USA v. Neris et al

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CRIMINAL CASE NO. 1:18-cr-00074-MR-WCM-1
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) O R D E R
)
ANGELICA MARIE NERIS, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Defendant’s “Motion for
Sentence Reduction under 18 U.S.C. § 3582(c)(1)(A) (Compassionate
Release)” [Doc. 63].
I. BACKGROUND
In June 2018, the Defendant Angelica Marie Neris was charged in a
Bill of Indictment with one count of conspiracy to possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and
846; two counts of possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1); one count of using and carrying a firearm
during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A); one count of possession of a firearm by a convicted felon, in
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violation of 18 U.S.C. § 922(g)(1); and one count of possession of a firearm
with an altered or obliterated serial number, in violation of 18 U.S.C. § 922(k).
In March 2019, the Defendant pled guilty to the conspiracy charge pursuant
to a written plea agreement; in exchange for her plea, the other charges were
dismissed by the Government. [Docs. 33, 35, 36].
In October 2019, the Court sentenced the Defendant to a term of 210
months’ imprisonment, to be followed by five years of supervised release.
[Doc. 53]. The Defendant is currently housed at FCI Tallahassee and has a
projected release date of June 18, 2033.1
The Defendant now moves the Court for compassionate release,
arguing that, due to a number of underlying health conditions, she is at risk
of serious illness or death from COVID-19. [Id.]. The Defendant further
argues that the COVID-19 pandemic has created unusually harsh conditions
of confinement, and that she “has served enough time to serve just
punishment.” [Doc. 63 at 7]. The Defendant also notes that her underlying
offense was non-violent, and that other, more violent offenders have
received the benefit of compassionate release. [Id.]. Finally, the Defendant
1 See https://www.bop.gov/inmateloc/ (last accessed Nov. 1, 2022).
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requests the appointment of counsel to assist her in making her
compassionate release request. [Id. at 16].
II. DISCUSSION
Section 3582(c)(1)(A), as amended by The First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018), permits a defendant
to seek a modification of his sentence for “extraordinary and compelling
reasons,” if the defendant has “fully exhausted all administrative rights to
appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s
behalf or the lapse of 30 days from the receipt of such a request by the
warden of the defendant’s facility, whichever is earlier.” 18 U.S.C. §
3582(c)(1)(A). Here, it appears that the Defendant has sufficiently
exhausted her administrative remedies with the BOP by requesting
compassionate release from the Warden. Accordingly, the Court will
proceed to address the merits of the Defendant’s compassionate release
request.
As is relevant here, the Court may reduce a defendant’s sentence
under 18 U.S.C. § 3582(c)(1)(A)(i) for “extraordinary and compelling reasons
if “such reduction is consistent with applicable policy statements issued by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). The Court must
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also consider the factors set forth in 18 U.S.C. § 3553(a), to the extent that
such factors are applicable. Id.
Section 1B1.13 of the United States Sentencing Guidelines sets forth
the Sentencing Commission’s policy statement applicable to compassionate
release reductions. See U.S.S.G. § 1B1.13. As is relevant here, the
application note to § 1B1.13 specifies the types of medical conditions that
qualify as “extraordinary and compelling reasons.” First, that standard is met
if the defendant is “suffering from a terminal illness,” such as “metastatic
solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ
disease, [or] advanced dementia.” U.S.S.G. § 1B1.13, cmt. n.1(A)(i).
Second, the standard is met if the defendant is:
(I) suffering from a serious physical or medical
condition,
(II) suffering from a serious functional or cognitive
impairment, or
(III) experiencing deteriorating physical or mental
health because of the aging process,
that substantially diminishes the ability of the
defendant to provide self-care within the environment
of a correctional facility and from which he or she is
not expected to recover.
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U.S.S.G. § 1B1.13, cmt. n.1(A)(ii). This policy statement, however, was
adopted before the First Step Act, and the Sentencing Commission has not
updated the policy statement to account for the fact that defendants are now
permitted to file their own motions for compassionate release. In light of
these circumstances, the Fourth Circuit Court of Appeals has held that §
1B1.13 is no longer an “applicable” policy statement that constrains the
discretion of the district courts in finding that “extraordinary and compelling
reasons” exists to warrant a reduction in sentence. See United States v.
McCoy, 981 F.3d 271, 282 (4th Cir. 2020) (“By its plain terms, . . . § 1B1.13
does not apply to defendant-filed motions under § 3582(c)(1)(A)”). Thus, this
Court is “empowered . . . to consider any extraordinary and compelling
reason for release that a defendant might raise.” Id. at 284 (quoting United
States v. Zullo, 976 F.3d 228, 230 (2d Cir. 2020)). Nevertheless, the Court
recognized, that the policy statement “remains helpful guidance even when
motions are filed by defendants.” Id. at 282 n.7. The Defendant bears the
burden of establishing that she is eligible for a sentence reduction. United
States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016); United States v. Green,
764 F.3d 1352, 1356 (11th Cir. 2014).
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Here, the Defendant asserts that she has a number of underlying
conditions—including obesity and other, unspecified “underlying health
issues”—that increase her risk for serious illness or death from COVID-19.
