Opinion
5:89-CR-173
2021-02-25
UNITED STATES of America, v. Jack J. MINICONE, Jr., Defendant.
HON. ANTOINETTE T. BACON, OF COUNSEL: GEOFFREY J.L. BROWN, ESQ., Acting United States Attorney for the Northern District of New York, 100 South Clinton Street, P.O. Box 7198, Syracuse, NY 13261, Ass't United States Attorney. OFFICE OF CHRISTOPHER JUDE PELLI, Attorneys for Defendant, 3 Derbyshire Place, Utica, NY 13501, OF COUNSEL: CHRISTOPHER J. PELLI, ESQ.
HON. ANTOINETTE T. BACON, OF COUNSEL: GEOFFREY J.L. BROWN, ESQ., Acting United States Attorney for the Northern District of New York, 100 South Clinton Street, P.O. Box 7198, Syracuse, NY 13261, Ass't United States Attorney.
OFFICE OF CHRISTOPHER JUDE PELLI, Attorneys for Defendant, 3 Derbyshire Place, Utica, NY 13501, OF COUNSEL: CHRISTOPHER J. PELLI, ESQ.
ORDER GRANTING IMMEDIATE RELEASE
David N. Hurd, U.S. District Judge
I. INTRODUCTION
On May 4, 2020, defendant Jack J. Minicone, Jr. ("Minicone" or "defendant") moved under 18 U.S.C. § 3582(c) for a sentence reduction based on his age, health, and other circumstances. Dkt. No. 332-1. The United States of America (the "Government") opposed relief. Dkt. Nos. 337, 340. Defendant replied. Dkt. No.339. The motion is now fully briefed and will be considered on the basis of the submissions without oral argument.
II. LEGAL STANDARD
"[A] court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Bess , 455 F. Supp. 3d 53, 56 (W.D.N.Y. 2020) (citation omitted). As relevant here, a recent amendment to 18 U.S.C. § 3582(c) empowers the court to consider a motion for a sentence reduction brought directly by a defendant. Id. § 3582(c)(1)(A). It provides in relevant part that:
the court, ... 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; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), ... [and] is not a danger to the safety of any other person or the community[.]
18 U.S.C. § 3582(c)(1)(A)(i)–(ii). Under either prong, the proposed reduction in sentence must also be "consistent with applicable policy statements issued by the Sentencing Commission." Id.
Historically, § 3582(c) did not permit trial courts to consider a motion for relief brought directly by a defendant. The original statute, unlike the current law, gave the Bureau of Prisons ("BOP") "exclusive power over all avenues of compassionate release." United States v. Brooker , 976 F.3d 228, 231 (2d Cir. 2020). "BOP used this power sparingly, to say the least." Id.
Although BOP had the gatekeeping authority under § 3582(c), Congress delegated to the U.S. Sentencing Commission (the "Sentencing Commission") the responsibility to "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). The Sentencing Commission, in turn, generated a Policy Statement. It provides that:
Upon motion of the Director of the Bureau of Prisons ... the court may reduce a term of imprisonment ... if, after considering the factors set forth in 18 U.S.C. § 3553(a), ... 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.
U.S.S.G. § 1B1.13. The Application Note to this Policy Statement defines the categories of "extraordinary and compelling reasons" that, in the Sentencing Commission's view, would justify compassionate release:
(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.
(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).
U.S.S.G. § 1B1.13 app. n.1.
In 2018, Congress enacted the First Step Act. "The First Step Act, among numerous other reforms, made the first major changes to [ § 3582(c) ] since its beginnings in 1984." Brooker , 976 F.3d at 233. "Chief among these changes was the removal of the BOP as the sole arbiter of compassionate release motions." Id.
Notably, however, neither the Policy Statement nor the Application Note have been updated since Congress amended § 3582(c) as part of the First Step Act. Brooker , 976 F.3d at 233-34. As a result, § 1B1.13 "still refers in multiple places to BOP having the exclusive authority to bring a compassionate release motion before the court." Id. at 234. One glaring example is Application Note 1(D), which appears to reserve to the Director of the BOP the discretion to determine whether other, unenumerated circumstances might rise to the level of "extraordinary and compelling" reasons warranting relief.
Courts in this circuit have concluded that these outdated guidance documents remain "helpful in defining a vague standard." United States v. Ebbers , 432 F. Supp. 3d 421, 426 (S.D.N.Y. 2020). However, the Second Circuit has also made clear that the changes to § 3582(c) "freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release." Brooker , 976 F.3d at 237.
As Brooker explained, "[n]either Application Note 1(D), nor anything else in the now-outdated version of Guidelines § 1B1.13, limits the district court's discretion" on a § 3582(c) motion. 976 F.3d at 237. In other words, "[t]he only statutory limit on what a court may consider to be extraordinary and compelling is that ‘[r]ehabilitation ... alone shall not be considered an extraordinary and compelling reason.’ " Id. (quoting 28 U.S.C. § 994(t) ); see also United States v. Roney , 833 F. App'x 850 (2d Cir. 2020) (summary order) ("The determination as to what constitutes extraordinary and compelling reasons warranting a reduction is committed to the sound discretion of the district court."); United States v. Rose , 837 F. App'x 72, No. 20-1669-CR (2d Cir. Feb. 25, 2021) (summary order) (emphasizing broad nature of a trial court's discretion to reduce a sentence under § 3582(c) in light of Brooker ).
