UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) NO. 2:16CR89-PPS

)

SERGIO GARCIA, SR., )

)

Defendant. )

OPINION AND ORDER

My order of May 18, 2020 [DE 198] denied defendant Sergio Garcia, Sr.’s

Emergency Motion for Compassionate Release based on the COVID-19 pandemic. I

was not persuaded that Garcia met the “extraordinary and compelling reasons”

standard applicable to the request under 28 U.S.C. §3582(c)(1)(A)(i). Even presuming

the accuracy of Garcia’s proffered health history including respiratory ailments, none of

which were reported to be particularly troubling for him at the present time, and given

the lack of any reported cases of COVID-19 at the Federal Prison Camp Duluth where

Garcia is housed, there was not an extraordinary and compelling basis to release Garcia. 

Garcia has returned with a motion to reconsider, invoking the same considerations relied upon in his initial motion, along with the appearance of COVID-19 at FPC

Duluth in late June. [DE 199 at 2; DE 206 at 4.]1

 The parties dispute whether Garcia has

1

 Garcia’s motion was filed pro se but is also supported by an attorney- drafted

supplemental memorandum and reply brief, all of which I have carefully reviewed, along with

the response of the government, a filing by Garcia’s wife, Marisa, and a letter from Garcia’s

daughter submitted by email. 

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met the threshold requirement of exhausting administrative remedies. [DE 199 at 9; DE

207 at 6-7; DE 211 at 1-5.] Because I will deny Garcia’s motion on the merits, I will not

undertake to untangle the administrative record and the parties’ arguments on the

exhaustion issue.

The First Step Act provides that the Court may reduce the term of imprisonment

after considering the factors set forth in section 3553(a), if it 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). In other words, the compassionate release statute directs me to

consider three elements: (1) whether a reduction is consistent with the factors listed in

section 3553(a); (2) whether extraordinary and compelling reasons warrant a sentence

reduction; and (3) whether a reduction would be consistent with the Sentencing

Commission’s policy statements. My earlier denial of Garcia’s motion was predicated

on his failure to meet the second of these requirements, and I continue to find that it is

not met. 

A defendant’s unusual or extreme vulnerability to COVID-19 might be shown to

warrant an early release from imprisonment based on the “extraordinary and

compelling” standard. Nevertheless, “the 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. Raia,

2

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954 F.3d 594, 597 (3rd Cir. 2020). In order to meet the applicable standard, a prisoner

could demonstrate that “his particular institution is facing a serious outbreak of

COVID-19 infections, the institution is unable to successfully contain the outbreak, and

his health condition places him at significant risk of complications should he contract

the virus.” United States v. Melgarejo, No. 12-cr-20050, 2020 WL 2395982, at *3 (C.D.Ill. 

May 12, 2020). 

An increase in the prevalence of COVID-19 at a defendant’s prison is the kind of

circumstance that could support reconsideration of the previous denial of

compassionate release. But Garcia does not succeed in demonstrating that his

placement at FPC Duluth exposes him to an especially high risk of COVID-19. In

response to Garcia’s assertions about the state of medical affairs at FPC Duluth, the

government cites the BOP’s report that there were no current cases of COVID-19 at the

prison as of August 26, 2020, and that “the Duluth facility has only ever had a single

case of COVID-19.” [DE 207 at 20.] Three inmates who tested positive before being

transferred to FPC Duluth were never in the general population while actively infected,

and Garcia “has never been in the same building with an infected inmate.” [Id. at 21.] 

In reply, Garcia does not dispute these representations. [DE 211 at 8.] 

While I am sympathetic to Garcia’s concern about potentially becoming infected

with COVID-19 while in prison, Garcia has not demonstrated that his risk at FPC

Duluth is significantly higher than if he were to be released, or that the facility is illequipped to provide appropriate medical treatment if he were to become sick. The risk

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of contracting COVID-19 in prison is real, of course, but the situation in which Garcia is

housed appears not to pose a particularly enhanced risk. The extremely low numbers

of coronavirus cases indicate that prison authorities at FPC Duluth are successfully

managing the facility against the pandemic.

