United States v. Sanchez

UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY BUZIO SANCHEZ, Defendant.

CR. No. 13-00513 JMS (02)

United States District Court, D. Hawaii

August 4, 2021

ORDER DENYING DEFENDANT'S MOTION FOR SENTENCE REDUCTION UNDER FIRST STEP ACT (COMPASSIONATE R ELEASE), ECF NO. 134

J. MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), Defendant Anthony Buzio Sanchez (“Defendant”) moves for compassionate release from Federal Correctional Institution Hazelton (“FCI Hazelton”). ECF No. 134. The court determines that Defendant has failed to show extraordinary and compelling reasons to warrant release, and even if he had, the court would deny the motion based on consideration of the applicable 18 U.S.C. § 3553(a) factors. Thus, for the following reasons, the Defendant's Motion for Compassionate Release is DENIED.

II. BACKGROUND

Defendant, currently 47 years old, ^[1] is incarcerated at FCI Hazelton with a projected release date of March 17, 2027. See https://www.bop.gov/inmateloc/ (last visited August 4, 2021).

On February 10, 2014, Defendant pled guilty without a plea agreement to a single-count Indictment charging him with knowingly and intentionally attempting to possess with intent to distribute 50 grams or more of methamphetamine, its salts, isomers and salts of its isomers, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. ECF No. 18 at PageID ## 27, 29; ECF Nos. 56, 60, 71. On July 30, 2014, Defendant was sentenced to a term of 188 months imprisonment to be followed by a term of five years of supervised release. ECF No. 101 at PageID ## 284-85.

On April 27, 2021, Defendant submitted a request for compassionate release to FCI Hazelton's warden.^[2] ECF No. 134-1 at PageID # 565. That request was denied on May 11, 2021. Id. at PageID # 567. Defendant then filed the instant Motion for Compassionate Release on June 21, 2021. ECF No. 134. On July 15, 2021, Defendant filed a Supplemental Memorandum. See ECF Nos. 140-1, 141. The Government filed its Opposition on July 26, 2021. ECF No. 142. The court decides the Motion without a hearing pursuant to Local Rule 7.1(c).

III. DISCUSSION

A. Legal Standard

Defendant moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, which provides as relevant:

[T]he 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 . . . after considering the factors set forth in [18 U.S.C.] 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[.]

Thus, the court may reduce Defendant's sentence if: (1) Defendant has exhausted the required administrative remedies; (2) the court determines, after consideration of the applicable section 3553(a) factors, that Defendant has shown that “extraordinary and compelling reasons” warrant the reduction; and (3) the reduction is consistent with any applicable Sentencing Commission policy statements. Here, the parties agree that Defendant has exhausted his administrative remedies. ECF No. 134-1 at PageID ## 565, 567; ECF No. 142 at PageID ## 666-67.

The United States Sentencing Commission's policy statement, United States Sentencing Guideline (“Guideline”) § 1B1.13, was promulgated before the First Step Act provided defendants with the ability to file motions for compassionate release on their own behalf (and, without a quorum, the Sentencing Commission has been unable to amend the Guidelines post-First Step Act). The Ninth Circuit has therefore determined that the Guidelines lack any policy statement “applicable” to a defendant-filed motion for compassionate release. United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). This court is thus empowered to consider any extraordinary and compelling reason that warrants a sentence reduction. In making this determination, “[t]he Sentencing Commission's statements in [§ 1B1.13] may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.” Id.

B. Extraordinary and Compelling Reasons Do Not Warrant Release

Defendant bears the burden to establish extraordinary and compelling reasons that warrant compassionate release. See, e.g., United States v. Bogema, 2020 WL 6150467, at *3 (D. Haw. Oct. 20, 2020) (citations omitted).

Here, Defendant argues that he suffers “severe health issues” that put him at “constant risk of infection and reinfection” of COVID-19 and its variants. ECF No. 134 at PageID # 550. Defendant also claims that FCI Hazelton-like other Bureau of Prison (“BOP”) facilities at which Defendant has served parts of his sentence-does not provide a safe environment to protect against COVID-19. Id. at PageID # 551.

