USA v. Lopez et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
VINCENT CRUZ
Defendant.
CR. 20-50008-03-JLV
ORDER
INTRODUCTION
Defendant Vincent Cruz, appearing pro se, filed a motion for
compassionate release. 	(Docket 163). 	Pursuant to the May 1, 2020, Standing
Order 20-06, the Federal Public Defender for the Districts of South Dakota and
North Dakota (“FPD”) and the United States Attorney for the District of South
Dakota filed records, submissions and briefing on Mr. Cruz’s motion. 	(Dockets
169 and 170). 	For the reasons stated below, defendant’s motion is denied.
STANDING ORDER 20-6
Standing Order 20-06,1 captioned “Establishing a Procedure for
Compassionate Release Motions Under the First Step Act,” put in place “a
procedure for submission and consideration of compassionate release motions
under the First Step Act, 18 U.S.C. § 3582(d)(l)(A), in the wake of the spread of
the COVID-19 virus into the federal prison system.” 	(SO 20-06 at p. 1). 	Under
1 See https://www.sdd.uscourts.gov/socraa (“SO 20-06”).
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the order, the FPD is automatically “appointed to represent all defendants in
criminal cases: (a) who previously were determined to be entitled to
appointment of counsel or who are now indigent; and (b) who may be eligible to
seek compassionate release under the First Step Act.” 	Id. ¶ 1. 	The initial step
for the FPD is to
communicate 	a 	recommendation 	to 	inmates 	interested 	in
compassionate release that they immediately submit requests for
compassionate release to the warden of the facility in which they are
detained, if they have not done so already. 	These communications
will include the recommendation that the prisoner describe their
proposed release plan.
Id. ¶ 2.
By the standing order, the FPD and the United States Attorney for the
District of South Dakota are “to place [the defendant] into one of four
categories[.]” 	Id. at p. 2 ¶ 4. 	Those categories are:
a. High Priority Cases where there exists some combination of:
(i) medical issues that correspond to the categories outlined in
the commentary to U.S.S.G. § l.B.1.13; (ii) recognized COVID-19
risk 	factors 	in 	the 	inmate’s 	medical 	history; 	and/or
(iii) imprisonment in a federal facility known to have a serious
COVID-19 outbreak in its population. . . .
b. Intermediate 	Priority 	Cases 	where 	identified 	medical 	issues
and/or COVID-19 risk factors and/or institutional concerns are
less extreme than High Priority Cases.
c. 	Low Priority Cases where there are no identifiable medical issues
or COVID-19 risk factors.
d. Unknown 	Risk 	Cases 	where 	there 	is 	a 	lack 	of 	sufficient
information to categorize the request for compassionate release.
Id. 	The FPD and U.S. Attorney are to “immediately report the categorization
. . . to the Clerk of Court and the Probation Office.” 	Id.
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FACTUAL BACKGROUND
On November 8, 2020, Mr. Cruz pled guilty to conspiracy to distribute a
controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A).
(Docket 128). 	Mr. Cruz was sentenced to a term of imprisonment of
120 months and five years of supervised release. 	(Docket 142). 	According to
Mr. Cruz’s presentence report (“PSR”), “[b]ased upon a total offense level of 27
and a criminal history category of IV, the guideline imprisonment range is 100
months to 125 months. 	However, the statutorily authorized minimum
sentence of 10 years is greater than the minimum of the guideline range;
therefore, the guideline range is 120 months to 125 months. 	USSG
§ 5G1.1(c)(2).” 	(Docket 133 ¶ 82). 	The statutory minimum term of
imprisonment is 10 years and the maximum term is life. 	Id. ¶ 81.
Mr. Cruz is currently an inmate at the United States Penitentiary in
Yankton, South Dakota (“FPC Yankton”).2 According the United States, Mr.
Cruz has a scheduled release date of June 28, 2028. 	(Docket 170 at p. 1).
However, the Bureau of Prisons (“BOP”) website lists Mr. Cruz release date as
December1, 2027. 	See https://www.bop.gov/mobile/find_inmate/index.jsp
#inmate_results. 	No explanation for this difference was provided to the court.
