UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ) 

 ) 

v. ) No. 01 CR 01098-1 

 ) 

CLACY WATSON HERRERA ) Judge Rebecca R. Pallmeyer

 ) 

MEMORANDUM OPINION AND ORDER

Defendant Clancy Watson Herrera (“Herrera”) was convicted of multiple drug-related 

offenses and is serving a sentence of 258 months imprisonment. Citing his history of prostate 

cancer and increased risk of contracting COVID-19, Herrera now seeks compassionate release 

under 18 U.S.C. § 3582(c)(1)(A). As explained here, the motion is denied without prejudice to 

renewal should Herrera’s medical condition worsen markedly. 

BACKGROUND

Most of the facts material to this case are laid out in the court’s February 2016 opinion on

Herrera’s motion under 28 U.S.C. § 2255. Herrera v. United States, No. 14 C 1933, 2016 WL 

561904 (N.D. Ill. Feb. 12, 2016). As explained there, Herrera was involved in a conspiracy to 

smuggle drugs into the United States. Specifically, at Herrera’s direction, young women—

mothers, or posing as mothers—brought liquified cocaine, concealed in baby formula cans, into 

the United States from Panama. The couriers, who were compensated with drugs and money,

brought with them babies, their own or children who had been “rented” from parents in Chicago. 

Herrera was convicted on eight counts for his role in the conspiracy in 2010.

On July 22, 2011, this court imposed a 340-month sentence. (Sent’g Order [887] at 3.) 

To calculate Herrera’s sentencing range under the Federal Sentencing Guidelines, the court first 

attributed to Herrera 4,445 kilograms in marijuana equivalency, which corresponded with a based 

offense level of 34. (Sent’g Tr. [911] at 43.) The court concluded that U.S.S.G. § 3B1.4’s twopoint enhancement for using a minor to commit a crime was insufficient in this case and added 

Case: 1:01-cr-01098 Document #: 1058 Filed: 06/12/23 Page 1 of 7 PageID #:10868
2 

three points for Herrera’s use of infants in the conspiracy. (Id. at 53, 55.) With the adjusted 

offense level of 40 and criminal history category of I, Herrera’s guideline range was 292 to 365 

months. (Id. at 55-56); U.S.S.G. Ch. 5, Pt. A. The court determined that a high-end guideline 

sentence of 360 months was appropriate. To account for the fact that Herrera had served 20 

months in custody in Panama prior to extradition, however, the court imposed a sentence of 340 

months. (Sent’g Tr. At 72-73.)

In 2014, the Sentencing Commission adopted Amendment 782. United States v. 

Guerrero, 846 F.3d 983, 985 (7th Cir. 2020). This Amendment lowered the base offense for most 

drug-trafficking crimes (including Herrera’s) by two levels and is retroactive. Id. Accordingly, in 

January 2022, this court granted Herrera’s request to reduce his sentence to 235 months under 

§ 3582(c)(2). Herrera now seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A). That 

statute requires Herrera to exhaust his administrative remedies before the court may rule on his 

motion. The parties agree that Herrera has done so here.1

 Herrera claims that his medical 

conditions and increased risk of severe illness from COVID-19 present an imminent threat of 

death or serious bodily injury and are “extraordinary and compelling” reasons for his 

compassionate release. (See Clacy Watson Herrera’s Emergency Motion for Compassionate 

Release (“Motion”) [996].) 

DISCUSSION

As a general matter, a federal court “may not modify a term of imprisonment once it has 

been imposed,” 18 U.S.C. § 3582(c), but the law gives the court power to order a prisoner’s early 

release if “extraordinary and compelling reasons” warrant a sentence reduction. 18 U.S.C. § 

3582(c)(1)(A)(i). Either a prisoner himself or the Director of Bureau of Prisons may file a 

compassionate release motion. Id. When, as here, a prisoner files the motion, the court’s review 

1

 On May 26, 2021, Herrera submitted a request for compassionate release to the 

warden of correctional institution Big Spring on the same grounds in his motion to this court. 

(Gov’t Resp. [1005].) His request was denied on June 10, 2021. .

