United States v. Herrera
| Docket Number | 17Cr. 415 (PAC) |
| Decision Date | 24 May 2023 |
| Parties | UNITED STATES OF AMERICA v. KARILIE HERRERA, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Past the midway point of her 120-month sentence for conspiracy to commit Hobbs Act robbery, Karilie Herrera seeks a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). At the heart of her motion are several post-sentencing developments that she argues constitute extraordinary and compelling circumstances warranting a reduced sentence of time served. Those circumstances include, inter alia, (1) the vacatur and dismissal of the conviction that supplied many of her criminal history points at sentencing, and (2) the Bureau of Prison (“BOP”)'s failure to provide adequate mental health treatment following Herrera's persistent sexual abuse by one of the BOP's own.
The Court finds that extraordinary and compelling circumstances warrant relief in this exceptional case, and that the sentencing factors set forth in 18 U.S.C. § 3553(a) are not inconsistent with a sentence of time served. Accordingly Herrera's motion is GRANTED.
In February 2019, Herrera pled guilty to one count of conspiracy to commit Hobbs Act robbery stemming from her involvement in a 2008 hold-up. During the course of that robbery, the target of the robbery conspiracy was shot and killed by one of Herrera's co-conspirators (who remains unidentified and at large). The Government concedes that Herrera, who was 17 years old at the time, “did not intend that death.” (Gov't Opp'n. at 1, ECF No. 77.)
In November 2019, the Court sentenced Herrera to 120 months' imprisonment, plus three years' supervised release. (See ECF No. 62.) This was a sizable downward variance from the advisory sentence of 240 months, a statutory maximum that was itself a significant downward departure from the 360-months-to-life advisory Guidelines range that would have otherwise applied based on Herrera's offense level and criminal history category. Those inputs were supplied by the plea agreement, which stipulated an offense level of 40-incorporating a three-level acceptance of responsibility reduction from the applicable base offense level of 43-and a criminal history category of IV. Of Herrera's seven underlying criminal history points, three derived from a 2017 second-degree assault conviction in New York state court that carried a six-year prison sentence, which Herrera has now served in full. (See Probation Mem. at 2.)[1]Pursuant to U.S.S.G. § 5G1.3, the sentence this Court imposed has run concurrently to that state sentence, as of her July 5, 2017, federal arrest in this case. (See Sent'g Tr. at 31:3; ECF No. 64.)
The Court justified imposing a below-Guidelines sentence on several grounds. As an initial matter, it recognized that the plea agreement had used U.S.S.G. § 2A1.1-providing a base offense level of 43 for first-degree murder-as its starting point. Notwithstanding the parties' agreement on this matter, which was not binding on the Court, the Court deemed a base offense level of 29-as prescribed for voluntary manslaughter[2] under § 2A1.3-to be “closer to what is an appropriate sentence” for Herrera's actual conduct in this case. (Sent'g Tr. at 30:1131:1.) The Court also emphasized that Herrera was only 17 years old at the time of the offense, and that she had suffered “almost a lifetime of abuse” up to that point. (Id. at 28:19-24.) Finally, the Court relied on a mitigation report submitted prior to sentencing, which documented, among other things, how a BOP corrections officer repeatedly sexually abused Herrera throughout her time at MCC. (See id. at 28:7-8; Def.'s Sent'g Mem., Ex. A at 14-16, ECF No. 60.)
Synthetizing these mitigating factors with the seriousness of the crime at issue and Herrera's criminal history, which it deemed a “serious factor” (Sent'g Tr. at 29:24-30:1), the Court imposed a 120-month term of imprisonment, plus three years' supervised release.
The Court also sentenced the two other co-conspirators who were identified and arrested in this matter, Like Herrera, neither co-conspirator was the actual shooter.
The first co-conspirator also pled guilty to conspiracy to commit Hobbs Act robbery, along with four other counts, and received a sentence of time served (after being detained for roughly three years) plus three years' supervised release. The Court recently terminated supervised release after only 22 months. Like Herrera, this co-conspirator was under the age of 18 at the time of the offense.
