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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. Case No. 1:88cr1026/MW

JOSE SEPULVEDA

__________________________________/

GOVERNMENT’S RESPONSE TO SEPULVEDA’S

MOTION FOR COMPASSIONATE RELEASE

Comes now the United States of America, by and through the undersigned 

Assistant United States Attorney, and files this response to Sepulveda’s May 19, 

2021, motion for compassionate release.

FACTS

A. Sepulveda’s crimes of conviction and the procedural history of the 

case.

1

Subsequent to the return of a fifth superseding indictment by a grand jury, 

and a finding of guilt on Counts Two and Three by a petit jury, in 1999 the Court 

adjudged Sepulveda guilty of (Count Two) conspiracy to import controlled 

1 The facts of this case are set forth in more detail at Doc. 3321 - Pgs. 3-10, that is, 

pages 2-9 of the Eleventh Circuit’s December 24, 2002, opinion affirming the 

Court’s judgment and sentence on direct appeal. The facts of this case are also set 

forth in detail at Doc. 3354-2 - Pgs. 2-21, that is, pages 3-22 of the government’s 

brief regarding Sepulveda’s direct appeal in this case. This response contains the 

facts that the government submits are relevant to adjudicating Sepulveda’s motion 

for compassionate release. 

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substances, in violation of 21 U.S.C. §§ 952, 960(b)(1)(A), and 963, and (Count 

Three) conspiracy to possess with intent to distribute controlled substances, in 

violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. (Doc. 1843 - Pgs. 2-4; Doc. 2935; 

Doc. 3022-1 - Pg. 1). The Court also adjudged Sepulveda guilty of five counts of 

Contempt of Court in violation of 18 U.S.C. § 401. (Doc. 3022-1 - Pg. 1). 

The Court sentenced Sepulveda to concurrent terms of life imprisonment on 

Counts Two and Three. (Doc. 3022-1 - Pg. 2). The Court sentenced Sepulveda to 

six-month terms of imprisonment on his contempt of court convictions, with those 

sentences running concurrent with each other and consecutive to the sentences on 

Counts Two and Three. (Id.). The Eleventh Circuit affirmed the Court’s judgment 

and sentence on direct appeal. (Doc. 3321).

Sepulveda was a leader/organizer of a large drug importation and 

distribution organization which began in the late 1970s, which imported large 

quantities of marijuana and cocaine into the United States. (Presentence 

Investigation Report (“PSR”), ¶¶ 38-40; Doc. 3022-1 - Pg. 7). Sepulveda was 

responsible for at least 10,251 kilograms of marijuana and 206 kilograms of 

cocaine. (PSR, ¶ 69; Doc. 3022-1 - Pg. 7). Sepulveda’s total offense level was 46, 

his criminal history category was I, and his Guidelines range was life 

imprisonment. (PSR, ¶¶ 69-80, 108; Doc. 3022-1 - Pg. 7).

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On direct appeal, among other things, the Eleventh Circuit held (1) this 

Court properly declined to appoint Sepulveda counsel and this Court did not 

violate Sepulveda’s Sixth Amendment right to counsel or 18 U.S.C. § 3006A, and 

(2) because the petit jury did not determine the drug quantity for which Sepulveda 

was responsible, error had occurred under Apprendi v. New Jersey, 530 U.S. 466 

(2000); however, the Apprendi error was harmless. (Doc. 3321 - Pgs. 3-4, 10-13, 

17-21). 

In 2004, Sepulveda filed a 28 U.S.C. § 2255 motion. (Doc. 3336). A United 

States Magistrate Judge (“the magistrate court”) recommended that the Court deny 

Sepulveda’s § 2255 motion, and the Court adopted the R&R and did so. (Doc. 

3479; Doc. 3414; Doc. 3415). Among other things, the Court denied Sepulveda’s

claims that he was entitled to relief because (1) the Court improperly declined to 

appoint counsel to represent him, and (2) he was improperly sentenced under 

Apprendi. (Doc. 3479 - Pgs. 5-7, 10-11; Doc. 3514 - Pgs. 1-3). Sepulveda 

appealed the Court’s denial of his § 2255 motion. (Doc. 3516). Both this Court 

and the Eleventh Circuit denied Sepulveda’s motion for a certificate of 

appealability. (Doc. 3521; Doc. 3534).

