USA v. Fabian

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA,
v.
JOAQUIN FABIAN,
Defendant.
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C.R. No. 21-00054-MSM-LDA
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
Defendant Joaquin Fabian (“Fabian”), who is serving a 50-month prison
sentence, seeks compassionate release under 18 U.S.C. §3582(c)(1)(A), as amended
by the First Step Act (“FSA”) 115 P.L. 391, 132 Stat. 5194, 2018 Enacted S. 756, 115
Enacted S. 756 (ECF No. 41). 	The FSA permits a court to reduce a term of
imprisonment, after administrative remedies are exhausted and if it finds that
“extraordinary 	and 	compelling 	reasons 	warrant 	such 	a 	reduction.”
	Id. 	The
Government objects to the Motion on three grounds; first, that Mr. Fabian has not
met the exhaustion requirement of the FSA; second, that the grounds that the
defendant has raised do not present extraordinary and compelling reasons permitting
the requested relief; and finally, that a reduction is not appropriate when examining
the sentencing factors set forth in 18 U.S.C. §3553(a).
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I. 	BACKGROUND
Mr. Fabian was initially charged in this case by a six-count indictment. 	The
most serious charge was Count VI which charged possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18 U.S.C. §924(c). 	That
charge carried a mandatory sixty-month sentence to be served consecutive to any
sentence on the drug trafficking offenses also charged. 	On December 6, 2021,
pursuant to an agreement with the government, the defendant pleaded guilty to three
of the counts in the indictment. In exchange, the government agreed to dismiss the
remaining counts – including Count VI. Both Mr. Fabian and the government sought
this court’s approval of a binding plea agreement pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure. On April 4, 2022, the Court accepted the plea
agreement 	and 	imposed 	the 	jointly 	recommended 	sentence 	of 	50 	months 	of
incarceration to be followed by three years of supervised release. Thereafter, on April
4, 2023, Mr. Fabian filed the instant motion.
II. 	STANDARD OF REIVIEW
Under 18 U.S.C. § 3582(c) and U.S.S.G. § 1B1.13, after a defendant has
exhausted the Bureau of Prisons' administrative process for compassionate release,
or thirty days have lapsed without a decision, a district court may reduce a
defendant's term of imprisonment provided the court determines: (1) extraordinary
and compelling reason warrant the reduction; (2) the defendant will not be a danger
to the safety of any other person or the community; and (3) the sentencing factors
outlined in 18 U.S.C. § 3553(a) favor release. See 18 U.S.C. § 3582(c)(1)(A); U.S.S.G.
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§ 1B1.13;
see also United States v. Saad, No. CR 16-035-JJM-PAS, 2022 WL 35806,
at *1 (D.R.I. Jan. 4, 2022).
III. 	DISCUSSION
A. Exhaustion
In his petition to this Court Mr. Fabian has reiterated his medical claims as a
basis for his requested relief. 	In addition, he now alleges that he has received
negligent medical care while incarcerated at the Bureau of Prisons, has made
extraordinary efforts to rehabilitate himself, has suffered under the particularly
harsh conditions of confinement, and has family circumstances that warrant relief.
(ECF No. 41). 	While exhaustion of his administrative remedies is a statutory
prerequisite to the Court’s consideration of a motion for compassionate release, the
exhaustion requirement is not jurisdictional. “A rule is jurisdictional only if Congress
has ‘clearly state[d] that a prescription counts as jurisdictional,’ and ‘when Congress
does not rank a prescription as jurisdictional, courts should treat the restriction as
nonjurisdictional in character.’”
United States v. Texeira-Nieves, 23 F.4th 48, 53 (1st
Cir. 2022) (quoting
Fort Bend Cnty v. Davis 139 S.Ct. 1843, 1850 (2019)). 	The
Texeira-Nieves Court considered whether the failure to exhaust administrative
claims under the FSA specifically is jurisdictional and declared that it is not.
To 	be 	sure, 	some 	district 	courts 	have 	questioned 	whether 	the
administrative 	exhaustion 	requirement 	for 	prisoner-initiated
compassionate-release motions is jurisdictional. . . . 	In our judgment,
however, this exhaustion requirement is not a jurisdictional limitation:
as several circuits previously have held, it is a non-jurisdictional claim-
processing rule. See
United States v. Saladino, 7 F.4th 120, 123 (2d Cir.
2021) (per curiam) (collecting cases).
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This Court, therefore, will address Mr. Fabian’s motion including his more recent
claims.
B. 	Extraordinary and Compelling Reasons
The role of the District Court in assessing compassionate release motions is to
determine whether “the 	defendant’s 	situation 	constitutes the 	type of 	‘extreme
hardship’ that the compassionate-release statute is designed to ameliorate.”
United
States v. Saccoccia, 10 F.4th 1, 4 (1st Cir. 2021) (quoting
United States v. Havener,
905 F.2d 3, 6 (1st Cir. 1990)). 	Mr. Fabian argues that his medical conditions
combined with negligent medical care and harsh conditions of confinement, as well
as 	with 	his 	extraordinary 	efforts 	at 	rehabilitation 	and 	family 	circumstances,
constitute the type of extreme hardship that warrants compassionate release. While
Mr. Fabian suffers from asthma and obesity, it is clear from the records provided that
his asthma has been under control during his commitment to the Bureau of Prisons.
