USA v. Velasco

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martinez
Criminal Case No. 21-cr-049-WJM
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. 	ANDREA VELASCO,
Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR COMPASSIONATE RELEASE
This matter is before the Court on pro se Defendant Andrea Velasco’s Motion for
Compassionate Release (ECF No. 191) (“Motion”), to which the Government filed a
response (ECF No. 195). For the reasons explained below, the Motion is denied.
I. 	BACKGROUND
Velasco was convicted, following a guilty plea, of one count of distribution and
possession with intent to distribute a controlled substance, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(viii). (ECF Nos. 164, 165.) On July 3, 2024, the Court
sentenced her to 78 months of imprisonment, to be followed by a four-year term of
supervised release. (ECF No. 165.) To date, Velasco has served approximately 16
months of her 78-month sentence, accounting for time served. (ECF No. 191 at 1; ECF
No. 195 at 1.)
Velasco seeks “Compassionate Release and a federal public defender to assist
[her] with this filing based on the fact that [she is] the primary caregiver for [her] 19-year-
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old daughter[].” (ECF No. 191 at 1.) She explains her daughter “has had a multitude of
physical and mental health challenges” “since [she] was a toddler,” including “slipped-rib
syndrome, polycystic ovary syndrome, fatty liver disease,” (id.), “severe GERD,”
“autoimmune issues[,] and a weakened heart,” (ECF No. 196 at 1). As of late, Velasco
states her daughter recently underwent gall bladder surgery and an endoscopy, “is
currently undergoing testing to determine why she has such severe stomach
symptoms,” and “suffers from extreme symptoms of debilitating depression, PTSD,
anxiety, and suicidal ideations.” (ECF No. 191 at 1.)
Velasco asserts she has “no other outside support except [her] 85-year-old
mother (who also needs [her]).” (Id.) Velasco’s mother submitted a letter in support of
the Motion, in which she similarly states that her granddaughter “has very serious
mental and physical health issues that [Velasco] was handling before her incarceration.”
(ECF No. 194 at 1.) Velasco’s mother states she is “too far away1 to give her
[granddaughter] hugs or just be there with her and since [she] has no mental health
training, all [she] can do is listen and . . . [her granddaughter] needs so much more than
[she] can give.” (Id.) She explains that “[Velasco] worked in the medical field for
several years and through that, knows who to contact, who will be best suited for [her
granddaughter’s] issues and coordinating insurance with [the] provider—what is
covered, who is covered, and getting things done quickly, now, not later.” (Id.)
In a supplemental letter, Velasco adds that “a new development in her family
dynamic has occurred” that contributes to the necessity of her release. (ECF No. 196 at
1 Based on the return address listed on the letter, the Court understands that
Defendant’s mother resides in Arizona. (See generally ECF No. 194.)
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1.) On or around the end of January 2025, her daughter’s father (Velasco’s ex-
husband) flew to Florida2 to “attend[] to both of his ill and elderly parents,” who are also
in declining health. (Id.) As a result, Velasco states her ex-husband “is struggling to
assist [their] daughter[] with her current mounting mental and medical health issues and
expenses.” (Id.)3
Velasco thus asserts that, “[w]ithout [her], her [daughter’s] mother and primary
caregiver, helping her [daughter] navigate the confusing and crippling maze of
insurance approvals, claims, appointments, physicians, and treatments, her [daughter’s]
mental and physical health is declining rapidly.” (ECF No. 191 at 1.) She states, for
example, that her daughter “was recommended inpatient psychiatric treatment,” but
“she does not have anyone to help her find a facility and get the required letters,
approvals and documentation to get her promptly admitted.” (Id.) Velasco also states
she is “needed . . . to assist in paying her [daughter’s] mounting exorbitant medical
bills.” (Id.) She explains that her daughter “is unable to work or attend college or care
entirely for herself” “due to her significant mental and medical health issues.” (ECF No.
196 at 1.) She “was enrolled in college in NYC right before [Velasco’s] incarceration,”
but she “has failed her classes and is now not able to attend due to her worsening
health situation.” (ECF No. 191 at 1.) Velasco is “petrified [her] daughter will end her
life is she does not quickly get the medical and mental health help she needs.” (Id.)
2 It is unclear to the Court whether he expects to remain in Florida indefinitely.
3 Velasco states that her ex-husband also “wrote the [C]ourt regarding [her daughter’s]
extensive mental and physical health needs and expenses.” (ECF No. 196 at 1.) However,
there is no such letter in the record.
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At bottom, Velasco asks the Court to permit her to serve the remainder of her
sentence “at a halfway house and/or in home incarceration so [she] can support [her]
daughter—medically, mentally and financially.” (Id.) To support that she is not a
danger to society, Velasco states she “received no violations” “[d]uring pre-trial whilst
[she] was on home incarceration and curfew for almost 8-months.” (Id.) Since her
incarceration, Velasco states she has a “zero recidivism score, ha[s] received no
infractions in prison, [and] ha[s] completed three life classes and one social psychology
class . . . .” (Id.; see also ECF No. 197 (certificates evidencing Velasco’s participation in
certain programs).)
