UNITED STATES OF AMERICA v. GONZALO VELAZQUEZ CABRERA (2022)

DECISION AND ORDER

Defendant Gonzalo Velazquez Cabrera (hereinafter “Defendant”) has filed a pro se motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 264).¹ For the reasons set forth below, the motion is denied.

I. BACKGROUND

Defendant—who is 40 years old (Dkt. 255 at 2)—pleaded guilty on December 14, 2018, pursuant to the terms and conditions of a plea agreement to conspiracy to possess with intent to distribute and to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846 and discharge of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. (Dkt. 160; see Dkt. 255 at 1). Defendant's convictions were related, in part, to a violent territorial feud with rival drug dealers that escalated to brazen shootings in the City of Buffalo in 2015. (See Dkt. 255 at ¶ 13). A number of individuals were prosecuted and convicted as a result of these events (see id. at 3-5), including Defendant, who was sentenced by the undersigned on September 10, 2021, to an aggregate prison sentence of 153 months followed by five years supervised release. (Dkt. 257; Dkt. 259).

Defendant is currently housed at FCI Elkton in Ohio (“Elkton”), and his scheduled release date is September 6, 2028. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Nov. 27, 2022). According to the Bureau of Prison's (“BOP”) website tracking COVID-19 cases in its facilities, no inmates or staff at Elkton are currently testing positive for COVID-19. See COVID-19: Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Nov. 27, 2021).

Defendant bases his motion for compassionate release on the COVID-19 pandemic and his health conditions of high blood pressure, ADHD, and mental health issues. (Dkt. 264 at 1). In addition, Defendant argues that he “is soon to be the only caregiver available to assist his disabled mother,” because of the imminent demise of his mother's husband from cancer. (Id. at 2).

The government opposes Defendant's motion, arguing that all of Defendant's medical conditions are stable and well-addressed by medical providers within the Bureau of Prisons, Defendant has been vaccinated against COVID-19 and thus his risk of severe illness is greatly reduced, and the current conditions at Elkton support a conclusion that the virus is well controlled. (Dkt. 268 at 4-7). Thus, the government argues that Defendant has failed to establish extraordinary and compelling circumstances justifying the requested relief. In addition, a consideration of the factors set forth at 18 U.S.C. § 3553(a) heavily weighs against granting Defendant's release, according to the government. (Id. at 7).

In addition, the United States Probation Office (“USPO”) has submitted a memorandum dated September 19, 2022, opposing Defendant's motion. (Dkt. 275). The USPO memorandum notes that, contrary to Defendant's claim that he has served the majority of his sentence (see Dkt. 264 at 2), he has actually served approximately 59 months of his 153-month sentence (Dkt. 275 at 1). In addition, the USPO contacted Defendant's co-defendant and fiancée, Eunhe Choi, concerning Defendant's claims to be the only caregiver for his disabled mother, and this claim is not true. According to Ms. Choi, Defendant's mother is no longer bedridden and Defendant's two brothers along with Ms. Choi assist Defendant's mother. (Id. at 2). Also, the family is exploring home health care assistance. (Id.).

II. LEGAL STANDARD AND ANALYSIS

“A court may not modify a term of imprisonment once it has been imposed except pursuant to statute.” United States v. Gotti, 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:

The court may not modify a term of imprisonment once it has been imposed except that ․ the court, upon motion of the Director of the [BOP] ․, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] ․ 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, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ․ extraordinary and compelling reasons warrant such a reduction ․ and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term.² “The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute.” United States v. Roney, No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd, 833 F. App'x 850 (2d Cir. 2020).

Here, the government does not dispute that Defendant has fully exhausted his administrative remedies and, therefore, the exhaustion requirement does not bar the relief sought by Defendant. (See Dkt. 268 at 4 n.1). However, the Court concludes that Defendant has failed to establish extraordinary and compelling reasons, and further that the § 3553(a) factors do not support the relief sought by Defendant.

Although Defendant has established that his existing medical conditions present a risk factor for severe illness or death from COVID-19, the Court agrees with the government that the conditions at Elkton, the sufficient management of Defendant's medical and mental health conditions by the caregivers within the Bureau of Prisons, and the steps that Defendant has taken to protect himself against severe illness by getting vaccinated, cut against any finding of extraordinary and compelling circumstances because of COVID-19. In addition, Defendant's claims about his mother appear to be inaccurate. Thus, Defendant has failed to establish extraordinary and compelling reasons justifying his requested relief.

In addition, given the underlying nature of Defendant's conviction, the Court continues to believe that the 153-month prison sentence was reasonable and appropriate. The significant danger presented by Defendant's conduct cannot be underestimated. Defendant makes no attempt to even address the § 3553(a) factors in his motion, and to grant Defendant's release would significantly undermine the fairness and purpose of the original sentence.

III. CONCLUSION

For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 264) is denied.

SO ORDERED.

FOOTNOTES

1.   Defendant also has filed a separate motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Dkt. 261). That motion will be decided separately once fully briefed.

2.   Although the statute references the Sentencing Commission's policy statements, the Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes “extraordinary and compelling.” United States v. Brooker, 976 F.3d 228, 236 (2d Cir. 2020).

ELIZABETH A. WOLFORD Chief Judge United States District Court