USA v. Garcia-Hernandez

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DENYING DEFENDANT'S
) MOTION TO REDUCE SENTENCE
vs. )
)
Gabriel Garcia-Hernandez, ) Case No. 4:14-cr-076
)
Defendant. )
------------------------------------------------------------------------------------------------------------------------
Before the Court is the Defendant’s pro se motion to reduce sentence under 18 U.S.C. §
3582(c)(1)(A), filed on September 27, 2023. See Doc. No. 94. The Government filed a response in
opposition to the motion on October 5, 2023. See Doc. No. 98. The Defendant filed a reply on
October 30, 2023, and a supplement on November 14, 2023. See Doc. Nos. 101 and 103. For the
reasons set forth below, the motion is denied.
I. BACKGROUND
On April 30, 2014, a federal grand jury indicted Garcia-Hernandez on one count of possession
of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),
and 924(e) (count one) and one count of possession of a firearm with an obliterated serial number,
in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (count two). See Doc. No. 1. On October 29,
2014, a jury convicted Garcia-Hernandez on both counts. See Doc. No. 40. A sentencing hearing was
held on February 23, 2015, at which time it was determined that Garcia-Hernandez qualified as an
armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The
Court’s finding that Garcia-Hernandez was an armed career criminal triggered a mandatory minimum
sentence of 180-months. The advisory Sentencing Guideline range was determined to be 188-210
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months. See Doc. No. 62. The Court sentenced Garcia-Hernandez to 180-months on count one and
a concurrent 60-months on count two. See Doc. No. 61. An appeal was taken, and the convictions
were affirmed by the Eighth Circuit Court of Appeals. United States v. Garcia-Hernandez, 803 F.3d
994 (8th Cir. 2015).
On September 27, 2023, Garcia-Hernandez filed a motion seeking a reduction of sentence and
compassionate release under 18 U.S.C. § 3582(c)(1)(A) citing his health problems and the COVID-19
pandemic as “extraordinary and compelling” reasons for a sentence reduction. See Doc. No. 94. The
Government filed a response in opposition to the motion contending Garcia-Hernandez has failed to
provide an appropriate basis for compassionate release. See Doc. No. 98. Garcia-Hernandez is
serving his sentence at USP Lewisburg in Lewisburg, Pennsylvania. His presumptive release date
is January 22, 2027.
II. LEGAL DISCUSSION
18 U.S.C. § 3582(c)(1)(A) allows the Court to modify a term of imprisonment under two
circumstances: by 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 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.” In this case, it is undisputed
Garcia-Hernandez has exhausted his administrative remedies.
In considering a motion to reduce sentence, the Court must assess whether, after considering
the 18 U.S.C. § 3553(a) factors, “extraordinary and compelling reasons” exist which warrant a
sentence reduction, and if a sentence reduction is consistent with the Sentencing Commission’s
applicable policy statement. See 18 U.S.C. § 3582(c)(1)(A). There is no right to counsel in Section
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3582(c) proceedings. United States v. Brown, 565 F.3d 1093, 1094 (8th Cir. 2009). Nor is there a
right to a hearing. See Dillon v. United States, 560 U.S. 817, 827-28 (2010) (observing that, under
Federal Rule of Criminal Procedure 43(b)(4), a defendant need not be present at a proceeding under
Section 3582(c)(2) regarding the imposition of a sentencing modification).
Prior to the passage of the First Step Act in 2018, district courts could only grant
compassionate release sentence reductions based upon a motion filed by the director of the BOP.
Such motions were rarely filed. This all changed when the First Step Act was signed into law on
December 21, 2018. The relevant portion of the new law now reads as follows:
(c) Modification of an imposed term of imprisonment.--The court may not modify
a term of imprisonment once it has been imposed except that–
(1) in any case–
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon
motion of the defendant after 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,
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–
(i) 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.A. § 3582(c)(1)(A)(i) (emphasis added).
Unfortunately, the First Step Act does not define “extraordinary and compelling reasons.” The
applicable Sentencing Commission policy statement can be found at Section 1B1.13 of the 2023
Sentencing Guidelines Manual. Section 1B1.13 provides as follows:
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(a) In General.--Upon motion of the Director of the Bureau of Prisons or the
defendant pursuant to 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of
imprisonment (and may impose a term of supervised release with or without
conditions that does not exceed the unserved portion of the original term of
imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the
extent that they are applicable, the court determines that–
(1) (A) Extraordinary and compelling reasons warrant the reduction; or
(B) The defendant (i) is at least 70 years old; and (ii) has served at least
30 years in prison pursuant to a sentence imposed under 18 U.S.C. §
3559(c) for the offense or offenses for which the defendant is
imprisoned;
(2) The defendant is not a danger to the safety of any other person or to the
community, as provided in 18 U.S.C. § 3142(g); and
(3) The reduction is consistent with this policy statement.
(b) Extraordinary and Compelling Reasons.--Extraordinary and compelling reasons
exist under any of the following circumstances or a combination thereof:
(1) Medical Circumstances of the Defendant.--
(A) The defendant is suffering from a terminal illness (i.e., a serious
and advanced illness with an end-of-life trajectory). A specific
prognosis of life expectancy (i.e., a probability of death within a
specific time period) is not required. Examples include metastatic
solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage
organ disease, and advanced dementia.
