United States v. Gileno, No. 3:19-cr-161-(VAB)-1
Decision Date | 19 March 2020 |
Docket Number | No. 3:19-cr-161-(VAB)-1 |
Parties | UNITED STATES, Plaintiff, v. Paul GILENO, Defendant. |
Court | U.S. District Court — District of Connecticut |
Douglas P. Morabito, U.S. Attorney's Office, New Haven, CT, for Plaintiff.
RULING AND ORDER ON MOTION TO SUBSTITUTE REMAINING SENTENCE OF IMPRISONMENT WITH HOME CONFINEMENT
Paul Gileno ("Defendant") requests a modification of his sentence, to substitute the remainder of his imprisonment with home confinement. Mot., ECF No. 26 (Mar. 17, 2020) ("Def.’s Mot."). The Government opposes the Defendant's motion. Gov't Opp'n, ECF No. 27 (Mar. 17, 2020) ("Gov't Opp'n").
For the following reasons, the motion to reconsider is DENIED without prejudice.
On November 13, 2019, after pleading guilty to one count of wire fraud under 18 U.S.C. § 1343 and one count of tax evasion under 26 U.S.C. § 7201, Mr. Gileno was sentenced to one year and one day of imprisonment, two years of supervised released, a special assessment of $200.00, and restitution. Judgment, ECF No. 22 (Nov. 13, 2019). On January 15, 2020, the Court entered a restitution order requiring Mr. Gileno to pay restitution in the amount of $3,117,582.67. Restitution Order, ECF No. 25 (Jan. 15, 2020).
Mr. Gileno voluntarily surrendered and began his term of incarceration on January 6, 2020. Def.’s Mot. at 1; Judgment, ECF No. 22 (Nov. 13, 2019). He is incarcerated at the Federal Correctional Institution at Schuylkill, in Minersville, Pennsylvania. Def.’s Mot. at 1. The Bureau of Prisons (BOP) "has informed Mr. Gileno that he will be discharged to home confinement sometime in early October of 2020, taking into consideration institutional earned good time credit." Id. at 2.
On March 17, 2020, Mr. Gileno moved for a modification of his sentence, to substitute the remainder of his imprisonment with home confinement. Def.’s Mot.
On the same day, the Government filed a memorandum in opposition to Mr. Gileno's motion. Gov't Opp'n.
As of December 21, 2018, a court may modify a term of imprisonment on compassionate release grounds in two circumstances: (1) "upon motion of the Director of the Bureau of Prisons;" or (2) "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, ..." 18 U.S.C. § 3582(c)(1)(A) ; see also United States v. Gotti , No. 02 CR 743-07 (CM), 433 F.Supp.3d 613, 614 (S.D.N.Y. Jan. 15, 2020) .
Id. The Court must also find that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id.
The applicable policy statement for compassionate release is found in the U.S. Sentencing Guidelines (U.S.S.G) § 1B1.13 and Commentary. U.S.S.G. § 1B1.13 states in part:
[T]he court may reduce the term of imprisonment if ... the court determines that [e]xtraordinary and compelling reasons warrant the reduction; ... [t]he defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g) ; and [t]he reduction is consistent with this policy statement.
United States v. Lisi , No. 15 CR. 457 (KPF), 440 F.Supp.3d 246, 249 (S.D.N.Y. Feb. 24, 2020) (quoting U.S.S.G. § 1B1.13(1)(A), (2), and (3) ). While there exists a dispute among district courts as to whether a Court must still defer to the BOP's determination of what qualifies as an "extraordinary and compelling reason" to modify a sentence, a majority of district courts, including in this District, have found that courts may make that determination independently. See , e.g. , United States v. Rivernider , No. 3:10-cr-222 (RNC), 2020 WL 597393, at *3 (D. Conn. Feb. 7, 2020) (collecting cases); Lisi , 440 F.Supp.3d at 249 (collecting cases). Yet, U.S.S.G. "§ 1B1.13 ’s descriptions of ‘extraordinary and compelling reasons’ remain current," United States v. Ebbers , No. 02 Cr. 1144-3 (VEC), 432 F.Supp.3d 421, 427 (S.D.N.Y. Jan. 8, 2020), and "[t]he standards for considering the motion remain helpful as guidance to courts which hear these motions without the BOP as an intermediary," United States v. Zullo , No. 09 Cr. 0064-02, 2019 WL 7562406, at *3 (D. Vt. Sept. 23, 2019).
