USA v. Contreras

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ROMAN GABRIEL
CONTRERAS,
Defendant.
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CRIM. NO. 15-00242 DKW
FINDINGS AND
RECOMMENDATION TO DENY
MOTION FOR COMPASSIONATE
RELEASE
FINDINGS AND RECOMMENDATION TO
DENY MOTION FOR COMPASSIONATE RELEASE
On April 27, 2020, Defendant Roman Gabriel Contreras (“Defendant”),
proceeding pro se, filed an Emergency Motion for Compassionate Release
pursuant to 18 U.S.C. § 3582(c)(1)(A). ECF No. 140. Thereafter, the Office of the
Public Defender entered an appearance on Defendant’s behalf, ECF No. 142, and
filed a Memorandum in Support of the Motion. ECF No. 145 (together with ECF
No. 140, the “Motion”). The Government filed its opposition to the Motion on
May 28, 2020. ECF No. 150 (“Opposition”). Defendant filed a reply memorandum
on June 1, 2020. ECF No. 151 (“Reply”).
The Court decides this matter without a hearing pursuant to 7.1(c) of the
Local Rules of Practice of the United States District Court for the District of
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Hawaii, as incorporated by Rule 12.3 of the Criminal Local Rules.
The Court has carefully reviewed all of the information available to it,
including the record in this case and the Defendant’s medical condition, and for the
reasons set forth below, it FINDS AND RECOMMENDS that the district court
DENY the Motion.
DISCUSSION
On October 21, 2015, the district court sentenced Defendant to 240 months
imprisonment, followed by ten years of supervised release. ECF No. 94.
Defendant’s prison term is expected to conclude April 7, 2032. Having served
slightly over five years of his sentence, Defendant requests a reduction in sentence
to time served on the grounds that COVID-19 creates an extraordinary and
compelling circumstance because of his significant health issues. Defendant is
incarcerated at FCI Terminal Island, where there is a considerable COVID-19
outbreak, with 615 confirmed cases and 8 deaths. Defendant claims that he suffers
from “morbid obesity and chronic hypertension, ” that he has contracted COVID-
19, and that he is therefore at risk for severe illness or death. ECF No. 145 at
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PageID #: 1506-09. Defendant has provided the Court with his BOP medical
records under seal. ECF Nos. 145, 149.1
Defendant argues that he is no longer a threat to society, as demonstrated by
his BOP Disciplinary Record (which contains no write ups), his successful
completion of over twelve education courses, and his employment in the prison
laundry department. ECF No. 145 at PageID #: 1526-27. Defendant proposes that
he reside with his mother, Selia Contreras, in Ontario, California, with GPS
tracking if necessary. Id. at PageID #: 1527.
Under 18 U.S.C. § 3582(c)(1)(A), “upon motion of the defendant after the
defendant has fully exhausted all administrative rights to appeal a failure of the
[BOP] to bring a motion on the defendant’s behalf,” a court may reduce such
defendant’s sentence if it finds that “extraordinary and compelling circumstances
warrant such a reduction,” and that “such a reduction is consistent with the
applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. §
3582(c)(1)(A)(i). The Court must also consider the “factors set forth in section
1 Sealed Exhibit B indicates only that on May 1, 2020, a COVID-19 test was
ordered for Defendant to take place by May 4, 2020. It does not include the test
results. Exhibit C, not filed under seal, indicates “COVID-19 ISOLATION-
SYMPTOMS 05-08-2020 1925” and “COVID-19 TEST – POSITIVE CONFRMD
05-08-2020 2033.” ECF No. 145-3 at PageID#: 1534. The Court has not been
provided any other information concerning Defendant’s COVID-19 testing, results,
symptoms, treatment, or prognosis.
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3553(a) to the extent that they are applicable.” Id. § 3582(c)(1)(A). The Court
addresses each of these factors below.
A. 	Exhaustion
Defendant argues, and the Government does not dispute, that he has
exhausted his administrative remedies. Based upon the record before the Court –
which indicates that Defendant filed compassionate release requests with the FCI
Terminal Island warden on March 27, 2020 and April 16, 2020 – the Court finds
that Defendant has exhausted his administrative remedies.
B. 	Extraordinary and Compelling Reasons
Although the Court can only reduce a sentence where there are
“extraordinary and compelling reasons” to do so, Congress did not define
“extraordinary and compelling.” Instead, Congress tasked the Sentencing
Commission with identifying the circumstances that are sufficiently extraordinary
and compelling to justify a reduction in sentence. 28 U.S.C. § 994(t). The
Sentencing Commission, in turn, promulgated the following examples of
extraordinary and compelling circumstances within the Application Notes to
U.S.S.G. §1B.13:
(A) Medical Condition of the Defendant.
(i) The defendant is suffering from a terminal illness (i.e.,
a serious and advanced illness with an end of life trajectory). A
specific prognosis of life expectancy (i.e., a probability of death
within a specific time period) is not required. Examples include
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metastatic solid-tumor cancer, amyotrophic lateral sclerosis
(ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is
(I) suffering from a serious physical or medical
condition,
(II) suffering from a serious functional or cognitive
impairment, or
(III) experiencing deteriorating physical or mental
health because of the aging process,
that substantially diminishes the ability of the defendant
to provide self-care within the environment of a correctional
facility and from which he or she is not expected to recover.
(B) Age of the Defendant. The defendant (i) is at least 65
years old; (ii) is experiencing a serious deterioration in physical or
mental health because of the aging process; and (iii) has served at
least 10 years or 75 percent of his or her term of imprisonment,
whichever is less.
(C) Family Circumstances.
(i) The death or incapacitation of the caregiver of the
defendant’s minor child or minor children.
