UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America Case No. 16-cr-162-PB-12 v. Opinion No.

Alfredo Gonzalez

MEMORANDUM AND ORDER

Alfredo Gonzalez is serving a 20-year prison sentence on a

charge of conspiracy to distribute a kilogram or more of heroin.

He seeks a sentence reduction pursuant to

(c)(1)(A) based on his claim that his disproportionately

harsh sentence was caused by the timing of his conviction and

sentencing rather than the unique facts of his case.1 The

government argues in response that I lack the power to reduce

Gonzalez’s sentence for the reasons he cites.

1 Gonzalez alternatively contends that he is entitled to immediate release because he suffers from several medical conditions that leave him at increased risk of severe illness or death if he were to contract COVID-19. I am unpersuaded by this argument. The Bureau of Prisons has adopted mitigation measures that reduce the risk of transmission within prisons, and Gonzalez is eligible to receive a vaccine that will further reduce his risk of serious illness if he were to contract COVID- 19. In any event, he committed a serious crime that warrants a lengthy prison sentence. Given the circumstances, I am not persuaded that Gonzalez’s health status qualifies as an extraordinary and compelling circumstance that justifies his immediate release.

1 I. BACKGROUND

A grand jury charged Gonzalez with one count of conspiracy

to distribute a kilogram or more of heroin on October 5, 2016.

See Indictment, Doc. No. 1. Nearly a year later, on September

29, 2017, the government filed an information pursuant to

(“851 Notice”), informing Gonzalez that it intended

to argue that he was subject to a mandatory minimum 20-year

prison sentence because he had a prior New Hampshire state court

conviction for possession with intent to sell or dispense

cocaine.2 See Information, Doc. No. 174. At an earlier hearing,

the prosecutor explained that the government’s decision to file

the 851 Notice so late in the process was due to a recent policy

change at the Department of Justice that required prosecutors to

file 851 Notices in cases like Gonzalez’s.3 Gonzalez went to

trial approximately a month later and was convicted. See Jury

Verdict, Doc. No. 220.

I sentenced Gonzalez on June 14, 2018. During the

sentencing hearing, I determined that Gonzalez’s total offense

2 Section 851 requires the government to file an information prior to trial that identifies any prior drug crime convictions that will be used to increase the defendant’s sentence. See

(a).

3 When Gonzalez was indicted, United States Attorneys were operating under guidance from Attorney General Eric Holder that required prosecutors to consider several potentially relevant circumstances before filing an 851 Notice. See Attorney General Eric Holder, Department Policy on Charging Mandatory Minimum

2 level was 32 and his criminal history category was IV. See

Transcript of Sentencing Hearing, Doc. No. 380 at 5. This would

have resulted in a guideline sentencing range of 168 months to

210 months but for the government’s decision to file the 851

Notice, which increased the guideline sentence to 240 months,

the mandatory minimum sentence then required because of

Gonzalez’s prior conviction. See Presentence Report, Doc. No.

338 ¶ 73. Following the law as it existed at the time, I

sentenced Gonzalez to 240 months of imprisonment.

Congress modified the mandatory minimum penalty provision I

used to sentence Gonzalez approximately six months later as part

of the First Step Act of 2018. See

(a)(2),

, 5220. When I sentenced Gonzalez,

required a mandatory minimum sentence of 20

years for a defendant who was culpable in a conspiracy to

Sentences and Recidivist Enhancements in Certain Drug Cases (Aug. 12, 2013), available at https://tinyurl.com/myva6atp. Prosecutors were also instructed to file any 851 Notice “at the time the case is charged, or as soon as possible thereafter.” Attorney General Eric Holder, Guidance Regarding § 851 Enhancements In Plea Negotiations (Sept. 24, 2014), available at https://tinyurl.com/t8buyzyd. These policies changed under Attorney General Jeff Sessions, who issued new instructions that required prosecutors to “charge and pursue the most serious, readily provable offense,” including potential mandatory minimum offenses. See Attorney General Jeff Sessions, Department Charging and Sentencing Policy (May 10, 2017), available at https://tinyurl.com/jabrn9kr. It was this policy change that prompted the prosecutor to file the belated 851 Notice in this case. See Transcript of Motion Hearing, Doc. No. 377 at 11-12.

