentence: (1) upon motion of the BOP Director or defendant under Section 3582(c)(1)(A); (2) when "expressly permitted by statute or by Rule 35" of the FederalRules of Criminal Procedure; and (3) when defendant has been sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c).

Under the First Step Act of 2018, Pub. L. No. 115-391 (S. 756), 132 Stat. 5194, the Court may order compassionate release for "extraordinary and compelling reasons." 18 U.S.C. § 3582(c)(1)(A)(i). The Court may entertain requests for compassionate release only upon a motion of the BOP, however, or of defendant after defendant "has fully exhausted all administrative rights to appeal a failure of the [BOP] 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." 18 U.S.C. § 3582(c)(1)(A).

The Court may entertain requests for compassionate release only upon a motion of the BOP or defendant after he submits a request to BOP and the earlier of (1) when he "fully exhaust[s] all administrative rights to appeal" or (2) "the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility." 18 U.S.C. § 3582(c)(1)(A). As to the second alternative, a "lapse" refers to the failure of the warden to respond to defendant's request. See United States v. Abdeljawad, No. 15-CR-3394 WJ, 2020 WL 4016051, at *2 (D.N.M. July 16, 2020) (in context, "lapse of 30 days" refers to complete absence of response during that period); United States v. Saenz, No. 97CR2106-JLS, 2020 WL 2767558, at *2 (S.D. Cal. May 28, 2020) (no "lapse" because warden acted on defendant's request); United States v. Miller, 2020 WL 113349, at *2 (D. Idaho Jan. 8, 2020) ("lapse" means warden must fail to act on request for 30 days); see also lapse, Black's Law Dictionary 958 (9th ed. 2009) (lapse is "termination of a right or privilege because of a failure to exercise it within some time limit or because a contingency has occurred or not occurred"). In other words, if the warden responds to a request within 30 days, defendantmust fully exhaust available administrative appeals before filing a motion in district court. See United States v. Valenzuela, No. 15-CR-01460-WJ, 2020 WL 5439803, at *2 (D.N.M. Sept. 10, 2020) (court lacks jurisdiction until inmate appeals warden denial through administrative appeal process and receives final agency determination); United States v. Van Sickle, No CR18-0250JLR, 2020 WL 3962225, at *3 (W.D. Wash. July 13, 2020) (despite urgency created by COVID-19, defendant must exhaust administrative remedies within BOP before filing motion in court. But see United States v. Harris, 812 F. App'x 106, 107 (3d Cir. 2020) (statute allows defendant to file motion 30 days "after the warden receives his request"); United States v. Alam, 960 F.3d 831, 834 (6th Cir. 2020) ("Prisoners who seek compassionate release have the option to take their claim to federal court within 30 days, no matter the appeals available to them.").

The administrative exhaustion requirement in Section 3582(c)(1) is jurisdictional. United States v. Scott, No. 16-10003-02-EFM, 2020 WL 5513616, at *1 (D. Kan. Sept. 14, 2020); see United States v. Read-Forbes, 454 F. Supp. 3d 1113, 1116 (D. Kan. 2020) (analyzing "text, context, and relevant historical treatment" of Section 3582(c)) (quoting Musacchio v. United States, 136 S. Ct. 709, 717 (2016)). Defendant alleges that he has satisfied the exhaustion prerequisite because the warden denied his written request for compassionate release. Motion To Reduce Sentence - First Step Act (Doc. #767), at 4-5. The record reflects that defendant submitted a request on July 3, 2020, which the warden denied on July 13, 2020. Id. at Ex. A. In his response, the warden advised defendant that he had the right to file an administrative appeal, but he did not do so. Rather than appealing the warden's decision, on September 24, 2020, defendant filed a motion for compassionate release. Because defendant did not appeal the warden's denial of his request, he has not fully exhausted all administrative appeal rights.Accordingly, the Court lacks jurisdiction to consider his motion for compassionate release.

Even if the Court construed the administrative exhaustion requirement of Section 3582(c)(1)(A) as a claims-processing rule rather than a jurisdictional limitation, the statutory rule would still bar defendant's motion at this time. See Read-Forbes, 454 F. Supp. 3d, at 1117. In contrast with judicially created exhaustion requirements, the Court lacks discretion to excuse defendant's failure to comply with a mandatory statutory requirement to exhaust administrative remedies....