[Doc. 63 at 3]. She further contends that she has contracted COVID twice
previously and continues to suffer adverse consequences, such as
shortness of breath. [Id.]. The Defendant, however, has not submitted any
medical records to support these claims. In any event, as the Court has
previously noted that the Federal Bureau of Prisons (“BOP”) has taken
significant measures to protect the health of its inmates during the COVID-
19 pandemic. See United States v. Johnson, No. 1:19-cr-00020-MR-WCM,
2020 WL 7646809, at *2-3 (W.D.N.C. Dec. 23, 2020) (Reidinger, C.J.). In
addition to these measures, BOP has offered vaccinations to both inmates
and staff, which has conferred inmates such as the Defendant further
protection from the virus.2 Taken together, these measures are designed to
mitigate sharply the risks of COVID-19 transmission in BOP institutions while
allowing BOP to continue to fulfill its mandate of incarcerating those persons
sentenced or detained based on judicial orders. Given BOP’s efforts, the
2 It is unclear from the Defendant’s motion whether she has received the COVID-19
vaccine.
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fact that the Defendant faces a potential risk of contracting the virus again
while incarcerated, without more, is not sufficient to justify the relief she
requests. United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (“[T]he
mere existence of COVID-19 in society and the possibility that it may spread
to a particular prison alone cannot independently justify compassionate
release, especially considering BOP's statutory role, and its extensive and
professional efforts to curtail the virus's spread.”).
The Defendant also argues that the quarantine restrictions imposed by
the BOP during the pandemic have been unduly harsh, resulting in frequent
lockdowns, limited visitation from family, and reduced opportunities for
rehabilitation. [Doc. 63 at 7]. These measures, however, were temporary in
nature and were necessary in order to slow the spread of virus. Moreover,
the circumstances the Defendant describes was not unique to her, as many
prisoners throughout the BOP were subjected to similar conditions, at least
temporarily. For these reasons, the Court concludes none of the grounds
cited by the Defendant, considered either singly or in combination, constitute
extraordinary and compelling reasons for her early release.3
3 The Defendant also cites the fact that some defendants who committed violent crimes
have been granted compassionate release. The case specifically cited by the Defendant,
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Even if the Defendant could establish an extraordinary and compelling
reason, this Court still must consider the § 3553(a) factors, as “applicable,”
as part of its analysis of determining whether a sentence reduction is
warranted. See § 3582(c)(1)(A); United States v. Chambliss, 948 F.3d 691,
694 (5th Cir. 2020).
Here, the Defendant’s offense was very serious. The Defendant was
responsible for distributing a significant amount of methamphetamine in
Western North Carolina. Following her arrest, she admitted to investigators
that she and her co-conspirator had purchased 12-15 kilograms of
methamphetamine from their supplier in the three preceding months alone.
[Doc. 49 at 6-8]. Additionally, the Defendant possessed firearms, despite
her prohibited status, and maintained a premise for distributing
methamphetamine. [Id.]. The Defendant also has a significant criminal
history, including multiple convictions for drug possession and convictions
for selling cocaine within 100 feet of a school. [Id. at 10-12]. The 210-month
sentence imposed for the Defendant’s offense adequately reflects the need
for the sentence to reflect the true extent and seriousness of the Defendant’s
however, involved a defendant who had been subject to the “stacking” of § 924(c)
convictions, resulting in a sentence of life plus a consecutive sentence of 145 years. [See
Doc. 63-1]. This case, therefore, is readily distinguishable from the Defendant’s case.
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offense, to promote respect for the law, to provide just punishment, to afford
adequate deterrence, and to protect the public from the Defendant’s further
crimes. These factors also counsel against a reduction of the Defendant’s
sentence.
In sum, the Court finds that there are no “extraordinary and compelling
reasons” for the Defendant’s release and that analysis of the relevant §
3553(a) factors continue to weigh in favor of her continued incarceration.
The Defendant also moves for the appointment of counsel to represent
her in connection with litigating her motion for compassionate release. The
Defendant has no constitutional right to the appointment of counsel to file
post-conviction motions. Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)
(citing Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)); Rouse v. Lee,
339 F.3d 238, 250 (4th Cir. 2003), cert. denied, 541 U.S. 905 (2004) (citing
Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (no constitutional right
to counsel beyond first appeal of right)). The Court may, in some
circumstances, appoint counsel to represent a prisoner when the interests of
justice so require and the prisoner is financially unable to obtain
representation. See 18 U.S.C. § 3006A(a)(2)(B). In the instant case, the
Defendant has already filed a motion for compassionate release outlining the
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grounds for her motion. Accordingly, the Court concludes that the interests
of justice do not require the appointment of counsel in this case. See United
States v. Riley, 21 F. App’x 139, 141-42 (4th Cir. 2001).
IT IS, THEREFORE, ORDERED that the Defendant’s “Motion for
Sentence Reduction under 18 U.S.C. § 3582(c)(1)(A) (Compassionate
Release)” [Doc. 63] is DENIED.
IT IS SO ORDERED. Signed: November 11, 2022
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