In October 2019, Sepulveda filed a motion for relief under Fed. R. Civ. P. 

60(b)(4). (Doc. 3556). In his Rule 60(b)(4) motion Sepulveda claimed his 

convictions in this case were invalid because the Court improperly declined to 

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appoint counsel for him in this case. (Doc. 3556 - Pgs. 1-33). Sepulveda also 

claimed he was entitled to relief because on direct appeal the Eleventh Circuit 

incorrectly rejected his claim that this Court improperly declined to appoint 

counsel for him in this case. (Doc. 3556 - Pgs. 24-25). The magistrate court 

recommended that the Court dismiss, or in the alternative deny, Sepulveda’s Rule 

60(b)(4) motion. (Doc. 3560). The magistrate court recommended that the Court 

dismiss Sepulveda’s motion for lack of jurisdiction because it attacked the Court’s 

criminal judgment against Sepulveda on the merits and the Eleventh Circuit had 

not authorized Sepulveda to file a successive 28 U.S.C. § 2255 petition. (Doc. 

3560 - Pgs. 5-8). In the alternative, the magistrate court recommended that the 

Court deny Sepulveda’s motion for two reasons: (1) it was untimely, and (2) it was 

an improper attempt to relitigate a Sixth Amendment right to counsel claim that 

Sepulveda had previously raised, and lost, in this case. (Doc. 3560 - Pgs. 8-10). In 

October 2020, the Court adopted the magistrate court’s R&R, dismissed

Sepulveda’s Rule 60(b)(4) motion for lack of jurisdiction, and in the alternative 

denied Sepulveda’s Rule 60(b)(4) motion as untimely. (Doc. 3562). Sepulveda 

timely appealed the Court’s order. (Doc. 3564). 

Sepulveda filed a merits brief regarding the appeal; the government filed a 

motion for summary affirmance; and the appeal is under submission with the 

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Eleventh Circuit. (Sepulveda v. United States, Eleventh Circuit Case No. 20-

14253).

B. Sepulveda’s request to the Warden for compassionate release and 

Sepulveda’s medical condition.

In February 2020, Sepulveda made a request for compassionate release to 

the Warden of the prison where he was incarcerated and the Warden denied his 

request.

In footnote 2 of his motion for compassionate release, Sepulveda alleges as 

follows:

Age-Related and Family circumstances are present in Sepulveda’s 

case. His mother is 83 years old and lives with her ill husband and 

needs her only son to care for them. Also, Sepulveda turned 65 years 

old [in] 2020 and is a chronic care inmate, with deterioration cause[d] 

by aging and has been incarcerated for twenty-four years. 

(Doc. 3575 - Pg. 9 n.2).

Sepulveda offered no evidence to support his allegations in footnote 2. 

Attached to this response as composite exhibit 1 is a copy of (a) a six-page 

BOP “Health Problems” list, (b) a one-page BOP immunizations record, and 

(c) a four-page BOP clinical encounter record, all regarding Sepulveda. 

Those records show that he has no serious medical conditions that are not 

being treated or that have not resolved. (Exhibit 1 - Pg. 1-11). In October 

2020, Sepulveda “Had COVID 19 and cleared with no side effects.” 

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(Exhibit 1 - Pg. 8). In April 2021, Sepulveda received both doses of the 

COVID-19 Pfizer-BioNTech vaccination. (Exhibit 1 - Pg. 7). 

C. Sepulveda’s disciplinary history.

A copy of Sepulveda’s BOP disciplinary history is attached to this 

response as exhibit 2.

LAW AND ARGUMENT

A. Jurisdiction.

Because this case is on appeal, the Court lacks jurisdiction to grant 

Sepulveda’s motion for compassionate release. See Griggs v. Provident Consumer 

Discount Co., 459 U.S. 56, 58 (1982) (per curiam); United States v. Tovar-Rico, 

61 F.3d 1529, 1532 (11th Cir. 1995). The Court may deny the motion or make an

indicative ruling that it would grant the motion if the Eleventh Circuit remands the 

case. Fed. R. Crim. P. 37(a).

