United States v. Brizuela

• Decision Date: 01 November 2019
• Docket Number: CRIMINAL NO. 1:18CR1-1
• Court: U.S. District Court — Northern District of West Virginia
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. FELIX A. BRIZUELA, JR., Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. FELIX A. BRIZUELA, JR., Defendant.

CRIMINAL NO. 1:18CR1-1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

November 1, 2019

(Judge Keeley)

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR BOND PENDING APPEAL [DKT. NO. 410]

On October 28, 2019, the defendant, Felix A. Brizuela, Jr. ("Brizuela"), moved for release on bond pending appeal of his conviction and sentence (Dkt. No. 410). Because he is currently scheduled to report to the Bureau of Prisons to begin serving his sentence on November 2, 2019 (Dkt. No. 384), the Court directed the Government to respond to the motion by October 30, 2019 (Dkt. No. 413). Brizuela filed his reply the next day (Dkt. No. 425). After careful review of the parties' arguments, the Court finds that Brizuela has failed to satisfy the requirements of 18 U.S.C. § 3145(c) and DENIES his motion (Dkt. No. 410).

I. BACKGROUND

On January 14, 2017, a jury convicted Brizuela of 15 counts of distribution of controlled substances outside the bounds of professional medical practice in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Dkt. Nos. 161, 163).¹ On September 3, 2019, the Court sentenced him to 48 months of imprisonment followed by 3 years of supervised release as to all 15 counts, those sentences to be served concurrently (Dkt. Nos. 380, 384). Brizuela timely filed his notice of appeal later that same day (Dkt. No. 386).

II. LEGAL STANDARD

Under 18 U.S.C. § 3145(c), a defendant subject to detention under § 3143(b)(2) may be released during the pendency of his appeal if (1) he satisfies the conditions of § 3143(b)(1) and (2) "it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate."

Under 18 U.S.C. § 3143(b)(1), a defendant "who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal . . . ," shall be detained, unless the court finds (A) by clear and convincing evidence that the defendantdoes not pose a flight risk or a danger to the community if released, and

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in--

(I) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

In the Fourth Circuit, a "substantial question of law or fact" is one that presents a "'close question or one that very well could be decided the other way.'" United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985) (internal quotation marks omitted)).

III. DISCUSSION

Brizuela contends that (1) there are exceptional reasons that warrant his release, (2) he is not a flight risk or danger to the community, and (3) his appeal raises substantial questions of law and fact that likely will require a new trial (Dkt. No. 411 at 3-13). Because exceptional reasons do not warrant his continued release, and because his appeal does not raise a substantialquestion of law or fact, the Court concludes that Brizuela has failed to satisfy the requirements of § 3145(c).

A. There are no "exceptional reasons" warranting Brizuela's release pending the outcome of his appeal.

Section 3145(c) provides, in relevant part, as follows:

A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.²

18 U.S.C. § 3145(c) (emphasis added) (footnote added). Thus, Congress has limited relief under § 3145(c) to defendants who (1) are subject to detention under §§ 3143(a)(2) or (b)(2); (2) meet the conditions of §§ 3143(a)(1) or (b)(1); and (3) clearly show that exceptional reasons exist warranting their release on appeal. Id.

Here, Brizuela is subject to mandatory detention under § 3143(b)(2) because he has been found guilty of a controlled substances offense described in subparagraph 18 U.S.C.§ 3142(f)(1)(C) (Dkt. No. 163), has been sentenced to a term of imprisonment (Dkt. No. 384), and has filed an appeal (Dkt. No. 386). 18 U.S.C. § 3143(b)(2). Therefore, he may only be released under § 3145(c) if he satisfies the conditions of § 3143(b)(1) and "it is clearly shown that there are exceptional reasons why [his] detention would not be appropriate." 18 U.S.C. § 3145(c); see also United States v. Cropper, 361 F. Supp. 3d 1236, 1243 (N.D. Ala. 2019) (listing three elements of § 3145(c)).

Brizuela posits that he meets the "exceptional reasons" condition because he needs elbow and knee surgeries and is the primary caregiver for his autistic son (Dkt. No. 411 at 3-6). Although the Fourth Circuit has not yet considered what constitutes "exceptional reasons" under § 3145(c), other "[c]ourts generally have defined 'exceptional reasons' as circumstances which are 'clearly out of the ordinary, uncommon, or rare.'" United States v. Vilaiphone, No. 3:08cr232, 2009 WL 412958, at *2 (W.D.N.C. Feb. 18, 2009) (quoting United States v. Larue, 478 F.3d 924, 925 (8th Cir. 2007)) (citing United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004)).

