United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR U.S. DISTRICT JUDGE.
MATTER comes before the Court on Mr. Gutierrez's
Motion to Reconsider Compassionate Release, filed on April 9,
2019. (Doc. 264.) Mr. Gutierrez moved for compassionate
release on February 4, 2019. (Doc. 260.) Because Mr.
Gutierrez discussed Application Note 1(B) of U.S. Sentencing
Guidelines § 1B1.13 and the criteria therein (i.e., the
age of the defendant, a serious health condition due to age,
and the amount of the sentence served), the Court construed
his original motion as one for compassionate release pursuant
to Application Note 1(B). (See Docs. 260 at 3-4
(citing U.S. Sentencing Guidelines Manual § 1B1.13 cmt.
n.1(B)); 263 at 3.) The Court denied the motion under
Application Note 1(B) because Mr. Gutierrez had not
established that he “is experiencing a serious
deterioration in physical or mental health because of the
aging process . . . .” (Doc. 263 at 3-4 (quoting U.S.
Sentencing Guidelines Manual § 1B1.13 app. §
Gutierrez now points to a section in his reply brief and
clarifies that he relied on Application Note 1(D) rather than
1(B). (See Doc. 264 at 3 (citing Doc. 262 at 2-3).)
Under Application Note 1(D), the Director of the Bureau of
Prisons (BOP) may determine whether “there exists in
the defendant's case an extraordinary and compelling
reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).” U.S.
Sentencing Guidelines Manual § 1B1.13 app. §
(1)(D). Pursuant to this subsection, Mr. Gutierrez asks that
he be granted compassionate release because “[t]he
Sentencing Commission and BOP have recognized that inmates
over the age of 65 are elderly and eligible for early release
due to their advanced age.” (Doc. 260 at 6 (citing U.S.
Sentencing Guidelines Manual § 1B1.13 cmt. n.1(B); BOP
Program Statement § 5050.50(4)(c),
https://www.bop.gov/policy/progstat/5050050EN.pdf).) As the
Government discussed Section 5050.50(4)(c) in its response
brief (see Doc. 261 at 5-6), and the Court
misapprehended Mr. Gutierrez's position, see Servants
of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000), the Court will reconsider Mr. Gutierrez's original
motion pursuant to Application Note 1(D).
First Step Act went into effect on December 21, 2018.
See First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194. Prior to the passage of the First Step Act, only
the Director of the BOP could file a motion for compassionate
release, and that very rarely happened. Section 603(b) of
the First Step Act modified 18 U.S.C. § 3582(c)(1)(A),
however, with the intent of “increasing the use and
transparency of compassionate release.” Pub. L. No.
115-391, 132 Stat. 5194, at *5239 (capitalization omitted).
That section now provides that a sentencing court may modify
a sentence either upon a motion of the Director of the BOP
“or upon motion of the defendant after [he] has fully
exhausted all administrative rights to appeal a failure of
the [BOP] to bring a motion on [his] behalf or the lapse of
30 days from the receipt of such a request by the warden of
the defendant's facility . . . .” 18 U.S.C. §
Gutierrez first sought such a motion from the Director of the
BOP, and the BOP denied his request. (See Docs.
260-A; 260-B.) The Government does not dispute that he has
fully exhausted his administrative rights and may now
properly move the Court for compassionate release pursuant to
Section 3582(c)(1)(A). (See Docs. 260 at 2-3; 260-B;
261 at 3.)
Gutierrez moves for compassionate release pursuant to Section
3582(c)(1)(A)(i), which permits a sentencing court to grant
such a motion where “extraordinary and compelling
reasons warrant such a reduction” and the
“reduction is consistent with applicable policy
statements issued by the Sentencing Commission . . . .”
18 U.S.C. § 3582(c)(1); see also United
States v. Overcash, No. 3:15-CR-263-FDW-1, 2019 WL
1472104, at *2 (W.D. N.C. Apr. 3, 2019). The statute does not
define what constitutes “extraordinary and compelling
reasons.” Instead, “28 U.S.C. § 994
authorizes the United States Sentencing Commission to define
‘extraordinary and compelling
reasons.'” United States v. Handerhan, No.
1:10-CR-00298, 2019 WL 1437903, at *1 (M.D. Pa. Apr. 1,
2019). The Sentencing Commission has defined
“extraordinary and compelling reasons” in
Application Note 1 to United States Sentencing Guidelines
(A) Medical Condition of the Defendant.
(i) The defendant is suffering from a terminal illness . . .
(ii) The defendant is
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive
(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 ...