USA v. Contreras

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I
UNITED STATES OF AMERICA,
Plaintiff,
v.
ROMAN GABRIEL CONTRERAS,
Defendant.
Case No. 15-cr-00242-DKW
ORDER ADOPTING
MAGISTRATE JUDGE’S
FINDINGS AND
RECOMMENDATION TO DENY
MOTION FOR COMPASSIONATE
RELEASE
On June 5, 2020, the assigned Magistrate Judge (Dkt. No. 152)
recommended denying Defendant Roman Gabriel Contreras’ motion for
compassionate release, finding that Contreras was a danger to the safety of others
and statutory sentencing factors did not weigh in favor of granting the motion
(“F&R”). 	Contreras objects to the F&R (Dkt. No. 153), arguing that the
Magistrate Judge improperly relied upon various prior convictions, alleged debts,
and his failure to express remorse for his offense, and failed to take into
consideration his conduct in prison, medical conditions, and place of incarceration.
For the reasons set forth below, none of Contreras’ arguments warrant overruling
the F&R or granting his motion for compassionate release. 	Therefore, the F&R is
ADOPTED as set forth herein.
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RELEVANT BACKGROUND
On April 8, 2015, a grand jury returned a one-count indictment, charging
Contreras with attempting to possess with the intent to distribute 500 grams or
more of methamphetamine. 	Dkt. No. 14. 	On May 14, 2015, the government
filed a 21 U.S.C. § 851 Special Information, notifying of its intent to rely on a prior
conviction of Contreras in 1999 in order to subject him to increased punishment,
including an increased mandatory minimum term of imprisonment. 	Dkt. No. 35.
On July 6, 2015, a jury found Contreras guilty of attempting to possess with
the intent to distribute 500 grams or more of methamphetamine. 	Dkt. Nos. 80, 84.
Thereafter, a draft pre-sentence investigation report (PSR) and a revised PSR were
prepared in advance of sentencing. 	Dkt. Nos. 86, 89. 	In the revised PSR,
Contreras was assigned responsibility for 1.19 kilograms of d-methamphetamine
hydrochloride of at least 80 percent purity (or “ice”). 	Dkt. No. 89 at ¶¶ 18-19.
Contreras was awarded a two-point increase in his base offense level for willfully
attempting to obstruct or impede the administration of justice during the
prosecution of his offense. 	Id. at ¶ 23. 	He was also not assigned any points for
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acceptance of responsibility, having failed to make any such acceptance. 	Id. at ¶
26.
Among other convictions recorded in the PSR was the 1999 conviction of
Contreras relied upon by the government in its Special Information. 	See id. at ¶
33. 	This offense involved Contreras being found with 27.4 grams of
methamphetamine in his possession, for which he was sentenced to 10 years
imprisonment. 	In October 2004, Contreras was paroled. 	In January 2007, he
absconded, resulting in the revocation of his parole approximately a year later. 	In
August 2008, Contreras was paroled again. 	In May 2009, a violation report noted
that Contreras had failed to enter drug treatment, consumed alcohol, failed to
obtain employment, and used a controlled substance. 	Contreras was, nonetheless,
allowed to continue on parole in order to enroll in a drug treatment program.
However, in June 2009, another probation violation report was filed, again alleging
that Contreras had failed both to enter drug treatment and obtain employment.
Although Contreras admitted to using methamphetamine, no further action appears
to have been taken. 	Id.
In light of the Special Information filed by the government and Contreras’
crime of conviction, at the time of sentencing, he was subject to a mandatory
minimum term of imprisonment of 20 years. 	Id. at ¶¶ 73-74; see also 21 U.S.C.
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§ 841(b)(1)(A) (2015). 	The guideline imprisonment range was 240 to 293
months. 	Dkt. No. 89 at ¶ 75.
The PSR further reported that Contreras had a limited employment history
and financial liabilities totaling more than $225,000, the vast majority of which
involved medical debts and educational loans. 	Id. at ¶¶ 69-72. 	The PSR also
reported, with respect to Contreras’ physical condition, that he had suffered from a
chronic staph infection since 1997, he weighed 350 pounds, and was diagnosed
with hypertension in 2015. 	Id. at ¶¶ 57-60.
No objections were filed to either the draft PSR or the revised PSR. 	Dkt.
Nos. 87-88, 90.