2 When Mr. Cruz filed this motion, he was housed in Sandstone,
Minnesota (“FCI Sandstone”). 	(Docket 163).
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MR. CRUZ’S CLASSIFICATION
On August 17, 2021, the FPD and the U.S. Attorney filed a notice of
categorization of compassionate release motion. 	(Docket 167). 	They jointly
“agree that this case should be categorized as a Low Priority case.” 	Id.
ANALYSIS
A. Legal Standard
Because sentences are final judgments, a “court may not modify a term
of imprisonment once it has been imposed.” 	18 U.S.C. § 3582(c). 	In 2018,
Congress passed the First Step Act (“FSA”), which amended 18 U.S.C.
§ 3582(c)(1)(A) to permit inmates in specified circumstances to file motions in
the court where they were convicted seeking compassionate release.
Compassionate release provides a narrow path for defendants with
“extraordinary and compelling reasons” to leave prison early. 	18 U.S.C.
§ 3582(c)(1)(A)(i). 	Such a sentence must comply with the 18 U.S.C. § 3553(a)
sentencing factors and “applicable policy statements issued by the Sentencing
Commission.” 	18 U.S.C. § 3582(c)(1)(A). 	The Sentencing Commission’s policy
statement, which was adopted before the FSA, requires both “extraordinary
and compelling reasons” and “the defendant is not a danger to the safety of any
other person or to the community, as provided in 18 U.S.C. § 3142(g).”
U.S.S.G. § 1B1.13(1) (U.S. Sentencing Comm. 2018). 	The inmate bears the
burden to establish that compassionate release is warranted. 	United States v.
Jones, 836 F.3d 896, 899 (8th Cir. 2016). 	The district court is not required to
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investigate possible avenues for relief or to develop the record in support of a
motion. 	United States v. Banderas, 39 F.4th 1059 (8th Cir. 2022).
Congress did not define what constitutes “extraordinary and compelling.”
28 U.S.C. § 994(t). 	Rather, the Sentencing Commission was directed to
promulgate “the criteria to be applied and a list of specific” extraordinary and
compelling examples. 	Id. 	Prior to Congress passing the FSA, the Sentencing
Commission limited “extraordinary and compelling reasons” to four scenarios
which are the consideration of the defendant’s (1) terminal illness,
(2) debilitating physical or mental health condition, (3) advanced age and
deteriorating health in combination with the amount of time served and
(4) compelling family circumstances. 	Id. 	Additionally, there is a fifth catch-all
category for an “extraordinary and compelling reason other than, or in
combination with, the reasons described” as determined by the Director of the
Bureau of Prisons. 	U.S.S.G. § 1B1.13 cmt. n.1(D). 	These categories have not
been updated since December 2018 when FSA became law.3
As a result, district courts are left to determine whether the policy
statement of the Sentencing Commission that was in existence when the FSA
was passed still applies. 	See Concepcion v. United States, 142 S. Ct.
2389, 2404 (2022) (“the First Step Act allows district courts to consider
intervening changes of law or fact in exercising their discretion to reduce a
3 Until recently the United States Sentencing Commission lacked a
quorum, and the newly established commission has not amended the United
States Sentencing Guidelines.
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sentence pursuant to the First Step Act”). 	The purpose of the First Step Act is
to expand the availability of compassionate release based on judicial findings of
extraordinary and compelling reasons without being restricted to those
categories identified by the Sentencing Commission or the rationale used by
the BOP before the passage of the First Step Act. 	It is clear Congress wishes to
“[i]ncreas[e] the [u]se . . . of [c]ompassionate [r]elease” by allowing district
courts to grant petitions “consistent with applicable policy statements” from
the Sentencing Commission. 	See 18 U.S.C. § 3582(c)(1)(A).
A defendant may not bring a motion for compassionate release until 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.” 	18 U.S.C. § 3582(c)(1)(A).
Mr. Cruz’s request for compassionate release was made to FCI
Sandstone’s Warden on June 11, 2021. 	(Docket 169 at p. 87). 	In that request,
Mr. Cruz stated he is “humbly asking for any type of reprieve or sentence
reduction due to being incarcerated during the COVID-19 pandemic. 	[His]
whole family has suffered financially and [his] children have been without [him]
for too long . . . [His] mother just started dialysis and [his] sister needs [his]
help with her. 	Id.