"The defendant has the burden to show he is entitled to a sentence reduction." Ebbers , 432 F. Supp. 3d at 426. Accordingly, to obtain relief a defendant must show (1) he has exhausted his administrative remedies; (2) "extraordinary and compelling reasons" warrant a reduction of his sentence; (3) he is not a danger to others or to the community; and (4) a reduction would be consistent with the factors set forth in § 3553(a). See, e.g. , United States v. Rodriguez , 492 F. Supp. 3d 306, 309–10 (S.D.N.Y. Sept. 30, 2020).
III. DISCUSSION
Minicone has been in prison since his arrest on September 6, 1989, a total of 377 months. In June of 1990, a federal jury found defendant guilty of offenses under the Racketeer Influenced and Corrupt Organizations ("RICO") Act. Minicone v. United States , 353 F. Supp. 2d 316 (N.D.N.Y. 2005) (Munson, J.) (" Minicone IV ").
Minicone's conviction was "based on evidence at trial that [he] and [his] co-defendants were involved in a wide-spread criminal enterprise, centered in Utica, NY, that spanned the period between the years 1973 and 1989 and including extortion, loansharking, illegal gambling, trafficking in stolen property and murder." Minicone IV , 353 F. Supp. 2d at 317. Among other things, defendant was implicated in the 1976 murder of Al Marrone and the 1983 attempted murder of Thomas Bretti. Id. at 317.
In advance of Minicone's sentencing, the Probation Department relied on the Sentencing Guidelines to determine that defendant was subject to the statutory maximum of 480 months’ imprisonment for these crimes. United States v. Minicone , 26 F.3d 297, 299 (2d Cir. 1994) (" Minicone III "), cert. denied , Brown v. City of St Petersburg , 513 U.S. 940, 115 S.Ct. 343, 130 L.Ed.2d 299 (1994).
However, U.S. District Judge Howard G. Munson departed from this Guidelines calculation "in order to achieve sentencing parity" with Minicone's co-defendants, "who had been sentenced to terms of imprisonment of between 18 months and 240 months." Minicone III , 26 F.3d at 299. Instead of the 480-month statutory maximum, Judge Munson sentenced defendant to consecutive terms of 151 months on each count, for a total of 391 months’ imprisonment. Id. Both parties appealed. Id.
At the time, the Sentencing Guidelines—newly enacted as part of the Sentencing Reform Act of 1984—were not really "guidelines" at all: they were effectively mandatory except in limited circumstances. See, e.g. , Dillon v. United States , 560 U.S. 817, 820, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) ("As enacted, the [Sentencing Reform Act] made the Sentencing Guidelines binding.").
Thus, on January 23, 1992, a panel of the Second Circuit vacated Minicone's 391-month sentence and remanded to the district court "for the limited purpose of resentencing [defendant] in accordance with the Sentencing Guidelines." United States v. Minicone , 960 F.2d 1099, 1105 (2d Cir. 1992) (" Minicone I "), cert. denied , 503 U.S. 950, 112 S.Ct. 1511, 117 L.Ed.2d 648 (1992).
At re-sentencing, Judge Munson granted Minicone a reduction in his offense level under § 3B1.2(b) based on his determination that defendant had played only a minor role in the Marrone murder. Minicone III , 26 F.3d at 299. Judge Munson re-sentenced defendant to 379 months, one year less than the original sentence. Id. The Government appealed again. Id.
On May 21, 1993, another panel of the Second Circuit vacated Minicone's new, slightly shorter 379-month sentence. United States v. Minicone , 994 F.2d 86, 89 (2d Cir. 1993) (" Minicone II "). The Minicone II panel concluded that Judge Munson had violated the law of the case by reconsidering Minicone's role in the Marrone murder. 994 F.2d at 88-89. Accordingly, the Minicone II panel remanded to the district court "for resentencing in a manner consistent with this opinion and [the] opinion in Minicone I ." Id. at 89.
At the second re-sentencing, Judge Munson again departed downward from the Guidelines range and sentenced Minicone to 379 months. Minicone III , 26 F.3d at 300. Judge Munson reiterated that the evidence showed that defendant played only a minor role in the murder:
While he participated in the planning of the murder, unlike other defendants in this case, [defendant] did not supply the murder weapon, provide a safe house or rendezvous for after the murder and was not at the scene of the murder. Further, the trial testimony clearly established the victim in this case was a violent criminal who repeatedly threatened to kill [defendant] and others. And while [defendant's] participation in the murder ... was illegal and cannot be justified, and will be punished, it appears that his actions were in part influenced by the conduct of the victim.
