USA v. Valdez et al

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. )
)
JUAN VALDEZ (D-01), )
) No. 3:98-cr-0133–01-HRH
Defendant. )
_______________________________________)
O R D E R
Motion for Compassionate Release1
Before the court is defendant’s Amended Motion for Compassionate Release
Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The motion is opposed by plaintiff,2 and the
court has authorized and received a reply memorandum on behalf of defendant Valdez.3
In proceedings predating Apprendi v. New Jersey, 530 U.S. 466 (2000), and
United States v. Booker, 543 U.S. 220 (2005), defendant was tried and convicted of
multiple violations of 21 U.S.C. § 841(a)(1). Under then applicable Sentencing
Commission guidelines, defendant’s total offense level was 44, his criminal history
category was II, his sentencing range was 360 months to life, and a sentence of 360
1Docket No. 637.
2Docket No. 643.
3Docket No. 646.
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months was imposed. Based upon amendments to drug offense guidelines, defendant
applied for and received a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).
Defendant’s total offense level was reduced to 40 and his sentence was reduced to
324months.4
Mr. Valdez’s conviction and sentence have been subject to numerous appeals and
28 U.S.C. § 2255 applications over the years. On each occasion relief was denied.5
Proceedings under 28 U.S.C. § 2241 have likewise been unsuccessful, Valdez v. Apker,
No. 1:17-cv-01308 at Docket No. 6 (E.D. Cal.), and affirmed by the Ninth Circuit Court
of Appeals, Valdez v. Apker, No. 17-17281 (9th Cir. March 12, 2018), and Valdez v.
Friend, No. 1:19-cv-00911, at Docket No. 8 (E.D. Cal.), aff’d., 19-16644 (9th Cir.).
Defendant is approximately 59 years of age. He has served 21 years in prison, and
his current release date is September 3, 2021. Defendant suffers from high blood
pressure, high cholesterol, and anemia.6 While incarcerated, he has obtained his GED and
has participated in various legal and vocational programs. He has not been subject to any
disciplinary actions in the past six years. Defendant volunteers at the prison chapel and
has been employed in the prison library, assisting other inmates.
Defendant Valdez applied to BoP prison officials for a sentence reduction on
August 13, 2019.7 His application was denied on August 15, 2019.8
4Docket No. 601.
5See, for example, Docket Nos. 519, 550, 560, 584, and 622.
6Motion for Modification of an Imposed Sentence, attachments at 4 of 6, Docket
No. 628-1.
7Id., attachment 2 of 6.
8Id. attachment 1 of 6.
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The motion now before the court is expressly authorized by 18 U.S.C.
§ 3582(c)(1)(A). Plaintiff does not contest defendant’s procedural right to seek a
compassionate release. Plaintiff does contend that defendant is not “currently eligible for
a modification of his sentence” under 18 U.S.C. § 3582(c)(1)(A)(i) or (ii).9
Motions for release based upon extraordinary and compelling reasons are no
longer limited to motions made by the Bureau of Prisons. 18 U.S.C. § 3582(c)(1)(A).
Motions for release for extraordinary and compelling reasons may be made directly to the
court by a defendant, but are, however, subject to consideration of the factors set out in
18 U.S.C. § 3553(a) and the policy statements issued by the Sentencing Commission.
In light of defendant’s age, his participation in educational programs while
incarcerated, his good behavior during incarceration, and the likelihood of deportation at
the conclusion of his term of imprisonment, the court would not be concerned if
defendant were released. The court perceives no substantial risk of harm to any person or
the public, and at age 59, recidivism is unlikely. 18 U.S.C. § 3553(a) factors would not
preclude a compassionate release in this case.
The court turns to the question of whether or not a sentence reduction in this case
would be consistent with applicable policy statements of the Sentencing Commission.
U.S.S.G § 1B1.13 provides that:
Upon motion of the Director of the Bureau of Prisons
under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term
of imprisonment ... if, after considering the factors set forth in
18 U.S.C. § 3553(a) ... the court determines that –
(1) (A) extraordinary and compelling reasons warrant the
reduction; or
....
9Defendant does not seek a subsection (A)(ii) sentence reduction.
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(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.
The court has addressed the Section 3553(a) matter above. Defendant would not
be a danger to the safety of any other person or to the community if released. The
problem with defendant’s Section 3582(c)(1)(A) motion flows from the fact that
U.S.S.G § 1B1.13 has not been updated by the Sentencing Commission. This guideline
and application note 1(D) still require a determination by the Bureau of Prisons that there
exists in defendant’s case an extraordinary and compelling reason to release defendant for
reasons other than those set out in application notes A-C, which defendant does not rely
upon in his motion.
The Sentencing Commission’s authority to promulgate general policy statements is
found in 28 U.S.C. § 994(a), which provides in pertinent part that:
[T]he Commission, and pursuant to its rules and regula-
tions and consistent with all pertinent provisions of any
Federal statute shall promulgate ...
