have accepted the 27-years, today he would have been a free man at home with his
two adult sons and two adult daughters and eleven grandchildren. It should be
noted that all of Sepulveda’ s co-defendants have been released.

Mr. Sepulveda should have not been sentenced under the new law that was
passed on November 1, 1987, since his crimes were committed before November
1987. At sentencing, Sepulveda preserved this issue through his interpreter.

THE INTERPRETER: "I move the Court for factual finding as to the

old law ... “Upon review of the legislative history of Title 21 U.S.C.

paragraph 841, it became apparent that a statutory life sentence did not

come into effect until November of 1988..." "in fact, the defendant was
found innocent of the charges that would have involved him through

August of 1986, which clearly shows that in the instant case, the

defendant should be sentenced under the old law...". Transcript of

February 3, 1999, pg. 25, lines 17-25; pg. 26, lines 1-25.

During Sepulveda’ s trial, there was no testimony given to involve him in
the conspiracy past the date of November 1, 1987. In fact, Sepulveda was the only
one in the conspiracy to be acquitted of 3 of his 5 counts of a 34-count indictment.
These 3 counts would have involved Sepulveda in the conspiracy until August

of 1986, which is still within the old law time frame. Sepulveda’ s life
sentence is invalid because the Court committed an ex post facto violation against
Sepulveda, by sentencing him under the harsher new law of November 1, 1987,

which also eliminated Sepulveda's parole right. See Peugh v. United States, 569

U.S. 530 (2013):

20


when weighing a request for compassionate relief". (internal citations and
quotations marks omitted)).

United States v. Young, 458 F. Supp. 3d 838, 844(M.D. Tenn. Mar. 4, 2020)
("Notwithstanding the statutory amendment, ... the 'catch all’ provision in
Application Note (1)(D) to U.S.S.G. § IB1.13 still cross-references the BOP
Director as the individual with authority to determine in a particular prisoner's case
the existence of another extraordinary and compelling reason, other than, or in
combination with, the reason described in subdivision (A) through (C)...As both
parties recognize, however, the dependence on the BOP to determine the existence
of an extraordinary and compelling reason . . . is a relic of the prior procedure that
is inconsistent with the amendments implemented by the First Step Act. Although
it does not appear that any federal Circuit Court of Appeals has addressed this
issue, a majority of District Courts that have considered the issue have likewise
held, based on the First Step Act, that they have the authority to reduce a prisoner’s
sentence upon the Court’s independent finding of extraordinary or compelling
reasons.”) United States v. O'Bryan, 2020 WL 869475, at *2 (D. Kansas Feb. 21,
2020) (agreeing with "numerous courts" that have "recognized that courts can
determine whether extraordinary and compelling reasons exist to modify a
sentence and may do so under the catch all provision similar to the recognized in

U.S.S.G. Manual § 1B1.13 n.1 (D), that is, an extraordinary and compelling reason

14


professional opinion inmate Sepulveda could be an asset to society if
giving a deserved second opportunity. I am in support of any

consideration regarding a reduction of sentence or release

from sentence for inmate Sepulveda".’

Mr. Sepulveda has accepted responsibility for his actions and is deeply
remorseful. At 65-years old, he lives in shame for the decisions he made in his
younger years, that have caused so much pain to his family. But he has used the
time he has spent in prison to turn his life around, and his continued incarceration
does not serve any legitimate sentencing goal at this point. There is no doubt that
the over 23 years (27 years with good time) that Sepulveda has already served is
more the sufficient to achieve the objectives of his sentence and incarceration. In
fact, Sepulveda' s legal sentence as demonstrated here under 21 U.S.C. § 841 (b)
(1) (C) is 20-years. This means he has served over 3 years of his constitutional
sentence.

He would not pose a danger to the community if released. On November 20,
2020 he turned 65 years old. Even during his drug activity which began when he
was 22 years old, he never harmed anyone in the commission of almost exclusively

marijuana offenses, which ended 34 years ago.

7 As mentioned above, Sepulveda had no prior criminal record, and since his arrest and incarceration, he has been a
model inmate with only two insignificant non-violent rule reports, and one of the two reports made three parts of
one incident. See PROGRESS REPORT_INSTITUTIONAL ADJUSTMENT, by unit Manager J. BOLEY: "...
Inmate Sepulveda is a Model inmate . . . ". Also see, letter by BOP Psychologies Dr. Javier Mouriz, PhD: "Inmate
Sepulveda is a model inmate and has been giving outstanding work evaluations... ".

24



was the existence of "extraordinary and compelling reasons" warranting the
reduction, as determined by the sentencing court. But although the court had the
final decision-making authority over whether a sentence would be reduced, the
statute imposed a gatekeeper - that authority could be invoked only upon a motion
by the Director of the BOP. Without such a motion, sentencing courts were
powerless to reduce a prisoner’s sentence, even if the court concluded that
extraordinary and compelling reasons warranted the reduction. 18 U.S.C. §3582
(c)(1)(A)(i); see also PL98-473 (H.J. Res. 648), PL 98-473, 98 Stat 1837 Oct. 12,
1984.

