Texas Cases January 24, 2021: United States v. Jaramillo

Case Description

MEMORANDUM AND ORDER

Pending before the court is Defendant Jesus Jaramillo's ("Jaramillo") Emergency Motion for Release to Monitored Home Confinement (#315), wherein he requests that the court grant him home confinement due to the threat of Coronavirus Disease 2019 ("COVID-19"). The Government opposes the motion (#316). After conducting an investigation, United States Probation and Pretrial Services ("Probation") recommends denying the motion. Having considered the motion, the Government's response, Probation's recommendation, the record and the applicable law, the court is of the opinion that the motion should be denied.

I. Background

Jaramillo's offense of conviction stems from his involvement in a drug-trafficking conspiracy. On July 13, 2016, a federal grand jury in the Eastern District of Texas returned a First Superseding Indictment charging Jaramillo and six codefendants in Count 1 with Conspiracry to Possess With the Intent to Distribute Oxycodone Hydrochloride, in violation of 21 U.S.C. § 846, and in Count 5 with Possession of a Firearm in Furtherence of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c). Subsequently, on July 27, 2017, Jaramillo pleaded guilty to Count 1 pursuant to a non-binding plea agreement. On November 22, 2017, the court sentenced him to 188 months' imprisonment, followed by a three-year term of supervised release. Jaramillo

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is currently housed at the Federal Medical Center Fort Worth, located in Fort Worth, Texas ("FMC Fort Worth"). His projected release date is November 6, 2029.

II. Appointment of Counsel

In his motion, Jaramillo requests the appointment of counsel to assist him in filing a motion for compassionate release under 18 U.S.C. § 3582(c). There is no constitutional right to appointed counsel in post-conviction proceedings. Pennsylvania v . Finley , 481 U.S. 551, 555 (1987) ("The right to appointed counsel extends to the first appeal of right, and no further."); see Garza v . Idaho , ___ U.S. ___, 139 S. Ct. 738, 749 (2019); McCleskey v . Zant , 499 U.S. 467, 494-95 (1991); Whitaker v . Collier , 862 F.3d 490, 501 (5th Cir. 2017), cert . denied , 138 S. Ct. 1172 (2018); In re Sepulvado , 707 F.3d 550, 554 (5th Cir.), cert . denied , 571 U.S. 952 (2013).

The court may, however, in the interest of justice, appoint counsel to assist a defendant in the pursuit of post-conviction relief where a defendant has raised nonfrivolous claims with factually and/or legally complex issues. See United States v . Whitebird , 55 F.3d 1007, 1011 (5th Cir. 1995) ("After [a defendant's first appeal], the decision whether to appoint counsel rests in the discretion of the district court.").

The exercise of discretion in this area is guided . . . by certain basic principles. When applying this standard and exercising its discretion in this field, the court should determine both whether the petition presents significant legal issues, and if the appointment of counsel will benefit the petitioner and the court in addressing this claim.

United States v . Molina-Flores , No. 3:16-CR-130-N (19), 2018 WL 10050316, at *2 (N.D. Tex. Feb. 13, 2018) (quoting Jackson v . Coleman , No. 3:11-cv-1837, 2012 WL 4504485, at *4 (M.D. Pa. Oct. 2, 2012)); see Scoggins v . MacEachern , No. 04-10814-PBS, 2010 WL 3169416, at *1 (D. Mass. Aug. 10, 2010) ("In order to obtain appointed counsel, 'an indigent litigant must

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demonstrate exceptional circumstances in his or her case to justify the appointment of counsel.' The rare cases warranting appointment of counsel in the interests of justice typically involve nonfrivolous claims with factually and/or legally complex issues and a petitioner who is severely hampered in his ability to investigate the facts." (quoting Cookish v . Cunningham , 787 F.2d 1, 2 (1st Cir. 1986))).