The Court also sentenced a second co-conspirator, whose role in the robbery the Government described as “equal” (Sent'g Tr. at 18:9-13) to Herrera's. This second co- conspirator also pled guilty to conspiracy to commit Hobbs Act robbery, along with several additional counts, including murder through the use of a firearm. With a criminal history category of III, this co-conspirator received a 70-month term of imprisonment, plus five years' supervised release, after the Government submitted a §5K1.1 letter on the co-conspirator's behalf.
We turn now to relevant events which have occurred subsequent to Herrera's sentencing. The New York State conviction that wielded the single greatest impact on her criminal history score is no longer on the books. In February 2021, the First Department vacated Herrera's 2017 second-degree assault conviction based on the trial court's failure to properly instruct the jury regarding Herrera's justification (i.e., self-defense) defense. People v. Herrera, 142 N.Y.S.3d 59, 60 (N.Y.App.Div. 1st Dep't 2021), leave to appeal denied, 170 N.E.3d 403 (N.Y. 2021). The case was subsequently dismissed. (See Cardi Ltr. Ex. at 1, ECF No. 83.) Without this three-point conviction, Herrera's criminal history score at sentencing would have totaled four points rather than seven points, bringing her criminal history from category IV to category III. (See Probation Mem. at 2.)
Although the repeated sexual abuse[3] by an MCC corrections officer occurred before Herrera's sentencing-and the Court was aware of it prior to rendering judgment-several related post-sentencing developments invite further review. First, the officer in question has now pled guilty to abusive sexual contact and deprivation of rights under color of law; in December 2020, he was sentenced to 40 months' imprisonment for preying on seven different women under his care at MCC.[4] See United States v. Akparanta, No. 19-cr-00363 (LGS) (S.D.N.Y. Dec. 8, 2020), ECF No. 60. And although the parties quibbled at sentencing over the extent of Herrera's cooperation in the officer's criminal proceedings, the Probation Department's updated report clarifies that Herrera was “instrumental in the investigation and prosecution” of this officer. (Probation Mem. at 2.)
Second, Herrera's requests at multiple BOP facilities for treatment to address the effects of this abuse have been either ignored or inadequately addressed. According to the Probation Department, Herrera was evaluated by Dr. Julie C. Medlin, director of the Medlin Center, “to assess any psychological damage caused to her by the sexual abuse of the corrections officer.” (Probation Mem. at 2.) Herrera's diagnosed symptoms stemming from the MCC abuse included anxious arousal, depression, post-traumatic stress disorder (“PSTD”), defense avoidance, sexual disturbance, and insecure attachment. (Id.) Dr. Medlin recommended Herrera “attend trauma focused behavior cognitive therapy, sexual assault survivor's therapy (group) and that she consult with a psychiatrist for medication needed for depression and difficulty with sleep.” (Id. at 3.)
The BOP, despite bearing responsibility for Herrera's sexual abuse by one of its staff, has provided very little, if any, of this recommended treatment. The Probation Department reports that Herrera “was not provided with mental or emotional health treatment” at all while incarcerated at MCC or MDC. (Id.) Since arriving at FCI Danbury, she has received a single psychiatric screening and been provided with three medications, but “nothing further.” (Id. at 3.) .
Although she has reported that these medications do not reduce her symptoms and has requested further treatment, but FCI Danbury has yet to provide any. (Id.)
As of May 24, 2023, the BOP projects Herrera's release date to be April 25, 2025. Inmate Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited May 24, 2023). The BOP calculates that she began serving her federal sentence on November 20, 2019 (the date this Court sentenced her). (See June 17, 2022, Data Sheet.)[5] In accordance with the Court's order that Herrera's federal sentence run concurrently with her state sentence as of the date of her federal arrest, July 5, 2017, the BOP also credits Herrera for roughly 28.5 months between that date and November 20, 2019, during which time she was also serving the now-dismissed state assault conviction. (See id.) All of this is properly incorporated into the BOP's calculation of Herrera's time served for the sentence this Court imposed.
Once imposed, a district court must leave a term of imprisonment undisturbed, subject to “limited” exceptions. United States v. Maldonado, No. 16-CR-285 (CM), 2021 WL 639069, at*l (S.D.N.Y. Feb. 17, 2021). At issue here is the so-called “Compassionate Release” exception codified at 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act of 2018, Section 603(b), Pub. L. No. 115-391, 132 Stat. 5194. This...
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