II. 	ANALYSIS
Velasco invokes the Court’s authority to grant what is commonly referred to as
“compassionate release.” Under the applicable statutory framework:
The court may not modify a term of imprisonment once it has
been imposed except that . . . in any case . . . the court, . . .
upon motion of the defendant after the defendant has fully
exhausted all administrative rights to appeal a failure of the
Bureau of Prisons [“BOP”] 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 . . .
extraordinary and compelling reasons warrant such a
reduction; . . . and that such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c). Thus, the Court may reduce a defendant’s term of imprisonment if
(1) extraordinary and compelling reasons warrant such a reduction, (2) the reduction is
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consistent with applicable policy statements issued by the Sentencing Commission, and
(3) the factors set forth in § 3553(a) are satisfied. United States v. McGee, 992 F.3d
1035, 1042 (10th Cir. 2021).
As a threshold matter, there is nothing in the record establishing that Velasco
satisfied the statute’s exhaustion requirements before filing the Motion. While there is
“[a] narrow exception to the exhaustion requirement . . . if a petitioner can demonstrate
that exhaustion would be futile,” she has not argued that exception applies here. Garza
v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). “Accordingly, the Court does not have
jurisdiction to consider [Velasco’s] request for compassionate release.” United States v.
Gonzalez, 2020 WL 1905071, at *1 (D. Colo. Apr. 17, 2020).
Even assuming, however, that Velasco satisfied § 3582(c)’s exhaustion
requirements before filing the Motion, or that an exception otherwise applies, 4 the Court
agrees with the Government that she has not persuasively shown that extraordinary and
compelling circumstances warrant her release at this time. To be sure, “[t]he death or
incapacitation of the caregiver of . . . the defendant’s child who is 18 years of age or
older and incapable of self-care because of a mental or physical disability or condition”
can constitute “extraordinary and compelling reasons” pursuant to the Sentencing
Guidelines. U.S.S.G. § 1B1.13(b)(3) (2024 ed.). And the Court is sympathetic to the
health struggles faced by Velasco’s daughter. Indeed, it has little trouble believing that
her mother’s incarceration has taken a toll on her, at least mentally and emotionally, if
not also physically.
4 Notably, the Government does not argue in its response that Velasco failed to satisfy
§ 3582(c)’s exhaustion requirements. (See generally ECF No. 195.)
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At the same time, however, the Court has reservations about the credibility of
some of Velasco’s statements. Although she was sentenced only seven months ago,
this is the first time the Court has heard mention of her daughter’s purportedly chronic
conditions, and the criticality of Velasco’s role in shepherding her daughter through her
care and treatments. No such information was ever conveyed to the Court in
presentence filings (see, e.g., ECF No. 154; ECF No. 158 at ¶ 48) or at sentencing (see
generally ECF No. 176). To the contrary, Velasco’s daughter seemed, by all accounts,
to be doing quite well academically up until that point. (See ECF No. 176 at 37 (where
Defendant stated at sentencing she “moved from Highlands Ranch to Colfax” because
her daughter “got accepted into Denver Performing Arts High School.”).) And as the
Government points out, she “was deemed capable of independently attending college
across the country,” in New York City, only months ago. (ECF No. 195 at 3.) While it is
quite feasible her physical and mental health could have deteriorated in the ensuing
months (as Velasco asserts is the case), these circumstances nonetheless belie
Velasco’s argument that her release to a halfway house or home incarceration is a
necessity so that she can assume a primary caretaking role.
Moreover, the Government is correct that this Court very recently evaluated the
relevant § 3553(a) factors and determined a 78-month sentence was appropriate. In
the Court’s view, the facts have not so substantially changed in the intervening seven
months to warrant an approximately 80% reduction in Velasco’s sentence. The Court
further notes that her sentence already reflects a substantial downward variance from
the minimum guideline sentence of 108 months. (ECF No. 166 at 1.) Thus, Velasco’s
requested reduction would represent at least an 85% reduction from the applicable
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guideline range. The Court is unpersuaded such a sentence is consistent with the §
3553(a) factors. See, e.g., 18 U.S.C. § 3553(a)(2) (directing the Court to consider “the
need for the sentence imposed . . . to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense”); § 3553(a)(4) (same
as to “the kinds of sentence and the sentencing range established for . . . the applicable
category of offense as set forth in the guidelines . . . issued by the Sentencing
Commission”); § 3553(a)(6) (same as to “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct”).
The Court reiterates its sympathy toward the physical, mental, and emotional
turmoil Velasco’s daughter is currently facing. Nonetheless, it, like the Government, has
little doubt that Velasco’s desire to support her daughter in a different or more extensive
capacity than her incarceration currently enables is a feeling shared by a very large
number of other people currently serving prison sentences as to their family members.
For the same reason, the Court cannot say the circumstances she has presented meet
the standard of “extraordinary and compelling.” Her Motion is thus denied.
Discerning no compelling justification for Velasco’s compassionate release, her
request for the appointment of counsel is also denied at this time. U.S. v. Olden, 296 F.
App’x 671, 674 (10th Cir. 2008) (because “no constitutional right to appointed counsel
exists for the purpose of bringing a § 3582(c) motion for a reduction of sentence” the
decision whether to appoint counsel is in the district court’s discretion).
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III. 	CONCLUSION
For all the foregoing reasons, Defendant’s Motion for Compassionate Release
(ECF No. 191) is DENIED.
Dated this 20th day of March, 2025.
BY THE COURT:
__________________________
William J. Martínez
Senior United States District Judge
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