B. The compassionate release statute.

The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), as amended 

by the First Step Act on December 21, 2018, provides in pertinent part:

(c) Modification of an Imposed Term of Imprisonment.---The court 

may not modify a term of imprisonment once it has been imposed 

except that---

(1) in any case---

(A) the court, upon motion of the Director of the Bureau of Prisons, 

or upon motion of the defendant after the defendant has fully 

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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, 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---

(i) 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 (2018).

Further, 28 U.S.C. § 994(t) provides: “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.” Accordingly, the relevant policy 

statement of the Commission is binding on the Court. United States v. Lynn, 2019 

WL 3805349, at *1-4 (S.D. Ala. 2019); see also Dillon v. United States, 560 U.S. 

817, 827 (2010) (where 18 U.S.C. § 3582(c)(2) permits a sentencing reduction 

based on a retroactive guideline amendment, “if such a reduction is consistent with 

applicable policy statements issued by the Sentencing Commission,” the 

Commission’s pertinent policy statements are binding on the court).

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The Sentencing Guidelines policy statement appears at § 1B1.13 and 

provides that the Court may grant release if “extraordinary and compelling 

reasons” exist, “after considering the factors set forth in 18 U.S.C. § 3553(a), to the 

extent that they are applicable,” and the Court determines that “the 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).” That is, compassionate release is available where: (1) there are 

extraordinary and compelling reasons, and (2) the § 3553(a) factors, including 

whether the defendant is a danger to the community, show that release is 

warranted. U.S.S.G. § 1B1.13; United States v. Saunders, 986 F.3d 1076, 1077-78 

(7th Cir. 2021); United States v. Ruffin, 978 F.3d 1000, 1005, 1008-09 (6th Cir. 

2020); United States v. Chambliss, 948 F.3d 691, 693-94 (5th Cir. 2020); United 

States v. Lisi, 440 F.Supp.3d 246, 249, 252-53 (S.D.N.Y. 2020); United States v. 

Willis, 382 F.Supp.3d 1185, 1187-89 (D.N.M. 2019).

Moreover, with regard to the first requirement, the Sentencing Commission 

has identified what may constitute “extraordinary and compelling reasons” as 

follows:

1. Extraordinary and Compelling Reasons.---Provided the 

defendant meets the requirements of subdivision (2) [regarding 

absence of danger to the community], extraordinary and compelling 

reasons exist under any of the circumstances set forth below:

(A) Medical Condition of the Defendant.---

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(i) The defendant is suffering from a terminal illness (i.e., a serious 

and advanced illness with an end of life trajectory). A specific 

prognosis of life expectancy (i.e., a probability of death within a 

specific time period) is not required. Examples include metastatic 

solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage 

organ disease, and advanced dementia.

(ii) The defendant is---

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) 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.

(B) Age of the Defendant.---The defendant (i) is at least 65 years 

old; (ii) is experiencing a serious deterioration in physical or mental 

health because of the aging process; and (iii) has served at least 10 

years or 75 percent of his or her term of imprisonment, whichever is 

less.

(C) Family Circumstances.---

(i) The death or incapacitation of the caregiver of the defendant’s 

minor child or minor children.

(ii) The incapacitation of the defendant’s spouse or registered 

partner when the defendant would be the only available caregiver for 

the spouse or registered partner.

(D) Other Reasons.---As 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 reasons 

described in subdivisions (A) through (C).

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U.S.S.G. § 1B1.13 cmt. n.1. For its part, consistent with note 1(D), BOP 

promulgated Program Statement 5050.50, available at 

https://www.bop.gov/policy/progstat/5050_050_EN.pdf, amended effective 

January 17, 2019, to set forth its evaluation criteria.

The defendant has the burden to show circumstances meeting the test for 

compassionate release. United States v. Mattingly, 2020 WL 974874, at *3 (W.D. 

