United States v. Enriquez
| Decision Date | 24 August 2021 |
| Docket Number | 3:17-cr-03293-BEN-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ELPIDIO ENRIQUEZ, Defendant. |
| Court | U.S. District Court — Southern District of California |
ORDER DENYING DEFENDANT'S MOTION TO REDUCE SENTENCE UNDER THE FIRST STEP ACT, 18 U.S.C. § 3582(c)(1)(A)(i)
Before the Court are Defendant Elpidio Enriquez's (“Defendant”) two Motions to Reduced Sentence Under the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), due to his cancer diagnosis. ECF Nos. 66, 73. For the reasons discussed below, the Court DENIES Defendant's Motions.
A. Statement of Facts
On September 17, 2002, a U.S. Naval helicopter spotted a “go fast” vessel, [1] which upon being spotted, fled at a high rate of speed and threw bales of cocaine and an antenna overboard. Pre-Sentence Report, ECF No. 33 (“PSR”) at 11; see also Opposition to Motion to Reduce Sentence, ECF No. 70 (“Oppo.”) at 6:17-24. Eventually, the vessel yielded to commands, Defendant was identified as one of the crew members, and the vessel was discovered to contain approximately 1, 586 kilograms of cocaine, being transported from Colombia to Guatemala. PSR at 11.
On a prior occasion in May 2003, Defendant pled guilty to Count 1, conspiracy to possess with intent to deliver 5 kilograms or more of cocaine while aboard a vessel, 46 U.S.C. §§ 1903(a), (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), in exchange for the Government's dismissal of Count 2 for possession with intent to distribute 5 kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the U.S. Drug Enforcement Administration, 46 U.S.C. §§ 1903(a), (g), and (j)[2] and 21 U.S.C. § 960(b)(1)(B)(ii), and was sentenced to imprisonment for 135 months and a term of supervised release for 36 months. United States of America v. Enriquez, et al., 8:02-cr-00370-JSM-E-J-1, ECF Nos. 63, 77, 78; see also PSR at 10-11; see also Oppo. at 6:22-7:1. On July 6, 2012, when his supervised released was to commence, Defendant was released to immigration and deported. PSR at 10; Oppo. at 7:1-2. On July 5, 2015, his supervised release expired. Id.
On September 17, 2017, a little less than five (5) years after Defendant's release from custody, a United States (“U.S.”) Marine Patrol Aircraft identified several vessels approximately 125 nautical miles south of the Mexico/Guatemala border, traveling in the vicinity of the U.S. Coast Guard Cutter (“USCGC”) James I. PSR at 4; see also ECF No. 70 at 5:14-17. One of these vessels, a low-profile vessel (“LPV”), [3] carrying Defendant and two other individuals, Laureano Benitez-Montano and Jorge Ortiz-Salazar, was rendezvousing with several panga-style vessels to unload the drugs.[4] PSR at 5. Upon being spotted, Defendant's LPV did not flee. PSR at 4-5; see also Case No. 3:17-cr-03328-BEN USA, ECF No. 47. The USCGC dispatched a small boat to board and inspect the LPV and discovered 12 bales on board, amounting to 547 kilograms, which tested positive for cocaine. Id. at 4-5. Upon being interviewed, Defendant stated that he was recruited to transport 23 sacks of drugs from Colombia to Guatemala. Id. at 4.
On October 11, 2017, the grand jury issued an indictment, charging Defendant with two counts: Count 1, conspiracy to distribute cocaine on board a vessel, 46 U.S.C. §§ 70503 and 70506(b), and Count 2, knowingly and intentionally possessing, with intent to distribute, approximately 600 kilograms of cocaine, 46 U.S.C. § 70503, and aiding and abetting while on board a vessel, 18 U.S.C. § 2. ECF No. 1.
On January 23, 2018, Defendant agreed to enter a guilty plea. ECF No. 25. That same day, Defendant signed a written plea agreement, pursuant to which he agreed to plead guilty to Count 2 of the Indictment in exchange for the Government's agreement to (1) “not . . . charge him with an enhanced penalty for the instant offense pursuant to 21 U.S.C. § 851, which under the facts of this case, carries a 20-year mandatory minimum sentence” and (2) “dismiss Count 1 of the underlying indictment without prejudice after Defendant is sentenced.” ECF No. 26 at 2.
On January 29, 2018, Magistrate Judge William Gallo issued his Findings and Recommendation that the Court accept Defendant's guilty plea. ECF No. 29. On March 5, 2018, after no objections were received, this Court accepted Judge Gallo's Findings and Recommendation and Defendant's plea of guilty. ECF No. 31. At the sentencing hearing, the Government recommended a sentence of 120 months in custody. ECF No. 46. Defendant requested a sentence of 120 months in custody and three years of supervised release, ECF No. 47. Based on Defendant's total offense level of 37 and a Criminal History Category II, the guideline range was 235 months to 293 months. PSR at 13.