Minicone III , 26 F.3d at 300. In addition, Judge Munson explained that a 379-month sentence would, inter alia , achieve parity with sentences imposed for similar crimes under New York law. Id. The Government appealed for a third time. Id.
On June 7, 1993, a third panel of the Second Circuit vacated Minicone's 379-month sentence. Minicone III , 26 F.3d at 302. The Minicone III panel held that "the district court's desire to achieve parity between the Guidelines and New York State law, benevolent as it may have been, was improper." Id. at 302. Accordingly, the Minicone III panel remanded to the district court with instructions "to impose the statutory maximum prison term of 480 months." Id. at 302.
Thereafter, Minicone was sentenced to the statutory maximum of 480 months’ imprisonment to be followed by three years of supervised release. As noted, defendant has been in custody since his arrest on September 6, 1989. He is currently incarcerated at FCI Loretto in Pennsylvania. His projected release date is in October of 2023.
Judge Munson may have lost this particular battle with the Second Circuit over the scope of his sentencing discretion, but he eventually won the war. After years of contentious litigation, the Supreme Court finally acknowledged that the Sentencing Guidelines were in fact just guidelines after all. United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Minicone contends that his advanced age, health, and other circumstances warrant his release from custody. Defendant is now 72 years of age and has been incarcerated since he was 40 years old for a crime he committed when he was just 27. During his time in prison, he has endured seven surgeries to remove cancerous skin lesions on various parts of his body. He also suffers from sciatica, high blood pressure, and possible kidney disease.
There is some dispute between the parties over which prong of § 3582(c)(1)(A) applies to Minicone's request for a sentence reduction. Defendant focuses on the age-related prong of subsection (ii), but a review of his opening brief indicates that he has sought relief under "extraordinary and compelling reasons" prong as well. In the exercise of its discretion the Court concludes that defendant has demonstrated "extraordinary and compelling reasons" that warrant a reduction. Accordingly, it need not address the second prong.
The Government responds that Minicone has failed to establish any "extraordinary" or "compelling" reasons that would justify a sentence reduction under these circumstances. The Government concedes that defendant is (a) over 65 years old and (b) has served over 75% of his sentence. However, in the Government's view, defendant has not demonstrated "that he is suffering from a serious deterioration in physical or mental health because of the aging process."
Upon review of the briefing and exhibits, Minicone's motion will be granted for substantially the reasons set forth in defendant's memoranda of law. First, defendant has sufficiently established that he exhausted his administrative remedies. See Def.’s Mem., Dkt. No. 332-1 at 2; see also Ex. A to Def.’s Mem., Dkt. No. 332-2.
Second, Minicone has demonstrated that "extraordinary and compelling reasons" warrant relief. Defendant's age at the time of his crimes, Judge Munson's prior statements about defendant's relative culpability, and the fact that he is the only co-defendant still incarcerated all weigh strongly in favor of the conclusion that the 480-month sentence should be reduced in some measure. Brooker , 976 F.3d at 238 (suggesting that a trial court may consider these factors among others when determining whether to reduce a sentence under § 3582(c) ).
Minicone's history of skin cancer, high blood pressure, and his possible kidney disease also place him at a substantially increased risk of complications from COVID-19, especially when considered in light of his advanced age. Cf. United States v. Resnick , 451 F. Supp. 3d 262, 269-70 (S.D.N.Y. 2020) (finding that defendant's "high susceptibility to COVID-19 falls within the purview of [Application Note 1(D)’s] catchall" language).
Minicone's lack of any prison discipline for over thirty years is extraordinary and remarkable. His successful participation in various rehabilitation programs also weighs strongly in favor of a sentence reduction. While rehabilitation alone does not qualify as an extraordinary and compelling reason, it may be considered as part of the more holistic analysis. Brooker , 976 F.3d at 237-38.
Third, Minicone has demonstrated that he is not a danger to others or to the community. His ill health and advanced age, when viewed in light of his spotless disciplinary record, all indicate that his release into the community will not pose a danger to anyone. Cf. Rodriguez , 492 F.Supp.3d at 312–16.
Finally, a reduction would be consistent with the sentencing factors set forth in § 3553(a). See, e.g. , United States v. Rodriguez , 492 F. Supp. 3d 306, 309–10 (S.D.N.Y. Sept. 30, 2020). As Judge Munson already concluded twice before, a sentence in the range of 30 years’ (360 months) imprisonment is "sufficient, but not greater than necessary" in light of defendant's relatively minor criminal history and the nature of the specific conduct actually attributable to defendant. Cf. id. at 316 (reducing to 30 years the term of imprisonment imposed on a defendant who directly participated in the murder of a government informant). In short, defendant has carried his burden of demonstrating his entitlement to a sentence reduction under § 3582(c).
IV. CONCLUSION
Minicone's sentence is reduced to time served, a period of 31 years and 5 months (377 months).
Therefore, it is
ORDERED that
1. Minicone's motion for relief is GRANTED; 2. Minicone's sentence is reduced to time served;
3. Minicone shall be released from custody immediately; and
4. No term of supervised release will follow.
IT IS SO ORDERED.