Jaramillo is not entitled to the appointment of counsel to assist him with seeking compassionate release under 18 U.S.C. § 3582. See Finley , 481 U.S. at 555; Whitebird , 55 F.3d at 1010-11 (declining to recognize constitutional or statutory right to assistance of counsel in bringing § 3582(c)(2) motion for sentence reduction); United States v . Vasquez , No. CR 2:18-1282-S-1, 2020 WL 3000709, at *3 (S.D. Tex. June 2, 2020) ("There is no right to counsel in § 3582 or other post-appellate criminal proceedings."). Moreover, Jaramillo provides no basis for the court to conclude that the appointment of counsel would benefit him or the court in addressing his motion. A motion "for compassionate release is not particularly complex factually or legally." United States v . Drayton , No. 10-200018, 2020 WL 2572402, at *1 (D. Kan. May 21, 2020); see United States v . Wilfred , No. 07-351, 2020 WL 4698993, at *1 (E.D. La. Aug. 13, 2020). In any event, Jaramillo has failed to raise any potentially viable claims or any factually or legally complex issues that could arguably justify the appointment of post-conviction counsel. Jaramillo is 34 years old, and there is no indication that he is seriously ill, disabled, or otherwise a candidate for compassionate release. Thus, the court finds that the discretionary appointment of counsel is not warranted. See 18 U.S.C. § 3006A(a)(2) (allowing appointment of counsel under certain circumstances when "the court determines that the interests of justice so require"). Accordingly, Jaramillo's request for appointment of counsel is denied.

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III. Compassionate Release

On December 21, 2018, former President Trump signed the First Step Act of 2018 into law. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The Act, in part, amended 18 U.S.C. § 3582(c), which gives the court discretion, in certain circumstances, to reduce a defendant's term of imprisonment:

The court, upon motion of the Director of the Bureau of Prisons ("BOP"), or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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; or the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the [BOP] that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission . . . .

18 U.S.C. § 3582(c)(1)(A). This provision is commonly referred to as "compassionate release."

Prior to the First Step Act, only the Director of the BOP could file a motion seeking compassionate release. See United States v . Franco , 973 F.3d 465, 467 (5th Cir. 2020) ("Prior to the passage of the First Step Act . . . courts lacked the power to adjudicate motions for compassionate release."), cert . denied , ___ U. S. ___, No. 20-5997, 2020 WL 7132458 (Dec. 7, 2020); Tuozzo v . Shartle , No. 13-4897, 2014 WL 806450, at *2 (D.N.J. Feb. 27, 2014) (denying petitioner's motion for compassionate release because no motion for his release was filed by the BOP). The First Step Act amended § 3582(c) by providing a defendant the means to appeal the BOP's decision not to file a motion for compassionate release on the defendant's behalf. United

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States v . Cantu , 423 F. Supp. 3d 345, 347 (S.D. Tex. 2019); United States v . Bell , No. 3:93-CR-302-M, 2019 WL 1531859, at *1 (N.D. Tex. Apr. 9, 2019). The plain language of the statute, however, makes it clear that the court may not grant a defendant's motion for compassionate release unless the defendant has complied with the administrative exhaustion requirement. 18 U.S.C. § 3582(c)(1)(A); Franco , 973 F.3d at 467 (holding that the statutory requirement that a defendant file a request with the BOP before filing a motion for compassionate release in federal court "is not jurisdictional but that it is mandatory"); United States v . Alam , 960 F.3d 831, 833 (6th Cir. 2020) ("Even though [the] exhaustion requirement does not implicate [the court's] subject-matter jurisdiction, it remains a mandatory condition."); United States v . Raia , 954 F.3d 594, 597 (3d Cir. 2020) ("[T]he exhaustion requirement . . . presents a glaring roadblock foreclosing compassionate release."). Thus, before seeking relief from the court, a defendant must first submit a request to the warden of his facility to move for compassionate release on his behalf and then either exhaust his administrative remedies or wait for the lapse of 30 days after the warden received the request. 18 U.S.C. § 3582(c)(1)(A); Franco , 973 F.3d at 467 ("The text . . . outlines two routes a defendant's motion can follow to be properly before the court. Both routes begin with the defendant requesting that 'the [BOP]' 'bring a motion on the defendant's behalf.'"); United States v . Harris , 812 F. App'x 106, 107 (3d Cir. 2020); United States v . Springer , 820 F. App'x 788, 791 (10th Cir. 2020) (defendant "was required to request that the BOP file a compassionate-release motion on his behalf to initiate his administrative remedies" (citing Raia , 954 F.3d at 595)); Alam , 960 F.3d at 833-34; United States v . Soliz , No. 2:16-190-3, 2020 WL 2500127, at *3 (S.D. Tex. May 14, 2020) ("§ 3582(c)(1)(A) does not provide this Court with the equitable authority to excuse [defendant's] failure to exhaust his

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administrative remedies or to waive the 30-day waiting period." (quoting United States v . Reeves , No. 18-00294, 2020 WL 1816496, at *2 (W.D. La. Apr. 9, 2020))).