(B) 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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(C) The defendant is suffering from a medical condition that requires
long-term or specialized medical care that is not being provided and
without which the defendant is at risk of serious deterioration in health
or death.
(D) The defendant presents the following circumstances–
(i) the defendant is housed at a correctional facility affected or
at imminent risk of being affected by (I) an ongoing outbreak
of infectious disease, or (II) an ongoing public health
emergency declared by the appropriate federal, state, or local
authority;
(ii) due to personal health risk factors and custodial status, the
defendant is at increased risk of suffering severe medical
complications or death as a result of exposure to the ongoing
outbreak of infectious disease or the ongoing public health
emergency described in clause (i); and
(iii) such risk cannot be adequately mitigated in a timely
manner.
(2) Age of the Defendant.--The defendant (A) is at least 65 years old; (B) is
experiencing a serious deterioration in physical or mental health because of the
aging process; and (C) has served at least 10 years or 75 percent of his or her
term of imprisonment, whichever is less.
(3) Family Circumstances of the Defendant.--
(A) The death or incapacitation of the caregiver of the defendant's
minor child or the defendant's child who is 18 years of age or older and
incapable of self-care because of a mental or physical disability or a
medical condition.
(B) The incapacitation of the defendant's spouse or registered partner
when the defendant would be the only available caregiver for the
spouse or registered partner.
(C) The incapacitation of the defendant's parent when the defendant
would be the only available caregiver for the parent.
(D) The defendant establishes that circumstances similar to those listed
in paragraphs (3)(A) through (3)(C) exist involving any other
immediate family member or an individual whose relationship with the
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defendant is similar in kind to that of an immediate family member,
when the defendant would be the only available caregiver for such
family member or individual. For purposes of this provision,
‘immediate family member’ refers to any of the individuals listed in
paragraphs (3)(A) through (3)(C) as well as a grandchild, grandparent,
or sibling of the defendant.
(4) Victim of Abuse.--The defendant, while in custody serving the term of
imprisonment sought to be reduced, was a victim of:
(A) sexual abuse involving a “sexual act,” as defined in 18 U.S.C.
2246(2) (including the conduct described in 18 U.S.C. 2246(2)(D)
regardless of the age of the victim); or
(B) physical abuse resulting in “serious bodily injury,” as defined in
the Commentary to § 1B1.1 (Application Instructions);
that was committed by, or at the direction of, a correctional officer, an
employee or contractor of the Bureau of Prisons, or any other individual who
had custody or control over the defendant.
For purposes of this provision, the misconduct must be established by a
conviction in a criminal case, a finding or admission of liability in a civil case,
or a finding in an administrative proceeding, unless such proceedings are
unduly delayed or the defendant is in imminent danger.
(5) Other Reasons.--The defendant presents any other circumstance or
combination of circumstances that, when considered by themselves or together
with any of the reasons described in paragraphs (1) through (4), are similar in
gravity to those described in paragraphs (1) through (4).
(6) Unusually Long Sentence.--If a defendant received an unusually long
sentence and has served at least 10 years of the term of imprisonment, a
change in the law (other than an amendment to the Guidelines Manual that has
not been made retroactive) may be considered in determining whether the
defendant presents an extraordinary and compelling reason, but only where
such change would produce a gross disparity between the sentence being
served and the sentence likely to be imposed at the time the motion is filed,
and after full consideration of the defendant's individualized circumstances.
(c) Limitation on Changes in Law.--Except as provided in subsection (b)(6), a
change in the law (including an amendment to the Guidelines Manual that has not
been made retroactive) shall not be considered for purposes of determining whether
an extraordinary and compelling reason exists under this policy statement. However,
if a defendant otherwise establishes that extraordinary and compelling reasons warrant
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a sentence reduction under this policy statement, a change in the law (including an
amendment to the Guidelines Manual that has not been made retroactive) may be
considered for purposes of determining the extent of any such reduction.
(d) Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. 994(t), rehabilitation of
the defendant is not, by itself, an extraordinary and compelling reason for purposes of
this policy statement. However, rehabilitation of the defendant while serving the
sentence may be considered in combination with other circumstances in determining
whether and to what extent a reduction in the defendant's term of imprisonment is
warranted.
(e) Foreseeability of Extraordinary and Compelling Reasons.--For purposes of this
policy statement, an extraordinary and compelling reason need not have been
unforeseen at the time of sentencing in order to warrant a reduction in the term of
imprisonment. Therefore, the fact that an extraordinary and compelling reason
reasonably could have been known or anticipated by the sentencing court does not
preclude consideration for a reduction under this policy statement.
U.S.S.G. § 1B1.13
Even when extraordinary and compelling reasons exist, a court should only grant a motion for
release if it determines that the defendant is not a danger to the public. See USSG § 1B1.13(2). A
court should also consider whether the 18 U.S.C. § 3553(a) factors weigh in favor of release. See 18
U.S.C. § 3582(c)(1)(A); USSG § 1B1.13. Whether to grant relief under Section 3582(c)(1)(A) is
vested in the sound discretion of the district court. United States v. Vangh, 990 F.3d 1138, 1140 (8th
Cir. 2021).