3 distribute a kilogram or more of heroin if the defendant had a

prior conviction for a “felony drug offense.” See

(B)(1)(a) (effective through Dec. 20, 2018). Congress

amended § 841 in the First Step Act to reduce the mandatory

minimum sentence to 15 years and require the prior conviction to

be for a “serious drug felony” to trigger the mandatory minimum

sentence. See § 401(a)(2), 132 Stat. at 5220;

(B)(1)(a) (effective Dec. 21, 2018). Congress declined,

however, to apply this change to defendants like Gonzalez who

had already been sentenced. See § 401(c), 132 Stat. at 5221.

Gonzalez’s prior conviction met the definition of a “felony drug

offense” under the prior law but it does not qualify as a

“serious drug offense” under the current law.

II. DISCUSSION

Section 3582(c)(1)(A) authorizes a court to reduce a

defendant’s sentence after considering the factors specified in

the sentencing statute if “extraordinary and compelling reasons

warrant such a reduction” and “such a reduction is consistent

with applicable policy statements issued by the Sentencing

Commission.” Until the First Step Act became law, a court could

consider a motion for sentence reduction under § 3582(c)(1)(A)

only on a motion from the Director of the Bureau of Prisons.

See

(c)(1)(A) (effective through Dec. 20, 2018).

Now, however, a defendant may file his own motion if he meets

4 the provision’s exhaustion requirements. See

(c)(1)(A) (effective Dec. 21, 2018).

The government argues that Gonzalez is not entitled to a

sentence reduction under § 3582(c)(1)(A) for two reasons: (1) a

sentence reduction for the reasons he cites would not be

consistent with a policy statement adopted by the Sentencing

Commission before the First Step Act authorized defendants to

file sentence reduction motions; and (2) § 3582(c)(1)(A) does

not authorize a court to reduce a defendant’s sentence based on

a non-retroactive change to a mandatory minimum sentencing law.

A. The Policy Statement

Before the First Step Act amended § 3582(c)(1)(A) to

authorize defendants to file motions for sentence reduction, the

Sentencing Commission adopted a policy statement that explains

how a court should evaluate a sentence reduction motion filed by

the Director of the Bureau of Prisons. The statement provides:

Upon motion of the Director of the Bureau of Prisons under

(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in

(a), to the extent that they are applicable, the court determines that — (1) (A) Extraordinary and compelling reasons warrant the reduction; . . . (2) The defendant is not a danger to the safety of any other person or to the community, as provided in

(g); and

5 (3) The reduction is consistent with this policy statement.

U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13 (U.S.

Sentencing Comm’n 2018). The commentary to the policy statement

further explains what is meant by “extraordinary and compelling

reasons.” It states, in relevant part, that “provided the

defendant meets the requirements of subdivision (2),

extraordinary and compelling reasons exist” for any of four

reasons: (1) the “medical condition of the defendant,” (2) the

“age of the defendant,” (3) “family circumstances,” or (4)

“other reasons,” defined as “an extraordinary and compelling

reason other than, or in combination with, the reasons described

[above].” USSG § 1B1.13 cmt. n.1 (cleaned up).

The government argues that this policy statement bars

Gonzalez from obtaining a sentence reduction for the reasons he

cites. I disagree.

A policy statement adopted by the Sentencing Commission

binds a court considering a § 3582(c)(1)(A) motion only if it is

an “applicable” policy statement.

(c)(1)(A).

As my colleague, Judge McCafferty, has recognized, “eight of the

nine circuits to address the role of the Sentencing Commission’s

policy statement have held that the policy statement ‘does not

apply to cases where an imprisoned person files a motion for

compassionate release.’” United States v. Fields,

,

, at * 4 (D.N.H. Aug. 9, 2021) (collecting

cases). This near-consensus view is persuasive because the

policy statement itself states at the outset that it applies

“[u]pon motion of the Director of the Bureau of Prisons . . .,”

USSG § 1B1.13, and the application notes that accompany the

statement recognize that “[a] reduction under this policy

statement may be granted only upon motion by the Director of the

Bureau of Prisons pursuant to

(c)(1)(A).” USSG

§ 1B1.13 cmt. n.1.