B. Defendant’s Motion for Compassionate Release
Mr. Cruz makes four arguments in support of his request for
compassionate release. 	(Docket 163 at pp. 1-2). 	First, Mr. Cruz argues his
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“family is suffering and [he] was the bread winner and leader.” 	Id. 	Second, he
argues his children have never been without [him] and although [he] is the one
that committed the crime, they are the ones that suffer.” 	Id. 	Third, his mother
just “started dialysis and his sister needs my help [caring for] her.” 	Id. 	Fourth,
he argues that being released will help him have a “clean and sober beginning.”
Id.
In support of his first and second arguments, Mr. Cruz requests release
because his family needs his support financially and his children are without
their father. 	Mr. Cruz supplied no evidence in support of his claim. 	While not
dispositive, family circumstances are a consideration contemplated by U.S.S.G.
§ 1B1.13, Application Note 1(C), which addresses compassionate release when
“[t]he death or incapacitation of the caregiver of the defendant’s minor child”
has occurred or the defendant’s spouse has become incapacitated and “the
defendant would be the only available caregiver.”4 Mr. Cruz’s desire to support
his family financially and to care for his children does not satisfy either of these
conditions. 	See United States v. Envert Francisco-Ovalle, No. 18-CR-526, 2021
WL 123366, at *3 (S.D.N.Y. Jan. 13, 2021) (“Defendant’s desire to provide
financial support for his family, while . . . admirable, applies broadly to
incarcerated persons and does not in itself provide extraordinary and
compelling reasons justifying release.”). 	Mr. Cruz does not claim his children’s
4 Although the Sentencing Commission’s policy statement found at
U.S.S.G. § 1B1.13 is “not dispositive,” the court may consider it in determining
if extraordinary and compelling circumstances exist. 	United States v. Croud,
Crim. No. 18-116, 2022 WL 17584413, at *2 (D. Minn. Dec. 12, 2022).
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primary caregivers are deceased or incapacitated. 	While Mr. Cruz’s desire to be
of assistance to his family is admirable, that desire does not constitute an
extraordinary and compelling reason for a sentence reduction.
Mr. Cruz’s third claim is he needs to be released to care for his mother.
Mr. Cruz submitted no evidence in support of this claim. 	In Mr. Cruz’s
Presentence Report, he stated his mother’s “health is ailing due to diabetes and
kidney failure,” she “will be starting dialysis,” and Mr. Cruz “would like to
donate a kidney to his mother if he is a compatible donor.” 	(Docket 133 at
p. 15). 	There is no support he is a compatible organ donor for his mother.
While not dispositive, neither of the family circumstances contemplated by
U.S.S.G. § 1B1.13 are present here. 	Mr. Cruz has not met his burden of proof
by presenting “extraordinary or compelling reasons” warranting a sentence
reduction.
Finally, Mr. Cruz argues he is entitled to compassionate release because
he would have a “clean and sober” beginning. 	(Docket 163 at p. 1).
Because the FSA changed the way a compassionate release motion may
be brought, “several district courts have concluded that the discretion vested in
the BOP Director under the catch-all provision now belongs coextensively to
federal judges.” 	United States v. Hodgin, No. 4:15-CR-40110-02, 2021 WL
928179, at *3 (D.S.D. Mar. 11, 2021) (quoting United States v. Condon, 458 F.
Supp. 3d 1114, 1118 (D.N.D. 2020)). 	Although the court is allowed to
determine if a situation fits under the catch-all exception, “[r]ehabilitation of
the defendant alone shall not be considered an extraordinary and compelling
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reason” to justify compassionate release. 	United States v. Brown, 457 F. Supp.
3d 691, 701 (S.D. Iowa 2020) (quoting 28 U.S.C. § 994(t)). 	“For the word ‘alone’
to do any work—as it must—that means courts can consider rehabilitation as
part of a compassionate release motion.” 	Id.; See also United States v.