But the COVID-19 pandemic alone does not constitute an extraordinary and compelling reason for release. See, e.g., United States v. Drummondo-Farias, 460 F.Supp.3d 1008, 1014 (D. Haw. 2020) (explaining that “‘[g]eneral concerns about possible exposure to COVID-19 do not meet the criteria for extraordinary and compelling reasons for a reduction in sentence set forth in the Sentencing Commission's policy statement'”) (quoting United States v. Eberhart, 448 F.Supp.3d 1086, 1090 (N.D. Cal. 2020)); see also United States v. Brooks, 491 F.Supp.3d 33, 37 (W.D. Pa. 2020); United States v. Mitchell, 471 F.Supp.3d 1130, 1138 (W.D. Wash. 2020). Further, Defendant has not shown that the hardships he faces at FCI Hazelton differ significantly from any other BOP facility.

The BOP reports that of 1, 241 inmates tested at FCI Hazelton, 195 have tested positive for COVID-19 over the course of the pandemic, with two additional tests pending.^[3] See https://www.bop.gov/coronavirus/ (COVID-19 resource page) (last visited August 4, 2021). At present, FCI Hazelton is doing much better-BOP presently reports that zero inmates and one staff member have “confirmed active cases” of COVID-19. See id. Although the court recognizes that COVID-19 cases could rise again at FCI Hazelton, the institution has shown great improvement over the past months. And as COVID-19 vaccinations continue to be administered, the threat of a COVID-19 outbreak should continue to decrease over time.^[4]

Defendant lists numerous medical conditions that allegedly increase his risk relating to COVID-19, including: acute bronchitis; Barrett's esophagus; esophageal reflux; peptic ulcer; “chronic acute rhinitis”; diverticulosis; gastritis, including acute nonhemorrhagic gastritis (“Mild to Moderate”); headaches and associated dizziness; hyperlipidemia; low blood pressure; hypermetropia (blurry vision); and presbyopia (farsightedness). ECF No. 134 at PageID # 556. He has also “had no less than three . . . documented abnormal electrocardiogram (“ECG”) readings, ” which suggest “a potential heart problem.” Id. The court addresses each condition in turn.

Although chronic bronchitis increases a person's risk relating to COVID-19, see https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/ people-with-medical-conditions.html (last visited August 4, 2021), Defendant claims he suffers from “acute bronchitis, ” ECF No. 134 at PageID # 556. Acute bronchitis is commonly known as a chest cold, a condition that is “usually caused by a virus and often occur[ing] after an upper respiratory infection”; it also “usually gets better on its own.” Chest Cold (Acute Bronchitis), https://www.cdc.gov/antibiotic-use/bronchitis.html (last visited August 4, 2021). Defendant's BOP medical records appear to include only three documented instances of Defendant suffering from bronchitis-specifically, acute bronchitis- from which he appears to have recovered.^[5] ECF No. 140-1 at PageID # 648; ECF No. 142-5 at PageID # 759. The CDC does not list acute bronchitis as a COVID-19 risk factor and the court therefore concludes that Defendant's resolved cases of acute bronchitis do not increase his COVID-19 risk.

And like acute bronchitis, most of the other conditions Defendant asserts as increasing his risk are not listed by the CDC as COVID-19 risk factors. More specifically, Defendant's gastroenterological conditions (Barrett's esophagus, esophageal reflux (commonly known as acid reflux), peptic ulcer, diverticulosis, and gastritis) and vision conditions (hypermetropia and presbyopia) are not specified as COVID-19 risk factors. See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited August 4, 2021). The same is true for his headaches and associated dizziness, rhinitis, hyperlipidemia, and low blood pressure. See id. Further, Defendant's BOP medical records list a number of these conditions as either in remission or resolved, including rhinitis, peptic ulcer, headaches, and dizziness.^[6] ECF No. 140-1 at PageID ## 647-48, 650; ECF No. 142-5 at PageID ## 758-59, 761.

Heart conditions-including heart disease and other heart conditions such as atrial fibrillation and hypertension-“can make you more likely to get severely ill from COVID-19.” https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited August 4, 2021); see also https://www.cdc.gov/heartdisease/otherconditions.htm (last visited August 4, 2021). Defen...