The Commentary to U.S.S.G. § 1B1.13 identifies "four categories of criteria for compassionate release: ‘Medical Conditions of the Defendant,’ ‘Age of the Defendant,’ ‘Family Circumstances,’ and ‘Other Reasons.’ " Rivernider , 2020 WL 597393, at *2 (quoting U.S.S.G. § 1B1.13, Commentary (1)(A)–(D)). With regard to the "other reasons" category, " ‘extraordinary and compelling reasons exist’ when, [a]s determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with," the defendant's medical conditions, age, or family circumstances. Id. at *3 (quoting U.S.S.G. § 1B1.13, Commentary (1)(D)).
In any event, "[t]he defendant has the burden to show he is entitled to a sentence reduction," Ebbers , 432 F.Supp.3d at 426 (citing United States v. Butler , 970 F.2d 1017, 1026 (2d Cir. 1992) ), and "[d]istrict courts have broad discretion in deciding whether to grant or deny a motion for a sentence reduction," see United States v. Tagliaferri , No. 13 CR. 115 (RA), 2019 WL 6307494, at *3 (S.D.N.Y. Nov. 25, 2019) (quoting United States v. Jefferson , 662 F. App'x 36, 38 (2d Cir. 2016) ).
Mr. Gileno seeks to modify his sentence by substituting the remainder of his sentence with home confinement. Def.’s Mot. He argues that he "has encountered unforeseen circumstances that have necessitated him to file this motion." Id. at 1. These include his personal physical health issues, mental health issues, and concerns about the implications of the COVID-19 pandemic for incarcerated populations. Id. at 3–8.
Mr. Gileno states that he continues to have medical issues related to his 2003 back injury, which are reflected in the Presentence Investigation Report, ECF No. 14 (Oct. 4, 2019). Def.’s Mot. at 3. He "continue[s] to experience chronic burning sensation and severe nerve pain in his left leg" and has "had reoccurring and long-lasting muscle spasms in his left leg and foot." Def.’s Mot. at 3. Mr. Gileno asserts that his "physical disability and pain has only intensified" during his two months of incarceration. Id.
Mr. Gileno also argues that his lifelong anxiety has worsened during incarceration. Id. at 3-4. He states that although he was prescribed Xanax daily for 16 years prior to his incarceration, "not just to control his anxiety, but also to cope with pain management and to help him sleep," he can the BOP allegedly does not prescribe Xanax. Id. Instead, BOP has allegedly substituted Klonopin as alternative medication, which Mr. Gileno reports causing him "negative reactions." Id. at 4. Therefore, he states that he cannot take the medication, and as a result Id.
Finally, Mr. Gileno reports further increased anxiety and family concerns as a result of "the recent developments with COVID-19, which is currently gripping our nation's attention, ..." Id. Mr. Gileno's "Counsel submits the conditions of Mr. Gileno's confinement at FCI-Schuylkill creates [sic] the ideal environment for the transmission of contagious disease," id. at 5, and Mr. Gileno contends he is at a heightened risk due to "his compromised medical condition," id. at 7, referencing his "high blood pressure, high cholesterol, asthma, and allergies," id. at 4. He also notes that his wife and young family have experienced financial constraints making it difficult for them to make the three-and-a-quarter hour car trip to visit him. Id. at 7. He argues that this situation has worsened since Mr. Gileno's wife cannot currently work to earn income because she is home caring for their children whose schools are now closed due to the coronavirus pandemic. Id. at 7-8. "Having Mr. Gileno home to care for his sons would alleviate the financial burden the family must now confront." Id.
The Government opposes Mr. Gileno's motion. The Government argues that "[n]one of the grounds asserted by the defendant are a bas[i]s for a sentence modification ...." Gov't Opp'n at 1. The Government also "notes that...
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