Va. 2020); Lisi, 440 F.Supp.3d at 249; United States v. Heromin, 2019 WL 

2411311, at *2 (M.D. Fla. 2019); White v. United States, 378 F.Supp.3d 784, 785 

(W.D. Mo. 2019); see also United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 

2013) (“a defendant, as the § 3582(c)(2) movant, bears the burden of establishing 

that a retroactive amendment has actually lowered his guidelines range in his 

case”); United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992) (a “party with 

an affirmative goal and presumptive access to proof on a given issue normally has 

the burden of proof as to that issue”). As the terminology in the statute shows, 

compassionate release is “rare” and “extraordinary.” White, 378 F.Supp.3d at 787; 

accord Willis, 382 F.Supp.3d at 1188.

C. Sepulveda has not shown that he is eligible for relief under the 

compassionate release statute.

i. Sepulveda’s claims outside of footnote 2 of his motion.

With the exception of page 9 footnote 2 of his motion for compassionate 

release, Sepulveda seeks relief under the compassionate release statute for reasons 

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other than those set forth in U.S.S.G. § 1B1.13 cmt. n.1(A) - (C). (Doc. 3575). 

Other than the claims made in footnote 2 of his motion, Sepulveda’s claims for 

relief are foreclosed by binding Eleventh Circuit precedent. United States v. 

Bryant, ___ F.3d ___, 2021 WL 1827158, *1-2, 13-15 (11th Cir. 2021). 

Accordingly, other than the claims in footnote 2 of Sepulveda’s motion which are 

addressed in subsection C ii below, the Court should deny Sepulveda’s motion for 

compassionate release. 

For the sake of comprehensiveness, the government notes that even if the 

Court had the authority to find that extraordinary and compelling reasons exist 

based on “other reasons” apart from those set forth in U.S.S.G. § 1B1.13 cmt. 

n.1(A)-(C), the Court should find that extraordinary and compelling reasons are not 

present in this case. In sum, Sepulveda argues extraordinary and compelling 

reasons exists because he was unfairly sentenced or convicted for five reasons. 

(Doc. 3575 - Pgs. 15-25). For the reasons set forth below, none of those reasons 

constitute extraordinary or compelling reasons.

First and second, Sepulveda contends he was unfairly sentenced because he 

was sentenced in violation of Apprendi and because this Court improperly declined 

to appoint a lawyer to represent him. (Doc. 3575 - Pgs. 15-20). Both of those 

claims are meritless and foreclosed under the law-of-the-case doctrine. (Doc. 3321 

- Pgs. 3-4, 10-13, 17-21; Doc 3479 - Pgs. 5-7, 10-11; Doc. 3514 - Pgs. 1-3). See

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Schaivo ex rel. Schindler v. Schaivo, 403 F.3d 1289, 1291-92 (11th Cir. 2005) (per

curiam); United States v. Escobar-Urrego, 110 F.3d 1556, 1560-61 (11th Cir. 

1997). 

Third, Sepulveda claims that he was sentenced in violation of Alleyne v. 

United States, 570 U.S. 99 (2013), a case that was decided over 14 years after 

Sepulveda was convicted in the present case. (Doc. 3575 - Pgs. 15-18). Any 

Allenye error that occurred in this case was as harmless as was the Apprendi error 

that occurred in this case. (Doc. 3321 - Pgs. 17-21; Doc. 3479 - Pg. 10-11; Doc. 

3514). Alleyne, 570 U.S. at 103, 106-07, 115-16; Apprendi, 530 U.S. at 476, 490. 

Furthermore, “Allenyne does not apply retroactively on collateral review.” Jeanty 

v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014) (per curiam).

Fourth, Sepulveda claims he should not have been sentenced under the 

Sentencing Guidelines because his crimes were committed before the Guidelines 

were enacted on November 1, 1987. (Doc. 3575 - Pgs. 20-21). This claim is 

without merit. Counts Two and Three of the fifth superseding indictment alleged 

that the conspiracy charged in each count extended into 1993; the jury found 

Sepulveda guilty of both of those counts; and the Court adjudged Sepulveda guilty 

of both of those counts. (Doc. 1843 - Pgs. 2-4; Doc. 2935; Doc. 3022-1 - Pg. 1). 

