USA v. Delacruz et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America,
Plaintiff/Respondent,
vs.
Jose Luis Delacruz,
Defendant/Petitioner.
Case No. 2:14-cr-00047
ORDER DENYING MOTIONS TO REDUCE SENTENCE AND
MOTIONS TO TAKE JUDICIAL NOTICE
[¶1] THIS MATTER comes before the Court on two Motions to Reduce Sentence filed by the
Defendant on November 23, 2020, and April 17, 2023. Doc. Nos. 472, 494. The United States filed
Responses on December 2, 2020, and May 12, 2023. Doc. Nos. 473, 497. The Defendant filed
a Reply on December 28, 2020. Doc. No. 474. Also before the Court are two Motions to Take
Judicial Notice of certain caselaw. Doc. Nos. 493, 495. For the reasons set forth below, the
Motions are DENIED.
BACKGROUND
[¶2] On May 13, 2015, a jury found the Defendant Guilty of (1) Conspiracy to Possess
with Intent to Distribute and Distribute a Controlled Substance and (2) Use of a Firearm During a
Drug Trafficking Crime. Doc. No. 233, pp. 1-3. Due to the Defendants two prior convictions
and the jury’s finding the conspiracy involved 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine, the Defendant was sentenced to a
mandatory term of life imprisonment. Doc. No. 354. The Judgment was affirmed by the Eighth
Circuit on appeal. Doc. Nos. 399, 399-1.
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DISCUSSION
[¶3] 	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 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). It should also be noted that the CARES Act does not provide the Court with any
expanded authority to grant a motion to reduce sentence under 18 U.S.C. § 3582(c). See CARES
Act, Pub. L. No. 116-136, 134 Stat 281 (2020).
[¶4] 	Prior to the passage of the First Step Act in 2018, district courts could only grant
compassionate release sentence reductions if the Director of the BOP filed a motion, the filing of
which rarely occurred. This changed when the First Step Act became 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
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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. § 3582(c)(1)(A)(i) (emphasis added).
[¶5] 	The First Step Act does not define “extraordinary and compelling reasons.” The Sentencing
Commission policy statement can be found at Section 1B1.13 of the 2018 Sentencing Guidelines
Manual. However, the policy statement pertains to the old law rather than the new law and thus
is of questionable applicability. 	See United States v. Beck, No. 1:13-CR-186-6, 2019 WL
2716505, at *6 (M.D.N.C. June 28, 2019) (concluding the old policy statement provides helpful
guidance 	but 	does 	not 	control 	the 	district 	court’s 	independent 	assessment 	of 	whether
“extraordinary and compelling reasons” warrant a sentence reduction.). This Court agrees that the
Sentencing Commission’s existing policy statement1 provides only limited guidance. See United
States v. Fox, No. 2:14-CR-03, 2019 WL 3046086, at *3 (D. Me. July 11, 2019). The Application
Note to U.S.S.G. § 1B1.13 provides as follows:
1 Although the Sentencing Commission has not published a 2023 edition of the Sentencing
Guidelines Manual, there are proposed amendments to the Guidelines. See United States
Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Feb. 2, 2023)
found 	at 	https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-
amendments/20230201_RF-proposed.pdf. The proposed amendments would revise the list of
“extraordinary and compelling reasons” in several ways. Relevant to the defendant’s Motion, it
would move them from the Commentary to the guideline. Id. at p. 2. Second, it would add a
“Medical Condition of the Defendant” that would allow for consideration of “a medical condition
that requires long-term or specialized care, without which the defendant is at risk of serious
deterioration in health or death.” Id. This amendment would not be applicable under the
circumstances because, as discussed below, the Defendant only alleges a generalize claim COVID-
19 poses a health risk.
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1. 	Extraordinary and Compelling Reasons.—Provided the defendant meets
the requirements of subdivision (2), extraordinary and compelling reasons
exist under any of the circumstances set forth below:
(A) 	Medical Condition of the Defendant.—
(i) 	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.
(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 and from which he or she is not expected to recover.
(B) 	Age of the Defendant.—The defendant (i) is at least 65 years old;
(ii) is experiencing a serious deterioration in physical or mental
health because of the aging process; and (iii) has served at least 10
years or 75 percent of his or her term of imprisonment, whichever is
less.
(C) 	Family Circumstances—
(i) 	The death or incapacitation of the caregiver of the
defendant's minor child or minor children.
(ii) 	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.
