This is a case of a defendant who asked a judge to reconsider his motion for “compassionate release.” The defendant had originally asked for compassionate release relief because FCI Miami, the facility at which he was then housed, was experiencing a COVID-19 outbreak. The court denied the motion saying that the defendant had not shown “extraordinary and compelling reasons” for reducing his sentence.
But some time later the Defendant renewed his motion asking the court to reconsider his ruling on different grounds and citing a new case, U.S. v. Brooker, 976 F3d 228 (2d Cir. 2020), that allowed judges more leeway to consider other factors that heretofore would have been insufficient to warrant compassionate release.
One of the grounds was the failure of the BOP to transfer the defendant to Mexico as they represented to the judge that they would. This appeared to rankle the judge.
“When I learned in August of this year, [2020] that the BOP had determined in November of 2019 to transfer Defendant to a Mexican prison to serve the remainder of his sentence in Mexico, I denied his motion. What was the point to give defendant early release from a U.S. jail since the BOP was going to release him anyway?”
“Twice, though, BOP, through its own mishaps, missed the [transfer] schedule. And now Defendant sits, in quarantine, in La Tuna, an FCI, just outside of El Paso, where the corona virus rages unabated.
He further supported his granting of the motion because:
- “BOP lost defendant’s personal possessions “including his t’fillin . . .(hand made leather boxes) that are fundamental to Jewish morning prayers. . .[ T]’fillin. . . “are valuable costing several hundreds of dollars customarily given by a father or grandfather to [his son or grandson] and thereafter used and cherished.”
- “[The defendant] has not seen any member of his family in four years because the government has denied the family visas to travel to the United States.”
- “The deprivations have left him physically and emotionally ill.”
U.S. v. Brooker, 976 F3d 228 (2d Cir. 2020,) justified his decision. The appellate court found that the First Step Act, enabled district courts to consider a “full slate of reasons” to constitute extraordinary and compelling circumstances”.
The judge pointed to the case of United States v. Hasanoff, as further proof of this:
“Mr. Hasanoff had served approximately seven years of an 18-year sentence. His mother became seriously sick and needed care, and defendant showed significant rehabilitation, all of which justified compassionate release. These grounds, i.e. sick mother and significant rehabilitation would never have warranted “compassionate” release defendants in the past.
Epilogue
The defendant was freed. Not only did the judge grant the motion, he ordered the Warden in La Tuna to release him on a specific date, and at a certain time, into the custody of a specific person, i.e., the Director of ICE; then he ordered the Director of ICE, “to promptly bring him across the border to Mexican immigration authorities in Juarez Mexico” directing the prosecutor to “report to the Court promptly upon the defendant’s release and transfer to Mexican immigration authorities in Juarez Mexico.”
It warms your heart to read an opinion like this. This opinion puts real meat on the bones of the “full slate of reasons” referred to in U.S. v. Brooker, 976 F3d 228 (2d Cir. 2020).
Let the word go out: There is no bona fide reason that should not be included in a motion for compassionate release. The more reasons the better.
David Zapp & Johanna Zapp