That changed when Congress enacted the First Step Act, which amended
§3582(c)(1)(A). See P.L. 115-391, 132 Stat. 5194. at §603 (Dec. 21, 2018). Under
the amended statute, a court can now reduce a sentence for "extraordinary and
compelling reasons" in two circumstances: (i) if the Director of the BOP files a
motion requesting such relief; or (ii) upon motion of the defendant, if the
defendant has fully exhausted all administrative remedies to appeal the BOP's
failure to bring a motion, or if 30 days has lapsed from the receipts of such a
request by the warden of the defendant's facility, whichever is earlier. 18 U.S.C. §
3582(c) (1) (A). See United States v. Cantu, 423 F. Supp. 3d 345 349 (S.D. Tex.
June 17, 2019) (" [U]nder the newly amended § 3582 (C) (1) (A) [the defendant]

has standing to bring this motion because more than 30 days elapsed between his


Top photo, from left to right is Sepulveda's half brother Caleb III,
Sepulveda's father and Sepulveda's oldest son Jose jr.. Bottom photo,
from left to right Sepulveda's half brother Elliot, Sepulveda's father
Caleb and Sepulveda's half sister Vivian.

This two recent photos, show Sepulveda‘s father Caleb who is 85 years
old, during his last stay in the hospital. At this time
Sepulveda's fatheris at home bedridden and is not expected to live long.
Sepulveda implores for marcy from the Court and the AUSA, to give him
the opportunity to join his family at his father's deathbed.



"We consider here whether there is an ex post facto violation when a
defendant is sentenced under U.S. Sentencing Guidelines Manual
Provisions after he committed his criminal acts, and the new version
provides a higher applicable guideline sentencing range that the version

in place at the time of the offence. We hold that there is."

Id, at 533. "Moreover, the fact that sentencing authority exercise some
measure of discretion, will also not defeat an ex post facto claim." Jd. at 539.

In Sepulveda’s case this Court has already held, [under the same indictment],
that pre-guidelines law applied and required "resentencing", including to a
parole-eligible term.

Sepulveda was sentenced on February 4, 1999, prior to the Supreme Courts’
decision in United States v. Booker, 543 U.S. 220 (2000). He was subjected to a
mandatory Sentencing Guidelines scheme. After Booker's decision, the Sentencing
Guidelines became advisory, which allowed the Court's to give less prison time,
and Sepulveda would have received relief. Unfortunately, for Sepulveda the
Supreme Court held that Booker did not have retroactive application, and he could
not benefit from the ruling. President Obama initiated the Clemency Project in
2014 to address these very issues claimed here. Now this Court is not restrained to
reduce Sepulveda's sentence to time served under the First Step Act and amended
18 U.S.C. 3582(c) (1) (A) (i), for “extraordinary and compelling reasons” as

presented here.

THE RELEVANT FACTORS IN THIS CASE WEIGH STRONGLY IN
FAVOR OF A SENTENCE REDUCTION TO TIME SERVED

21



COMPOSITE EXHIBIT:

PHOTOGRAPHS PROVIDED BY MR. SEPULVEDA


and positive influence in the Skills Program unit...he never resorts to
using an aggressive style to get his point across...

PROGNOSIS: "Great prognosis is expected, as SEPULVEDA is able
to find appropriate solutions to problems, remain objective, make
better decisions and understands the chain effect of his actions on
others.

Inmate SEPULVEDA is expected to continue practicing the concepts
learned in this program and maintain a criminal free lifestyle in
society".

Dr. Mouriz , the Challenge Program Coordinator also had this to say about
Mr. Sepulveda:

For over four years he (Sepulveda) was a Suicide Companion, a
position of trust wherein he received training to observe and provide
counsel to inmates who are on Suicide Watch. This position is very
important in that the safety and survival of other inmates was trusted
to him. In addition, he was also a mentor in the Bureau of Prisons’
Skills Program for over four years, . a program designed to assist
inmates with intellectual deficits to adjust to and adapt at a functional
level within the prison milieu..."

He has received over 20 affidavits from inmates whom he assisted
while in the Skills Program and they have attested to how he helped
then to adjust and function while in prison".

In addition, as a result of his pleasant demeanor and history of
positive behavior, numerous Bureau of Prisons Staff members have
also provided Memorandums highlighting his goodcharacter and
conduct".

As noted above, inmate Sepulveda has demonstrated he is capable and
willing to live within the established rules set by the law and to
continue to improve. He has worked to change character defects
which led to his incarceration and has prepared himself for re-entry to
society. He has marketable skills, a good work ethic, excellent family
relations, and the financial support for a successful return to society. I
have known inmate Sepulveda for nearly 20-years, and it is my

23


defendant can be convicted only if the jury has found each element of the
crime of conviction.

Alleyne v. United States, 570 U.S. at 114-115.

After Alleyne this unconstitutional loop hold of harmless error rulings on
the element of drug type and quantity was closed. Sepulveda's statutory penalty on
the drug quantity was not found by the jury but were alleged in his PSI and found
by his sentencing Judge by a preponderance of the evidence. Sepulveda, objected
to the PSI'S alleged computation of drug quantity.°

In sum, on February 4, 1999, Sepulveda was sentence to life imprisonment
under 21 U.S.C. § 841 (b) (1) (A). This was the wrong statutory maximum penalty
without a jury determination of drug quantity, to set the 'statutory penalty' in
Sepulveda's case. Sepulveda had to be sentence under 21 U.S.C. §841(b)(1)(C) to

20 years, which is the appropriate default section.

If Mr. Sepulveda were today convicted under the same circumstances,
without specific jury findings required by Alleyne and Apprendi, he would have
been sentenced to the statutory maximum 20 years instead of life imprisonment, as

a first time non-violent offender.

