Case Information
United States District Court Southern District of Texas ENTERED August 18, 2021 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk BROWNSVILLE DIVISION
UNITED STATES OF AMERICA §
§ VS. § CRIMINAL ACTION NO. 1:91-CR-141-1
§
MIGUEL BOTELLO §
ORDER AND OPINION
Defendant Miguel Botello requests that the Court reduce his sentence and order his release because he is 63 years old and has served 30 years of a life sentence. (Motion, Doc. 304) Based on the record and the applicable law, the Court concludes that Botello has not demonstrated that extraordinary and compelling reasons support a reduction of his sentence.
I
A jury convicted Botello of murder in furtherance of a continuing criminal enterprise, in
violation of 21 U.S.C. § 848, and money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i).
See United States v. Botello
,
Botello is currently serving his sentence at the Federal Correctional Institute in Three Rivers, Texas. [1] ( at 25)
II The First Step Act permits defendants to present a request for a reduction of sentence directly to the courts under 18 U.S.C. § 3582(c )(1). The statute contains specific requirements for submitting direct petitions. The defendant must either first “full y exhaust[] all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the behalf,” or wait for “the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility.” Id . at § 3582(c)(1)(A). In the latter scenario, the defendant need not exhaust available administrative remedies.
Botello has met the requirements of Section 3582(c)(1)(A). Botello requested that the Warden submit a motion for compassionate release on his behalf, and the Warden denied the request. (Motion, Doc. 304, 3, 22) The record does not make clear whether Botello exhausted any administrative remedies, but as more than 30 days have lapsed since he submitted the request to the Warden, he has satisfied the threshold requirements of Section 3582(c)(1)(A).
III
A court may reduce a sentence based on the factors set forth in 18 U.S.C.
§ 3553(a) if the court finds that “extraordinary and compelling reasons warrant such a reduction” and that “such a reduction is consistent with applicable policy statements issued by the Sentencing
Commission”. 18 U.S.C. § 3582(c)(1)(A)(i). No applicable policy statement exists, as the
Sentencing Commission has not promulgated any policy statement in response to the First Step
Act, and the policy statement within Section 1B1.13 of the United States Sentencing Guidelines
applies only when the Director of the Bureau of Prisons has presented a motion under Section
3582.
United States v. Shkambi
,
In support of his request, Botello argues that his release is warranted based on his clean prison disciplinary record over the 30 years he has served, the changes in the law from mandatory sentencing to discretionary sentencing giving a judge more flexibility and making it unlikely that he would receive a life sentence if sentenced today, and the risk of infection with COVID-19 while incarcerated. (Motion, Doc. 304, 16 – 25)
The Court finds that Botello has not demonstrated that extraordinary and compelling reasons warrant reducing his sentence. Botello’s good behavior is commendable, but it does not warrant his early release. His reliance on changes in the sentencing regime also present only his speculation that he would receive a more lenient sentence today. And while Botello, at age 63, is within a demographic that is more susceptible to the more serious symptoms of COVID-19, he has not demonstrated that the Bureau of Prisons is incapable of providing adequate medical attention should Botello contract the illness.
Based on the record, Botello has not demonstrated that the factors governing requests under Section 3582(c)(1) weigh in favor of the relief he seeks.
In the same Motion, Botello requests appointed counsel. (Motion, Doc. 304, 6) As an
initial matter, Botello has no statutory or constitutional right to representation in connection with
his request for compassionate release.
See Pennsylvania v. Finley
, 481 U.S. 551, 555 (1987)
(“Thus, we have rejected suggestions that we establish a right to counsel on discret ionary
appeals.”);
United States v. Whitebird
,
ORDERED that Defendant Miguel Botello ’s Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A)(i) (Doc. 304) is ; and
ORDERED that Defendant Miguel Botello ’s request for appointment of counsel (Motion, Doc. 304, 6) is .
Signed on August 18, 2021.
____________________________ Fernando Rodriguez, Jr.
United States District Judge
Notes
[1] The Court takes judicial notice that the Bureau of Prisons has reported 33 currently active cases of COVID-19 among inmates and staff at the facility, and zero deaths. COVID-19 Coronavirus , Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last updated August 17, 2021).