Garcia also argues that he has health conditions that put him at greater risk of

contracting COVID-19 or suffering complications if he does. Citing treatment by Dr.

Dennis Streeter, DO, Garcia alleges that he “has a medical history for bronchitis and

asthma,” and also “suffers from sleep apnea and...gastroesophageal reflux.” [DE 206 at

2.] The government’s investigation of the medical record supporting Garcia’s health

claims succeeds in demonstrating that they are largely anecdotal, and that the doctor

relied on by Garcia is a family friend who has a scant treatment history of Garcia

without testing and without formal diagnoses of the conditions Garcia now claims. [DE

207 at 15-18.] 

When interviewed by the government, Dr. Streeter reported that he had not seen

Garcia as a regular patient. [DE 207-8 at 2.] The doctor is a vascular surgeon and not a

respiratory specialist. [Id.] During an informal encounter in 2019, in which Sergio

complained of snoring and a sore throat, the doctor suggested Garcia undergo a sleep

study to determine whether he had sleep apnea (a recommendation he had also made

in 2014 or 2015). Dr. Streeter had “never tested Sergio Garcia for respiratory illness, to

include asthma,” or for reflux. [Id. at 2-3.] The interview confirms that, as a family

friend more than a treating physician, Dr. Streeter is generally aware of respiratory

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symptoms Garcia has reported, but that he has not undertaken treatment of Garcia and

has never diagnosed any particular respiratory illness, a matter outside his specialty. 

These admissions directly contradict the letter Dr. Streeter sent to the warden in April

2020 in support of a compassionate release for Garcia. [DE 190-1 at 1.] The exaggeration

if not downright falsity of Dr. Streeter’s prior representations on Garcia’s behalf 

severely undercut Garcia’s claims that he currently suffers from sleep apnea or asthma

or any other respiratory condition that increases his risks associated with COVID-19. 

The discussion of Garcia’s body mass index and the prison’s requirement of

further weight loss as a condition of receiving a CPAP machine for sleep apnea does not

add appreciably to his attempt to demonstrate “extraordinary and compelling” reasons,

given how common both sleep apnea and obesity are, and the fact that Garcia has never

undergone a sleep study and so has not been diagnosed as having sleep apnea. The

lack of formal diagnoses of sleep apnea, asthma, or any current bronchitis is

underscored by Garcia’s own inmate request to be considered for compassionate

release, in which he does not mention either sleep apnea or asthma, but merely claims

to have doctor’s records showing that he has in the past had bronchitis several times and

also pneumonia, but “no other health conditions that I am aware of Thank God.” [DE

207-2 at 1.] For all these reasons, the record does not support a finding that Garcia has

medical conditions that, even in the midst of the pandemic, provide truly exceptional

and compelling reasons to grant Garcia immediate release. 

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Garcia’s invocation of release decisions in other cases is also unhelpful, as each

case turns on its own particular circumstances, and Garcia is unable to show that any

other defendant presented substantially similar circumstances in all relevant respects. 

This includes Garcia’s son and co-defendant, Sergio Garcia, Jr., who reportedly has been

released from prison during the pandemic. This was not a judicial decision, but an

administrative one made by the Bureau of Prisons, applying whatever policy and

criteria govern such matters, which likely included considerations such as Garcia, Jr.’s

sentence of only 18 months’ imprisonment (versus 70 months for Garcia, Sr.) and a

different prison’s capacity and plan for addressing the risks posed by the pandemic.