5 "the drug quantity that sets the 'statutory penalty’ under section 404 is the quantity charged as an element in the
indictment and found as an element by a jury beyond a reasonable doubt. It is not the quantity alleged in the PSI or
found by the judge at sentencing". United States v. Robinson, 2019 WL 4543287 at *3 (S.D.FL. August 5, 2019).

18


might warrant a reduction in a particular case, the language is now irreconcilable
with the revised statute, which permits a defendant to bring a §3582 motion to the
Court without any response from the BOP or even if the BOP expressly decides
that no reasons warrant a reduction of sentence. Accordingly, that aspect of the
commentary is not binding on the courts because it is inconsistent with the
amended text of §3582--and the undisputed purpose of the First Step Act--which,
"[1]ike other sentencing statutes ... trump the Guidelines." Dorsey v. United
States, 567 U.S. 260, 266 (2012). Congress has finally removed the BOP's blessing
as a prerequisite to relief under § 3582(c). That law trumps §1B1.13's requirement
of a BOP motion and divests authority to determine whether extraordinary and
compelling reasons warrant a sentence reduction in a particular case. See also
United States v. Da Cai Chen, 127 F.3d 286, 291 (2d. Cir. 1997) (commentary that
related to a statute, or to a guideline that mirrors a statute (as here), is not entitled
to deference); United States y. Pierninanzi, 23 F.3d 670, 683 (2d Cir. 1994).

Most district courts have observed since the passage of the First Step Act
that §1B1.13 "has not been yet updated to reflect that defendants (and not the BOP)
may move for compassionate release," United States v. McGraw, No. 2:02-cr-
00018(LJM)(CMM), 2019 WL 2059488, at *2 (S.D. Ind. May 9, 2019), and
"[b]ecause the current version of the Guideline policy statement conflict with the

First Step Act, the newly-enacted statutory provisions must be given effect,"

10


oe : S .
Top left photo, Sepulveda's elder son Jose jr. at center with seven of
Sepulveda's eleven gradchildren. Top righ photo, Sepulveda at visit with his
half sister Vivian. Bottom photo, at visit from left to righ: Sepulveda's elder
daughter Miosoti, granddaughter Jailin, Sepulveda, his son-in-law Miguel and
Sepulveda's gradson Jose Miguel.



€0CO 23
TOLAND

Top photo, Sepulveda at visit with his
brother New York Senator Luis R. Sepulveda.
During this visit Sepulveda's brother was
a N.Y. Assemblyman, By Senator Sepulveda:
"My name is Luis Sepulveda, and Tam the
brother of Jose Elias Sepulveda ... If my
brother is reales from prison he has a
place to stay with our family that wishes
to have him back home with us. I'm more
then willing to provide any help he may
need to begin his new life. Additionally,
my brother has the itnconditional backing
of our family. (See exhibit~ 39 ,
affidavit.

Bottom photo, Sepulveda demonstrating the
sample books he has writing with his cover
designs, ready for publishing,

Bureau of Prisons Psychology Service, by
Dr. Javier Mouriz Phd.: .., "It should be
noted that while in prison inmamte
Sepulveda has written five books which are
all copyrighted via the United States
Copyright Office. Among these hooks are
a three-part series of children's books
about education, leadership, and a basic
sense of business. The other books include
an autobiography and a collection of
poems". (See exhibit- 35), latter.

DETRAYED BY 81.001
jusrice. |.
FieanUAOHTUN

ete |

joe LIAS
uiiivaoA


The Committee believes that there may be unusual cases in which an

eventual reduction in the length of a term of imprisonment is justified

by changed circumstances. That would include cases of severe illness,

cases in which other extraordinary and compelling circumstances

justify a reduction of an unusually long sentence, and some cases in
which the sentencing guidelines for the offense of which the defendant

was convicted, have been later amended to provide a shorter term of

imprisonment.

Id, 55-56. It therefore allowed for judicial reduction of certain sentences under
§3582(c), rather than having the Parole Commission review every federal sentence.
Congress decided to let sentencing courts decide, in a far narrower band of cases
presenting extraordinary and compelling circumstances, that "there is a
justification for reducing a term of imprisonment." Jd. at 56.

The situations listed in §3582(c) were thus intended to serve as "safety
valves for modification of sentences," enabling sentence reductions when justified
by factors that previously could have been addressed through the (now abolished)
parole system. Jd. at 121. This approach was intended to keep "the sentencing
power in the judiciary where it belongs," rather than with a federal parole board,
and permitted "later review of sentences in particularly compelling situations." Id.
Notably, Congress imposed no limitation on courts' authority to make such
determinations, declining to define what constitutes "extraordinary and compelling
reasons" or to otherwise constrain judges' discretion. The mandate was simply: If

extraordinary and compelling circumstances were present, they would "justify a

reduction of an unusually long sentence." S. Rep. No. 98-225, at 55-56 (1983).
7


reduction in sentence request to the warden and a response."); United States v.
Cantu-Rivera, No. CR H-89-204, 2019 WL 2578272 at *1 (S.D. Tex. June 24,
2019). Sepulveda has exhausted his administrative remedies. The Court therefore
has the authority to address Sepulveda's motion. The BOP did not file a motion
with this Court on Sepulveda' s behalf. Accordingly, Sepulveda is entitled to bring
his motion directly to the Court pursuant to 18 U.S.C. §3582(c)(1)(A), and this
Honorable Court is vested with the jurisdiction to rule on the requested relief.
THE RELIEF REQUESTED HERE IS CONSISTENT WITH THE TEXT

OF THE STATUTE AND SENTENCING COMMISSION'S POLICY
STATEMENT

Congress did not limit "extraordinary and compelling reasons" to a specific,
enumerated set of circumstances. Congress did not define what would constitute
an "extraordinary and compelling reason" warranting a reduction of a sentence
under §3582(c). The legislative history confirms that it intended to grant Federal
sentencing courts broad discretion to make those determinations on a case-by-case
basis, and to reduce fundamentally unfair sentences where such reasons exist.

