United States v. Salazar-Valenzuela

1

United States of America, Plaintiff, v. Mercedes Salazar-Valenzuela, Defendant.

No. CR-11-02310-002-PHX-DGC

United States District Court, D. Arizona

November 2, 2022

ORDER

DAVID J. CAMPBELL SENIOR UNITED STATES DISTRICT

Defendant Mercedes Salazar-Valenzuela is an inmate with the Federal Bureau of Prisons (“BOP”). She has filed a motion for reconsideration of the order denying her request for compassionate release. See Docs. 246, 250-52. For reasons stated below, the Court will deny the motion.

I. Background.

In 2011, Defendant managed a drug trafficking organization that distributed large amounts of narcotics throughout Arizona. Doc. 116 at 10-11. In September 2012, Defendant pled guilty to conspiring to possess more than eight kilograms of methamphetamine with the intent to distribute the drug in violation of 21 U.S.C. §§ 841 and 846. Docs. 115 116. She was sentenced to 17.5 years in prison in January 2013. Doc. 150.

Defendant has served about 11 years of her sentence. See Doc 246 at 1. She presently is confined at the Federal Detention Center in Honolulu, Hawaii (“FDC Honolulu”). See Federal BOP, Find an Inmate, https://www.bop.gov/mobile/find_inmate /byname.jsp#inmate_results (last visited Nov. 2, 2022). Her earliest projected release date is November 29, 2026. See id.

In May 2022, Defendant filed a pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Doc. 246. The Federal Public Defender's Office filed a notice stating that there is no basis for appointment of counsel. Doc. 247. On August 3, 2022, the Court denied the motion because Defendant failed to show that she had exhausted her administrative remedies or that extraordinary and compelling reasons warrant a sentence reduction. Doc. 250. Defendant moves the Court to reconsider that ruling and reduce her sentence by three years. Docs. 251, 252. The government has filed a response in opposition, to which Defendant has replied. Docs. 255, 256.

II. Section 3582(c) and the Court's Prior Order.

“District courts can modify prison sentences only in limited circumstances set out by federal statute.” United States v. King, 24 F.4th 1226, 1228 (9th Cir. 2022) (citing Dillon v. United States, 560 U.S. 817, 824 (2010)). Section 3582(c), as amended by the First Step Act of 2018 (“FSA”), “allows certain inmates to seek a form of sentence modification called compassionate release by filing motions to that effect with the district court.” Id.; see FSA, Pub. L. No. 115-391, § 603, 132 Stat. 5194 (Dec. 21, 2018). “Under § 3582(c)(1), courts have the authority to reduce a sentence upon the motion of an inmate if three conditions are met: (1) the inmate has either exhausted [her] administrative appeal rights of the [BOP's] failure to bring such a motion on the inmate['s] behalf or has waited until 30 days after the applicable warden has received such a request; (2) the inmate has established ‘extraordinary and compelling reasons' for the requested sentence reduction; and (3) the reduction is consistent with ‘applicable policy statements' issued by the United States Sentencing Commission.” United States v. Burnett, No. CR17-0029JLR, 2022 WL 2440079, at *2 (W.D. Wash. July 2, 2022).^[1] Defendant claims in her motion for compassionate release that she contracted COVID-19 in December 2021 and has a respiratory issue requiring rest throughout the day. Docs. 246 at 1, 249 at 2. Defendant also claims to have internal ailments and difficulty holding food down; chronic internal pain; chronic pelvis hernia; and a tumorous growth on her right shoulder. Doc. 246 at 1.

The Court denied the motion because BOP medical records indicate that Defendant's ailments are being treated with over-the-counter medications and the tumor is not cancerous. Doc. 250 at 3 (citing Doc. 247 at 3). The Court explained that Defendant's vaccination against COVID-19 (see Doc. 246 at 1) significantly mitigates her risk of becoming severely ill from the virus, and the chance of contracting the virus a second time does not present an extraordinary and compelling reason to grant compassionate release. Doc. 250 at 3-4 (citations omitted). The Court also found that it could not grant relief because Defendant did not state whether she has attempted to satisfy § 3582(c)(1)(A)'s exhaustion requirement by having filed a request for compassionate release with the warden at FDC Honolulu. Id. at 3.

II. Reconsideration Standard.

Motions for reconsideration are disfavored and rarely granted. See Nw. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988); Resolution Tr. Corp. v. Aetna Cas. & Sur. Co., 873 F.Supp. 1386, 1393 (D. Ariz. 1994). Such a motion will be denied absent a showing of manifest error or new facts or legal authority that could not have been brought to the Court's attention earlier with reasonable diligence. See LRCrim 12(a); LRCiv 7.2(g)(1); UnitedNat'lIns. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). The motion may not repeat previous arguments or “ask the Court to rethink what it has already thought through.” Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 582 (D. Ariz. 2003); see Ross v. Arpaio, No. CV 05-4177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. 2008) (“Mere disagreement with a previous order is an insufficient basis for reconsideration.”).

