USA v. Marcial

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
v. No. 2:23-cr-00809-KG
DIANA MARCIAL,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Diana Marcial’s motion for compassionate
release from prison under 18 U.S.C. § 3582(c)(1)(A)(1). Doc. 38. The United States opposes
the motion, and Defendant replied. Docs. 40–41. For the reasons below, the motion is denied.
On May 30, 2023, Defendant pleaded guilty to possession with intent to distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and
possession with intent to distribute 40 grams or more of fentanyl, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B). Docs. 23–24. On September 26, 2023, the Court sentenced
Defendant to 100 months of imprisonment and four years of supervised release. Docs. 29–30.
Compassionate release under § 3582(c)(1)(A) is appropriate after exhausting
administrative remedies only if (1) “extraordinary and compelling reasons warrant such a
reduction” in sentence; (2) the “reduction is consistent with applicable policy statements issued
by the Sentencing Commission”; and (3) the “court considers the factors set forth in § 3553(a), to
the extent that they are applicable.”1 United States v. McGee, 992 F.3d 1035, 1042 (10th Cir.
1 The parties agree that Defendant exhausted administrative remedies by seeking compassionate
release before the Warden before filing this motion. Doc. 38 at 7–8; Doc. 40 at 3–4.
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2021). “[D]istrict courts may deny compassionate-release motions when any of the three
prerequisites…is lacking and do not need to address the others.” Id. at 1043.
The Court denies Defendant’s motion for compassionate release under the sentencing
factors set out in 18 U.S.C. § 3553(a). As to the nature and circumstances of the offense,
Defendant was convicted of trafficking large amounts of deadly narcotics—methamphetamine
and fentanyl—including personally arranging for the sale of drugs to undercover agents, using
her 15-year-old son to deliver the drugs when she was unavailable, and even attempting to blame
her minor son for her own illegal conduct. Doc. 41 at 2–3, 11. These factors weigh against
compassionate release.
As to Defendant’s history and characteristics, the Court is sympathetic to Defendant’s
family situation but agrees with the Government that the circumstances surrounding her
children’s lack of care preexisted her imprisonment and were brought about by her abuse and
neglect of her children because of her problems with addiction. Id. at 5–8; see, e.g., United
States v. Madrid, 735 F. Supp. 3d 1379, 1389 (D.N.M. 2024) (“[F]amilial hardships are typically
the result of criminal conduct”). The Court has also considered Defendant’s significant criminal
history dating back to at least 2014 and her repeated abuse and endangerment of her children
dating back to at least 2022. Doc. 41 at 5–7, 9–10. These factors, too, weigh against
compassionate release.
As to the need for the sentence imposed, the Court notes that Defendant has not yet
completed even 50% of her 100-month sentence and therefore concludes that compassionate
release would not reflect the seriousness of the offenses, promote respect for the law, provide
just punishment, deter other criminal conduct, and protect the public from further crimes of the
Defendant. See Doc. 38 at 3 (stating that Defendant’s projected release date is February 23,
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2030). The Court commends Defendant’s rehabilitation efforts to date but concludes that, given
Defendant’s substantial history of criminal activity, abuse, and neglect, granting compassionate
release at this stage would not provide Defendant with additional needed training and treatment
in the most effective manner. See id. at 23–24.
As to the kinds of sentences available, the Court notes that Defendant’s 100-month
sentence was already significantly below the Guidelines recommended range of 168 to 210
months of imprisonment. See Doc. 41 at 12–13. The sentence already reflects leniency despite
the serous nature of Defendant’s criminal conduct, and these factors therefore also weigh against
compassionate release.
Last, Defendant argues that she is entitled to compassionate release because of her
“experiences at FCI Dublin and the retaliatory and abusive transfer to FCI Miami.” Doc. 38 at
17. The Court, however, agrees with the Government that a “challenge to the conditions of
confinement requires a civil rights action—not a compassionate release motion.” Madrid, 735 F.
Supp. 3d at 1392 (citing Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012)).
For these reasons, Defendant’s motion for compassionate release (Doc. 38) is denied.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its authenticity,
please refer to the Digital File Stamp on the
NEF (Notice of Electronic Filing)
accompanying this document. Electronically
filed documents can be found on the Court’s
PACER public access system.
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