Congress's initial goal in passing the comprehensive Crime Control Act
was to abolish federal parole and create a "completely restructured guidelines
sentencing system.” S. Rep. No. 09-225, at 52, 53 n.74 (1983). But with the
elimination of parole as a corrective measure in cases where early release is

warranted, Congress recognized the need for an alternative review process:
6


Other Extraordinary and Compelling Reasons to Reduce Sepulveda's
Sentence to Time Served Pursuant to 18 U.S.C. § 3582(c)(I)(A)(i) and U.S.S.G.

§ 1B1.13

Sepulveda was denied counsel throughout pretrial, trial and sentencing. He
should have been given a new trial with proper representation as guaranteed by the
Sixth Amendment of the United States Constitution. By denying Sepulveda court
appointed counsel, the Court acted in a manner inconsistent with due process of
law., "In order to proceed pro se, a defendant must clearly and unequivocally raise
the right to self-representation". Faretta v. California, 422 U.S. 806, 835 (1975).°
As demonstrated, Sepulveda is serving an unconstitutional life sentence and should
have been given a new trial. Based on this fact alone 'extraordinary and
compelling reason! exist where relief is authorized, under 18 U.S.C § 3582(c) (1)

(A) (i) and must be issued as stated in Gideon v. Wainwright, 372 U.S. 335 (1963).

If Sepulveda would have had the advice of counsel, he would have accepted
or negotiated through counsel the 27-year plea agreement that was offered to him

in this case, by the Honorable AUSA Karen E. Rhew. Even if Sepulveda would

®THE DEFENDANT: “... I also want to add to that, I would like this Court to give me or appoint me counsel for
this sentencing hearing, since I do not have the experience to follow up in this hearing as a prose litigant. I have
been forced to go prose. I don't wish to be here representing myself today. And I wish this Court to supply me with
counsel... “THE COURT:” ... I have denied you a lawyer...” Transcript of first day of sentencing, January 29,
1999, Pg, 4 lines 23-25, pg. 5, lines 1-9 and pg. 6.

19


with serious deterioration related to aging who have completed at least 10 years or
75 percent of the term of imprisonment); (II) the family circumstances of the
defendant (where a child's caregiver or spouse dies or becomes incapacitated
without an alternative caregiver); and (IV) "other reasons" as determined by the
BOP. U.S.S.G. § 1B1.13, Application Note 1(A). The fourth category specifically
includes "an extraordinary and compelling reason other than, or in combination
with," the first three? Jd. Additionally, the commentary makes clear that the
extraordinary and compelling reasons "need not have been unforeseen at the time
of sentencing in order to warrant a reduction in the term of imprisonment."
U.S.S.G. § IB1.13, Application Note 2. In other words, even if an "extraordinary
and compelling reason reasonably could have been known or anticipated by the
sentencing court, [that fact] does not preclude consideration for a [sentence]
reduction," Id.

As the above language makes clear, extraordinary and compelling reasons
for a sentence reduction may exist even when an inmate is not elderly, ill, or facing
dire, caregiver-related family circumstances. And though the policy statement--
which has not been amended since the passage of the First Step Act--vested the

Director of the BOP with the authority to determine when such "other reasons"

? |-II-III & Iv apply to Sepulveda. 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 on November 20, 2020 and is a chronic care inmate, with deterioration cause by aging and has
been incarcerated for twenty-four years.

9


Sepulveda’ s rehabilitation is further evidenced by his accomplishments and
the evolution of his character while in prison. Over the past two plus decades,
Sepulveda has worked tireless to educate himself, while incarcerated, participating
in over 4580 hours of educational programing. He has completed some 62
educational courses and has an extensive inmate educational transcript in his BOP
file. These courses include: GED, Microsoft Computer, Occupational Electronics
Technology from the Florida Department of Education, Culinary Arts Program
through the National Restaurant Association, Hospitality and Restaurant
Management, Image Consulting for Business, Money Smart, Transition
Employment, Commercial Driver’s License, and many others.®

CONCLUSION

Congress never intended to permit, let alone to mandate, the excessive
punishment Mr. Sepulveda received in this case. It has now given the Court the
power to grant him relief from that sentence. Mr. Sepulveda respectfully requests
that the Court take this opportunity to grant a reduction in sentence based on
extraordinary and compelling reasons as shown above and reduce his sentence to

time served.

8 Sepulveda’ s educational programming is in accord with Pepper v. United States, 562 U.S. 476, 490-93 (2011),
the Court can and indeed must, consider post-offense development under § 3553 (a), which provides "the most up-
to-date picture" of the defendant's history and characteristics and" sheds light on the likelihood that [the defendant]
will engage in future criminal conduct" Id at 492. After considering all of the circumstances in this case, this court
should conclude that nearly 24 years that Sepulveda has already served, is more than sufficient to satisfy the
purposes of sentencing.

