United States v. Tovar

UNITED STATES OF AMERICA v. ROBERT ERIK TOVAR, Defendant.

No. 3:14-cr-00471-B-1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

June 8, 2021

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant Robert Erik Tovar's motion (ECF No. 55) for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). The District Court referred the motion to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a specific order of reference (ECF No. 56). For the following reasons, the Court should deny Tovar's motion.

Background

Tovar pleaded guilty, pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C), to possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a), (b)(1)(C). On December 17, 2015, the District Court accepted the Rule 11(c)(1)(C) agreement and sentenced Tovar to 120 months' imprisonment. Tovar did not appeal to the Fifth Circuit Court of Appeals.

On September 26, 2017, the Court received Tovar's motion seeking credit for time served, and the Court construed the filing as a petition under 28 U.S.C. § 2241. Pet. (ECF No. 46). At that time, Tovar was confined at the United States Penitentiary (USP) in Waymart, Pennsylvania. Because this Court lacked jurisdiction over his petition, it transferred the case to the United States District Court for the Middle District of Pennsylvania. Ord. (ECF No. 47) (citing United States v. Mares, 868 F.2d 151, 151 (5th Cir. 1989) (holding that a defendant must bring a § 2241 petition in the district where he is incarcerated)).¹

On July 10, 2020, the Court received Tovar's motion for a sentence reduction under Section 404 of the First Step Act of 2018 (FSA), Pub. L. No. 115-391, 132 Stat. 5194 (2018). Mot. (ECF No. 48). On July 17, 2020, the District Court denied Tovar's motion without prejudice on the basis that he was not eligible for a sentence reduction under the FSA. Mem. Op. (ECF No. 49). The District Court noted that Tovar requested appointed counsel, and the matter was referred under § 636(b) to the undersigned magistrate judge for a hearing, if necessary, and a recommendation or determination to the District Court. Id. On July 24, 2020, the undersigned magistrate judge appointed counsel to assist Tovar. Ord. (ECF Nos. 50, 51).

On October 20, 2020, Tovar, through appointed counsel, filed his motion seeking a sentence reduction under § 3582(c)(1)(A). Mot. (ECF No. 55). Tovar moves for this Court to reduce his sentence from 120 months to time served. Id. 19. Tovar claims that if he is released, he has a re-entry plan. Supp. 4 (ECF No. 57). Specifically, he will live with his brother in Fort Worth, Texas, and he wants to reconnect with his daughter, Eileen. Id. Tovar also wants to get a job so that he canhelp provide for his daughter Eileen going forward. Id. Tovar's parents are still in the community, and they are willing to assist him with rebuilding his life. Id.

On April 8, 2021, Tovar moved to supplement (ECF No. 57) his motion for a sentence reduction under § 3582(c)(1)(A), as amended by the FSA, in light of the Fifth Circuit's recent decision in United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021). In Shkambi, the Fifth Circuit held that a district court considering a compassionate release motion under 18 U.S.C. § 3582(c)(1)(A) is not bound by "the old pre-FSA policy statement," U.S.S.G. § 1B1.13. Id. at 392. Rather, a district court is bound only by § 3582(c)(1)(A)(i) and the factors set forth in 18 U.S.C. § 3553(a). Id. at 393. Thereafter, on April 19, 2021, the Court granted Tovar's motion to supplement. Ord. (ECF No. 58). The Government did not file a response.

Legal Standards and Analysis

A district court lacks inherent authority to modify a defendant's sentence after it has been imposed. See 18 U.S.C. § 3582(c). But under § 3582(c)(1)(A), as amended by the First Step Act of 2018:

A court, on a motion by the BOP or by the defendant after exhausting all BOP remedies, may reduce or modify a term of imprisonment, probation, or supervised release after considering the factors of 18 U.S.C. § 3553(a), if "extraordinary and compelling reasons warrant such a reduction."

United States v. Chambliss, 948 F.3d 691, 692-93 (5th Cir. 2020) (footnote omitted) (quoting § 3582(c)(1)(A)(i)).

Section 3582 (c)(1)(A)(i) does not define the "extraordinary and compelling reasons" that may merit compassionate release. See generally id. Rather, Congress "delegated that authority to the Sentencing Commission" and directed it to "promulgate general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) that describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." Shkambi, 993 F.3d at 391 (citations, quotation marks, and alterations omitted).