On October 21, 2015, Contreras was sentenced to 240 months imprisonment
and 10 years of supervised release. 	Dkt. Nos. 94, 96. 	At sentencing, with there
being no objections to the revised PSR, the Court adopted the same without
change. 	Dkt. No. 97; Dkt. No. 115 at 2:9-3:8. 	There was also no objection to the
validity or sentencing effect of Contreras’ 1999 conviction. 	Dkt. No. 115 at 3:14-
17. 	Contreras’ counsel agreed, under the circumstances, that a sentence of 240
months imprisonment was “sufficient and not greater than necessary in this case.”
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Id. at 6:22-23. 	In allocution, Contreras stated that he was “sorry” for what had
happened. 	Id. at 8:17-18.
In pronouncing sentence, the Court observed that, in aggravation, Contreras
had a long-standing involvement with and promotion of drugs, he had not been
deterred by his 1999 conviction that also involved methamphetamine, he was
responsible for substantially more methamphetamine in this case, his parole had
been revoked in California, he had numerous other arrests, he had chronic
substance abuse issues, he had considerable financial debt and limited employment
history suggesting that recidivism was a real risk, and, other than his “limited
comments” in allocution, he had never expressed remorse or accepted
responsibility for his conduct. 	Id. at 9:18-11:15. 	In mitigation, the Court noted
that “there’s not much there frankly.” 	Id. at 11:16. 	As a result, the Court
imposed a sentence of 240 months imprisonment, the mandatory minimum, and 10
years of supervised release. 	Id. at 11:22-12:2, 13:24-25.
LEGAL STANDARD
Pursuant to Section 3582(c)(1)(A)(i), a court may, after considering the
factors set forth in Section 3553(a), modify a term of imprisonment if, upon motion
of the Director of the Bureau of Prisons (BOP) or the defendant following
exhaustion of administrative rights related thereto, “extraordinary and compelling
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reasons warrant such a reduction[,]” the defendant is not a danger to the safety of
others or the community, and the reduction is consistent with the relevant policy
statement of the U.S. Sentencing Commission. 	18 U.S.C. § 3582(c)(1)(A)(i);
U.S.S.G. § 1B1.13.1
Pursuant to Section 636(b)(1)(B) of Title 28, a Magistrate Judge may submit
proposed findings of fact and recommendations for the disposition of any post-trial
motion made by a convicted criminal, such as the instant motion for compassionate
release. 	When objection is made to any part of the Magistrate Judge’s report, a
district judge must review the same de novo. 	28 U.S.C. § 636(b)(1). 	The district
judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 	Id.
DISCUSSION
Contreras’ objections to the F&R ask this Court to make a de novo review of
the Magistrate Judge’s findings with respect to his alleged danger to the
community and the sentencing factors under Section 3553(a). 	Nonetheless,
throughout his objections, Contreras confuses those two distinct findings as if they
were one. 	For example, Contreras asserts that the Magistrate Judge improperly
1 Here, without subsequent objection, the Magistrate Judge found that Contreras had exhausted
his administrative remedies and shown an “extraordinary and compelling” reason for release.
Dkt. No. 152 at 4-7. 	As a result, for purposes of the instant analysis, the Court accepts those
findings.
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relied upon his failure to express remorse for his offense “to indicate that Contreras
is a danger to the community….” 	Dkt. No. 153 at 9. 	That, however, was not the
finding the Magistrate Judge made. 	Instead, the Magistrate Judge listed, among
other things, Contreras’ failure to express remorse as a factor under Section
3553(a) for not granting his motion. 	See Dkt. No. 152 at 8-9. 	Dangerousness and
the Section 3553(a) factors are two distinct inquiries, with failure to make the
requisite showing for either one reason alone to deny a motion for compassionate
release. 	See U.S.S.G. § 1B1.13.
Notably, at no point in his objections does Contreras even address the
statutory sentencing factors under Section 3553(a). 	See generally Dkt. No. 153.
The first sentencing factor is the “nature and circumstances of the offense and the
history and characteristics of the defendant[.]” 	18 U.S.C. § 3553(a)(1). 	At best,
Contreras gives nothing but lip service to this factor. 	Contreras does so by
discussing only his conduct following his incarceration in 2015. 	See Dkt. No. 153
at 6-7. 	While that conduct may, arguably, be of some relevance to assessing
Contreras’ “characteristics” now, it entirely ignores the far longer period of
“history and characteristics” pre-dating his sentence, which, given its length and
freedom from constraint that is imprisonment, is still just as relevant now as it was
when Contreras was sentenced. 	If it was otherwise, i.e., if, as Contreras appears to
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suggest, the Court should only consider his post-sentencing conduct, then the Court
would hardly be assessing the “history and characteristics” of Contreras. 	Instead,
the Court would only be assessing the characteristics of an incarcerated Contreras.