On July 31, 2018, this Court sentenced Defendant to 180 months (15 years) in prison and 10 years of supervised release. ECF No. 57. During the sentencing hearing, the Court noted that had the Government filed an information pursuant to 18 U.S.C. § 851, the mandatory minimum sentence would have been twenty years (240 months). ECF No. 60 at 5:10-17. The Court calculated Defendant's adjusted offense level as 36, carrying a guideline sentence of 210 months to 260 months. Id. at 19:16-20:15. “After considering the 3553(a) factors, ” the Court varied below the guidelines range and found “a sentence of 180 months [was] reasonable and sufficient but not greater than necessary.” Id. at 20:20-24.
On October 16, 2019, a little over a year after his sentencing, Defendant was seen by urology and was scheduled for an urgent prostatectomy. Exhibit “E” to Motion, ECF No. 67 at 31, 54; see also Oppo. at 7:4. On December 10, 2019, Defendant underwent a robotic assisted prostatectomy, designed to remove his prostate gland and cancer.[5] See Exhibit “E” to Motion, ECF No. 67 (“Ex. E”) at 9, 14, 41; Oppo. at 7:4-5.
Defendant's post-operative pathology reports show a prostatic adenocarcinoma involving the right and left halves of the prostate, with a Gleason Score of 6 (3+3), [6]extending down to and involving the right and left anterior regions of the apex of the appendix. See Exhibit “E” to Motion, ECF No. 67 at 41-42; but see Id. at 45 ( the Operative Report, that his Gleason's Score was 4+7). His post-operative medical records also confirm the specimens from his removed prostate showed a tumor that was invasive beyond the capsule, making the extent of the tumor T3, [7] see Ex. E at 41, 48, meaning his cancer was Stage IIIB, see https://www.cancer.org/cancer/prostate-cancer/detection-diagnosis-staging/staging.html. Further, his pre-operative PSA level was 9.5, and his cancer was present in 3 of 12 cores biopsied. Ex. E at 28-29. His post-operative PSA increased from 0.27 on March 20, 2020, to 0.32 on April 20, 2020, to 0.42 on August 20, 65 years” and “accounts for 14% of all cancers, 27.5% of all male cancers (65, 000 cases per year) and 51% of all genitourinary cancers.” Brutman, Betty M.D., J.D., 6 Attorneys Medical Advisor, § 57:49, (April 2021 Update). That being said, it “is the second leading cause of cancer deaths among males, ” accounting “for 10% of cancers deaths in men” during 2013. Id. “Although the 5-year survival with prostate cancer was 69% in the mid-1970s, virtually no one dies of prostate cancer within 5 years in current times.” Id. 6 “For adenocarcinomas, the degree of differentiation has prognostic significance and pathologists judge biopsy specimens using the Gleason grading system, which assesses the architectural details of malignant glands under low to medium magnification.” Brenner, Dean E., Lippman, Scott M., Cancer: Prin. and Pract. of Oncology (Lippincott, Williams, 2020, indicating the prostatectomy was not entirely successful and residual cancer remained. Ex. E at 22- 24; see also Oppo. at 7:5-6 ().
James J. Stark, M.D., F.A.C.P. (“Dr. Stark”) has opined that Defendant's recurrent cancer has been treated through medications, like Lupron, designed to attempt to keep his cancer under control. Oppo. at 7:6-8. Currently, this treatment is working, and “his PSA is falling, ” but “[t]ypically[, ] at some point the Lupron he is getting stops working and the PSA continues to rise.” ECF No. 66-1 at 4; see also Oppo. at 7:8-9. However, Defendant's medical records show that he has continued to receive medical care for his ongoing medical issues related to his prostate cancer. Oppo. at 7:9-13.
On August 3, 2020, Defendant submitted his first request for a reduction in his sentence. Exhibit “C” to Motion, Exhaustion Documents, ECF No. 66-1 at 8-13. On August 6, 2020, he submitted another request to the warden. Id. at 14. On September 3, 2020, the warden responded, denying his request. Id. at 15.
On November 30, 2020, Defendant filed his Motion to Reduce Sentence Under the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), seeking a reduction in his sentence to either (1) time served or (2) 120 months. Motion, ECF No. 66 (“Mot.”) at 4.
On December 14, 2020, this Court issued an Order setting a briefing schedule related to Defendant's Motion. Order, ECF No. 68. In its order, the Court requested briefing on “whether, if the Court considered Defendant's request to qualify as extraordinary and compelling reasons to reduce the sentence, the Court has the authority to (1) reduce a sentence pursuant to Section 3582(c)(1) where the defendant has not yet served the time required under the statutory mandatory minimum and (2) reduce or eliminate the statutorily required period of supervised release in order to allow Defendant to return to his home country of [Colombia], as he requests.” Id.
On December 21, 2020, Defendant received...
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