United States v. Ortiz

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UNITED STATES OF AMERICA, Plaintiff, v. RICHARD ANTHONY ORTIZ, Defendant.

No. CR12-62-RSL

United States District Court, W.D. Washington, Seattle

February 6, 2023

ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE

Robert S. Lasnik United States District Judge.

This matter comes before the Court on defendant's “Motion for Sentence Reduction Pursuant to 18 U.S.C § 3582(c)(1)(A)(i) and for Appointment of Counsel” (Dkt. # 1557). Having considered the motion and the record contained herein, the Court finds as follows:

I. Procedural Motions

As an initial matter, the Court finds compelling reasons justify sealing defendant's records containing sensitive information (Dkt. # 1568). The government's motion to seal (Dkt. # 1567) is accordingly GRANTED.

II. Background

Defendant is a 43-year-old inmate currently incarcerated at Sheridan Federal Correctional Institution (“Sheridan FCI”). See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Jan 23, 2023). On May 16, 2013, defendant was found guilty of conspiracy to distribute heroin and/or methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846, as well as possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Dkt. # 954; Dkt # 1196. On December 13, 2013, this Court sentenced defendant to a term of 180 months of imprisonment and a five-year term of supervised release. Dkt. # 1196 at 2-3. Defendant is currently scheduled for release from the custody of the Federal Bureau of Prisons (“BOP”) on February 18, 2025. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Jan. 23, 2023).

III. Legal Framework

“A federal court generally ‘may not modify a term of imprisonment once it has been imposed.'” Dillon v. United States, 560 U.S. 817, 819 (2010) (quoting 18 U.S.C. § 3582(c)). Congress has provided an exception to that rule, known as compassionate release, which allows the Court to reduce a sentence for “extraordinary and compelling reasons.” 18 U.S.C. § 3582(c); see also United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021); United States v. Keller, 2 F.4th 1278, 1281 (9th Cir. 2021). The First Step Act of 2018 amended the procedural requirements governing compassionate release. Prior to the First Step Act's passage, only the Director of the BOP could bring motions for compassionate release. Now, under the First Step Act, defendants are permitted to directly petition the Court for compassionate release. As amended, 18 U.S.C. § 3582(c)(1)(A) states in relevant part:

(c) Modification of an imposed term of imprisonment.-The court may not modify a term of imprisonment once it has been imposed except that-

(1) in any case-

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that- (i) extraordinary and compelling reasons warrant such a reduction; . . .

(ii) . . .

and that such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission[.]

Before passing the First Step Act, Congress directed the Sentencing Commission to promulgate a policy statement defining “extraordinary and compelling reasons” in the compassionate release context. See 28 U.S.C. § 994(t). In doing so, Congress instructed that “[Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” Id. The Sentencing Commission implemented this directive from Congress with a policy statement-U.S.S.G. § 1B1.13. In relevant part, the policy statement provides,

Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)

Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent they are applicable, the court determines that-

(1)(A) Extraordinary and compelling reasons warrant the reduction;

...

(2) The defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g); and

(3) The reduction is consistent with this policy statement.

Commentary

Application Notes:

1. Extraordinary and Compelling Reasons.-Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the circumstances set forth below:

(A) Medical Condition of the Defendant-

(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(ii) The defendant is-

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

(B) Age of the Defendant-The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

(C) Family Circumstances-

(i) The death or incapacitation of the defendant's only family member capable of caring for the defendant's minor child or minor children.

(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner

(D) Other Reasons-As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).

2. Foreseeability of Extraordinary and Compelling Reasons.- For purposes of this policy statement, an extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

3. Rehabilitation of the Defendant.-Pursuant to 28 U.S.C. § 994(t), rehabilitation of the defendant is not, by itself, an extraordinary and compelling reason for purposes of this policy statement. ....

U.S.S.G. § 1B1.13. The Ninth Circuit has held that U.S.S.G. § 1B1.13 “is not an ‘applicable policy statement' for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.” Aruda, 993 F.3d at 798, 802. The Court may consider U.S.S.G. § 1B1.13 in exercising its discretion, but it is not binding. Id.

IV. Defendant's Characteristics

In deciding whether to grant defendant's motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), the Court first considers whether defendant has met the statutory exhaustion requirement. If the exhaustion requirement is met, the Court turns to three substantive considerations that govern compassionate release analysis: (1) whether “extraordinary and compelling reasons warrant such a reduction,” (2) whether a reduction would be “consistent with applicable policy statements issued by the Sentencing Commission,” and (3) the sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. Wright, 46 F.4th 938, 945 (9th Cir. 2022) (emphasis in original) (internal citations and quotations omitted). Significantly, the second requirement does not apply in this case, as there is currently no policy statement from the Sentencing Commission that is “applicable” to compassionate release motions filed by a defendant (rather than by the BOP Director). Id. at 946. “Although a district court must conclude that a defendant satisfies all three predicates before granting a motion for compassionate release, it may deny compassionate release if a defendant fails to satisfy any of these grounds.” Id.

A. Exhaustion

The Court first determines whether defendant has met the statutory exhaustion requirement. Where, as here, the Director of the BOP has not filed the motion on defendant's behalf, the Court may consider the motion only if defendant has requested that the BOP make such a motion and either (i) defendant has “fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf,” or (ii) 30 days have elapsed since the “warden of the defendant's facility” received a compassionate-release request from defendant. Keller, 2 F.4th at 1281 (quoting 18 U.S.C. § 3582(c)(1)(A)). The Ninth Circuit has held that “§ 3582(c)(1)(A...