Here, Jaramillo is foreclosed from obtaining relief because he has not submitted a request for compassionate release to the warden of the facility where is housed. In his motion, Jaramillo does not contend that he has exhausted his administrative remedies. Probation confirms that there are no administrative remedy entries on Jaramillo's behalf in the SENTRY database. Further, the court is without authority to waive the exhaustion of administrative remedies or the 30-day waiting period. See Franco , 973 F.3d at 468 ("Congress has commanded that a 'court may not modify a term of imprisonment' if a defendant has not filed a request with the BOP."); Alam , 960 F.3d at 832 ("[B]ecause this exhaustion requirement serves valuable purposes (there is no other way to ensure an orderly processing of applications for early release) and because it is mandatory (there is no exception for some compassionate-release requests over others), we must enforce it."); United States v . Garcia , No. CR 2:18-1337, 2020 WL 3000528, at *3 (S.D. Tex. June 2, 2020) ("While the Court sympathizes with Defendant's plight, because he has failed to comply with the exhaustion requirements under § 3582, his motion is not ripe for review, and the Court is without jurisdiction to grant it."); United States v . Garcia-Mora , No. CR 18-00290-01, 2020 WL 2404912, at *2 (W.D. La. May 12, 2020) ("Section 3582(c)(1)(A) does not provide [the court] with the equitable authority to excuse [the defendant's] failure to exhaust his administrative remedies or to waive the 30-day waiting period."); United States v . Collins , No. CR 04-50170-04, 2020 WL 1929844, at *2 (W.D. La. Apr. 20, 2020); see also Ross v . Blake , ___ U.S. ___, 136 S. Ct. 1850, 1857 (2016) ("[J]udge-made exhaustion doctrines . . . remain amenable to judge-made exceptions," whereas "mandatory exhaustion statutes . . . establish mandatory

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exhaustion regimes, foreclosing judicial discretion."). Accordingly, at this time, the court does not have the authority to grant the relief Jaramillo requests. Moreover, even if he had complied with the exhaustion requirement before filing the instant motion, nothing in Jaramillo's motion indicates that extraordinary and compelling reasons exist to release him from confinement.

Congress did not define "extraordinary and compelling." Rather, it elected to delegate its authority to the United States Sentencing Commission ("the Commission"). See 28 U.S.C. § 994(t) ("The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples."); see also U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 (U.S. SENTENCING COMM'N 2018) ("USSG"). In Application Note 1 to § 1B1.13 of the USSG, the Commission defined "extraordinary and compelling reasons" to include the following four categories of circumstances: (i) certain medical conditions of the defendant; (ii) the defendant is 65 years or older and meets other requirements; (iii) the defendant's family has specified needs for a caregiver; and (iv) other reasons in the defendant's case that establish an extraordinary and compelling reason. The court must also consider the factors set forth in 18 U.S.C. § 3553(a), as applicable, and find that the sentence modification is consistent with the

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policy statements issued by the Commission. 18 U.S.C. § 3582(c)(1)(A). The policy statement regarding compassionate release requires a determination that "the defendant is not a danger to the safety of any other person or to the community." U.S.S.G. § 1B1.13(2).

A. Medical Condition

In the instant motion, Jaramillo contends that he is eligible for compassionate release due to his obesity. The USSG provides that extraordinary and compelling reasons exist regarding a defendant's medical condition when the defendant is "suffering from a terminal illness ( i . e ., a serious and advanced illness with an end of life trajectory)" or when a defendant is "suffering from a serious physical or medical condition," "suffering from a serious functional or cognitive impairment," or "experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." U.S.S.G. § 1B1.13 cmt. n.1(A).

Jaramillo did not attach any medical records to support his contention. According to his Presentence Investigation Report ("PSR"), prepared in 2017, Jaramillo is 6 feet tall and weighed, at the time, 284 pounds, resulting in a body mass index of 38.51, which is considered obese. Jaramillo provides no information about his current weight. According to the Centers for Disease Control and Prevention ("CDC"), 42.5 % of the adult population in the United States is obese. Due to its prevalence, obesity cannot be deemed "extraordinary" in order to warrant compassionate release. See United States v . Thompson , ___ F.3d ___, No. 20-30381, 2021 WL 37493, at *2 (5th Cir. Jan. 5, 2021) (noting that neither hypertension nor high cholesterol made the defendant's case

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"extraordinary" because "nearly half of the adult population in the United States suffers from hypertension" and "roughly 12% of Americans suffer from high cholesterol").