Garcia-Hernandez is 63 years of age and has approximately 36 months left on his 180-month
sentence. His presumptive release date is January 22, 2027. At sentencing, Garcia-Hernandez was
found to have a criminal history category IV and to be an armed career criminal. His advisory
Sentencing Guideline range was 188 – 210 months imprisonment.
Garcia-Hernandez’s primary contention is that the ongoing COVID-19 pandemic along with
his health problems (asthma, obesity, and high blood pressure) constitute extraordinary and
compelling circumstances which warrant a sentence reduction. While Garcia-Hernandez does have
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asthma and high blood pressure and is obese, the record reveals these conditions are being addressed
by the BOP and are capable of being controlled. See Doc. No. 99. Garcia-Hernandez’s health
problems are not so severe he cannot care for himself in a prison setting. See Doc. No. 94-2.
The COVID-19 pandemic, which poses a threat to every person in the country, does not, in
and of itself, provide a basis for a sentence reduction. As the Third Circuit Court of Appeals
commented, “the mere existence of COVID-19 in society and the possibility that it may spread to a
particular prison alone cannot independently justify compassionate release.” United States v. Raia,
954 F.3d 594, 597 (3d Cir. 2020). In United States v. Gater, the Eighth Circuit Court of Appeals
found the district court did not misapply Section 3582(c)(1)(A) or abuse its discretion in denying the
defendant’s motion for compassionate release due to COVID-19. No. 20-2158, slip op. at 4 (8th Cir.
May 24, 2021). The Eighth Circuit stated:
The substance of the district court’s order demonstrates that the court found Gater did
not have any ‘major’ medical issues and the mere possibility of contracting COVID-19
in prison, alone, without a showing that the BOP is unwilling or unable to guard
against or treat the infection does not meet the extraordinary or compelling standard
to warrant a sentence reduction.
Id. The defendant in Gater disagreed with the district court’s analysis that COVID-19 is not an
extraordinary and compelling reason to warrant a sentence reduction. The Eighth Circuit noted
Gater’s care level in prison “demonstrates no particularized susceptibility to COVID-19.” Id.; see
also, United States v. Thompson, 984 F.3d 431, 435 (5th Cir. 2021) (noting “[f]ear of COVID doesn’t
automatically entitle a prisoner to release” and affirming denial of compassionate release request to
otherwise healthy defendant who had two, well-controlled, chronic medical conditions). The threat
of contracting COVID-19 in the prison environment “is not by itself sufficient reason to modify a
lawfully imposed prison sentence.” United States v. Marcussen, 15 F.4th 855, 858 (8th Cir. 2021).
District courts have concluded similarly. See United States v. Eberhart, Case No. 13-cr-00313, 2020
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WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020) (A general concern about possible exposure to
COVID-19 does not meet the criteria for extraordinary and compelling reasons for a reduction in
sentence).
This does not mean that COVID-19 is not relevant to the Court’s totality of circumstances
analysis when considering a motion for reduction of sentence. All factors must be considered.
COVID-19 is an extremely dangerous illness. It has caused more than 1,100,000 deaths in the United
States to date along with severe societal and economic disruption. In response to the pandemic, the
BOP has taken significant measures to protect the health of the inmates in its charge including
working with the United States Centers for Disease Control to minimize the risk of COVID-19
transmission with its facilities. The risk of infection is very real, both within BOP facilities and in
society in general. Release from prison does not abate the risk.
While sympathetic to Garcia-Hernandez’s concerns regarding the presence of COVID-19, or
a new strain of COVID-19, in the federal prison system, the Court does not find that his circumstances
clear the high bar necessary to warrant a sentence reduction. Garcia-Hernandez’s situation is not
unique and does not rise to the level of “extraordinary and compelling reasons” as contemplated by
Section 3582(c)(1)(A)(i). The COVID-19 vaccines have been shown to be highly effective in
preventing severe disease, especially amongst older persons. The Court has carefully reviewed the
entire record and concludes Garcia-Hernandez has failed to demonstrate “extraordinary and
compelling reasons” that would warrant a sentence reduction. See United States v. Jones, 836 F.3d
896, 899 (8th Cir. 2016) (the burden is on the defendant to establish a sentence reduction is warranted
under 18 U.S.C. § 3582(c)(2)).
In addition, the Court concludes the Section 3553(a) factors weigh against any sentence
reduction. Garcia-Hernandez has a long criminal history which resulted in being classified as an
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armed career criminal. The Court concludes Garcia-Hernandez has failed to sustain his burden of
proof to demonstrate an “extraordinary and compelling reason” that would warrant a sentence
reduction.
III. CONCLUSION
For the reasons set forth above, the Defendant’s motion to reduce sentence (Doc. No. 94) is
DENIED. The request for appointment of counsel (Doc. No. 95) is also DENIED.
IT IS SO ORDERED.
Dated this 29th day of January, 2024.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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