The government’s arguments to the contrary are not

persuasive. The government does not explain how a policy

statement that by its terms applies only to a motion filed by

the Director of the Bureau of Prisons can be applied to limit a

court’s power to reduce a sentence when responding to a motion

filed by a defendant. As the government notes in its brief,

many courts, like this one, have acknowledged that the policy

statement is still “relevant,” United States v. Tomes,

, 503 n.1 (6th Cir. 2021), and provides “helpful guidance,”

United States v. McCoy,

, 282 n.7 (4th Cir. 2020),

even in cases where motions are filed by defendants. But it

cannot limit a court’s power to consider additional

extraordinary and compelling grounds for a sentence reduction

when the motion is filed by a defendant. I, therefore, follow

the majority of circuit and district courts and hold that the

7 policy statement is not binding where a defendant brings a

sentence reduction motion.

B. The First Step Act

When Congress amended § 841 in the First Step Act, it

specified that the amendment would apply only to defendants who

had yet to be sentenced. See § 401(c), 132 Stat. at 5221. The

government argues that § 3582(c)(1)(A) does not authorize a

court to reduce a defendant’s sentence based upon a prospective

change in sentencing law. I am unpersuaded by this argument.

Although the government argues otherwise, “It is not

unreasonable for Congress to conclude that not all defendants

convicted under [the statute] should receive new sentences, even

while expanding the power of the courts to relieve some

defendants of those sentences on a case-by-case basis.” United

States v. Maumau, No. 2:08-cr-00758-TC-11,

, at *7

(D. Utah Feb. 18. 2020); see also McCoy,

(“As

multiple district courts have explained, there is a significant

difference between automatic vacatur and resentencing of an

entire class of defendants — with its avalanche of applications

and inevitable resentencings — and allowing for the provision of

individual relief in the most grievous cases.”) (cleaned up).

But see United States v. Jarvis,

(6th Cir.

2021) (“[W]e will not render § 403(b) useless by using

§ 3582(c)(1)(A) to thwart Congress’s retroactivity choices.”)

8 (cleaned up). Indeed, “The Act’s broader purpose is . . .

consistent with allowing courts to consider such gross

sentencing disparities, rather than forcing judges to interpret

lack of retroactivity as a complete bar to relief based on

subsequent changes to sentencing.” United States v. Quinn,

, 829 (N.D. Cal. 2020).

In the present case, the record reveals that Gonzalez would

not have faced a 20-year mandatory minimum sentence if he had

been convicted before late May 2017, when the government changed

its policy on the filing of 851 Notices, or sentenced after

December 2018, when the First Step Act was signed into law. As

a result, he faced a disproportionately harsh sentence when

compared to similar defendants who were convicted before or

sentenced after this brief 18-month window.

Gonzalez’s sentence was also substantially higher than the

sentences I gave to other co-conspirators in his case who were

equally or more culpable. All but one of Gonzalez’s co-

defendants received a sentence at least 60 months lower, and for

most, over 150 months lower, than Gonzalez — this despite all

but one of them trafficking a larger quantity of drugs. See

Doc. No. 338 ¶ 7. Further, all but one co-defendant received a

sentence below the guidelines, while one received a sentence

within the guideline range. See Doc. No. 338 ¶ 7. Even

accounting for criminal history, which varied widely among co-

9 defendants, one co-defendant with a criminal history category of

III, who was responsible for more heroin than Gonzalez and for

2,167 kilograms of marijuana, was sentenced to only 87 months in

prison, compared to Gonzalez’s 240 months. See Doc. No. 338

¶ 7. When Gonzalez’s sentence is compared to the sentences

received by his co-conspirators, it is apparent that he received

a disproportionately harsh sentence.

Gonzalez committed a serious crime, and he deserves a

substantial sentence. But because of the timing of his

conviction and sentence, Gonzalez was subject to a 20-year

mandatory minimum sentence that is disproportionately harsh when

compared to the sentences given to other defendants. The proper

remedy for this injustice is to hold a further hearing to

determine an appropriate new sentence.

III. CONCLUSION

For the foregoing reasons, Gonzalez’s motion for a sentence

reduction (Doc. No. 420) is granted to the extent that the court

will hold a hearing to determine an appropriate sentence.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge August 31, 2021

cc: John S. Davis, AUSA Jeffrey D. Odland, Esq. U.S. Marshal U.S. Probation

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