United States v. Robles

553 F.Supp.3d 172

UNITED STATES of America,

v.Jose ROBLES, Defendant.

08 Cr. 1114 (PAE)

United States District Court, S.D. New York.

Signed August 10, 2021

Michael Douglas Maimin, U.S. Attorney's Office, New York, NY, for United States of America.

ORDER

PAUL A. ENGELMAYER, District Judge:

The Court has received an application from defendant Jose Robles seeking a reduction of the sentence he is currently serving at Federal Correctional Institution ("FCI") Fort Dix pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). See Dkt. 93 ("Def. Mem.") at 2–3. The Government opposes his request. See Dkt. 98 ("Gov. Opp.") at 1. For the reasons that follow, the Court intends to grant Robles's request for a sentence reduction after he exhausts his administrative remedies. See Dkt. 99.

I. Background

On February 11, 2011, Robles was convicted after a jury trial of six counts related to three separate robberies he committed in 2005 and 2006. See Gov. Opp. at 2. Specifically, Robles was convicted of Count 1, for conspiring to commit Hobbs Act robberies in violation of 18 U.S.C. § 1951 ; Counts 2–4, for participating in the three separate Hobbs Act robberies in violation of 18 U.S.C. § 1951 –2; and Counts 5–6, for brandishing, or aiding and abetting the brandishing of, a firearm in furtherance of two of those robberies, under 18 U.S.C. § 924(c). Id.

The crimes for which Robles was convicted are serious. On October 15, 2005, Robles and two other people robbed a Radio Shack in the Bronx. See Gov. Opp. at 3–4. During the course of this robbery, Robles brandished a silver revolver, ordered employees to lie on the ground, yelled at them, kicked one employee, and pressed his gun against the back of her head. Id. Robles committed another robbery on November 15, 2005—this time with at least six other people—which targeted a different Radio Shack in the Bronx. Id. at 5. The robbers tied up the store's employees and put plastic bags over their heads. Id. at 6. One employee testified at trial that he was beaten by the robbers and had a knife put to his face. Id. Robles's fingerprints were found on two of the bags that were put over the victims’ heads. Id. Also during the November 15 robbery, one of Robles's co-robbers brandished a gun. Id. On October 2, 2006, Robles committed a third robbery, this time of a gas station, with two other people. Id. at 7–8. Robles and another man approached a car carrying two of the station's employees, who were carrying the station's weekend proceeds to the bank. Id. at 8–9. One of the robbers displayed a gun, banged on the door, and demanded the money, which the employees gave them. Id.

On November 22, 2011, Judge Sweet issued his first sentencing opinion for Robles. See Dkt. 58 ("Sent. Op."). Robles faced a mandatory minimum sentence on Counts 5–6 (the two § 924(c) counts) of 32 years, to run consecutive to any other sentence. And Judge Sweet calculated Robles's advisory guideline sentence range on Counts 1–4 as 78 to 97 months’ imprisonment. Judge Sweet downwardly varied from his calculated guideline range on these counts and imposed a sentence of 32 years (384 months) for all counts. Id. at 21–23. After imposition of this sentence, both the Government and Robles submitted memoranda arguing, for different reasons, that that sentence was erroneous as a matter of law. Dkts. 59–60. On February 3, 2012, Judge Sweet published a revised opinion recognizing that United States v. Chavez , 549 F.3d 119 (2d Cir. 2008), prohibited him from using the adequacy of the sentence as a whole as a basis for imposing effectively a zero-months sentence on Counts 1–4; rather, the sentence on the mandatory minimum offenses was required to run consecutively to the sentence found reasonable as to Counts 1–4. Dkt. 61 ("Mod. Sent. Op.") at 18–21. Judge Sweet also recalculated the Guidelines applicable to Robles and determined that the applicable Guidelines range for Counts 1–4 was 108 to 135 months’ imprisonment, to be followed by 384 months’ imprisonment on Counts 5–6. As a result, Judge Sweet imposed a sentence of 36 months’ imprisonment for Counts 1–4 to be followed by Robles's sentence of 32 years’ imprisonment on the two § 924(c) counts, yielding a total prison sentence of 35 years’ imprisonment.¹ Id. at 24–25. At Robles's second sentencing hearing, Judge Sweet expressed regret and frustration at the mandatory "stacking" of the sentences on the two § 924(c) convictions. This, he stated, was "unfair, harsh, and irrational, but ... required by law." Id. at 25. Robles has been incarcerated since his arrest in October 2008. Def. Mem. at 7.

