U.S. v. Denis

MEMORANDUM OPINION AND ORDER The defendant, Jose Heberto Alvarez Denis, has brought a motion for compassionate release. On April 11, 2019, following the defendant’s plea of guilty to one count of conspiracy to violate various provisions of the federal narcotics laws, the Court sentenced the defendant principally to 148 months’ imprisonment. See ECF No. 58. The amount of narcotics involved in the offense was in excess of 500 kilograms of cocaine. The Court varied downwardly from the Guidelines sentencing range of 188 to 235 months’ imprisonment, despite the recommendation of the Probation Department for a sentence of 188 months’ imprisonment. The Court considered the large amount of cocaine involved in the offense and the fact that the defendant was previously convicted in this District of a narcotics offense and sentenced to 40 months’ imprisonment, which proved insufficient to deter the defendant from committing the offense at issue in the defendant’s current conviction. See Sentencing Transcript, ECF No. 61, at 20-21. The Court carefully took into account the defendant’s individual circumstances including his poor health and the fact that the defendant had been initially incarcerated in Colombia for about fourteen months before being extradited to the United States. See id. at 21.¹ The defendant previously requested that he be given credit for his incarceration in Colombia. On May 21, 2021, consistent with the Court’s recommendation at sentencing, the Bureau of Prisons (“BOP”) substantially granted the defendant’s request and modified the defendant’s projected release date to September 25, 2026. See id.; ECF No. 96, 96-1.² Accordingly, the defendant has now received credit for his incarceration in Colombia. The defendant is expected to be removed from the United States upon his release. The defendant previously filed a motion for compassionate release, which the Court denied without prejudice on September 2, 2020. ECF No. 85. The defendant, proceeding pro se, now moves for reconsideration of the denial of his motion for compassionate release. Whether treated as a motion for reconsideration or a renewed motion for compassionate release, the motion is denied. I. 18 U.S.C. §3582 (c) (1) (A) (i) provides that a district court may reduce a sentence after considering the factors set forth in §3553(a), to the extent they are applicable, provided that the defendant has exhausted administrative remedies and has demonstrated “extraordinary and compelling reasons” that justify the sentence reduction. See United States v. Booth, No. 19-cr-699, 2022 WL 2119097, at *1 (S.D.N.Y. June 10, 2022).³ The factors set forth in 18 U.S.C. §3553(a) are; (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence to reflect the appropriate purposes of sentencing; (3) the kinds of sentences available; (4) the Guidelines sentencing range; (5) any policy statement by the Sentencing Commission; (6) avoiding disparate sentences among similarly situated defendants; and (7) the need to provide restitution. The district court has broad discretion in determining whether a defendant has shown an extraordinary and compelling reason for a sentence reduction. See United States v. Brooker, 976 F.3d 228, 237-38 (2d Cir. 2020). “The applicable standard for a reconsideration motion in a criminal case is the same as the civil standard under Rule 6.3 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York.” United States v. Kerik, 615 F. Supp. 2d 256, 276 n.27 (S.D.N.Y. 2009). Local Civil Rule 6.3 provides that a party may move for reconsideration of a court order based on “matters or controlling decisions which [the moving party] believes the Court has overlooked.” “The standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “Alternatively, the movant must demonstrate the need to correct a clear error or prevent manifest injustice.” Jelen v. Breezy Point Coop., Inc., No. 18-cv-3440, 2018 WL 8996342, at *1 (E.D.N.Y. Dec. 21, 2018). “[W]here the movant fails to show that any controlling authority or facts have actually been overlooked, and merely offers substantially the same arguments he offered on the original motion[,] the motion for reconsideration must be denied.” Kerik, 615 F. Supp. 2d at 276 n.27. II. The defendant asserts several grounds for compassionate release. The Government argues that there are no extraordinary and compelling reasons warranting compassionate release and that the relevant §3553(a) factors weigh strongly against a reduced sentence. Initially, a couple of the grounds that the defendant raises for compassionate release are not appropriate bases for Compassionate release. For example, the defendant argues that he should be afforded earned time credits under the First Step Act of 2018. The Government argues that the defendant is not eligible for such credits because he will be removed from the United States at the conclusion of his term of imprisonment. In any event, to the extent the defendant contends that he should receive these credits, he should exhaust his administrative remedies within the BOP and thereafter, if there is a dispute, proceed with a petition pursuant to 28 U.S.C. §2241. See, e.g., Rosenberg v. Pliler, No. 21-cv-5321, 2021 WL 6014938, at *2 (S.D.N.Y. Dec. 20, 2021) (inmates must comply with BOP’s four-step Administrative Remedy Program before petitioning for earned time credits). The defendant also contends that, because of his immigration status and prospective removal from the United States, he has been denied access to various programs by the BOP such as early release to home confinement or a halfway house, and rehabilitation programs such as drug treatment which would also provide for early release. He asserts that these denials constitute violations of his constitutional rights, but it is doubtful that the defendant has stated any constitutional claim. See, e.g., Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (federal prisoners have no right to due process protections regarding “eligibility for rehabilitative programs”); Abed v. Armstrong, 209 F.3d 63, 67 (2d Cir. 2000) (inmates have no constitutional right to discretionary good time release, or to participation in prison programs that might expedite release); Blount v. Badami, No. 21-cv-2700, 2021 WL 2226631, at *3 (S.D.N.Y. June 1, 2021) (“As a general matter, prisoners have no constitutional right to participate in drug treatment or other rehabilitative programs that might shorten their sentences or otherwise expedite their release.”) (collecting cases). Moreover, the appropriate remedy for any constitutional violation would be a civil suit. There is nothing about the defendant’s inability to participate in rehabilitative programs that suggests to the Court that the §3553(a) factors support the defendant’s early release from prison. The defendant’s remaining arguments for compassionate release do not support his early release. The defendant relies on his family circumstances, the conditions of confinement he experienced in Colombia, his disciplinary record, and his argument that his sentence was excessive.⁴ None of these arguments are sufficient to show that the §3553(a) factors support the defendant’s release. The Court took the defendant’s individual circumstances into account, including the defendant’s poor health and his difficult period of confinement in Colombia, in arriving at a sentence that was sufficient but no greater than necessary to accomplish the purposes of sentencing set forth in §3553(a) (2). See Sentencing Tr., at 21. The Court also appropriately noted the large quantity of drugs involved in the offense and the fact that the defendant had previously been convicted of a serious drug offense and sentenced to 40 months’ imprisonment. See id. at 20-21. The Court nevertheless downwardly varied from the Guidelines sentencing range by 40 months based on the defendant’s individual mitigating circumstances. There is nothing in the defendant’s additional arguments that changes the Court’s calculation or suggests that a lower sentence would be sufficient to accomplish the proper purposes of sentencing including deterrence and protection of the public. Therefore, the defendant’s request for compassionate release is denied. CONCLUSION The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed above, the arguments are either moot or without merit. For the reasons explained above, the defendant’s motion for compassionate release or reconsideration is denied. The Clerk is directed to close all pending motions. The Clerk is also directed to mail a copy of this Memorandum Opinion and Order, together with the attachments, to the defendant and to note service on the docket. SO ORDERED. Dated: September 6, 2022