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United States v. Gutierrez

United States District Court, D. New Mexico

June 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT SEDILLO GUTIERREZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE.

         THIS 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. § (1)(B)).)

         Mr. 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).

         I. Analysis

         The 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.[1] 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. § 3582(c)(1)(A).

         Mr. 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.)

         Mr. 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.'”[2] 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 Section 1B1.13.

         These reasons include:

(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 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 ...

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