"[W]hile the Court is cognizant of the hardships that [Brizuela]'s detention will create for [him and] his immediate family, such hardships are common to nearly every case involving aterm of imprisonment and thus do not qualify as 'exceptional reasons' under § 3145(c)." Vilaiphone, 2009 WL 412958, at *2 (citing United States v. Garcia, 340 F.3d 1013, 1022 (9th Cir. 2003) ("Hardships that commonly result from imprisonment do not meet the standard.")); see also United United States v. Tobacco, 150 F. Supp. 3d 1051, 1054 (D.S.D. 2015) ("Personal reasons, such as caring for family members, being gainfully employed, and caring for young children with unique health problems are not extraordinary reasons."); States v. Sabhnani, 529 F. Supp. 2d 377, 382 (E.D.N.Y. 2007) ("Incarceration always is associated with severe familial inconvenience.").

Unfortunately, many families grapple with difficult childcare issues and financial circumstances when a parent is incarcerated. Cf. United States v. Rodriguez, 50 F. Supp. 2d 717, 722 (N.D. Ohio 1999) (concluding financial family hardship was not an exceptional reason under § 3145(c)). Similarly, many defendants require medical treatment during the course of their incarceration. The need for surgery thus is not exceptional. See Rodriguez, 50 F. Supp. 2d at 722 (concluding that the need for medical attention was not an exceptional reason under § 3145(c)); United States v. Carlson, No. CR17-5188RBL, 2019 WL 2140582, at *3 (W.D. Wash. May 16, 2019) (concluding that the defendant's health, including his need for hipreplacement surgery, was not an exceptional reason under § 3145(c)).

This is especially so where, as here, Brizuela's surgeries have not been scheduled and, based on the filings supporting his motion, apparently cannot be scheduled until, at the earliest, sometime in 2020 (Dkt. No. 411 at 3-4). Moreover, as the Government correctly pointed out in its response (Dkt. No. 424 at 1-2), the Court explicitly took Brizuela's health and serious family circumstances into account when it varied to a sentence of 48 months of imprisonment, a significant downward variance from his applicable guideline range of 78 to 97 months (Dkt. Nos. 380, 384, 385). It did so after considering Brizuela's health and family circumstances and concluding that they did not outweigh the need for a sentence of incarceration in this case (Dkt. No. 423 at 34-39).

Brizuela insists that his health has changed since his sentencing in September, and that the Court did not previously consider his health in the context of a motion for bond pending appeal (Dkt. No. 425 at 1-2). Now, he "imminently requires surgery to avoid increasing and lasting damage to his elbow and leg." Id. at 2. But this change does not make Brizuela's needs exceptional. Regardless of whether he begins serving his sentence, or is on bondpending appeal, Brizuela cannot schedule his surgeries until, at the earliest, sometime in 2020. The only question is whether the BOP can provide that care when, and if, his heart is strong enough for surgery. Although Brizuela questions the BOP's capacity (Dkt. No. 411 at 4 n.2), he does not argue, nor has he established, that the BOP cannot provide him with the necessary medical care while incarcerated.

In conclusion, Brizuela has failed to clearly show that "exceptional reasons" exist that warrant his release on bond pending appeal. 18 U.S.C. § 3145(c).

B. Brizuela's appeal does not present substantial questions of law or fact.

Even had Brizuela established exceptional reasons under § 3145(c), he is nevertheless not entitled to remain on bond pending his appeal because, although he is not a flight risk or a danger to the community, his appeal does not present a substantial question of law or fact under § 3143(b)(1). 18 U.S.C. § 3145(c).

1. The Court did not err by prohibiting Brizuela from testifying as his own expert witness.

Brizuela contends "that he was improperly denied the right to testify as an expert on medical issues relevant to neurology, given his years of medical expertise in that precise area" (Dkt. No. 411 at 7). He contends this is a substantial question of law because,if the Fourth Circuit accepts his contention, it will reverse his convictions and order a new trial. Id. at 8-9. This claim is unavailing for three reasons.

In the first place, Brizuela does not have a right, constitutional or otherwise, to testify as an expert witness in his own criminal case. Tellingly, he has not cited—nor has this Court found—any case where, in...