Probation's investigation revealed that Jaramillo is classified as a medical Care Level 1 inmate. According to the BOP, "Care Level 1 inmates are less than 70 years of age and are generally healthy," but "[t]hey may have limited medical needs that can be easily managed by clinician evaluations every 6-12 months." Further, BOP records indicate that Jaramillo has no medical restrictions. Thus, his medical summary does not meet the criteria listed above. His medical condition is not terminal nor does it substantially diminish his ability to provide self-care. See Thompson , 2021 WL 37493, at *2. Clearly, his obesity did not hamper or prevent him from organizing and leading a large-scale, drug-trafficking conspiracy, as reflected by his offense of conviction. Therefore, Jaramillo has failed to establish that a qualifying medical condition exists that would constitute extraordinary and compelling reasons to reduce his sentence.

B. "Other" Reasons

Jaramillo's request for compassionate release potentially falls into the fourth, catch-all category of "other" extraordinary and compelling reasons, which specifically states that the Director of the BOP shall determine whether "there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)." U.S.S.G. § 1B1.13 cmt. n.1(D). Although Subdivision D is reserved to the BOP Director, the Commission acknowledged, even before the passage of the First Step Act, that courts are in the position to determine whether extraordinary and compelling circumstances are present. United States v . Beck , 425 F. Supp. 3d 573, 583 (M.D.N.C. 2019) ("Read in light of the First Step Act, it is consistent with the previous policy statement and with the Commission

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guidance more generally for courts to exercise similar discretion as that previously reserved to the BOP Director in evaluating motions by defendants for compassionate release."); see Cantu , 423 F. Supp. 3d at 352 ("[T]he correct interpretation of § 3582(c)(1)(A) . . . is that when a defendant brings a motion for a sentence reduction under the amended provision, the Court can determine whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)-(C) warrant granting relief.").

In the case at bar, there is no indication that the BOP Director made a determination regarding the presence of extraordinary and compelling reasons with respect to Jaramillo for any "other" reason. It is well settled that "compassionate release is discretionary, not mandatory." United States v . Chambliss , 948 F.3d 691, 693 (5th Cir. 2020). In exercising its discretion, the court, likewise, finds that no extraordinary and compelling reasons exist in relation to Jaramillo's situation. Jaramillo expresses concerns regarding the spread of COVID-19 among the prison population. Nevertheless, as of January 22, 2021, the figures available at www.bop.gov list 11 inmates (out of a total inmate population of 1,231) and 34 staff members at FMC Fort Worth as having confirmed positive cases of COVID-19, 708 inmates and 15 staff members who have recovered, and 14 inmates who have succumbed to the disease. Thus, it appears that the facility where Jaramillo is housed is handling the outbreak appropriately and providing adequate medical care.

Although Jaramillo expresses legitimate concerns regarding COVID-19, he does not establish that the BOP cannot manage the outbreak within his correctional facility or that the facility is specifically unable to treat Jaramillo, if he were to contract the virus and develop COVID-19 symptoms, while incarcerated. See Thompson , 2021 WL 37493, at *3 ("Fear of

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COVID doesn't automatically entitle a prisoner to release."); Raia , 954 F.3d at 597 ("[T]he mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP's statutory role, and its extensive and professional efforts to curtail the virus's spread."); United States v . Banks , No. CR 15-0080-02, 2020 WL 6839267, at *4 (W.D. La. Nov. 20, 2020) ("This Court cannot equate the generalized fear of COVID-19 to an extraordinary and compelling reason to support compassionate release, nor will it undermine BOP's criteria to determine eligibility for sentence reductions or home confinement."); United States v . Woods , No. 4:11-CR-106-SDJ, 2020 WL 6391591, at *4 (E.D. Tex. Nov. 2, 2020) (noting that "courts have concluded that an inmate's concerns about risks associated with the spread of COVID-19 are not consistent with the policy statement of the Commission as required by Section 3582(c)(1)(A)"); Vasquez , 2020 WL 3000709, at *3 ("General concerns about the spread of COVID-19 or the mere fear of contracting an illness in prison are insufficient grounds to establish the extraordinary and compelling reasons necessary to reduce a sentence." (quoting United States v . Koons , 455 F. Supp. 3d 285, 292 (W.D. La. 2020))); United States v . Clark , 451 F. Supp. 3d 651, 656 (M.D. La. 2020) (finding the defendant had failed to present extraordinary and compelling reasons to modify his prison sentence because he "does not meet any of the criteria set forth by the statute" and he "cites no authority for the proposition that the fear of contracting a communicable disease warrants a sentence modification"). Furthermore, contracting the virus while incarcerated, even in conjunction with preexisting health conditions, is insufficient to establish exceptional and compelling circumstances warranting compassionate release. See United States v . Jackson , No. 3:16-CR-196-L-1, 2020 WL 4365633, at *2 (N.D. Tex. July 30, 2020) (finding that defendant had failed to present