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(D) 	Other Reasons—As determined by the Director of the Bureau of
Prisons, 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).
2. 	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.
3. 	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.
4. 	Motion by the Director of the Bureau of Prisons—A reduction under this
policy statement may be granted only upon motion by the Director of the
Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission
encourages the Director of the Bureau of Prisons to file such a motion if the
defendant meets any of the circumstances set forth in Application Note 1.
The court is in a unique position to determine whether the circumstances
warrant a reduction (and, if so, the amount of reduction), after considering
the factors set forth in 18 U.S.C. § 3553(a) and the criteria set forth in this
policy statement, such as the defendant's medical condition, the defendant's
family circumstances, and whether the defendant is a danger to the safety
of any other person or to the community.
This policy statement shall not be construed to confer upon the defendant
any right not otherwise recognized in law.
5. 	Application of Subdivision (3)—Any reduction made pursuant to a motion
by the Director of the Bureau of Prisons for the reasons set forth in
subdivisions (1) and (2) is consistent with this policy statement.
U.S.S.G. § 1B1.13.
[¶6] 	The Defendant asserts three grounds for a reduction in sentence under his Motions. First,
he states a generalized concern over COVID-19. Second, he argues that if he were sentenced today,
he would be subject to a lesser sentence. Finally, he argues the Court should reduce his sentence
based upon proposed amendments to U.S.S.G. § 1B1.13. The United States argues courts have
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found a generalized concern is insufficient to warrant a sentencing reduction. The United States
contends the non-retroactive change in sentencing law is not an extraordinary and compelling
circumstance under binding Eighth Circuit precedent. Next, the United States argues the proposed
amendments to § 1B1.13 do not apply. Finally, the United States avers the factors under 18 U.S.C.
§ 3553(a) do not warrant a reduction in sentence. The Court agrees with the United States.
[¶7] 	“General concerns about possible exposure to COVID-19 do not meet the criteria for
extraordinary and compelling reasons for a reduction in sentence set forth in the Sentencing
Commission’s policy statement on compassionate release, USSG § 1B1.13.” United States v.
Eberhart, 448 F.Supp.3d 1086, 1090 (N.D. Cal. 2020). Indeed, this Court has denied sentencing
reductions when individuals have put forth more particularized concerns regarding health and the
COVID-19 pandemic. See United States v. Kostelecky, Case No. 1:17-cr-15, Doc. No. 192
(D.N.D. Nov. 15, 2022) (denying compassionate release of an individual with an immune
deficiency condition, cardiovascular disease, current cancer, and a history of cancer, and who also
had limited mobility and a need for an assistive devise with ambulation); see also United States v.
Maher, 2020 WL 390884, *1 (D. Me. Jan. 22, 2020) (denying compassionate release of a defendant
with a documented medical history of Crohn’s disease, prostate cancer, hepatitis C, significant
unexplained weight loss, bacterial pneumonia, and acute exacerbation of bronchiectasis).
Accordingly, potential COVID-19 exposure is not itself an extraordinary or compelling reason to
reduce the Defendant’s sentence.
[¶8] 	Next, the Court is not persuaded the non-retroactive change in sentencing law justifies a
reduction in sentence.2 The Defendant was sentenced under the law in effect at that time to a
2 The Defendant asks the Court to take judicial notice of Concepcion v. United States, 142 S. Ct.
2389 (2022). Doc. No. 493. In Concepcion, the Supreme Court held district courts are to consider
arguments regarding intervening changes in law under the First Step Act. Id. at 2396 (“Because
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mandatory term of life imprisonment because of the drug quantity involved and his two prior
qualifying convictions. 21 U.S.C. § 841(b)(1)(A) (2015). If he was sentenced today, he would face
a minimum of 25 years’ imprisonment. 21 U.S.C. § 841(b)(1)(A) (2023). There is no dispute this
change is non-retroactive.
[¶9] 	In United States v. Crandall, the Eighth Circuit held, “we conclude that a non-retroactive
change in law, whether offered alone or in combination with other factors, cannot contribute to a
finding 	of 	‘extraordinary 	and 	compelling 	reasons’ 	for 	a 	reduction 	in 	sentence 	under 	§
3582(c)(1)(A).” 25 F.4th 582, 586 (8th Cir. 2022); see also United States v. Taylor, 28 F.4th 929,
930-31 (8th Cir. 2022) (holding the same); United States. v. Berglund, 2023 WL 1978867, *1 (8 th
Cir. Feb. 14, 2023) (unpublished) (per curiam) (noting Crandall controls the issue of whether a
non-retroactive amendment to a statute can be considered under the First Step Act sentencing
reduction request).