COVID-19 and the amendment to §3582(c)(1)(A) allowing defendants to file

motions seeking a compassionate release do not authorize me to engage in a wholesale

reconsideration of the sentence previously imposed. When I determined Garcia’s term

of imprisonment in the first instance (only 11 months ago), I gave careful consideration

to the United States Sentencing Guidelines and the statutory sentencing factors in 28

U.S.C. §3553(a). Those considerations remain pertinent and still support the 70-month

sentence I imposed. Garcia was at the head of a long-term conspiracy to commit mail

fraud that involved hundreds of real properties and imposed a loss of between $500,000

and $1,000,000 on its principal victim, the Department of Housing and Urban

Development. [DE 165 at 9.] At sentencing, I described the scheme as involving 

“rampant fraud” and a “drum beat of fraudulent behavior for a three- or four-year span

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of time.” [DE 165 at 26.] I sentenced Garcia to the bottom of the Sentencing Guidelines

range of suggested incarceration which was 70 to 87 months. 

The §3553(a) factors I weighed at that time, including the nature and

circumstances of the offense, and the need to reflect the seriousness of the offense, to

promote respect for the law, and to afford adequate deterrence, do not militate in favor

of a reduced sentence now. An additional factor also now weighs against early release

for Garcia, Sr., namely the need to avoid unwarranted sentence disparities. Garcia, Jr.

was sentenced to 18 months and served substantially less before his administrative

release from prison due to the COVID-19 outbreak.2

 My sentencing determinations

reflected a careful analysis of the appropriate sentencing disparity between father and

son reflecting their relative culpability and other factors. If released now, Garcia, Sr.

would serve only 10 months of his 70-month term. His prison term would no longer

reflect a suitable punishment in comparison to that served by Garcia, Jr., and so would

be inconsistent with §3553(a)(6). See United States v. Pawlowski, 967 F.3d 327, 331 (3rd Cir.

2020) (considering a compassionate release motion, the district court may consider the

time remaining in sentence and the need to avoid unwarranted sentencing disparities),

and United States v. Austin, Fed.Appx. , 2020 WL 5201632, at *3 (6th Cir. Sept. 1,

2020) (affirming the denial of a motion under §3582(c)(1)(A) where the prison had no

confirmed cases of COVID-19, the defendant had “served only a fraction of his

2

 Garcia, Jr. was allowed to self-surrender on or after February 6, 2020. [DE 172.] The

Bureau of Prisons Inmate Locator reflects that the BOP has transferred Garcia, Jr. from a federal

prison to a residential reentry facility. 

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sentence,” and “less than two years had passed since [the sentencing court] had last

weighed the §3553(a) factors.”).

The linchpin of a compassionate release under §3582(c)(1)(A) is the defendant’s

showing that something has changed since his original sentencing, and something so

significant as to be both “extraordinary and compelling.” The COVID-19 pandemic is

extraordinary, no doubt, but it alone cannot justify the emptying of all federal prisons. 

Instead, it is incumbent on Sergio Garcia, Sr. to demonstrate something extraordinary

and compelling about his personal circumstances or the conditions in his place of

confinement that, against the backdrop of the COVID-19 pandemic, support the rare

and extraordinary step of ordering his release from prison after he has served little

more than 10% of his sentence. Having carefully reviewed the briefs and exhibits

submitted by the parties, I will deny Garcia’s motion for reconsideration. I remain

firmly convinced that Sergio Garcia, Sr.’s concerns about contracting the coronavirus

and suffering complications if that occurs do not establish the type of extraordinary or

compelling reasons that would justify his release from prison under the authority of

§3582(c)(1)(A)(i), and that the requested reduction of his sentence is not warranted by

consideration of the §3553(a) sentencing factors. 

ACCORDINGLY:

Defendant Sergio Garcia, Sr.’s Reconsideration Motion Seeking Compassionate

Release under §3582(c)(1)(A) [DE 199] is DENIED.

Garcia, Sr.’s Motion to Seal [DE 200] is GRANTED.

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SO ORDERED.

ENTERED: September 21, 2020.

 /s/ Philip P. Simon 

UNITED STATES DISTRICT JUDGE

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