Moreover, the PSR, thet factual findings of which the Court adopted as correct, 

shows that the conspiracies continued after November 1, 1987. (PSR, ¶¶ 49-51; 

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Doc. 3022-1 - Pg. 7). Furthermore, Sepulveda did not raise this claim on direct 

appeal and he was procedurally barred from raising it, and did not raise it, in his 

§ 2255 motion. (Doc. 3321; Doc. 3479). United States v. Nyhuis, 211 F.3d 1340, 

1343-44 (11th Cir. 2000).

Fifth, Sepulveda claims that he was sentenced under a mandatory Guidelines 

scheme and since the time he was sentenced the Supreme Court has ruled in United 

States v. Booker, 543 U.S. 220 (2005) that the Sentencing Guidelines are advisory. 

(Doc. 3575 - Pg. 21). Booker does not apply retroactively on collateral review, 

and the Court has previously rejected a Booker claim raised by Sepulveda in this 

case. (Doc. 3479 - Pgs. 10-11; Doc. 3514). Varela v. United States, 400 F.3d 864, 

868 (11th Cir. 2005). Moreover, given the drug quantity for which Sepulveda was 

responsible and the leadership role Sepulveda had in the conspiracy, Sepulveda 

cannot show that if the Guidelines had been advisory when the Court sentenced 

him then the Court would have sentenced him to less than life imprisonment. 

Assuming for the sake of argument that the Court could grant a defendant 

compassionate release for any reason that it found to be extraordinary and 

compelling, finding the reasons set forth by Sepulveda to be extraordinary and 

compelling would be to, in effect, allow him to circumvent the law-of-the-case 

doctrine, binding caselaw regarding the non-retroactivity of Supreme Court 

decisions, and the rules and law regarding § 2255 petitions. The Court should not 

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countenance Sepulveda’s attempt to circumvent that doctrine, law, and rules, and 

even if the Court had the authority to find Sepulveda’s reasons to be extraordinary 

and compelling it should decline to do so. 

ii. Sepulveda’s claims in footnote 2 of his motion.

Sepulveda’s claim that he is eligible for compassionate release under 

U.S.S.G. § 1B1.13 cmt. n.1(B) is without merit because he has not established that 

he is experiencing a serious deterioration in physical or mental health, and, in fact, 

his BOP medical records show he is not experiencing such a deterioration. (Doc. 

3575; Exhibit 1).

Sepulveda’s claim that he is eligible for compassionate release under 

U.S.S.G. § 1B1.13 cmt. n.1(C) is without merit because he has not alleged, let 

alone established, that he needs to be released to care for his minor child, minor 

children, spouse, or registered partner. (Doc. 3575).

D. The 18 U.S.C. § 3553(a) factors.

Assuming for the sake of argument that Sepulveda is eligible for 

compassionate release, the Court would still need to consider the § 3553(a) factors 

in deciding whether to grant Sepulveda relief. U.S.S.G. § 1B1.13; Saunders, 986 

F.3d at 1077-78; Ruffin, 978 F.3d at 1005, 1008-09; Chambliss, 948 F.3d at 693-

94; Lisi, 440 F.Supp.3d at 249, 252-53; Willis, 382 F.Supp.3d at 1187-89. Based 

on the drug quantity for which Sepulveda was responsible, the leadership role 

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Sepulveda held, and the fact that Sepulveda repeatedly acted in contempt of Court, 

even if Sepulveda was eligible for relief, the Court should decline to grant him 

relief under the § 3553(a) factors.

Respectfully submitted,

JASON R. COODY

Acting United States Attorney

s/ Robert G. Davies

Robert G. Davies

Assistant U.S. Attorney

Florida Bar No. 704301

21 East Garden Street, Suite 400

Pensacola, Florida 32502

(850) 444-4000 

CERTIFICATE OF COMPLIANCE WITH N.D. FLA. LOC. R. 7.1(F)

I hereby certify that this response complies with the word limitation set forth 

in N.D. Fla. Loc. R. 7.1(F). This response contains 3,279 words.

s/ Robert G. Davies

Robert G. Davies

Assistant U.S. Attorney

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been provided by the 

Court’s cm/ecf system to counsel of record this the 24th day of May, 2021.

 s/ Robert G. Davies

Robert G. Davies

Assistant U.S. Attorney

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