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION
UNITED STATES OF AMERICA CASE NO.: 1:88-CR-01026-
MW-GRJ-6
v.
JOSE ELIAS SEPULVEDA

18 USC §3582(C)(1)(A)(i) MOTION TO REDUCE SENTENCE

COMES NOW, the Defendant, Jose Elias Sepulveda, and respectfully
moves this Court pursuant to 18 U.S.C. § 3582(C)(1)(A)(i) and moves this
Honorable Court for an order reducing his sentence to time-served. The First Step
Act contemplates reductions for “Extraordinary and Compelling” reasons which
exist as detailed below. See Pub.L. No. 115-391 Stat. 5194, At §603 (December
21, 2018).

PROCEDURAL HISTORY

Mr. Sepulveda was charged in five-counts of a 34-count indictment with
conspiracy to import a controlled substance, in violation of 21 U.S.C. §952 and
§960 (b)(1)(A)(count 2) and conspiracy to possess with intent to distribute
controlled substances, in violation of 21 U.S.C.§841(b)(1)(A)(count 3), aiding and
abetting (counts 26 and 27) and travel in foreign commerce in violation of 18

US.C.§2 and §1952 (a)(3) (count 29).


-is that when a defendant brings a motion for sentence reduction under
the amended provision, the Court can determine whether any
extraordinary and compelling reasons other than the delineated in
US.S.G. § IB1.13 cmt. N.1(A)-(C) warrant granting relief.

Cantu, 423 F. Supp 3d. at 352. This Court therefore may assess Sepulveda's case
in considering whether extraordinary and compelling reasons warrants the

reduction of his sentence‘.

A majority of District Courts have concluded that the First Step Act gives
sentencing courts the broad discretion previously reserved to the Director of the
Bureau of Prisons to use Application Note 1(D) of §1B1.13 to determine if any

extraordinary or compelling reasons other than age, medical conditions, or family

4 See United States v. Urkevich, No. 8:03CR37, 2019 WL 6037391, at *3 (D. Neb. Nov. 14, 2019) ("This Court
infers that the Commission would apply the same criteria, including the catch-all provision of Application Note 1
(D), in the wake of the First Step Act's amendment to § 3582(c) (1) (A) and that this Court may use Application
Note 1 (D) as a basis for finding extraordinary and compelling reasons to reduce a sentence."); Cantu, 423 F. Supp.
3d at 351. (“Given the changes to the statute, the policy-statement provision that was previously applicable to U.S.C.
§ 3582(c) (1) (A) no longer fits with the statute and thus does not comply with the congressional mandate that the
policy statement must provide guidance on the appropriate use of sentence- modification provisions under §
3582"); Cantu-Rivera, 2019 WL 2578272 at *2 n.1 (finding authority to determine that defendant was entitled to
relief under the catch-all provision in the commentary to 1B1.13 because the "current policy statement predates the
enactment of the First Step Act and is not likely to be amended within the foreseeable future due to lack of a
sufficient number of serving members”) Indeed, a majority of district courts have concluded that the First Step Act
gives sentencing courts the broad discretion previously reserved to the Director of the Bureau of Prisons to use
Application Note 1(D) of§ 1B1.13 to determine if any extraordinary or compelling reasons other than age, medical
conditions, or family circumstances exist. United States v. Beck, 425 F. Supp. 3d. 573, 579 (M.D.N.C. June 28,
2019) ("While the old policy statement provides helpful guidance, it does not constrain the Court's independent
assessment of whether extraordinary and compelling reasons warrant a sentence reduction under § 582(c)(1)(A)(i)").
Reason, other than, or in combination with, the reason described in subdivision (A) through (C).... As both parties
recognize, however, the dependence on the BOP to determine the existence of an extraordinary and compelling
reason is a relic of the prior procedure that is inconsistent with the amendments implemented by the First Step Act.
Although it does not appear that any federal circuit Court of appeals has addressed this issue a majority of district
Courts that have considered the issue have likewise held, based on the First Step Act, that they have the authority to
reduce a prisoner's sentence upon the court's independent finding of extraordinary or compelling reasons".)

12


Cantu-Rivera, 2019 WL 2578272 at *2 n.1. See also Cantu, 423 F. Supp. 3d at
351 ("Given the changes to the statute, the policy-statement provision that was
previously applicable to 18 U.S.C. § 3582(c)(1)(A) no longer fits with the statute
and thus does not comply with the congressional mandate that the policy statement
must provide guidance on the appropriate use of the sentence-modification
provisions under §3582.").

The Court's authority to reduce Sepulveda’s sentence is not only consistent
with the statute, but also with the language in the policy statement, which makes
clear that "[t]he court is in a unique position to determine whether the
circumstances warrant a reduction (and, if so, the amount of reduction)" and
encouraging the filing of a motion for compassionate release where a defendant
"meets any of the circumstances set forth in [the] application Note. "As mentioned
above, in amending the language of 18 U.S.C. § 3582(c)(1)(A), Congress finally
empowered courts to make this determination’, even in the face of a BOP
determination that a defendant's case is not extraordinary or compelling. Thus, just
over a year ago, a district court in Texas held as follows:

[T]he correct interpretation of § 3582 (c) (1) (A)--based on the text,

statutory history and structure, and consideration of Congress's ability
to over any of the Commission's policy statements ‘at any time' [... ]--

3 See U.S. v. Maumau, 2020 WL 806121 (D. Utah Feb 18, 2020.) (Utah District Court held Under the First Step
Act, the length of sentence under current guidelines is an extraordinary and compelling ground to reduce sentence.);
USS. v. Johns 2019 WL 264663 (D. Ariz. June 27, 2019) Life sentence in a drug conspiracy reduced for
extraordinary and compelling reasons.)

