United States v. Nunez-Hernandez

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United States of America, Plaintiff, v. Salvador Nunez-Hernandez, Defendant.

No. 20-cr-123 (ECT/HB)

United States District Court, D. Minnesota

March 8, 2023

Salvador Nunez-Hernandez, pro se.

OPINION AND ORDER

Eric C. Tostrud United States District Judge

Defendant Salvador Nunez-Hernandez has filed a pro se motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). ECF No. 96. In early 2021, Nunez-Hernandez pleaded guilty to reentry of a removed alien in violation of 8 U.S.C. §§ 1326(a), 1326(b)(1), and 6 U.S.C §§ 202, 557, and the distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). ECF No. 56. On April 27, 2021, he was sentenced to a 121-month term of imprisonment. ECF No 75. Nunez-Hernandez is in the custody of the Federal Bureau of Prisons at the Federal Correctional Institution in Fort Dix, N.J. (“FCI-Fort Dix”), with a projected release date of November 7, 2028. See Fed. Bureau of Prisons, Find an Inmate https://www.bop.gov/inmateloc/ (last visited Feb. 27, 2023).

Nunez-Hernandez, age 57, requests a reduction in sentence because of the COVID-19 pandemic. He claims to be “at a heightened risk for death due to (COVID-19), (long-COVID), (Omicron), and the (sub-serviant) [sic] which their [sic] seems to be no anti-body with which to cure it.” ECF No. 96 at 1 (parentheses in original). Nunez-Hernandez seeks to have his sentence reduced to time served or, alternatively, an immediate transfer to home confinement. Id. at 5.^[1] For the following reasons, Nunez-Hernandez's motion for compassionate release will be denied.

Nunez-Hernandez has exhausted administrative remedies, allowing him to seek relief in district court. A court may not consider a defendant's motion until “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons 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). Nunez-Hernandez submitted a request for reduction in sentence to the warden on December 8, 2022, ECF No. 96-1 at 1, and filed his compassionate-release motion on January 27, 2023, ECF No. 96. Because more than 30 days lapsed between the request and motion, Nunez-Hernandez's motion for compassionate release is properly before the Court.^[2] A district court generally “may not modify a term of imprisonment once it has been imposed” except in limited circumstances. 18 U.S.C. § 3582(c). The compassionate release provision of 18 U.S.C. § 3582(c)(1)(A) is one such exception. Upon motion of the defendant, § 3582(c)(1)(A) allows a court to “reduce the term of imprisonment . . . after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable.” Id. § 3582(c)(1)(A). A court must find that “extraordinary and compelling reasons warrant such a reduction” and “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. The defendant bears the burden to demonstrate that he or she is entitled to a sentence reduction. United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016).

Courts have found that a defendant requesting compassionate release due to COVID-19 must show a “particularized susceptibility” to the virus and “a particularized risk of contracting the disease at his or her prison facility.” See United States v. Robinson, No. 17-cr-318 (SRN), 2020 WL 4463363, at *5 (D. Minn. Aug. 4, 2020) (quoting United States v. Feiling, 453 F.Supp.3d 832, 841 (E.D. Va. 2020) (collecting cases)); see also United States v. Miland, No. 16-cr-159 (WMW), 2020 WL 3249259, at *3 (D. Minn. June 16, 2020). Nunez-Hernandez fails both prongs.^[3] For particularized susceptibility, the two main factors courts consider are age and underlying health conditions. Here, Nunez-Hernandez's age of 57 does not demonstrate he is particularly susceptible to COVID-19. The risk for hospitalization and death from COVID-19 increases with age, see Ctrs. for Disease Control and Prevention (“CDC”), Risk for COVID-19 Infection, Hospitalization, and Death By Age Group, (Feb. 6, 2023), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/ hospitalization-death-by-age.html, but courts agree that defendants of similar age to Nunez-Hernandez are not particularly susceptible to COVID-19. See United States v. Ocanas, 516 F.Supp.3d 936, 940 (D. Minn. 2021) (holding that a 56-year-old plaintiff with an underlying health condition of hepatitis C was not particularly susceptible to COVID-19); see also United States v. Lara-Villaruya, No. 3:18-cr-03425-GPC, 2020 WL 6395876, at *4 (S.D. Cal. Nov. 2, 2020) (holding that a 59-year-old defendant with underlying conditions of osteoporosis and poor blood circulation did not merit compassionate release); United States v. Stoddard, No. 1:14-CR-76, 2021 WL 2379568, at *5 (E.D. Va. June 9, 2021) (holding that a 66-year-old defendant with hypertension and hepatitis C was not particularly susceptible to COVID-19). Nunez-Hernandez falls in the middle range of the CDC's fourth-oldest age group, placing him below the three highest-risk age groups. See CDC, Risk for COVID-19 Infection, Hospitalization, and Death By Age Group, (Feb. 6, 2023), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-age.html. Like the many similarly aged inmates held at Bureau of Prison facilities, Nunez-Hernandez's slightly elevated risk of severe COVID-19 infection because of his age does not constitute an extraordinary and compelling reason for compassionate release.