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extraordinary and compelling reasons for compassionate release despite suffering from previous underlying health conditions and testing positive for COVID-19). Therefore, Jaramillo has failed to establish that a qualifying medical condition or other reasons exist that would constitute extraordinary and compelling reasons to warrant his release from prison.

The court further finds that compassionate release is not warranted in light of the applicable factors set forth in § 3553(a). See 18 U.S.C. § 3582(c)(1)(A) (requiring courts to consider the § 3553(a) factors before granting compassionate release); Thompson , 2021 WL 37493, at *3 n.11 (collecting cases); Chambliss , 948 F.3d at 693-94. Jaramillo's offense of conviction stems from his participation in a drug-trafficking conspiracy involving the distribution of multiple kilograms of oxycodone hydrochloride. Jaramillo, a leader and organizer of the conspiracy, distributed oxycodone hydrochloride to coconspirators in the Eastern and Northern Districts of Texas. Police officers observed Jaramillo distribute narcotics from his vehicle, and a subsequent search of the vehicle revealed hydrocodone (actual), alprazolam, promethazine with codeine, oxycodone (actual), tetrahydrocannabinol, amphetamine (actual), and marijuana, as well as $4,880.00 in United States currency. A search of Jaramillo's residence led to the discovery of alprazolam, marijuana, oxycodone hydrochloride, promethazine with codeine, a loaded pistol, a shotgun, assorted ammunition and gun accessories, and more than $18,000.00 in United States currency. Overall, Jaramillo was held responsible for the distribution of between 3 and 10 million dosage units of oxycodone hydrochloride.

Jaramillo's criminal history includes prior convictions for driving without a license, possession of marijuana, possession of a controlled substance (cocaine), and possession with intent to deliver a controlled substance (alprazolam). Jaramillo has a long history of poly-substance

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abuse, starting at age 15. According to his PSR, prior to his arrest, Jaramillo smoked marijuana, snorted cocaine, took Xanax and hydrocodone, and drank codeine, all on a daily basis, for many years. In view of the nature and circumstances of Jaramillo's offense of conviction, his criminal history, and his daily poly-substance abuse, the court cannot conclude that Defendant would not pose a danger to any other person or to the community, if released from confinement. In fact, Probation reports that he is classified as having a medium risk recidivism level.

In addition, granting Jaramillo compassionate release would fail to provide just punishment for his offense and promote respect for the law. In Chambliss , the United States Court of Appeals for the Fifth Circuit upheld the denial of compassionate release to a defendant due to the defendant's not yet having served a significant portion of his sentence. Id . at 694. The district court determined that the defendant's terminal illness "constitut[ed] 'an extraordinary and compelling reason for a sentence reduction' and that he '[did] not present a danger upon release,'" but denied release because "releasing [the defendant] after serving only 14 years of a 30-year sentence minimizes both the impact of [the defendant's] crime and seriousness of the offense." Id . at 693-94; see Thompson , 2021 WL 37493, at *3 (observing that the courts that have granted compassionate release "largely have done so for defendants who had already served the lion's share of their sentences and presented multiple, severe, health concerns"). "Moreover, the [district] court, citing the § 3553(a) factors, determined that requiring [the defendant] to serve the remainder of his sentence would 'provide just punishment for the offense' and 'afford adequate deterrence to criminal conduct.'" Chambliss , 948 F.3d at 693-94. In the instant case, releasing Jaramillo after he has served only approximately 43% of his 188-month sentence would similarly minimize the impact of his crime and the seriousness of his offense.