Case: 1:01-cr-01098 Document #: 1058 Filed: 06/12/23 Page 2 of 7 PageID #:10869
3

“involves a two-step inquiry: one, did the prisoner present an extraordinary and compelling reason 

for release, and two, is release appropriate under § 3553(a).” United States v. Kurzynowski, 

17 F.4th 756, 759 (7th Cir. 2021). Determining what constitutes “extraordinary and compelling”

circumstances is a matter left to the discretion of the district court “subject to deferential appellate 

review,” and guided by the Sentencing Commission’s non-binding policy statement. As for the 

Sentencing Commission’s policy statements, courts primarily look to U.S.S.G. § 1B1.13.2

 The 

application notes list several circumstances that may constitute “extraordinary and compelling” 

reasons for release, including a defendant’s “terminal illness (i.e., a serious and advanced illness 

with an end of life trajectory)” or some other “serious physical or medical condition” 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.” U.S.S.G. § 1B1.13 

application note (1)(a). The kind of “extraordinary and compelling” circumstances contemplated 

by § 3582(c)(1) would include “some new fact about an inmate’s health or family status, or an 

equivalent post-conviction development, [but] not a purely legal contention for which statutes 

specify other avenues of relief.” United States v. Von Vader, 58 F.4th 369, 371 (7th Cir. 2023). 

Section 3553(a) factors include “the nature and circumstances of the offense”; the “history 

and characteristics of the defendant”; and the need for the sentence to “reflect the seriousness of 

the offense,” “provide just punishment for the offense,” “afford adequate deterrence to criminal 

conduct,” and “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1)-

(2). If the motion does not present an extraordinary and compelling reason to justify release, the 

2 The Sentencing Commission has not updated its policy statements since the First 

Step Act amended § 3582(c)(1)(A) in 2018. See United States v. Black, 999 F.3d 1071, 1074 (7th 

Cir. 2021). The Seventh Circuit has thus held that U.S.S.G. § 1B1.13, in its current iteration, does 

not constrain a district court’s discretion or limit the availability of compassionate relief. See id. 

But the court has nevertheless recognized that U.S.S.G. § 1B1.13, and particularly its application 

notes, provides a helpful “working definition of ‘extraordinary and compelling reasons’” under 

§ 3582(c)(1)(A). See United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020) (quoting 

18 U.S.C. § 3582(c)(1)(A)).

Case: 1:01-cr-01098 Document #: 1058 Filed: 06/12/23 Page 3 of 7 PageID #:10870
4

court need not address the § 3553(a) factors. See United States v. Newton, 37 F.4th 1207, 1210 

(7th Cir. 2022).

In his motion, Herrera argued that he suffers from prostate cancer and that cancer, 

together with a greater risk for complications should he contract COVID-19, are extraordinary and 

compelling reasons for his immediate release. (Motion at 4.) The government responds that 

Herrera has not established “extraordinary and compelling reasons” that warrant consideration of 

a sentence reduction, and, even if he had met that threshold requirement, the seriousness of 

Herrera’s crimes, along with other § 3553(a) factors, weigh heavily against Herrera’s release. 

(See Gov’t Resp. [1005].) 

I. Herrera’s Vulnerability to COVID-19

Less than three weeks after Herrera filed his compassionate release motion, the Seventh 

Circuit held that the risk of contracting COVID-19 is not an extraordinary and compelling reason 

for a defendant’s passionate release in light of the availability of effective vaccines. United States 

v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021) (“[t]he availability of a [COVID-19] vaccine makes 

it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason 

for immediate release.”). Herrera received the single-dose Johnson & Johnson Janssen vaccine 

on May 12, 2021. (See Ex. C of Gov’t’s Resp. [1008].) Accordingly, the risk of Herrera contracting 

COVID-19 is not by itself an “extraordinary and compelling” reason.

II. Prostate Cancer

Herrera, who is now 61 years old, asks the court for compassionate release based on his 

the fact that he suffers from prostate cancer. (Motion [996] at 4.) He was diagnosed with 

hypertension in December 2018 and prostate cancer in October 2019. (See Ex. B of Gov’t’s 

Resp. [1007] at 185.) The government acknowledges that Herrera’s medical condition is “very 

concerning”, but nonetheless believes the condition does not constitute an “extraordinary and 

compelling reason” for release and notes that medical records suggest Herrera declined treatment 

Case: 1:01-cr-01098 Document #: 1058 Filed: 06/12/23 Page 4 of 7 PageID #:10871
5

for the condition in May 2021.3 Cf. Broadfield, 5 F.4th at 803 (holding that the “self-incurred” risk 

of a prisoner who declines the COVID-19 vaccine “cannot plausibly [be] characterized as an 

“extraordinary and compelling” justification for release”). 