Nor does Nunez-Hernandez demonstrate that underlying medical conditions, alone or in conjunction with his age, make him particularly susceptible to COVID-19. Nunez-Hernandez did not submit any exhibits identifying underlying medical conditions with his motion, ECF No. 96-1, nor did he discuss medical conditions in his motion, ECF No. 96. Case records predating Nunez-Hernandez's motion show only that he suffers from gout, see ECF No. 92 at 16, but gout has not been found to increase an individual's susceptibility to COVID-19. See Mayo Clinic Staff, COVID-19: Who's at higher risk of serious symptoms? (Sep. 27, 2022), https://www.mayoclinic.org/diseases-conditions/coronavirus/ in-depth/coronavirus-who-is-at-risk/art-20483301# (listing medical conditions that increase the risk of serious COVID-19 symptoms without including gout); see also CDC, People with Certain Medical Conditions, (Feb. 10, 2023) https://www.cdc.gov/ coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (listing medical conditions that increase the risk of severe illness from COVID-19 without including gout). On this record, Nunez-Hernandez has not met his burden to demonstrate he is particularly susceptible to COVID-19.

If a particularized risk of contracting COVID-19 at FCI-Fort Dix mattered,^[4] Nunez-Hernandez hasn't shown that this risk is present. On this question, courts generally consider the number of active COVID-19 cases in a facility, the sufficiency of facility protocols, and vaccination rates. See Ocanas, 516 F.Supp.3d at 941-42 (holding no particularized risk of infection despite 91 active cases of COVID-19 among inmates and 15 active cases of COVID-19 among prison staff at defendant's facility); see also United States v. Gandia-Maysonet, 96-CR-304-2 (RAM), 2021 WL 219191, at *2 (D.P.R. Jan. 21, 2021) (holding no particularized risk of infection when there were four active cases of COVID-19 at defendant's facility). Nunez-Hernandez alleges there is a COVID-19 outbreak at FCI-Fort Dix, ECF No. 96 at 5, but FCI-Fort Dix reports only four active cases of COVID-19 among inmates, no active cases among staff, and no pending tests for inmates, see Fed. Bureau of Prisons, BOP COVID-19 Statistics, https://www.bop.gov/ coronavirus/covid19statistics.html (last visited Feb. 28, 2023). The Bureau of Prisons also reports vaccinating 3,359 inmates and 227 staff at FCI-Fort Dix, id., and has instituted standardized infection prevention protocols to contain outbreaks, see Fed. Bureau of Prisons, COVID-19 Modified Operations Plan & Matrix, https://www.bop.gov/ coronavirus/covid19modifiedoperationsguide.jsp (last visited Feb. 28, 2023). Considering FCI-Fort Dix has a population of 3,923 inmates, see Fed. Bureau of Prisons, FCI Fort Dix, https://www.bop.gov/locations/institutions/ftd/ (last visited Feb. 28, 2023), the facility has a high vaccination rate and proportionally low number of active cases. This low proportion of cases, four out of 3,923 inmates, suggests FCI-Fort Dix's infection protocols are working. Four active COVID-19 cases are not enough to demonstrate a particularized risk of contracting COVID-19 at FCI-Fort Dix.

The applicable factors in § 3553(a) further weigh against granting Nunez-Hernandez's motion. Section 3553(a) directs courts to consider, among other factors,

(1) The nature and circumstances of the offense and the history and characteristics of the defendant;

(2) The need for the sentence imposed-

A. to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

B. to afford adequate deterrence to criminal conduct; [and]

C. to protect the public from further crimes of the defendant.

18 U.S.C. § 3553(a). Nunez-Hernandez argues he should be released because he is a nonviolent offender with “a low custody level and a low-risk recidivism level.” Contrary to Nunez-Hernandez's assertions, his offenses were serious and reflect a pattern of repeated illegal conduct and disrespect for the law. Nunez-Hernandez was deported after illegally entering the...