III. Defendant's Motion for Reconsideration.

Defendant identifies no new ailment in her motion for reconsideration. See Doc. 251 at 1-2 (reiterating that she has “respiratory issues requiring rest throughout the day; internal ailments and difficulty holding down food; chronic internal pain; chronic pelvic hernia; and a tumorous growth on [her] right shoulder”). Defendant instead asserts that her respiratory symptoms have worsened, the internal ailments and hernia have not been resolved, the tumor has grown larger, and the BOP medical care she receives is not working. Id.

But Defendant presents no medical records in support of these assertions. “With no medical records from [Defendant], the Court cannot deem [her] health conditions ‘extraordinary and compelling reasons' for compassionate release.” United States v. West, No. 3:14-CR-0367-B-8, 2021 WL 3793755, at *3 (N.D. Tex. Aug. 26, 2021); see United States v. Echevarria, No. 13-CR-00678-ODW, 2021 WL 1374277, at *1 (C.D. Cal. Apr. 12, 2021) (denying compassionate release where the defendant “provide[d] no medical records to indicate how the conditions of which he complains are being managed while in prison”); United States v. Taffe, No. 16-CR-60300-RAR, 2020 WL 6700445, at *3 (S.D. Fla. Nov. 9, 2020) (denying the defendant's motion because he “advanced no medical records or evidence demonstrating that he has a terminal illness or urgent medical condition warranting compassionate release”); United States v. Maldonado, No. 16 CR 285 (CM), 2021 WL 639069, at *4 (S.D.N.Y. Feb. 17, 2021) (“[T]here is no evidence in the record on this motion that Maldonado is experiencing any lingering symptoms of COVID, and [the Court] will not speculate that he might someday develop any.”). Nor has Defendant shown that she would receive significantly better medical care in Nogales, Mexico, than the care provided at FDC Honolulu. See United States v. Gonzales, 547 F.Supp.3d 1083, 1086 (D.N.M. 2021) (denying compassionate release where the defendant failed to show that he would “receive better care at his home in rural Abiquiu, New Mexico, than the Federal Correctional Institute Danbury”); United States v. Manier, No. 3:17-CR-00062, 2020 WL 3439153, at *7 (M.D. Tenn. June 23, 2020) (denying compassionate release because “it is sheer speculation that Defendant would receive equal or better medical treatment if released”); United States v. Brown, No. 2:12-CR-00224, 2022 WL 2603559, at *7 (W.D. Pa. July 8, 2022) (“[T]he Court concludes that Mr. Brown's Motion falls short of showing that the care that he acknowledges he was receiving . . . while in BOP institutional custody was qualitatively inferior to the care he would receive if released[.]”).^[2]

Defendant's reliance on United States v. Mendez-Sanchez, No. CR06-425 MJP, 2022 WL 579343 (W.D. Wash. Feb. 25, 2022), is misplaced. See Doc. 252 at 1. The district court in that case granted compassionate release based on several factors not relevant here: (1) the mandatory minimum sentence Mendez-Sanchez received no longer applies and he therefore had served more than the now-applicable mandatory minimum by nearly 2 years; (2) Mendez-Sanchez's sentence was disproportionate because it was more than twice the length of any sentence imposed upon his 27 codefendants; (3) the FSA made Mendez-Sanchez's predicate offense no longer sufficient to trigger the mandatory minimum sentence; and (4) the threat of the Omicron variant of COVID-19 and Mendez-Sanchez's desire to return to Mexico to assist his aging mother had some compelling value. Mendez-Sanchez, 2022 WL 579343, at *3. “Together, these factors and considerations greatly undermine[d] the rationale for continued incarceration and highlight[ed] a fundamental unfairness in continuing Mendez-Sanchez's current sentence.” Id. Contrary to Defendant's assertion, Mendez-Sanchez is not the same as her case. Doc. 252 at 1; see Doc. 255 at 5-10.

Defendant has shown no manifest error in the Court's denial of her motion for compassionate release. Nor has she identified new facts or legal authority that warrant reconsideration of that ruling. Her motion for reconsideration will be denied.^[3] IT IS ORDERED that Defendant's motion for reconsideration of the order denying compassionate release (Doc. 251) is denied.^[4]

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^[1] There is no Sentencing Commission policy statement specifically applicable to § 3582(c)(1)(A) motions filed by defendants. The policy...