Unites States v. Marin

ORDER

Charlene Edwards Honeywell United States District Judge

This cause comes before the Court upon Defendant Reberto Alzate Marin's Amended Emergency Motion for Compassionate Release to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Doc. 103).^[1] The Government has filed a response in opposition (Doc. 104). Alzate Marin also filed a reply (Doc. 105) and two memoranda (Docs. 106, 107). Having considered the Amended Motion and being fully advised in the premises, the Court will deny the Amended Motion.

I. BACKGROUND

After Reberto Alzate Marin pleaded guilty, the Court adjudicated him guilty of one count of conspiracy to possess with the intent to distribute and to distribute five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a) & (b), and

21 U.S.C. § 906(b)(1)(B)(ii). Doc. 75 at 1. On September 28, 2017, the Court sentenced Alzate Marin to 135 months of imprisonment and five years of supervised release. Id. at 2-3.

A 57-year-old male, Alzate Marin is currently incarcerated at CI North Lake in Baldwin, Michigan. Federal Bureau of Prisons, Inmate Locator, https://www.bop.gov/inmateloc/ (last visited Nov. 4, 2021). His scheduled release date is November 26, 2026. Id.

In the Amended Motion, ^[2] Alzate Marin seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) and U.S.S.G. § 1B1.13. Doc. 103 at 1. He claims that his age group and chronic medical conditions place him at high risk of “developing a severe case of COVID-19.” Id. He represents that he suffers from type 2 diabetes, high cholesterol, facial paralysis, facial nerve disorder, hyperlipidemia, blepharospasm, pterygium, Bell's palsy, hypothyroidism, tuberculin, ^[3] and high blood pressure. Id. at 2-4. He argues that these medical conditions qualify as “extraordinary and compelling reasons” for his release. Id. at 2.

Alzate Marin also contends that he is vulnerable to COVID-19 while incarcerated at CI North Lake because the facility is crowded, the showers are dirty, and all inmates breathe the same air. Id. at 3. The facility also supposedly “has the

most COVID-19 [c]ases” of any privately managed BOP facility and lacks sufficient masks, soap, and hand sanitizer. Id. at 3, 11. According to Alzate Marin, three staff members and three inmates were infected with COVID-19 when he filed the Amended Motion and the only available doctor at CI North Lake was “out sick.” Id. at 3. And he points out that other federal prisons have experienced COVID-19 cases, with some cases resulting in deaths. Id. at 2, 4. Finally, he asserts that the § 3553(a) factors weigh in his favor, he states that he plans to reside with his family in Colombia if the Court releases him, and he claims that he is nonviolent and has a good record. Id. at 12.

In support, he supplies documents under seal, including medical records and an August 11, 2020 denial letter for a request for a sentence reduction, which he labels “Warden Response.” Doc. S-103-1 at 2-3, 13-37. The denial letter indicates receipt on August 10, 2020, and explains that Alzate Marin is in “chronic, ” but “stable, ” care.^[4]Id. at 3. He seeks a sentence reduction to time-served or, alternatively, home confinement.^[5] Id. at 12.

The Government responded to the initial motion, not the Amended Motion. See Doc. 104 at 2. Nonetheless, because Alzate Marin similarly argues in that motion that his age, medical conditions, and the conditions of incarceration at CI North Lake warrant relief under 18 U.S.C. § 3582(c)(1)(A), the Court considers the response. The Government first outlines generally the response of the Bureau of Prisons to COVID-19, including the BOP's creation of a group to develop policies in consultation with experts at the Centers for Disease Control. Id. at 2-7. Proceeding to exhaustion of administrative remedies, the Government argues that Alzate Marin did not exhaust his administrative remedies, as the initial motion lacked “any indication of administrative action.” Id. at 7-8. Further, the Government contends that Alzate Marin has not demonstrated “extraordinary and compelling reasons” under 18 U.S.C. § 3582(c)(1)(A) and U.S.S.G. § 1B1.13. Id. at 10. The Government argues that neither potential COVID-19 exposure nor any of Marin's medical conditions qualify as an extraordinary and compelling reason. Id. at 10-13. Finally, the Government asserts that even if an extraordinary and compelling reason exists, the § 3553(a) factors weigh strongly against the requested reduction in sentence. Id. at 13-14.

In his reply, Alzate Marin reiterates that his age and medical conditions qualify as “extraordinary and compelling reasons” and that he is “in a high-risk group” for COVID-19. Doc. 105 at 2, 5-6. He also states that another prisoner at CI North Lake died from COVID-19. Id. at 4. He argues that the Government ignores the “Real-Record-Rate-of-People” who are vulnerable to COVID-19. Id. at 5. And he contends that the Court should find the administration exhaustion requirement “waived”

because requiring him to exhaust his administrative remedies would result in “undue prejudice.” Id. at 6-7. In a subsequent memorandum, he provides some of the same medical records that accompany the Amended Motion, except with his notations on some of the records. Doc. 106 at 8-17. He also supplies the denial letter again. Id. at 21-22. And in his final memorandum, he emphasizes that the Court can determine “extraordinary and compelling” circumstances, he argues that the § 3553(a) factors weigh in his favor, and reiterates the supposedly dangerous COVID-19 conditions at CI North Lake. Doc. 107 at 2-3, 8.

II. LEGAL STANDARDS

Under 18 U.S.C. § 3582(b), a judgment of conviction that includes a sentence of imprisonment “constitutes a final judgment and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010) (internal quotation marks omitted). Limited circumstances are provided under 18 U.S.C. § 3582(c)(1)(A)(i). Effective December 21, 2018, the First Step Act of 2018 amended section 3582(c)(1)(A) by adding a provision that allows prisoners to directly petition a district court for compassionate release. The statute provides:

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; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

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

(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; ....

18 U.S.C. § 3582(c)(1).

Accordingly, a court may reduce a sentence upon motion of a defendant, provided that: (A) the inmate has either exhausted his or 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; (B) the inmate has established “extraordinary and compelling reasons” for the requested sentence

reduction; and (C) the reduction is consistent with the Sentencing Commission's policy statements. Id. § 3582(c)(1)(A). Courts must consider the § 3553(a) factors, as applicable, as part of the analysis. Id.

The defendant bears the burden of establishing that compassionate release is warranted. See United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013) (providing that defendant bears the burden of establishing a reduction of sentence is warranted under § 3582(c) due to a retroactive guideline amendment); United States v. Heromin, No. 8:11-cr-550-VMC-SPF, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019) (citing Hamilton in the context of a § 3582(c) motion for compassionate release).

III. DISCUSSION

A. Alzate Marin Exhausted His Administrative Remedies

Alzate Marin exhausted his administrative remedies. Under 18 U.S.C. § 3582(c)(1), a defendant must exhaust administrative remedies with the BOP prior to the filing of a motion for compassionate release. “Section 3582(c)(1)(A) unambiguously provides that a defendant may either move for compassionate release after the defendant has fully exhausted administrative remedies or...