On February 10, 2021, Robles filed a pro se motion for compassionate release. He primarily argued that the gap between the length of the sentence that he received in 2012 and the sentence he would receive today—given the First Step Act, which prospectively eliminates such mandatory stacking—is an "extraordinary and compelling" reason justifying a reduction of his sentence. See Dkt. 83 ("Robles's Motion"). The next day, the Court asked Robles's trial counsel to file a memorandum in support of Robles's motion. See Dkt. 84. On May 12, 2021, Robles's counsel filed such a memorandum. See Def. Mem. at 1, 15–17. On May 28, 2021, the Government opposed that request on the grounds that (1) Robles's circumstances do not qualify as "extraordinary and compelling," and (2) the sentencing factors set forth in 18 U.S.C. § 3553(a) do not support a reduced sentence.

II. Discussion

A. Governing Legal Principles

Under 18 U.S.C. § 3582(c)(1)(A), a court:

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

The defendant bears the burden of proving that he is entitled to compassionate release under § 3582(c)(1)(A). See United States v. Butler , 970 F.2d 1017, 1026 (2d Cir. 1992) ("If the defendant seeks decreased punishment, he or she has the burden of showing that the circumstances warrant that decrease."); United States v. Clarke , No. 09 Cr. 705, 2010 WL 4449443, at *1 (S.D.N.Y. Oct. 29, 2010).

Originally, § 3582(c)(1)(A) did not permit prisoners to initiate compassionate release proceedings and instead required the Bureau of Prisons ("BOP") to seek such release on their behalf. United States v. Ebbers , 432 F. Supp. 3d 421, 422–23, 427 (S.D.N.Y. 2020). But with the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, Congress amended the law to allow defendants independently to seek compassionate release from federal courts. Ebbers , 432 F. Supp. 3d at 422–23.

Before the First Step Act, Congress had tasked the Sentencing Commission with identifying circumstances sufficiently extraordinary and compelling to justify a sentence reduction. Id. at 427 (citing 28 U.S.C. § 994(t) ). The Commission did so in U.S.S.G. § 1B1.13 and its corresponding commentary. That guidance, inter alia , (1) sets out circumstances that present extraordinary and compelling reasons justifying release; and (2) requires that a defendant not be a danger to the community. Id. § 1B1.13(1)–(3) & cmt. n.1(A)–(D).

By its terms, however, the Commission's guidance applies only to a "motion of the Director of the Bureau of Prisons." Id. § 1B1.13. And the Commission has not updated § 1B1.13 or its commentary to reflect the First Step Act's amendment to § 3582(c)(1)(A) authorizing defendants to move for compassionate release on their own, without BOP intervention. Accordingly, although courts—including this one—had treated the Commission's guidance as applicable to all compassionate release motions, see, e.g. , United States v. Hernandez , 451 F. Supp. 3d 301, 303 (S.D.N.Y. 2020) ; see also Ebbers , 432 F. Supp. 3d at 428, the Second Circuit has recently clarified that § 1B1.13 "is not ‘applicable’ to compassionate release motions brought by defendants," rather than by the BOP, and "cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling" in such cases. United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020) ; see also id. at 237 ("Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13 , limits the district court's discretion." (emphasis added)).

Consistent with Brooker , in assessing a § 3582(c)(1)(A) motion brought directly by a defendant, the Court is not constrained by either § 1B1.13 ’s enumeration of extraordinary and compelling reasons or by its freestanding requirement that the defendant seeking release not pose any danger to the community. Rather, the Court, "after considering the factors set forth in section 3553(a) to the extent that they are applicable," § 3582(c)(1)(A)(i), may "consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before [it] in motions for compassionate release." Brooker , 976 F.3d at 237.

B. Application to Robles

Robles has been imprisoned for nearly 13 years on his 35-year sentence. He urges the Court to reduce his sentence to "time served." See Def. Mem. at 3. Although the Court is unpersuaded that a sentence reduction on the scale that Robles seeks is warranted, the Court finds that, viewing the facts as a whole, there are "extraordinary and compelling" reasons which justify an earlier release date than the one presently set.

1. The First Step Act

The First Step Act ("FSA"), enacted in December 2018, abolished the mandatory "stacking" of sentences for multiple § 924(c) offenses. It did not, however, make that change retroactive. First Step Act, § 403; see United States v. Rodriguez , 15 Cr. 445 (PAE), 2020 WL 8768320, at...