This Court declines to do the latter.
When the correct approach is taken, the Court is unpersuaded that Contreras’
asserted clean disciplinary record and completion of certain educational courses in
prison, see Dkt. No. 151 at 8, mitigate the history and characteristics that were set
forth in the PSR and adopted by the Court at sentencing. 	Particularly, Contreras’
prior methamphetamine conviction in 1999, his conduct during his subsequent
incarceration and parole, his revocation of parole for absconding, and his
commission of the offense for which he was convicted in this case, which involved
substantially more methamphetamine than in 1999, together form a truer and more
complete picture. 	In addition, despite his single word of “sorry” during his
allocution, and as the Court previously found in withholding any downward
adjustment under U.S.S.G. § 3E1.1, Contreras has never accepted his responsibility
for the offense in this case. 	See Dkt. No. 89 at 7. 	As far as this Court is
concerned, the foregoing “history and characteristics” are far more relevant to
weighing whether the Section 3553(a) factors support Contreras’ release, than his
unremarkable record while in prison since 2015.
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In addition, just as the Court did at sentencing, the Court has considered
Contreras’ leg infection, weight, and hypertension. 	Although the Magistrate
Judge found that Contreras’ medical conditions constituted an extraordinary and
compelling reason under Section 3582(c)(1)(A)(i), for purposes of considering the
Section 3553(a) factors, that finding does not mean Contreras’ “characteristics”
weigh in favor of his release. 	Rather, as discussed above, Contreras’
characteristics in toto weigh in favor of the continuation of his 240-month
sentence. 2
The first sentencing factor also asks the Court to look at the nature and
circumstances of the offense. 	Nowhere in his briefing does Contreras do so. 	This
is perhaps for good reason because the nature and circumstances of his offense
certainly do not support Contreras’ release. 	As the Court observed at sentencing,
Contreras was found responsible for 1.19 kilograms of ice, an amount far in excess
of the 50 grams needed for a mandatory minimum sentence of ten years
imprisonment under Section 841(b)(1)(A), even without the filing of a Special
2 The fact that Contreras may have contracted coronavirus at the beginning of May 2020, see Dkt.
No. 152 at 3 n.1 (describing the suggestive, but far from conclusive, evidence in this regard),
does not change the Court’s calculus. 	Although Contreras asserts in his objections that he is
now, presumably as of June 12, 2020 (when his objection was filed), suffering from a leg
infection and coughing, see Dkt. No. 153 at 11 n.3, there is no indication that either of those
conditions is related to him contracting the coronavirus more than a month earlier.
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Information. 	The Court, therefore, finds that the first sentencing factor does not
weigh in favor of releasing Contreras.
The second sentencing factor is “the need for the sentence imposed[,]”
which directs the Court to consider such things as the seriousness of the offense,
adequate deterrence of criminal conduct, protection of the public from further
crimes of the defendant, and providing the defendant with needed correctional
treatment. 	18 U.S.C. § 3553(a)(2). 	In his briefing, Contreras does not address
this sentencing factor.3 	In any event, when the Court does so, none of the
considerations underlying the factor support his release. 	As mentioned above,
Contreras was convicted of a serious drug offense, involving 1.19 kilograms of ice.
At present, he has served a little over five years of his sentence. 	Put simply, from
the Court’s perspective, a five-year sentence neither reflects the seriousness of
Contreras’ offense nor provides adequate deterrence to future criminal conduct by
either Contreras or any other individual thinking of being involved with such a
quantity of ice. 	Similarly, in the Court’s estimation, a five-year sentence would
do little to protect the public from further crimes by Contreras. 	While, as
discussed, Contreras asserts that he has behaved well while in prison, the Court,
again, finds this conduct outweighed by Contreras’ conduct following his 1999
3 This is perhaps because Contreras appears to believe that no further sentence is needed.
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conviction over a much longer period of time, which indicates a real risk of the
public suffering from further crimes. 	In addition, as observed at sentencing,
Contreras’ financial situation (indebtedness exceeding $225,000) and limited
employment history, despite his age, also suggest that his risk of recidivism is real.
In his objections, Contreras disputes the Magistrate Judge’s reliance on his
financial situation, arguing that “[t]here is no evidence that Contreras still owes
this debt after having served over five years in jail[]” and the government needed
to provide evidence that his debts still existed. 	Dkt. No. 153 at 7. 	First, it is
Contreras’ burden to show he is entitled to release, not the government’s burden to
show that he is not. 	Therefore, if it was incumbent upon anyone to support or
dispute the undisputed record established by the revised PSR of Contreras’
financial condition, it was Contreras. 	Instead, he merely asserts that there is no
evidence that his debt remains after “having served over five years in jail.” 	It is
entirely unclear what serving five years in jail would do to Contreras’ debt, at least
in the manner he appears to suggest. 	In any event, the record here shows that
Contreras owes a substantial debt with a limited employment history, and there is
no evidence to the contrary. 	Therefore, the Court finds that all of the foregoing
facts still weigh in favor of the 20-year sentence imposed in this case, as does this
sentencing factor generally.