Herrera has referred to his condition as “Stage IV” prostate cancer, but the court sees no 

reference to “Stage IV” in his medical records, obtained by the government at the court’s request. 

Those records show that Herrera has received regular treatment for prostate cancer (including 

radiation and chemotherapy) as well as for such conditions as hypertension, GERD (gastroesophageal reflux disease), and knee and back pain. (Medical Records [1034, 1042, 1043, 1057]. 

As of March 2023, notes show that Herrera was finishing a round of chemotherapy, that a bone 

scan the previous year was negative for metastatic disease, and that his PSA (prostate-specific 

antigen) levels had declined over the previous six months from 25 to 22. (Medical Records [1057], 

Page ID # 10668.) The notes show Herrera will continue to have PSA tests every three to six 

months. (Id.) Herrera’s PSA score, and his Gleason score4 of 8 are concerning, but not so grave 

as to suggest he is near the end of life. Indeed, Herrera himself does not appear to believe his 

condition is incapacitating: when asked in a May 31, 2023 telephone hearing where he would be 

living, if this motion is granted, Herrera stated that he intends to return to his native Columbia and 

seek employment.

III. 18 U.S.C. § 3553(a) Factors

The court recognizes that even if it is not immediately life-threatening, a cancer diagnosis 

may be extraordinary and compelling. The government argues, however, that even if Herrera’s 

3 Herrera denies this; he asserts that he was brought to see a doctor in May 2021 

and was instructed to return later. (Def.’s Reply Brief [1019].) The court notes a November 2021 

medical treatment note that refers to Herrera’s cancer condition as “asymptomatic” at that time 

and states that Herrera “[w]anted to wait for treatment until redesignated.” (Medical Treatment 

Note [1042], PageID #:10389.)

4 The Gleason grading system is used to examine cells after biopsy to determine 

“how abnormal your prostate cancer cells look and how likely the cancer is to advance and 

spread.” A score of 8 reflects a “high grade” cancer. See https://medlineplus.gov/ency/

patientinstructions/000920.htm

Case: 1:01-cr-01098 Document #: 1058 Filed: 06/12/23 Page 5 of 7 PageID #:10872
6

medical condition is deemed extraordinary and compelling, the court should deny his request as 

release would be inconsistent with the other relevant sentencing factors set forth in § 3553(a). 

The court agrees that, as the government argues, Herrera’s history and characteristics, risk of 

recidivism, time remaining to be served on his sentence, quality of his release plan, and the impact 

of the BOP’s efforts to maintain his safety all weigh against a sentence reduction. (Gov’t’s Resp. 

[1005] at 18.) Herrera’s crimes are indeed very troubling. The scheme reflected a high level of 

sophistication: it required opening cans of formula, emptying and re-filling them, and then 

soldering them closed, carefully enough to avoid detection by border patrol agents. The conduct 

involved a large number of participants. Further, Herrera and his co-conspirators recruited young 

women to pose as mothers in return for money or drugs. This practice, and the practice of 

“renting” babies who served as cover for the smuggling process, is conduct that genuinely shocks 

the conscience. 

The court is aware that during some 14 years in federal custody, Herrera has earned his 

GED and has also completed a number of classes, including courses on parenting, on career 

preparation, goal setting, and daily living skills. (Progress Report [951-1] at 2-3.) To his credit, 

as well, he has maintained employment while incarcerated and has accrued no disciplinary 

history. (Id. at 3.) Herrera’s son has written to the court, voicing his family’s intention to provide 

for Herrera’s medical care in Columbia, should be released. (See Letter from Clacy Watson 

Gutierrez [1050].) The court is nevertheless unwilling to release Mr. Herrera at this time. Should 

his medical condition materially worsen, Mr. Herrera is welcome to file a new motion for 

compassionate release, after again exhausting his administrative remedies by filing a request with 

the warden. 

Case: 1:01-cr-01098 Document #: 1058 Filed: 06/12/23 Page 6 of 7 PageID #:10873
7 

CONCLUSION

Herrera’s emergency motion for compassionate release [996, 1012] is denied. 

ENTER:

Dated: June 12, 2023 ______________________________________

REBECCA R. PALLMEYER

United States District Judge

Case: 1:01-cr-01098 Document #: 1058 Filed: 06/12/23 Page 7 of 7 PageID #:10874