....
(2) general policy statements regarding application of the
guidelines or any other aspect of sentencing or sentence
implementation ... including the appropriate use of –
....
(C) the sentence modification provisions set forth in
sections ... and 3582(c) of title 18[.]
Moreover, and directly pertinent to what is before this court, is the requirement of
28 U.S.C. § 994(t) that the Sentencing Commission “shall describe what should be
considered extraordinary and compelling reasons for sentence reduction.” This the
Sentencing Commission has not done; and, as other courts have observed, it is unlikely
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that the Sentencing Commission will soon update the guideline in question due to the lack
of a quorum. United States v. Cantu, 2019 WL2498923 at *2 n.1.
At present, U.S.S.G. § 1B1.13 is not consistent with 18 U.S.C. § 3582(c)(1)(A).
Whereas that statute authorizes a defendant to apply directly to the court for a sentence
reduction, U.S.S.G. § 1B1.13 still makes provision for sentence reduction motions to be
made only by the Bureau of Prisons, and application notes do not define “extraordinary
and compelling reasons.” Thus the question before the court is whether or not this court
can look beyond U.S.S.G. § 1B1.13 for purposes of determining what constitutes
extraordinary and compelling reasons for a sentence reduction.
This court concludes that it is no longer bound to look to the director of the Bureau
of Prisons for a definition of extraordinary and compelling reasons beyond application
note 1(A) through (C). In a well-reasoned and authority-dense order, Judge Marmolejo
of the United States District Court for the Southern District of Texas, Laredo Division,
has concluded that
[T]he correct interpretation of § 3582(c)(1)(A) – based on
the text, statutory history and structure, and consideration of
Congress’s ability to override any of the Commission’s policy
statements “at any time,” Mistretta v. United States, 488 U.S.
361, 394 (1989) – is that when a defendant brings a motion
for a sentence reduction under the amended provision, the
Court can determine whether any extraordinary and compel-
ling reasons other than those delineated in U.S.S.G. § 1B1.13
cmt. n.1(A)-(C) warrant granting relief.
United States v. Cantu, 2019 WL2498923.
The court next turns to the question of whether or not defendant Valdez’s motion
for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) and U.S.S.G. § 1B1.13,
including application note 1(A) through (D), should be granted because of his circum-
stances. The fact that the Sentencing Commission has not updated U.S.S.G. § 1B1.13 is
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in and of itself an extraordinary circumstance, but it is one that should not preclude a
defendant from seeking the kind of compassionate release that Congress plainly intended
in amending 18 U.S.C. § 3582(c)(1)(A).
The court begins with the Cantu court’s definition of extraordinary and compelling
reasons in light of the fact that Congress, in amending Section 3582(c)(1)(A), did not see
fit to define those terms. Looking to Black’s Law Dictionary, the Cantu court defined
“extraordinary” as “[b]eyond what is usual, customary, regular, or common.” Black’s
Law Dictionary (10th ed. 2014). From that definition, the Cantu court extrapolates a
definition for “compelling need” as a reason “so great that irreparable harm or injustice
would result if [relief] is not [granted].” Id.
In his reply memorandum, defendant summarizes his reasons for seeking a
sentence reduction.10 Defendant urges that he has been incarcerated for in excess of 20
years “for a sentence that would not survive constitutional scrutiny today.”11 That may be
true, but in fact defendant’s conviction did survive constitutional scrutiny. Defendant’s
sentence is not subject to review for constitutionality at this time. Unfortunate as
defendant’s circumstances may be, the fact is that law does evolve and there is nothing
extraordinary about it.
Defendant urges that he has demonstrated extraordinary rehabilitative potential. In
this regard, he points out that he has pursued legal education and is regularly employed in
the prison library. The court is impressed with defendant’s efforts at improvement, but
that is customarily expected of prisoners who are incarcerated.
10Reply in Support of Amended Motion for Compassionate Release at 3, Docket
No. 646.
11Id.
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Defendant argues that his disciplinary history is unremarkable and that he will not
be prone to making the same bad choices that resulted in federal prosecution. Again,
defendant’s good behavior is customarily what is expected of federal prisoners.
Finally, defendant observes that he is likely to be deported upon release, and that
deportation would diminish any possible risk to public safety. The court does not see
defendant as a public safety risk, irrespective of whether he is deported, but that is not an
extraordinary situation, nor is the fact that he is likely to be deported upon completion of
his sentence extraordinary.
In evaluating the foregoing, the court has borne in mind defendant’s age and
medical condition. Defendant’s medical condition is not unusual in a person of his
circumstances and age, and in none of the foregoing has there been a showing that a
failure to release defendant would result in irreparable harm or injustice.
The amended motion for compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A)(i) is denied.
DATED at Anchorage, Alaska, this 31st day of December, 2019.
/s/ H. Russel Holland
United States District Judge
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