United States v. Bolatete
| Decision Date | 15 April 2021 |
| Docket Number | Case No.: 3:17-cr-240-HES-JBT |
| Parties | UNITED STATES OF AMERICA v. BERNANDINO GAWALA BOLATETE |
| Court | U.S. District Court — Middle District of Florida |
Before the Court is Defendant Bernandino Gawala Bolatete's Motion for Compassionate Release (Doc. 103 (Motion); Doc. 103-1 through 103-3 (Movant's Exhibits)), which he filed through counsel. The United States has responded in opposition. (Doc. 106, Response). Bolatete has filed a reply brief. (Doc. 107, Reply).
Bolatete is a 72-year-old inmate incarcerated at Lexington FMC, serving a 60-month prison sentence for one count of receiving or possessing an unregistered firearm silencer. (See Doc. 82, Judgment). According to the Bureau of Prisons (BOP), he is scheduled to be released from prison fewer than 11 months from now, on March 5, 2022. Bolatete seeks early release under the compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), because of the Covid-19 pandemic, his advanced age, and because he suffers from various health problems. Among Bolatete's underlying conditions are vascular dementia, chronic kidney disease, chronic obstructive pulmonary disease (COPD), type 2 diabetes, coronary artery disease (CAD), and hypertension. Bolatete contracted and recovered from Covid-19 in May 2020, and he has since received both doses of the Moderna Covid-19 vaccine. However, he suffered a stroke in late September 2020, and as a result, he suffers from memory loss and impaired cognition. The United States opposes the Motion because it contends that Bolatete has not demonstrated "extraordinary and compelling" circumstances and that the sentencing factors under 18 U.S.C. § 3553(a) do not support a reduction in sentence. The United States argues that Bolatete's conditions are well-managed and do not fully prevent him from providing self-care.
The Court has carefully considered each of the parties' arguments and exhibits, including Bolatete's medical records. For the reasons below, the Motion is due to be granted.
Ordinarily, a district court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). However, compassionate release provides an exception to that general rule. Before passage of the First Step Act of 2018, section 3582(c)(1)(A) left it to the sole discretion of the BOP Director whether to move for compassionate release, and the Director's refusal to do so was judicially unreviewable. See Cruz-Pagan v. Warden, FCC Coleman Low, 486 F. App'x 77, 79 (11th Cir. 2012). But in 2013, the Office of Inspector General for the Department of Justice reported that "[t]he BOP does not properlymanage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered." Dep't of Justice, Office of the Inspector General, The Federal Bureau of Prisons' Compassionate Release Program (April 2013), at 11, available at https://oig.justice.gov/reports/2013/e1306.pdf.
Perhaps in response to the BOP's failure to properly manage the compassionate release program, Congress devoted part of the First Step Act to "increasing the use and transparency of compassionate release." First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), § 603(b). As a result of the new law, defendants may now move for compassionate release on their own behalf provided that they first satisfy an exhaustion requirement. Section 3582(c)(1)(A), as amended by the First Step Act, now provides:
(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 ... 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).
Pursuant to its authority under 18 U.S.C. § 3582(c) and 28 U.S.C. § 994, the United States Sentencing Commission promulgated a policy statement governing the circumstances when compassionate release is appropriate. See U.S.S.G. § 1B1.13. The policy statement provides:
U.S.S.G. § 1B1.13. The Sentencing Commission has not updated the policy statement since the passage of the First Step Act.
The guideline's commentary provides that "extraordinary and compelling reasons" for compassionate release may exist based on the defendant's medical condition, age, family circumstances, or "other reasons." U.S.S.G. § 1B1.13, cmt. 1. As relevant here, these circumstances include:
When a defendant moves for compassionate release on his own behalf, the compassionate release statute contains an exhaustion requirement. A district court can reduce the term of imprisonment "upon motion of the defendant" only "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." 18 U.S.C. § 3582(c)(1)(A) (emphasis added). As the Sixth Circuit Court of Appeals has held, "[p]risoners who seek compassionate release have the option to take their claim to federal court within 30 days [of submitting a request to the warden], no matter the appeals available to them." United States v. Alam, 960 F.3d 831, 834 (6th Cir. 2020); accord United States v. Smith, 482 F. Supp. 3d 1218, 1222-24 (M.D. Fla. 2020).
The United States concedes that the Court may consider Bolatete's Motion for Compassionate Release, Response at 7 n.3, and the Court agrees. Bolatete submitted a request for compassionate release to the warden of his facility on January 22, 2021. The warden denied the request on February 12, 2021. On March 25, 2021, more than 30 days after submitting his request to the warden, Bolatete filed the instant Motion. As such, Bolatete has satisfied § 3582(c)(1)(A)'s 30-day exhaustion alternative.
The Court finds that Bolatete has demonstrated "extraordinary and compelling reasons" for compassionate release under 18 U.S.C. § 3582(c)(1)(A). As noted before, a defendant demonstrates the existence of extraordinary and compelling circumstances if he or she is suffering from "a serious physical or medical condition," "a serious functional or cognitive impairment," or is "experiencing deteriorating physical or mental health because of the aging process," where the condition "substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility" and it is one "from which he or she is not expected to recover." U.S.S.G. § 1B1.13, cmt. 1(A)(ii). Bolatete's status meets that standard, even putting aside the Covid-19 pandemic.
The medical records demonstrate - and the parties do not dispute - that Bolatete suffers from a number of chronic conditions. (See Doc. 103-2, Bolatete's Medical Records; Doc. 106-1, Supplemental Medical Records). Bolatete, who is 72 years old, suffers from Stage III or Stage IV chronic kidney disease, COPD, coronary artery disease, Type 2 diabetes, age-related cataracts, glaucoma, and hypertension, among other things. (Doc. 103-2 at 4, 6-7, 21). He has a history of myocardial infarction (heart attack) and he has one kidney. (Id.). He is prescribed a laundry list of medications to manage his conditions. (Id. at 4-5, 13-16).
Adding to these ailments, Bolatete is diagnosed with vascular dementia, the result of a serious stroke he suffered in late September 2020. (See id. at 54-59; see also Doc. 106-1). On September 27, 2020, Bolatete presented to the...
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