(ii) The incapacitation of the defendant’s spouse or
registered partner when the defendant would be the only
available caregiver for the spouse or registered partner.
(D) Other Reasons. As determined by the Director of the
Bureau of Prisons, there exists in the defendant’s case an
extraordinary and compelling reason other than, or in combination
with, the reasons described in subdivisions (A) through (C).
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U.S.S.G. §1B.13 application note 1. Additionally, the defendant must not pose “a
danger to the safety of any other person or to the community, as provided in 18
U.S.C. § 3142(g).” Id. at §1B.13(2).2
The Court finds that Defendant’s case presents a situation that falls within
the examples of extraordinary and compelling circumstances provided by the
Sentencing Commission; namely, that he has a serious physical or medical
condition that substantially diminishes his ability to provide self-care within the
environment of a correctional facility and from which he may not recover. See
U.S.S.G. § 1B1.13 cmt. n. 1(A)(ii). Defendant has a verified medical history of
hypertension, obesity, and COVID-19. Although the Government disputes the
degree of Defendant’s obesity and does not address his COVID-19 infection, it
nevertheless concedes that Defendant’s hypertension alone qualifies as an
“extraordinary and compelling reason” under 18 U.S.C. 3582(c)(1)(A). Response
at PageID#: 1802, 1806; see, e.g., United States v. Sawics, No. 08-CR-287 (ARR),
2020 WL 1815851, at *2 (E.D.N.Y. Apr. 10, 2020) (finding that, where defendant
suffered from hypertension at FCI Butner, a site with a significant COVID-19
outbreak, “the risk of serious illness or death that he faces in prison constitutes an
extraordinary and compelling reason militating in favor of his release.”).
2 The Court separately addresses dangerousness in Section C below.
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Accordingly, for purposes of this Motion, the Court finds that Defendant has
demonstrated an extraordinary and compelling reason for compassionate release.
C. 	Danger to Community
Notwithstanding a finding of an extraordinary and compelling reason, the
Court may only grant a reduction in Defendant’s sentence if it also determines that
“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(2). In
considering dangerousness, the Court notes that Defendant’s escalating criminal
history dates back to 1992 and includes drug and firearm convictions, as well as
violent conduct. ECF No. 89.
In 1992, Defendant was convicted in California state court for possession of
a controlled substance for sale and carrying a concealed weapon. Id. at PageID#
661. Defendant was sentenced to three years of probation for those crimes. Id.
In 1998, Defendant was convicted in Hawaii state court for use/place to
keep, a crime that included allegations that Defendant slashed his ex-girlfriend’s
tires, grabbed her by the throat, slapped her, and pushed her to the ground. Id. at
PageID# 662.3 At that time, Defendant was found to be in possession of a .30
caliber semi-automatic rifle with a prohibited magazine. Id.
3 Defendant’s argument in his Reply that he only slashed his girlfriend’s tires after
she smashed his car’s windows with a golf club is not persuasive as to Defendant’s
purported lack of dangerousness.
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In 1999, Defendant was convicted in Hawaii state court for Promoting
Dangerous Drugs in the Second Degree for distribution of methamphetamine. Id.
at PageID# 663. Following this conviction, Defendant’s parole was revoked three
times, including for absconding. Id.
Although it appears that Defendant may be behaving well in prison, when
compared to his criminal record – which indicates crimes of increasing seriousness
over time and an inability to comply with terms of parole – the Court cannot find
that “[D]efendant is not a danger to the safety of any other person or to the
community[.]” This finding precludes granting the Motion.
D. 	§ 3553(a) Factors
Lastly, the Court may only grant a reduction in Defendant’s sentence after
considering “the factors set forth in 18 U.S.C. § 3553(a).” U.S.S.G. 1B1.13. In the
Court’s view, consideration of these factors also precludes the requested reduction
in sentence. The district court reviewed the § 3553(a) factors at Defendant’s
sentencing, at which time it noted, in particular, the following:
• 	The Defendant’s 1999 state court conviction for promotion of
methamphetamine;
• 	The amount of methamphetamine at issue in this case – 1193 grams
(approximately two and a half pounds) - which was substantially greater
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than in the 1999 case, indicating that Defendant’s involvement in drug
trafficking had grown despite his prior conviction;
• 	The Defendant’s criminal history for non-drug offenses includes arrests
for robbery, theft, motor vehicle related violations, and domestic
violence;
• 	Defendant’s chronic substance abuse issues involving principally
marijuana and alcohol;
• 	The Defendant’s considerable financial debt, with no apparent ability to
pay, which combined with Defendant’s limited employment history,
suggests an increased risk of recidivism; and
• 	Defendant’s failure to express remorse or accept responsibility for his
offenses.
See October 21, 2015 Transcript of Proceedings, ECF No. 115, at 10-11. These
factors weigh against any reduction in sentence. In addition, the “length of the
remaining sentence is an additional factor to consider in any compassionate release
analysis.” United States v. Connell, Case No. 18-cr-00281-RS-1, 2020 WL
2315858, at *2 (N.D. Cal. May 8, 2020). Defendant has served only about 62
months his 240-month sentence. That he has the majority of his sentence
remaining also counsels against granting the instant Motion. Based upon the
foregoing, the Court finds that the § 3553(a) factors require denial of the Motion.
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CONCLUSION
Based on the foregoing analysis, and pursuant to pursuant to 28 U.S.C.
§ 636(b)(1)(B), this Court FIND AND RECOMMENDS that the district court
DENY Defendant’s Motion.
IT IS SO FOUND AND RECOMMENDED.
DATED: Honolulu, Hawaii, June 5, 2020.
United States of America v. Contreras, Crim. No. 15-00242 DKW; Findings and
Recommendation to Deny Motion for Compassionate Release
Kenneth J. Mansfield
United States Magistrate Judge
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