USA v. Perdomo-Mancebo et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 19-cr-39-02-JD
Zorelys Sosa
REPORT AND RECOMMENDATION
Defendant Zorelys Sosa moves, on an emergency basis, for
reconsideration of detention and pre-sentencing release. 	Doc.
no. 70. 	The government consents to release on conditions. 	Doc.
no. 71. 	A hearing on defendant’s motion was conducted by
videoconference on April 20, 2020.1
On August 29, 2019, the defendant pleaded guilty to
conspiracy to distribute fentanyl. 	Doc. no. 70 at 1. 	Her
sentencing is scheduled for June 24, 2020. 	Id. 	Sosa moves for
release, pending sentencing, based on the COVID-19 pandemic and
her heightened risk due to obesity and prediabetes. 	Id. at 1-2,
9.
1 An in-person hearing was not possible on April 20, 2020 due to the
health and safety precautions taken in response to the COVID-19 pandemic.
See Standing Order ADM-1, 20-12. 	Defendant waived his right to an in-person
hearing and consented to a video hearing. 	The hearing was listed on the
public docket on the court’s website and public access to the hearing was
available by video in accordance with the court’s Standing Order ADM-1, 20-7.
The court made findings regarding the limitations on in-person public access
on the record.
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At the hearing, the parties agreed that this motion is
governed by 18 U.S.C. § 3145(c).2 	The statute provides, in
pertinent part, as follows:
A person subject to detention pursuant to section
3143(a)(2) or (b)(2), and who meets the conditions of
release set forth in section 3143(a)(1) or (b)(1), may
be ordered released, under appropriate conditions, by
the judicial officer, if it is clearly shown that
there are exceptional reasons why such person's
detention would not be appropriate.
18 U.S.C. § 3145(c). 	District courts in the First Circuit
have split on whether this provision can apply in district
court or only at the appellate level. 	See United States v.
Loaiza, No. 18-CR-134-01-PB, 2018 WL 6421657, at *2 (D.N.H.
Nov. 20, 2018) (comparing cases), report and recommendation
adopted, No. 18-CR-134-01-PB, 2018 WL 6418894 (D.N.H. Dec.
6, 2018). 	As in Loaiza, the court assumes that § 3145(c)
applies under the circumstances of this case but does not
rule on the legal issue. 	Id.
At the hearing, the government asserted that the
defendant is subject to detention under § 3143(a)(2), that
she arguably meets the conditions of release in §
3143(a)(1), and that there are exceptional circumstances –
the defendant’s health and the COVID-19 virus - that merit
release. 	The defendant concurred with this analysis. 	The
2 The defendant initially moved for release under 18 U.S.C. § 3142(i),
but agreed at the hearing that § 3145(c) applies.
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parties were also in agreement regarding the proposed
conditions of release.
The court finds the government’s reasoning persuasive
and recommends release. 	First, the defendant pleaded
guilty to an offense having a maximum term of imprisonment
of ten years or more, as prescribed in the Controlled
Substances Act, and is therefore detained under §
3143(a)(2). 	See Doc. nos. 12, 70. 	Second, with the
conditions described at the hearing and outlined in the
accompanying order (doc. no. 72), the defendant has shown
by clear and convincing evidence that she is not a flight
risk or a danger to the community, as required under §
3143(a)(1). 	Finally, based on the COVID-19 pandemic and
the defendant’s medical issues as set out in her motion for
release (doc. no. 70), the court finds that exceptional
circumstances exist, which merit release. 	The court
therefore finds that the defendant has satisfied the
requirements of § 3145(c).
CONCLUSION
For the reasons stated above, the court recommends that the
district judge grant the motion for release (doc. no. 70).
Any objection to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
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upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016) (citations
omitted).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 21, 2020
cc: 	William Sullivan, Esq.
Paul Garrity, Esq.
John Davis, Esq.
Matthew Hunter, Esq.
U.S. Marshal
U.S. Probation
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