11


Top left photo, Sepulveda at visit with:
his granddaughter i

ictoria, Bottom left
photo, Sepulveda at vi - with his grandson
Dusting.

<

Top right group photo, Sepulveda at visit
embracing his granddaughter Mia Rasa and
grandson Logan, behind Sepulveda from left
to right, his daughter-in-law Amanda, son
Jose jr., with Sepulveda's grandson Dustin.



Finally, Sepulveda's mother is 83 years old, and increasingly requirs
the support of here only son, She is ready and willing to support him as he
rebuilds his life, At 83 years old, one of her greatest fears is that she

<4 . a3
will not live to see her son a free man.

8/11/2018 3:05

Sepulveda at visit with his mather Luz and his father Caleb.

13. Sepulveda -has two adult sonts and two adult dughters, and eleven (11)
grandchildren, that were all born during his incarceration. He has exellent
communication with them and has meet them all through visit. Sepulveda stays
in contact with all of ‘them via phone, e-mail, letters and visits. And they
all want there dad and grandpa home.


Unfortunately, the establishment of the BOP as a gatekeeper effectively
eliminated that safety valve. The BOP, part of the Department of Justice, hardly
ever opened the gate! to address this reality. Congress, through the First Step Act,
now allows direct access to the sentencing court once an inmate's request to the
BOP has been exhausted.

The U.S. Sentencing Commission has not limited "extraordinary and
compelling reasons" to medical, age-related, or family circumstances. When
enacting §3582(c), Congress delegated the responsibility for expounding upon
what constitutes "extraordinary and compelling reasons" to the U.S. Sentencing
Commission (the "Commission"). See 28 U.S.C. §994(t)

("The Commission 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 28 U.S.C. §992(a)(2) (the

Commission shall promulgate policy statements regarding "the sentence
modification set forth in sections ...3582(a) of title 18"). The resulting policy
statement by the Commission set forth the following factual considerations: (I) the
medical condition of the defendant (including terminal illness and other serious

conditions and impairments), (II) the age of the defendant (for those 65 and older

1 See, eg., The Answer is No: Too Little Compassionate Release in US Federal Prisons. Human Rights Watch, 2
(Nov.2012), https://www.hrw.org/sites/defult/files/reports/usll12ForUploadSm. pdf (noting that between 1992 and
2012, the average annual number of prisoners who received compassionate release following a motion by the BOP
was less than two dozen).

8


In more than the 23 years Mr. Sepulveda has already served great
transformation has occurred. He has dedicated himself to his education and
rehabilitation, personifying the objectives of § 3553(a)(2) that incarceration
"provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment". This factor weighs heavily in support of
granting relief. See Cantu-Rivera, 2019 WL 2578272. at *2 (recognizing the
"extraordinary degree of rehabilitation" Mr. Cantu-Rivera accomplished and caring
for other inmates as factors justifying the reduction in sentence). Throughout
Sepulveda's incarceration he has demonstrated his good nature, caring, compassion
and his willingness to mentor others. Consider the February 25, 2020 report from
Dr. Benitez:

Inmate SEPULVEDA is one of the most respectful, caring and
compassionate mentors in the program. He cared for Skill Program
participants, who are very difficult to live with. However, Inmate
SEPULVEDA cared for them in a manner that demonstrates
incredible patience, tolerance and compassion. He performs duties for
inmates in the program that would otherwise be performed by a nurse
assistant in the civilian world. Inmate SEPULVEDA has never once
complained or refused to continue assistant low functioning/autistic or
brain injured patients/inmates. Inmate SEPULVEDA has helped many
individuals with the same regard during his time as a Mentor Health
Companion. He has taken the most difficult, mentally ill and/or low
functioning inmates under his care.!”

Inmate SEPULVEDA assists staff by providing feedback and
outlining solutions to problems that if not addressed could lead to
serious safety and security issues... He has been a positive role model

22


Top photo, at Sepulveda's graduation from
Culinary Arts, through the National
Restaurant Association. (First in his
class). From left to right: -Sepulveda's
half brother Carlos, the mother of
Sepulveda's son Joesu Gloria, his son
Joesu, Sepulveda's stepmother Miosoti and
his father Caleb.

By Santiago Rivera, Culinary Instructor:
as. Mr. Sepulveda... was a stellar
student, achieving high exam scores in
class ... Mr. Sepulveda displayed a high
degree of integrity, responsibility and
ambition ... he has proven his leadership
ability by assisting other students in the
preparation of meals for staff and students
«+. He was also a most dependable team
player. Mr. Sepulveda would be an asset
to any organization, He is highly
recommended and I am happy to give him my
wholehearted endorsement, Please feel free
to contact me with any questions you have,
about Mr. Sepulveda ry
www. srivera@csulinary.com. (See exhibit-
38 ), letter of recommendation,

Bottom left photo, Sepulveda at his
graduation from Ocupational Electronics
Technology, trough the Florida Department
of Education.



on Sepulveda's behalf. The BOP, as gatekeepers and part of the Department of
Justice, have historically been unwilling to file motions for sentence reduction.
The First Step Act allows Mr. Sepulveda to come directly to the Court to request a
reduction of his sentence. He now asks this Honorable Court to exercise the power
conferred to the Court by the First Step Act to reduce his sentence.
DISCUSSION
This Court has the authority to reduce Mr. Sepulveda's sentence based on the

extraordinary and compelling circumstances present here. First, the Court has the
jurisdiction to hear this motion since Mr. Sepulveda has exhausted his
administrative remedies. Second, the changes to 18 U.S.C. §3582(c)(1)(A)(i)
made by the First Step Act have finally vested courts with the authority to decide
when extraordinary and compelling circumstances warrant a sentence reduction.
Such circumstances exist in this case. Third, the factors a court must consider in
determining an appropriate sentence all weigh strongly in favor of a time-served
adjustment in Sepulveda's sentence.