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The third and fourth sentencing factors concern the kinds of sentences
available and the sentencing range for the offense of conviction. 	18 U.S.C.
§3553(a)(3)-(4). 	Again, Contreras does not address these sentencing factors.
They, however, strongly weigh against releasing him five years into his sentence.
This is because the minimum sentence available to Contreras at sentencing was 20
years imprisonment.4 	While, as Contreras notes, the relevant statute has since
changed to require only a 15-year mandatory minimum sentence, see Dkt. No. 153
at 9 n.2, even 15 years is not 5. 	Moreover, Contreras’ guideline sentencing range,
even without the affect of a mandatory minimum, was 235 to 293 months
imprisonment. 	Dkt. No. 89 at ¶ 75.5 	This is far in excess of the 62 months of
imprisonment Contreras has currently served. 	In this light, the Court finds that
these sentencing factors weigh in favor of the 20-year sentence imposed in this
case.
The final relevant sentencing factor is the need to avoid unwarranted
sentencing disparities among defendants with similar records found guilty of
4 Because it is not necessary in this case, the Court does not address whether a defendant may be
released under Section 3582(c)(1)(A)(i) when his release would result in him not serving a
statutory mandatory minimum sentence. 	Based upon the Court’s independent research, that
issue does not appear to have been addressed by the Ninth Circuit. 	See United States v.
Varnado, 2020 WL 2512204, at *1 n.1 (S.D. Cal. May 15, 2020).
5 To the extent relevant, the Court notes that the current version of the guidelines manual would
still assign Contreras a base offense level of 34 for his offense involving 1.19 kilograms of ice.
See U.S.S.G. § 2D1.1(c)(3) (2018).
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similar conduct. 	18 U.S.C. § 3553(a)(6).6 	As discussed, here, due to Contreras’
criminal record and his offense conduct in this case, he was subject to a mandatory
minimum sentence. 	Any other individual with a similar criminal record and
similar offense conduct would also be subject to the same minimum sentence.
Releasing Contreras now, 62 months into his imprisonment, would, therefore,
undoubtedly result in a sentencing disparity with those defendants with similar
records and similar offense conduct who are serving their mandatory minimum
sentences. 	This factor, thus, weighs in favor of the 240-month sentence imposed
in this case.
Finally, in his objections, Contreras appears to assert that the Magistrate
Judge erred in failing to consider “his conditions of confinement or his dire
medical conditions….” 	Dkt. No. 153 at 11. 	Contreras appears to assert that the
Magistrate Judge should have weighed these conditions against his alleged danger
to the community and determined that his conditions alone warrant release. 	Id. at
11-12. 	Contreras is wrong. 	As discussed above, there are three principal
considerations in addressing a motion for compassionate release under Section
3582(c)(1)(A)(i): (1) whether extraordinary and compelling reasons exist for
6 The parties do not address and the Court does not find relevant here the fifth and seventh
sentencing factors under Section 3553(a).
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granting the motion; (2) whether the defendant is a danger to the community; and
(3) the Section 3553(a) factors. 	Only if a court determines that each of those
considerations support release, may the motion be granted. 	See U.S.S.G. §
1B1.13. 	Nowhere in the statute or sentencing guideline does it say that, if an
extraordinary and compelling reason is shown, that showing must be weighed
against the defendant’s danger to the community or the non-existent support from
the Section 3553(a) factors, such as in this case.
In summary, all of the relevant sentencing factors under Section 3553(a)
weigh in favor of the 240-month sentence imposed in this case and against
releasing Contreras. 	Therefore, upon de novo review and as supplemented herein,
the Court agrees with the Magistrate Judge’s finding that the Section 3553(a)
factors require denial of Contreras’ motion for compassionate release. 	As a result,
the F&R, Dkt. No. 152, is ADOPTED to the extent set forth herein.
IT IS SO ORDERED.
DATED: July 6, 2020 at Honolulu, Hawai‘i.
United States of America v. Roman Gabriel Contreras; Cr. No. 15-00242 DKW; ORDER ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO DENY MOTION FOR
COMPASSIONATE RELEASE
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