USA v. Hernandez et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
Case No. 09-cr-88-03-PB
v. 	Opinion No. 2021 DNH 105
Marco Garcia
MEMORANDUM AND ORDER
Marco Garcia moves for compassionate release pursuant to 18
U.S.C. § 3582(c)(1)(A) (“Section 3582(c)(1)(A)”), as amended by
Section 603(b)(1) of the First Step Act of 2018 (“First Step
Act”), Pub. L. No. 115-391, § 603(b)(1), 132 Stat. 5194, 5239.
For the following reasons, I deny Garcia’s motion.
I. 	STANDARD OF REVIEW
Following its amendment by the First Step Act, the
compassionate release statute, codified as Section
3582(c)(1)(A), provides that
the court, upon motion of the Director of the Bureau of
Prisons [(“BOP”)], or 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 or the lapse of [thirty] 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 	. . . after 	considering 	the
factors 	set 	forth 	in 	. 	. 	. 	[18 	U.S.C. 	§] 	3553(a)
[(“Section 	3553(a)”)] 	to 	the 	extent 	that 	they 	are
applicable . . . .
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§ 3582(c)(1)(A). 	The court may reduce a defendant’s prison
sentence if it finds that “extraordinary and compelling reasons
warrant such a reduction,” id. § 3582(c)(1)(A)(i), and that
“such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission,” id.
§ 3582(c)(1)(A).
The Sentencing Commission’s policy statement (“the policy
statement”), which was promulgated prior to the passage of the
First Step Act, provides as follows:
Upon motion of the Director of the [BOP] under [Section
3582(c)(1)(A)], 	the 	court 	may 	reduce 	a 	term 	of
imprisonment 	(and 	may 	impose 	a 	term 	of 	supervised
release with or without conditions that does not exceed
the 	unserved 	portion 	of 	the 	original 	term 	of
imprisonment) 	if, 	after 	considering 	the 	factors 	set
forth in [Section 3553(a)], to the extent that they are
applicable, the court determines that —
(1) 	(A) 	Extraordinary 	and 	compelling 	reasons 	warrant
the reduction; . . .
(2) 	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); and
(3) 	The 	reduction 	is 	consistent 	with 	this 	policy
statement.
U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13 (U.S.
Sentencing Comm’n 2018). 	The commentary to the policy statement
further explains what is meant by “extraordinary and compelling
reasons.” 	It states, in relevant part, that “[p]rovided the
defendant meets the requirements of subdivision (2),
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extraordinary and compelling reasons exist,” USSG § 1B1.13 cmt.
n.1, when “[t]he defendant is . . . suffering from a serious
physical or medical condition,” id. § 1B1.13 cmt. n.1(A)(ii)(I).
Courts are divided on what weight, if any, to give to the
policy statement when considering a motion for compassionate
release. 	Compare United States v. Long, 997 F.3d 342, 355-57
(D.C. Cir. 2021) with United States v. Bryant, 996 F.3d 1243,
1247-66 (11th Cir. 2021). 	I am not aware of any court that has
chosen to disregard the policy statement entirely. 	I conclude,
instead, that it “provides helpful guidance on the factors that
support compassionate release, although it is not ultimately
conclusive given the statutory change.” 	United States v. Fox,
No. 2:14-cr-03-DBH, 2019 WL 3046086, at *2 (D. Me. July 11,
2019).
II. 	ANALYSIS
Garcia is 57 years old. 	He has Type II Diabetes and
several other minor medical conditions that would not by
themselves support compassionate release. 	He bases his motion
instead on the persistence of the COVID-19 pandemic and the
heightened risk of severe illness or death he faces if he were
to become infected. 	The government challenged Garcia's motion
by arguing that the risk that Garcia faces from COVID-19 is
currently low because: (1) Garcia has been vaccinated; (2) no
inmates at the facility where Garcia is serving his sentence
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currently have COVID-19; and (3) the Bureau of Prisons has
adopted measures to protect against the virus that have proved
highly effective in reducing the risk that Garcia will become
infected. 	I agree with the government that the grounds Garcia
cites in support of his motion do not warrant compassionate
release. 	Accordingly, I deny his motion.
III. CONCLUSION
For the foregoing reasons, Garcia’s motion for
compassionate release (Doc. No. 360) is denied.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
June 30, 2021
cc: 	Kasey A. Weiland, AUSA
Jeffrey S. Levin, Esq.
U.S. Marshal
U.S. Probation
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