THE COURT HAS THE AUTHORITY TO REDUCE SEPULVEDA'S

SENTENCE BASED ON "EXTRAORDINARY AND COMPELLING
REASONS"

The Compassionate Release Statute was first enacted as part of the
Comprehensive Crime Control Act of 1984. It provided that a district court could

not modify a final term of imprisonment except in four situations, one of which
4


other, or in combination with, the reasons described in subdivisions (A) through
(CJ relating to prisoner health or family relations"); United States v. Schmitt, 2020
WL 96904, at *3 (N.D. Iowa Jun. 8, 2020) ("agree[ing] with those courts" that -
have concluded that "Guideline § IBI.13 cmt. n .1 does not restrain a court's
assessment of whether extraordinary and compelling reasons exist to release a
defendant"); United States v. Valdez, 2019 WL 7373023, at *2 (D. Alaska Dec. 31,
2019) ("This court concludes that it is no longer bound to the director of the
Bureau of Prisons for a definition of extraordinary and compelling reasons beyond
application note 1(A) through (C)"); United States v. Rodriguez, 424 F. Supp. 3d
674, 681-682 (N.D. Cal. Nov. 25, 2019) ("This Court follows the growing number
of district courts that have concluded that, in the absence of applicable policy
statements, courts 'can determine whether any extraordinary and compelling
reasons other than those delineated in U.S.S.G. IBI.13 emt. N.1 (A)-(C) warrant

compassionate release").

THE EFFECT OF APPRENDI AND ALLEYNE ON THIS CASE WEIGH
STRONGLY IN FAVOR OF A SENTENCE REDUCTION TO TIME
SERVED UNDER §3582(c)(1)(A)(i)

Mr. Sepulveda’s jury was not instructed that it had to determine the drug

type and amounts beyond a reasonable doubt, and this justifies relief under the

15


After Apprendi and Alleyne, before a court can sentence a defendant to more
than 20 years under either 21 U.S.C. § 841(b)(1)(A) or (b)(1)(B), the necessary
quantity of drugs must have been determined by the jury beyond a reasonable
doubt. “If the government seeks enhanced penalties based on the amounts of drugs
under 21 U.S.C. § 841 (b) (1) (A) or (B), the drug quantity must be stated on the
indictment and submitted to the fact finders for a finding of proof beyond a
reasonable doubt.” United States v. Daniels, 723 F.3d 562, 570 (5th Cir. 2013).
“Apprendi requires the government to prove beyond a reasonable doubt the
quantity of alleged drug as a fourth element of the offense." Jd.

In Sepulveda's direct appeal of the above issue, Sepulveda claimed this very
error, invoking Supreme Court Apprendi v. New Jersey, 530 U.S. 466 (2000). The
Eleventh Circuit Court of Appeals in an un-published opinion conceded to
Sepulveda's argument that it was error not to submit drug type and quantities to the
jury, but that the error was harmless, since the statute for the drug quantities charge
in the indictment was 10 to life, and that Sepulveda could have received the same
life sentence with or without a jury finding of the drug element. This rationale was
invalidated by Alleyne:

It is no answer to say that the defendant could have received the same

sentence with or without that fact. It is obvious, for example, that a

defendant could not be convicted and sentenced for assault, if the jury only

finds the facts for larceny, even if the punishments prescribed for each crime
are identical. One reason is that each crime has different elements and a

17


to mitigate the effect of the sentences. In handing down the sentence, the
Honorable Judge Maurice M. Paul's hands were tied, since he could not deviate
from the then mandatory Guidelines applicable to 21 U.S.C. § 952 and
§960(b)(1)(A) and 21 U.S.C. § 841(6)(1)(A).

If Sepulveda would have been convicted of the offenses charged against him
today, with the operation of the constitutional principles reinstated by the Supreme
Court in Alleyne, Sepulveda would have been sentenced to a lower statutory
maximum penalty of 20 years.

Sepulveda's offenses in the conspiracy commenced in 1978 when he was 22
years of age and ended when he was 32 years old. Sepulveda will be 66 years old
on November 20, 2021. He has already served a quarter-century in prison, almost
half of his life, with no projected release date as a non-violent first offender.
Sepulveda fully acknowledges the bad decisions he made and is deeply remorseful
for his conduct when he was younger. The 23 years he has already served have
humbled him deeply, and his conduct in prison is a testament to his rehabilitation
and determination to turn his life around.

Sepulveda has exhausted all of his administrative remedies requesting the
Warden of FCC Coleman Medium and the BOP, asking that they move this Court
for a reduction of sentence under 18 U.S.C. § 3582(c)(1)(A)(i). The request has

been acknowledged by the Bureau of Prisons, but the BOP has not filed a motion


WHEREFORE, Undersigned Counsel prays that this Honorable Court will

grant Mr. Sepulveda’s request and reduce his sentence to time served.