He has seen clinicians regularly and has not experienced an asthma attack during
his incarceration. At times he has gone months without the need to rely on his inhaler
and his asthma is described as well-controlled and mild.
The defendant carries the burden on a motion for compassionate release.
United
States v. Miamen, Cr. No. 18-130-1 WES, 2020 WL 1904490, at *2 (D.R.I. Apr. 17,
2020) (citing
United States v. Ebbers, 432 F. Supp. 3d 421 (S.D.N.Y. 2020)). 	Mr.
Fabian argues that the conditions under which he has had to serve his sentence
during 	the 	COVID-19 	pandemic 	constitute 	harsh 	conditions 	that 	create 	a
circumstance warranting his early release. 	However, the facility at which he is
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housed currently has a low level of COVID in the institution and the surrounding
community.1 	While COVID-19 is still a threat, the conditions that exist today at
prisons are nothing like the extreme measures that were necessary at the beginning
of the pandemic. In fact, at the time of Mr. Fabian’s sentencing the pandemic was in
its third year and vaccines were widely available. 	The existence of COVID-19 does
not create the level of hardship that it did in 2020 and 2021 and cannot support a
claim of extraordinary hardship.
This 	Court 	reviews 	Motions 	for 	Compassionate 	release 	holistically 	and
considers all asserted circumstances.
	United States v. Trenkler, 47 F.4th 42, 49-50
(1st Cir. 2022). 	Yet the Court is not vested with unlimited discretion in evaluating
whether the defendant has put forward an extraordinary and compelling reason
justifying his release. To determine whether the circumstances in any case are
extraordinary and compelling and warrant compassionate release, the Court relies
on the plain meaning of the words.
	United States v. Canales-Ramos, 19 F.4th 561,
566 (1st. Cir. 2021).
The plain meaning of "extraordinary" suggests that a qualifying reason
must be a reason that is beyond the mine-run either in fact or in
degree. 	See 	Webster's Third 	New 	International Dictionary 	of 	the
English Language Unabridged 807 (1981) (defining "extraordinary" as
"going beyond what is usual, regular, common, or customary"); see
also
United 	States 	v. 	Hunter, 	12 	F.4th 	555, 	562 	(6th 	Cir. 	2021)
(suggesting 	that 	such 	reason 	must 	be 	"most 	unusual," 	"far 	from
common," or "hav[e] little or no precedent"). 	By the same token, the
plain meaning of "compelling" suggests that a qualifying reason must be
a 	reason 	that 	is 	both 	powerful 	and 	convincing. 	See Webster's
Third, supra at 462 (defining "compelling" as "forcing, impelling, [or]
1 BOP: COVID-19 Modified Operations Plan & Matrix
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driving [circumstance]" and as "tending to convince or convert by or as
if by forcefulness of evidence"); see also
Hunter, 12 F.4th at 562.
Id. 	at 566-67. 	Mr. Fabian has presented no circumstances that could fairly be
deemed to be extraordinary and compelling. His health conditions are well managed
within the Bureau of Prisons and are not so extraordinary that continued care within
the institution would be impossible. 	COVID-19 is a much-reduced threat within the
institution where he is housed, particularly given his vaccination status.2 Mr. Fabian
argues that the Court should consider his work toward rehabilitation while in BOP
custody in support of his compassionate release motion. 	But Congress explicitly
directed that “rehabilitation of the defendant alone shall not be considered an
extraordinary and compelling reason.” 28 U.S.C. § 994(t). While his rehabilitation is
commendable, and his efforts will certainly help him when he is released after
finishing his sentence, his work in that area is not extraordinary. 	Finally, Mr.
Fabian’s family circumstances present difficulties but do not constitute extraordinary
and compelling circumstances; and in fact, they constitute the type of family impact
that incarceration causes to many families.
The Court, having found that extraordinary and compelling circumstances do
not exist, is not required to go further in its analysis. 	However, it is mindful of the
First Circuit’s admonition that appellate review is made easier when “the district
court takes the additional step of reviewing the appropriate § 3353(a) factors as of
this time.
United States v. Texeira-Nieves, 23 F.4th 48, 52 (1st Cir. 2022).
2 The government disputes Mr. Fabian’s claim that he has been vaccinated against
Covid-19 but the court credits Mr. Fabian’s claim on that matter.
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In this case, consideration of the 3553(a) factors also suggests that a reduction
in his sentence would be inappropriate for Mr. Fabian. The instant offense involved
the trafficking of and fentanyl and cocaine as well as the possession of a firearm and
ammunition. This conduct followed a prior drug trafficking conviction. 	The sentence
that Mr. Fabian received was well below the advisory guideline range and resulted
from bargaining with the government in exchange for the dismissal of other charges,
including one carrying a mandatory sentence of five years consecutive to the sentence
imposed on the drug trafficking crime. 	The Court accepted this sentence as a good
application of the statutory sentencing factors.
The distribution of fentanyl presents a special danger to the community and
has contributed to the overdose crisis experienced in this District as well as around
the country. 	A reduction in sentence at this time would undermine the goals of
punishment, protection of the public, and deterrence that underlay the sentence he
received.
For these reasons Mr. Fabian’s Motion for Compassionate Release (ECF No.
41) is DENIED.
IT IS SO ORDERED.
_________________________________
Mary S. McElroy
United States District Judge
December 6, 2023
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