Contreras, 504 F. Supp. 3d 1052, 1060 (D.S.D. 2020) (The Sentencing
Commission recognizes that rehabilitation cannot be the sole factor for
compassionate release.). 	The court already explained why Mr. Cruz is not
entitled a reduction in sentence due to the other grounds cited, leading to the
sole remaining ground for a sentence reduction to be his rehabilitation.
Because rehabilitation alone cannot justify a reduction, Mr. Cruz’s motion
must be denied.
Mr. Cruz stated “being incarcerated during the COVID-19 pandemic”
supports his motion to be released. 	(Docket 163 at p. 2). 	Mr. Cruz declined
the COVID-19 vaccine. 	(Docket 169 at p. 62). 	Several courts refused to find
extraordinary and compelling medical circumstances when a defendant
declines the COVID-19 vaccine. 	See United States v. Kennedy, No. 18-20315,
2021 WL 2592975 at * 1 (E.D. Mich. Apr. 20, 2021); United States v. Toney,
No. 17-20184, 2021 WL 1175410, at *1 (E.D. Mich. Mar. 29, 2021); United
States v. Carter, No. 2:13-cr-20422-01, 2021 WL 1310784, at *3 (E.D. Mich.
Apr. 8, 2021) (holding that 	a prisoner did not present extraordinary or
compelling circumstances where the prisoner “declined to receive the COVID-
19 vaccine”); United States v. Cohen, No. 09-20326, 2021 WL 1575300, at *2
(E.D. Mich. Apr. 22, 2021) (Edmunds, J.) (“The Court agrees with courts that
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have found that access to the vaccine mitigates the health concerns that may
otherwise constitute extraordinary and compelling reasons in light of the
pandemic.”); United States v. MacGregor, No. 15-cr-20093, 2021 WL 1378786,
at *1 (E.D. Mich. Apr. 12, 2021) (holding that a prisoner “failed to show that
there were extraordinary and compelling reasons justifying his release because
a COVID-19 vaccine had been offered to him, and he declined to take the
vaccine”); United States v. French, No. 3:10-cr-00117-01, 2021 WL 1316706,
at *6 (M.D. Tenn. Apr. 8, 2021) (“the court agrees with the Government that
Defendant’s refusal of the COVID-19 vaccine substantially undermines his
argument that his risk of reinfection constitutes an extraordinary and
compelling reason that justifies his release”).
C. 3553(a) Factors
The 3553(a) sentencing factors further show that compassionate release
is not warranted. 	These factors include:
1. the nature and circumstances of the offense and the history and
characteristics of the defendant;
2. the need for the sentence imposed—
a. to reflect the seriousness of the offense, to promote respect for
the law and to provide just punishment for the offense;
b. to afford adequate deterrence to criminal conduct;
c. 	to protect the public from further crimes of the defendant; and
d. to 	provide 	the 	defendant 	with 	needed 	educational 	or
vocational 	training, 	medical 	care, 	or 	other 	correctional
treatment in the most effective manner
18 U.S.C. § 3553(a).
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Mr. Cruz pled guilty to conspiracy to distribute a controlled substance.
(Docket 133 ¶ 2). 	He admitted to distributing 500 grams or more of
methamphetamine in the Rapid City area. 	Id. 	Although a non-violent crime,
“[i]n assessing danger, physical violence is not the only form of danger
contemplated by the statute. 	Danger to the community can be in the form of
continued narcotics activity or even encompass pecuniary or economic harm.”
United States v. Zaragoza, No. 08-0083, 2008 WL 686825, at *3 (N.D. Cal. Mar.
11, 2008).
Mr. Cruz has an extensive criminal history comprised of DUIs, theft by
insufficient funds and possession of controlled substances. 	(Docket 133
¶¶ 35-56). 	Mr. Cruz’s guideline range was 120 months to 125 months. 	Id.
¶ 82. 	Mr. Cruz was sentenced to the bottom of the range and has only served a
small portion of his sentence.
The court concludes Mr. Cruz’s sentence of 120 months is appropriate
for the seriousness of the crime to which he pled guilty.
ORDER
Based upon the above analysis it is
ORDERED that defendant’s motion for compassionate release (Docket
163) is denied.
Dated February 24, 2023.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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