DATED THIS 19 day of May 2021.
Respectfully submitted,

s/Darlene Calzon Barror

DARLENE CALZON BARROR, ESQUIRE
506 North Armenia Avenue

Tampa, Florida 33609

Tel: (813) 877-6970

Fax: (813) 879-2610
Darlene@BarrorLaw.com

Attorney for Defendant

Florida Bar No. 0860379

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished electronically by CM/ECF system which will send an electronic filing to
THE OFFICE OF THE ASSISTANT UNITED STATES ATTORNEY, this 19" day
of May 2021.

s/Darlene Calzon Barror
DARLENE CALZON BARROR, ESQUIRE

26


On August 4, 1998, the Petitioner was found guilty as to counts two and
three of the indictment and on February 4, 1999 was sentenced by this Honorable
Court to life imprisonment followed by five years of supervised release.

Mr. Sepulveda appealed the conviction to the Eleventh Circuit Court of
Appeals which affirmed the conviction on December 24, 2002. Rehearing was
denied on January 13, 2003. Certiorari review by the Supreme Court was denied on
October 6, 2003. Rehearing by the Supreme Court was denied December 8, 2003.
Petitioner's 28 U.S.C. § 2255 was denied on November 3, 2008. The Petitioner
appealed the District Court's denial of his certificate of appealability on December
12, 2008. The Eleventh Circuit Court of Appeals denied a certificate of
appealability on February 26, 2009. The Supreme Court denied certiorari on the
issue on June 19, 2009.

Mr. Sepulveda filed a 60(b)(6) motion which was denied by this Honorable
Court for lack of jurisdiction and as being untimely on October 4, 2018. The
Petitioner's numerous requests for Court appointed counsel, for pre-trial, trial and

sentencing were denied, and he represented himself.

INTRODUCTION
The Petitioner was sentenced to life imprisonment before the US Supreme

Court's holdings in Booker and Alleyne were decided and he could not do anything


Top photo, Sepulveda at visit with: Jodi
his son Jose jr's fiancé and his elder son

Jose jr.

Bottom photo, at visit from left to righ:
Sepulveda's stepfather Juaquin, Sepulveda's
mother Luz and Sepulveda.

ees

06/10/2017 13:03

28


AG

ay

XN

AMR (OY? 4

Top left photo, during Sepulveda's
graduation from the Challege Program,
Bottom photo, Sepulveda holding his
designed: of a machanical brain with the
eight criminal thinking errors. Sepulveda
was the first inmate to ever create a
design of a machanical brain to demonstrate
the eight criminal thinking errors during
a Challege Program graduation. This was
an unexpected surprise for the graduating
class and staff, and it was praised by
Psychology servic

22


circumstances exist. See United States v. Owens, No. 97-CR-2546-CAB, ECF
No.93 at 4 (S.D. Cal. Mar. 20, 2020) ("In the wake of the First Step Act, numerous
courts have recognized the court can determine whether extraordinary and
compelling reasons exist to modify a sentence and may do so under the 'catch all’
provision similar to that recognized in U.S.S.G. Manual § 1B1.13 n.1 (D), that is,
‘an extraordinary and compelling reason other than, or in combination with, the
reason described in subdivisions {A) through {C)' relating to prisoner health or
family relations"). (citation and internal quotation marks omitted)); United States v.
Redd, 444 F. Supp. 3d 717, 726-727 (E.D.Va. Mar. 16, 2020). ("[T]he court joins
other courts in concluding that a court may find, independent of any motion,
determination or recommendation by the BOP Director, that extraordinary and
compelling reasons exist based on facts and circumstances other than those set
forth in U.S.S.G. § IB1.13 emt.n.1 (A)-{C) ..."); United States v. Perez, No. 88-
10094-JTM, 2020 WL 1180719, at 2 (D. Kan. Mar. 11, 2020) (“Since the passage
of the First Step Act, however, a majority of federal district courts have found that
the most natural reading of amended §3582(c) and §994(t) is that the District Court
assumes the same discretion as the BOP director when it considers a
compassionate release motion properly before it ... The United States agrees that
this is the majority view ... As a majority of district courts have concluded, this

court concluded that it has the authority to exercise the same discretion as the BOP

13


‘catch-all’ provision of the amended §3582(c)(1)(A)(i). As a matter of record, the
jury was instructed that they did not have to concern themselves with the drug
amounts:
THE COURT: Although the indictment makes reference to specific
quantities of controlled substances, quantity is [n]ot an element of the
offense charged. The amount or quantity of a controlled substance is
only relevant to sentencing in the event of a conviction, and so should

not concern you during your deliberation...Transcript of August 3,
1998, Jury instructions page 139, lines 8-18.

The Eleventh Circuit has interpreted Apprendi as requiring a jury finding a
specific quantity of drugs before applying an enhanced sentence. See United States
y. Acevedo, 285 F.3d 1010, 1012 ("Sentencing a defendant in excess of 20 years,
then the statutory maximum allowed without a jury determination of drug quantity
constitutes [p]lain error"). See also United States v. Novaton, 271 F.3d 968 (11th
Cir. 2001); United States v. Candelario, 240 F.3d 1300, 1309 (11th Cir. 2001). The
Supreme Court has further found that any fact that increases a mandatory
minimum sentence is an element of the offense that must be submitted to the jury.
See Alleyne v. United States, 570 U.S. 99 (2013) (“Where a maximum sentence is
at issue, Apprendi means that a judge who wishes to impose a higher sentence
cannot do so unless a jury finds the requisite statutory factual predicate... a
defendant can be convicted only if the jury has found each element of the crime of

conviction”.)

16