Prior to the passage of the FSA, the Sentencing Commission issued a policy statement—U.S.S.G. § 1B1.13—that "sets forth three circumstances that are considered 'extraordinary and compelling reasons.'" United States v. Muniz, 2020 WL 1540325, at *1 (S.D. Tex. Mar. 30, 2020) (citing § 1B1.13(1)(A) & cmt. n.1). These include the defendant's medical condition, age, and family situation. See § 1B1.13(1)(A) & cmt. n.1.4 However, the Fifth Circuit recently held that § 1B1.13 only applies to motions filed by "the Director of the [BOP]" and thus does not "bind[ ] a district court addressing a prisoner's own motion under § 3582." Shkambi, 993 F.3d at 393 (citing § 1B1.13).

While not binding, § 1B1.13 and its commentary nonetheless inform the Court's analysis of a prisoner's motion as to what constitutes an extraordinary and compelling reason for compassionate release. See United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021) ("Although not dispositive, the commentary to . . . § 1B1.13 informs [the court's] analysis as to what reasons may be sufficiently'extraordinary and compelling' to merit compassionate release."); United States v. Rivas, 833 F. App'x 556, 558 (5th Cir. 2020) (per curium) (noting that U.S.S.G. § 1B1.13 is "not dispositive" but "guid[ing]"); United States v. Contreras, 2021 WL 1536504, at *4 (E.D. Tex. Apr. 19, 2021) (finding § 1B1.13 informative in evaluating an inmate's motion in light of Shkambi's holding).

1. Exhaustion

As a preliminary matter, Tovar argues that he has properly exhausted his administrative remedies under § 3582(c)(1)(A). Mot. 15 (ECF No. 55). He contends that he submitted a request to the Warden at his facility to permit him to be released from custody due to COVID-19 related concerns. Id. Tovar asserts that he submitted his request to the Warden via email on September 16, 2020, but as of October 20, 2020, when he filed his motion in this Court, the Warden had not acted on it. Id. Tovar further argues that because 30 days has elapsed since he submitted his request, his motion is properly filed at this time under the clear language of § 3582(c)(1)(A) and binding Fifth Circuit precedent, such as United States v. Franco, 973 F.3d 465 (5th Cir. 2020). Mot. 15 (ECF No. 55). In Franco, the Fifth Circuit held that "a 'court may not modify a term of imprisonment' if a defendant has not filed a request with the [BOP]." 973 F.3d at 468 (quoting § 3582(c)).

In support of his motion, Tovar provided a copy of an email he sent to the Warden of his BOP prison facility, USP Thomson in Thomson, Illinois, on September 16, 2020. See Exh. (ECF No. 55-1). Tovar represents that as of the date his motion was filed in this Court, October 20, 2020, he had not received anyresponse from the Warden. Id. Because 30 days have elapsed between the date he sent the email to the Warden and the date he filed his motion in this Court, the Court may assume that Tovar properly exhausted his administrative remedies under § 3583(c)(1)(A) and proceed to the merits of Tovar's motion for compassionate release under § 3582(c)(1)(A)(i).

2. Merits

a. COVID-19

Tovar initially argues that he should be released because of the increased dangers posed by the COVID-19 pandemic. Mot. 5-12 (ECF No. 55). However, Tovar has not shown that he suffers from any medical conditions that somehow put him at greater risk of suffering a severe case of COVID-19. See United States v. Moreno, 2021 WL 389829, at *3 (N.D. Tex. Feb. 4, 2021) (holding that alleged medical conditions do not "rise to the level of extraordinary and compelling" where there are "no medical records to substantiate any of the conditions" alleged). Tovar's general fear of contracting COVID-19 in prison falls short of demonstrating that he is entitled to release. See Thompson, 984 F.3d at 435 ("Fear of COVID doesn't automatically entitle a prisoner to release."); United States v. Williams, 2021 WL 1865005, at *2 (N.D. Tex. May 10, 2021) ("[G]eneralized concerns about the spread of COVID-19 at [the defendant's] facility do not give rise to extraordinary and compelling reasons for release."); see also United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (""[T]he mere existence of COVID-19 in societyand the possibility that it may spread to a particular prison alone cannot independently justify compassionate release.").

b. Sentencing Guidelines

Next, Tovar argues that he has demonstrated "extraordinary and compelling reasons" under § 3582(c)(1)(A)(i) based on a change in the law. Mot. 15-18 (ECF No. 55). Specifically, Tovar contends that he is serving a sentence based on an abandoned interpretation of the sentencing guidelines that is effectively keeping him in prison for years longer than if he had been sentenced under the new law. Id. 15.

Tovar's Presentence Report (PSR) provided that the advisory guideline range would be 151 to 188 months' imprisonment, based on the application of the career offender enhancement under U.S.S.G. § 4B1.1(b) Id. 1-2. The enhancement applied because Tovar had two prior convictions for burglary of a...