[¶10] 	Crandall controls this issue. The Court has considered the Defendant’s arguments and the
non-retroactive amendments to the sentencing statue do not constitute extraordinary and
compelling circumstances under Crandall and its progeny. See Crandall, 25 F.4th at 586; Taylor,
28 F.4th at 930-31; Berglund, 2023 WL 1978867 at *1. Accordingly, the Defendant has failed to
show the non-retroactive change in sentencing law in this case is an extraordinary and compelling
circumstance.
[¶11] 	Next, the Defendant asks the Court to consider the proposed amendments to the Guidelines
that affect the First Step Act. The proposed amendments to the policy statement found at U.S.S.G.
district courts are always obligated to consider nonfrivolous arguments presented by the parties,
the First Step Act requires district courts to consider intervening changes when parties raise them.
By its terms, however, the First Step Act does not compel courts to exercise their discretion to
reduce any sentence based on those arguments.”). The Court does not need to take judicial notice
of this case but it will consider the arguments raised by the Defendant.
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§ 1B1.13 do not apply at this time. The proposed amendments would add a consideration for the
Court 	based 	upon 	“unusually 	long 	sentences.” 	United 	States 	Sentencing 	Commission,
“Amendments to the Sentencing Guidelines, Policy Statements, Official Commentary, and
Statutory 	Index,” 	found 	at 	https://www.ussc.gov/sites/default/files/pdf/amendment-
process/official-text-amendments/202305_Amendments.pdf. The amendments would permit the
Court to consider a sentencing reduction a sentence if the term of imprisonment was “unusually
long” and the Defendant has already served ten years of that sentence. Id. at p. 3. Other factors the
Court could consider if the amendment passes would include a change in law that would cause a
“gross disparity between the sentence being served and the sentence likely to be imposed at the
time the motion is filed.” Id. This consideration, however, is contingent on a “full consideration of
the defendant’s individualized circumstances.” Id.
[¶12] 	The Defendant’s request is premature because these changes have not become final. The
Court will not consider the proposed amendment because they are not in effect. The current version
of First Step Act and Sentencing Guidelines control this issue. In addition, even if the Court were
to consider the request, the Defendant has not served ten years of his sentence, as required under
the proposed amendments. Id. Accordingly, the Defendant’s request for the Court to consider these
proposed amendments fails.
[¶13] 	Finally, the Court has considered the factors under 18 U.S.C. § 3553(a) and concludes a
reduction in sentence is not warranted because the Defendant continues to pose a significant danger
to the community. The Defendant was exceptionally violent in this case. According to the
Presentence Investigation Report, the Defendant assaulted another individual with a handgun, put
the handgun in that individual’s mouth, and threatened to kill him. Doc. No. 323, ¶ 3. After this,
the Defendant drove him out into the country and left him there. Id. Other cooperating witnesses
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observed the Defendant possess firearms during the conspiracy, some of whom reported the
Defendant threatened others with the firearm and accused them of cooperating with the
government. Id. at ¶ 6. In one instance, he made Kimberly Ratliff strip naked at gun point to prove
she was not wearing a wire. Id. In another incident, he held Kimberly Ratliff against her will in a
garage and threatened to hurt her children. Id. All of this behavior was to further and enforce the
Defendant’s drug dealing activities. See id.
[¶14] 	In short, the Defendant was a violent individual in this conspiracy. He took extreme
measures to ensure his co-conspirators were not cooperating. He used physical violence on those
he suspected of cooperating. He used intimidation on others to potentially prevent them from
cooperating. Given the quantities of drugs involved in this case (between 500 grams and 1.5
kilograms) coupled with his extremely violent behavior, the Court would not reduce his sentence
based upon a review of the 18 U.S.C. § 3553(a) factors.
CONCLUSION
[¶15] 	For the foregoing reasons, the Defendant’s Motions to Reduce Sentence (Doc. Nos. 472,
494) are DENIED. Because taking judicial notice of caselaw and the proposed amendments to
U.S.S.G. § 1B1.13 is not necessary and the Court has considered them in the context of this order,
the Motions to Take Judicial Notice (Doc. Nos. 493, 495) are DENIED as unnecessary.
[¶16] 	IT IS SO ORDERED.
DATED August 31, 2023.
Daniel M. Traynor, District Judge
United States District Court
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