USA v. Hernandez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Criminal Case No. 18-cr-00264-PAB-2
UNITED STATES OF AMERICA,
Plaintiff,
v.
2. SASKIA IONA MESMER,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on defendant Saskia Mesmer’s Motion For
Sentence Reduction [Docket No. 119]. On August 28, 2019, Ms. Mesmer pled guilty to
possession with intent to distribute a controlled substance, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) (“Count 1”), and possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (“Count 3”). See Docket No.
70. On December 30, 2019, the Court sentenced Ms. Mesmer to 70 months
imprisonment for Count 1 and 60 months imprisonment for Count 3, to be served
consecutively for a total term of imprisonment of 130 months, with three years of
supervised release. See Docket No. 100. Ms. Mesmer is currently incarcerated at FCI
Tallahassee in Florida. See Docket No. 129 at 7 n.4.
Ms. Mesmer requests that the Court reduce her sentence to tim e served
because (1) “gun charges are no longer stacked or served consecuti[vely] and (2) the
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prison is “overcrowded and understaffed while dealing with a COVID-19 pandemic.”
Docket No. 119 at 2-3.
Section 3582(c)(1)(A) permits a district court to “reduce [a] term of imprisonment”
in certain circumstances1 “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.” Ms. Mesmer represents that she “has made a
request to the warden and 30 days have passed without granting or denying the
request” and thus asserts the she has exhausted administrative remedies. See Docket
No. 119 at 2. However, the exhibit she attaches to her motion that purportedly
establishes that she exhausted her remedies does not indicate that the W arden
responded. See id. at 4. Moreover, the request only asks that the Warden “consider
unstacking my gun charge,” it says nothing regarding COVID-19 or compassionate
release. See id. According to the government, the “BOP does not have within her
1 Under 18 U.S.C. § 3582(c)(1)(A), the Court may order release 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.
2
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administrative file the form (or any other request) that [d]efendant Mesmer attached to
her motion.” See Docket No. 129 at 6.
Given that Ms. Mesmer’s exhibit does not establish that the W arden received the
request, the request does not mention compassionate release, and the BOP has no
record of her request, Ms. Mesmer has failed to establish that she has exhausted
administrative remedies. Accordingly, the Court does not have jurisdiction to consider
Ms. Mesmer’s request for compassionate release. See United States v. Keith, 2019
WL 6617403, at *1 (W.D. Okla. Dec. 5, 2019) (finding that, where § 3582(c)(1)(A)’s
exhaustion requirement is not satisfied, the court is “without jurisdiction to entertain
[defendant’s] request for compassionate release”); see also United States v. Feiling,
453 F. Supp. 3d 832, 840-41 (E.D. Va. 2020) (f inding that the court is without authority
to grant a sentence modification under § 3582(c)(1)(A) absent exhaustion of
administrative remedies).2
It is therefore
2 The Court also notes that, even if Ms. Mesmer had exhausted administrative
remedies, she likely has failed to present any extraordinary or compelling reason to
justify release. Ms. Mesmer does not assert she has any medical conditions that may
result in higher risk to severe complications to COVID-19, and her previous offenses
and small amount of time served likely do not warrant a reduction in her sentence to
time served. Regarding her stacked gun charge claim, Ms. Mesmer was sentenced to
only one § 924(c) count, and the purported stacked nature of her charges is otherwise
not relevant to a compassionate release motion.
3
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ORDERED that Saskia Mesmer’s Motion For Sentence Reduction [Docket No.
119] is denied without prejudice.
DATED January 19, 2021.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
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