Opinion
Case No.: 17-CR-01352-W
01-29-2021
UNITED STATES OF AMERICA, Plaintiff, v. JOSE EDUARDO VIGNONI, Defendant.
ORDER DENYING MOTION TO REDUCE SENTENCE [Doc. 49]
On December 18, 2017 this Court sentenced Defendant Jose Eduardo Vignoni to eighty-four months imprisonment and three years supervised release for conspiracy to import methamphetamine in violation of 21 U.S.C. §§ 952, 960, and 963. Defendant now moves for a reduction in sentence under 18 U.S.C. § 3582(c), arguing (1) that the First Step Act of 2018 created a sentencing disparity between his sentence and the sentence a similarly situated defendant would receive today and (2) that his health conditions make him particularly susceptible to becoming severely ill if re-infected by COVID-19.
18 U.S.C. § 3582(c) provides that a defendant may bring a motion only after he has "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons" to bring a motion on his behalf. Defendant has satisfied the exhaustion requirement and the Court has jurisdiction and for the reasons below DENIES Defendant's motion.
Under 18 U.S.C. § 3582(c)(1)(A), a court may reduce a defendant's term of imprisonment "after considering the factors set forth in [18 U.S.C. § 3553(a)]" if the court finds that "extraordinary and compelling reasons warrant such a reduction" and "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The United States Sentencing Commission ("USSG") recognizes that certain medical conditions may constitute an "extraordinary and compelling reason" warranting a reduction in sentenced under § 3582. See USSG § 1B1.13. However, application note 1(A) limits a reduction for medical conditions to "terminal illness" or if 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,
U.S.S.G. § 1B1.13, cmt. n.1(A)(i)-(ii).
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.
Defendant's medical ailments do not meet these limitations. Defendant, by his declaration, asserts a history of bronchitis, asthma, pneumonia, ulcers, smoking and high blood pressure. There is no evidence those conditions are not being professionally managed. Defendant's medical records do not reflect a diagnosis of hypertension. Ordinary hypertension (high blood pressure) is not one of the conditions identified by the CDC as increasing a person's risk for developing serious illness from COVID-19.
The potential to contract COVID-19, which threatens every non-immune person in the country, does not constitute an "extraordinary and compelling" reason warranting a reduction in sentence under 18 U.S.C. § 3582(c). This is especially true for a person, such as Defendant, who has previously contracted and recovered from COVID-19.
The Court agrees with Defendant that it can consider factors outside of those articulated in the Sentencing Commission's policy statement in deciding his motion to reduce sentence. However, the Court is not persuaded that the "extraordinary and compelling" standard can be satisfied by claims of legal error which can be addressed by habeas petition. See United States v. Lisi, 440 F. Supp. 3d 246, 251 (S.D.N.Y. 2020) (finding "that it would be both improper and inconsistent with the First Step Act to allow Lisi to use 18 U.S.C. § 3582(c)(1)(A) as a vehicle for claiming legal wrongs, instead of following the normal methods of a direct appeal or a habeas petition"). While the First Step Act allowed certain defendants with more than one Criminal History Point to qualify for Safety Valve and avoid a mandatory minimum sentence, Congress did not make that change retroactive. Here, the Defendant received a sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e). His sentence is 36 months below the mandatory minimum for his offense of conviction, which is 120 months. Defendant also has two drug trafficking convictions. Drug traffickers, especially repeat drug traffickers, present a danger to the public.
Based on the foregoing, Defendant is not eligible for a sentence reduction due to extraordinary and compelling reasons. Defendant's motion to reduce sentence [Doc. 49] is DENIED.
IT IS SO ORDERED. Dated: January 29, 2021
/s/_________
Hon. Thomas J. Whelan
United States District Judge