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Moreover, the court is unable to grant Jaramillo's request to release him to "monitored home confinement." The BOP has the exclusive authority to determine where a prisoner is housed; thus, the court is without authority to order home confinement. 18 U.S.C. § 3621(b); Cheek v . Warden of Fed . Med . Ctr ., ___F. App'x___, No. 20-10712, 2020 WL 6938364, at *2 (5th Cir. Nov. 24, 2020) (holding that "the pandemic did not create judicial authority to grant home confinement"); United States v . Donnell , ___ F. Supp. 3d ___, No. 4:10-CR-65-SDJ-CAN, 2020 WL 5939095, at *7 (E.D. Tex. Aug. 4, 2020); Ambriz v . United States , 465 F. Supp. 3d 630, 633 (N.D. Tex. 2020); United States v . Miller , No. 2:17-CR-015-D (02), 2020 WL 2514887, at *1 (N.D. Tex. May 15, 2020) ("[N]either the CARES Act nor the First Step Act authorizes the court to release an inmate to home confinement."). Indeed, "[n]o inmate has a constitutional right to be housed in a particular place or any constitutional right to early release." Cheek , 2020 WL 6938364, at *3. "It is not for a court to step in and mandate home confinement for prisoners, regardless of an international pandemic." Id .

Furthermore, the BOP has instituted a comprehensive management approach that includes screening, testing, appropriate treatment, prevention, education, and infection control measures in response to COVID-19. In response to a directive from the former United States Attorney General in March 2020, the BOP immediately began reviewing all inmates who have COVID-19 risk factors, as described by the CDC, for the purpose of determining which inmates are suitable for placement on home confinement. See Collins , 2020 WL 1929844, at *3. The BOP notes that inmates need not apply to be considered for home confinement, as this is being done automatically by case management staff. Since March 26, 2020, the BOP has placed 20,664 inmates on home confinement. The March 2020 directive is limited to "eligible at-risk inmates who are non-violent

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and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than in BOP facilities." United States v . Castillo , No. CR 2:13-852-1, 2020 WL 3000799, at *3 (S.D. Tex. June 2, 2020).

In his Memorandum to the BOP dated March 26, 2020, former Attorney General Barr acknowledges that the Department of Justice ("DOJ") has an obligation to protect both BOP personnel and inmates. He also notes that the DOJ has the responsibility of protecting the public, meaning that "we cannot take any risk of transferring inmates to home confinement that will contribute to the spread of COVID-19 or put the public at risk in other ways." The Attorney General issued a subsequent Memorandum to the BOP on April 3, 2020, in which he emphasizes that police officers protecting the public face an increased risk from COVID-19 and cannot avoid exposure to the virus, with their numbers dwindling as officers who contract the virus become ill or die or need to recover or quarantine to avoid spreading the disease. Accordingly, he cautions:

The last thing our massively over-burdened police forces need right now is the indiscriminate release of thousands of prisoners onto the streets without any verification that those prisoners will follow the laws when they are released, that they have a safe place to go where they will not be mingling with their old criminal associates, and that they will not return to their old ways as soon as they walk through the prison gates.

As the court noted in United States v . Preston , "[t]he best predictor of how [Defendant] will behave if he were to be released is how he behaved in the past, and his track record is a poor one." No. 3:18-CR-307-K, 2020 WL 1819888, at *4 (N.D. Tex. Apr. 11, 2020) (quoting United States v . Martin , 447 F. Supp. 3d 399, 403 (D. Md. 2020)). Here, there is no reason to believe that Jaramillo would not revert to his drug-dealing and drug-abusing activities if released from prison at this time.

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In short, Jaramillo has failed to satisfy his burden of showing the necessary circumstances to warrant relief under the statutory framework to which the court must adhere. See United States v . Dodge , No. 17-323-01, 2020 WL 3668765, at *5 (W.D. La. July 6, 2020) (stressing that "the rampant spread of the coronavirus and the conditions of confinement in jail, alone, are not sufficient grounds to justify a finding of extraordinary and compelling circumstances"); Koons , 455 F. Supp. 3d at 291-92 (same). As the court observed in Koons , rejecting the notion that it has "carte blanche" authority to release whomever it chooses, "[t]he Court cannot release every prisoner at risk of contracting COVID-19 because the Court would then be obligated to release every prisoner." Dodge , 2020 WL 3668765, at *6; Koons , 455 F. Supp. 3d at 292.

IV. Conclusion

Consistent with the foregoing analysis, Jaramillo's Emergency Motion for Release to Monitored Home Confinement (#315) is DENIED.

SIGNED at Beaumont, Texas, this 24th day of January, 2021.

/s/ _________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE