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Case 1:95-cr-00481-CMA Document 965 Entered on FLSD Docket 12/16/2020 Page 1 of 16
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 95-00481-CR-ALTONAGA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
LUIS CANO,
Defendant.
_______________________________/
ORDER
THIS CAUSE is before the Court on Defendant, Luis Cano’s Motion for Reconsideration
[ECF No. 959], filed on November 17, 2020, along with supporting exhibits (see [ECF Nos. 959-
1–959-13]). On December 1, 2020, the Government filed its Response in Opposition [ECF No.
960] with supporting exhibits (see [ECF Nos. 960-1–960-2; 961-2]). Defendant filed a Reply
[ECF No. 963] on December 4, 2020; and a Supplement [ECF No. 964] on December 10, 2020.
Granting a motion for reconsideration is a rare occurrence. This is one such case.
On September 22, 2020, Defendant filed a pro se Emergency Motion for Compassionate
Release [ECF No. 939], which the Court denied on November 2, 2020 (see Nov. 2, 2020 Order
[ECF No. 952]). The Court assumes the reader’s familiarity with the November 2, 2020 Order,
and so the relevant background, and the Court’s analysis, are not repeated here. Thereafter,
Defendant retained counsel (see Notice of Appearance [ECF No. 955]), and counsel filed the
present Motion for Reconsideration with cogent legal analysis and well-supported by the
referenced exhibits.
“The decision to grant or deny a motion for reconsideration is committed to the district
court’s sound discretion.” Pena v. United States Coast Guard Seventh Dist., No. 18-23188-Civ,
2019 WL 6210959, at *1 (S.D. Fla. Nov. 21, 2019) (citation omitted). “[T]here are three major
grounds which justify reconsideration: (1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.”
Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002)
(alteration added; citations omitted). “A motion for reconsideration cannot be used to relitigate
old matters, raise argument or present evidence that could have been raised prior to the [Court’s
ruling].” Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (alteration added; quotation
marks and citation omitted).
Defendant’s Motion relies on the third ground — the need to correct manifest error and
prevent injustice. (See Mot. 1). As a preliminary matter, the Court is aware that “manifest injustice
occurs where the Court ‘has patently misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has made an error not of reasoning but
of apprehension. Such problems rarely arise and the motion to reconsider should be equally rare.’”
Campero USA Corp. v. ADS Foodservice, LLC, 916 F. Supp. 2d 1284, 1292–93 (S.D. Fla. 2012)
(alteration adopted; quoting Compania de Elaborados de Cafe v. Cardinal Capital Mgmt., Inc.,
401 F. Supp. 2d 1270, 1283 (S.D. Fla. 2003)). “Manifest injustice refers to injustice that is
apparent to the point of almost being indisputable.” MSPA Claims 1, LLC v. First Acceptance Ins.
Co., No. 16-20314-Civ, 2017 WL 3671033, at *5 (S.D. Fla. Aug. 24, 2017) (quotation marks and
citation omitted). Here, after careful review of recent decisional law and the entire record, the
Court is convinced denial of the pro se Motion has in fact resulted in manifest injustice.
Defendant makes several arguments in support of his Motion. First, he asks that the Court
find he presents “extraordinary and compelling reasons” for release under 18 U.S.C. section
3582(c)(1) because he suffers from chronic medical conditions identified by the Centers for
2
Disease Control and Prevention (“CDC”) that elevate his risk of becoming critically ill from
COVID-19 at USP Terre Haute, such as severe stage hypertension that is untreated at the Bureau
of Prisons (“BOP”), the fact he is a former smoker with a body mass index of 29.6, his obstructive
sleep apnea for which he uses a CPAP machine, recurring sinus infections and allergies, and
neuropathy. (See Mot. 2–9; id., Exs. 1–4; Reply 4–7). Second, Defendant asserts significant
sentencing disparities and changes in the law since he was sentenced to a term of life imprisonment
on charges that do not require a mandatory sentence of life indeed constitute “extraordinary and
compelling reasons” warranting compassionate release, factors the Court may consider in
evaluating the request for release. (See Mot. 10–16, 24; id., Exs. 5–8, 13; Reply 2–4, 8–9).
Defendant describes his extraordinary rehabilitation to show he is not the same immature and
irresponsible person the court incarcerated over two decades ago. (See Mot. 16–20; id., Exs. 9–
11; Reply 7–8). Defendant emphasizes the massive, ongoing COVID-19 viral outbreak at USP
Terre Haute (see Mot. 8; Reply 8; Suppl. 1–2, id., Ex. 1 [ECF No. 964-1]); and the 18 U.S.C.
section 3553 factors, his lack of dangerousness, and viable reentry plan (see Mot. 21–24; Reply 7–
8).
The Government opposes reconsideration, arguing “the extraordinary remedy of
reconsideration is” not appropriate because Defendant’s “new team of lawyers” has simply posed
the same arguments based on the same facts the Court previously considered. (Resp. 1, 3). The
Government devotes a substantial portion of its Response to refuting the severity of Defendant’s
medical conditions and attempting to show the BOP is providing Defendant adequate medical care.
(See id. 4–9; Ex. 1 [ECF No. 961-2]). The Government urges the Court not to reconsider her
earlier position that Defendant’s challenges to the Fourth Superseding Indictment, his conviction
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(and Alleyne 1 intervening changes in the law) and sentencing disparities “‘are irrelevant to a
motion seeking compassionate release[,]’” while acknowledging “the ongoing debate in some
other [c]ircuits and [c]ourts over whether the First Step Act permits [c]ourts the authority to
determine what constitutes extraordinary and compelling reasons independent of the Sentencing
Commission’s criteria.” (Resp. 10–11 (alterations added; quoting Nov. 2, 2020 Order 14)).
Finally, the Government states Defendant’s other claimed grounds for relief — his rehabilitation,
lack of dangerousness, reentry plans and family support — were already considered and rejected
and present no basis for reconsideration. (See id. 13–14).
In his Reply, Defendant makes passing reference to United States v. Brooker, 976 F.3d 228
(2d Cir. 2020), and other circuits that have just recently agreed with the ruling in Brooker,
addressed below. (See Reply 3 (citing Brooker, 976 F.3d 228; United States v. Jones, 980 F.3d
1098 (6th Cir. Nov. 20, 2020); United States v. Gunn, 980 F.3d 1178 (7th Cir. Nov. 20, 2020);
and United States v. McCoy, -- F.3d --, 2020 WL 7050097 (4th Cir. Dec. 2, 2020))). Yet, Brooker
and the three other federal courts of appeals that have agreed with Brooker, not only reflect “the
emerging consensus in the district courts[,]” McCoy, 2020 WL 7050097, at *9 (alteration added),
but also present the most compelling reason to grant Defendant reconsideration.
The November 2, 2020 Order explained the Court was of the view the First Step Act did
not permit her to determine what constitute extraordinary and compelling reasons independent of
the Sentencing Commission’s criteria. (See Nov. 2, 2020 Order 6–9; 14). While the Eleventh
Circuit has not addressed the issue, 2 Brooker, Jones, Gunn, and McCoy all say the contrary — the
1
Alleyne v. United States, 570 U.S. 99 (2013).
2
On November 17, 2020, the Eleventh Circuit held oral argument on this issue in two separate cases. See
United States v. Bryant, No. 19-14267 (11th Cir. filed Oct. 24, 2019); United States v. Winner, -- F. App’x
--, 2020 WL 7137068 (11th Cir. Dec. 7, 2020). The cases were consolidated for oral argument purposes
only. In Winner, the Eleventh Circuit declined to address whether district courts could determine what
4
Court is allowed to make that determination independent of the Sentencing Commission’s criteria.
The Second Circuit in Brooker explained why:
And so we turn to the question at the heart of this case: whether the First Step Act
allows courts independently to determine what reasons, for purposes of
compassionate release, are “extraordinary and compelling,” or whether that power
remains exclusively with the BOP Director as stated in Application Note 1(D). . . .
* * *
As with most cases of statutory interpretation, we begin with the text. . . . 18 U.S.C.
[section] 3582(c)(1)(A)(i), after being amended by the First Step Act, currently
reads in relevant part:
the court, upon motion of the Director of the Bureau of Prisons, or upon
motion of the defendant . . . , 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 [the court] finds that . . . extraordinary
and compelling reasons warrant such a reduction . . . and that such a
reduction is consistent with applicable policy statements issued by the
Sentencing Commission . . . .
. . . [T]he major difference between this statute and its prior incarnations is that
an imprisoned person moving for compassionate release can now bring a claim
before the courts even if the BOP opposes the claim. . . .
Significantly, the statute’s text, while it requires courts when adjudicating

compassionate release motions to consider the Guidelines, requires such courts to
consider only “applicable” guidelines. 18 U.S.C. § 3582(c)(1)(A). It follows that
the question before us is whether Guideline [section] 1B1.13, and specifically
Application Note 1(D), remains “applicable” after the changes made in the First
Step Act.
Turning to the text of Guideline [section] 1B1.13, it is manifest that its language is
clearly outdated and cannot be fully applicable. The very first words of the
Guideline are “[u]pon motion of the Director of the Bureau of Prisons.” U.S.S.G.
§ 1B1.13. And this is precisely the requirement that the First Step Act expressly
removed. See 18 U.S.C. § 3582(c)(1)(A). We could, therefore, read the Guideline
as in effect abolished. And that would settle the case before us, absent an unlikely
constitute “extraordinary and compelling” reasons warranting compassionate release under section
3582(c)(1)(A)(i) independent of U.S.S.G. section 1B1.13. See generally Winner, 2020 WL 7137068
(affirming on different grounds). Byrant remains pending.
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severability of the Application Note. But we prefer to save as much of the

Guideline language and policy as possible. . . . As a result, . . . we read the Guideline
as surviving, but now applying only to those motions that the BOP has made.
In doing so, we look also to Application Note 4, which says that “[a] reduction
under this policy statement may be granted only upon motion by the Director of the
Bureau of Prisons pursuant to 18 U.S.C. [section] 3582(c)(1)(A).” U.S.S.G. §
1B1.13, n.4 . . . . And we conclude that after the First Step Act, this language must
be read not as a description of the former statute’s requirements, but as defining the
motions to which the policy statement applies. A sentence reduction brought about
not “upon motion by the Director of the Bureau of Prisons” is not a reduction “under
this policy statement.” In other words, if a compassionate release motion is not
brought by the BOP Director, Guideline [section] 1B1.13 does not, by its own
terms, apply to it. Because Guideline [section] 1B1.13 is not “applicable” to
compassionate release motions brought by defendants, Application Note 1(D)
cannot constrain district courts’ discretion to consider whether any reasons are
extraordinary and compelling.
This reading not only saves as much of the existing Guideline as is possible, given
the First Step Act, but it also aligns with Congress’ intent in passing that Act. After
watching decades of the BOP Director’s failure to bring any significant number of
compassionate release motions before the courts, Congress allowed people seeking
compassionate release to avoid BOP if BOP rejects their motions or fails to act on
them within a short time period, only 30 days. See 18 U.S.C. § 3582(c)(1)(A) . . .
. When the BOP fails to act, Congress made the courts the decision maker as to
compassionate release.
Brooker, 976 F.3d at 234–36 (some alterations added; other alterations in original; original
emphasis; some citations and all footnote call numbers omitted); see also McCoy, 2020 WL
7050097, at *9 (“There is as of now no ‘applicable’ policy statement governing compassionate-
release motions filed by defendants under the recently amended [section] 3582(c)(1)(A), and as a
result, district courts are ‘empowered to consider any extraordinary and compelling reason for
release that a defendant might raise.’” (alteration added; other alteration adopted; quoting Brooker,
976 F.3d at 230)).
Being so “empowered,” the Court does find extraordinary and compelling reasons to
release Defendant from serving the remainder of his life sentence. Among the several reasons
advanced by Defendant, the Court first focuses on two she declined to entertain when deciding
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Defendant’s pro se Motion. Defendant explains (1) there are two serious issues with his Judgment
and (2) none of his Co-Defendants received the sentence he received — a life sentence. (See Mot.
10). The Court addresses both points before returning to (3) a brief consideration of the risks posed
by COVID-19 to Defendant given his health conditions and incarceration at USP Terre Haute, and
(4) the section 3553(a) factors and his lack of dangerousness.
1. “Issues” with Defendant’s Judgment and Sentence
Defendant states the jury could not have found he satisfied every predicate needed to
invoke the mandatory life imprisonment section of the continuing criminal enterprise (“CCE”)
statute because he was not charged with 21 U.S.C. section 848(b) as being the “principal” or “one
of several principal” organizers or leaders, as is required to trigger a mandatory life imprisonment
sentence. (Id. 10–11 (quotation marks omitted)). Instead, Defendant states the Government
charged Defendant with violating 21 U.S.C. sections 848(a) and (c), which do not require a
mandatory sentence of life (see id. 11 (citing Fourth Superseding Indictment [ECF No. 273]; Jury
Charge Tr., Ex. 6)) — although the Court notes the Indictment does not reference those subsections
(see 4th Sup. Indict. 2). Defendant states the language of the Indictment and jury charge is the
exact language of section 848(c), which defines the elements of a CCE for purposes of triggering
section 848(a); section 848(c) does not carry a mandatory life sentence as does section 848(b),3
3
Under 21 U.S.C. section 848(b),
Any person who engages in a continuing criminal enterprise shall be imprisoned for life .
. . if –
(1) such person is the principal administrator, organizer, or leader of the enterprise or is
one of several such principal administrators, organizers, or leaders; and
(2)(A) the violation . . . involved at least 300 times the quantity of a substance described in
subsection 841(b)(1)(B) of this title, or
(B) the enterprise, or any other enterprise in which the defendant was the principal or one
of several principal administrators, organizers, or leaders, received $10 million dollars in
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but rather a minimum mandatory sentence of 20 years for a first time offender like Defendant.
(See id. 11–12).
The Supreme Court in Alleyne, 570 U.S. 99, and United States v. Haymond, 139 S. Ct.
2369, 2379 (2019), held any increase in a defendant’s authorized punishment contingent on the
finding of a fact requires the jury find beyond a reasonable doubt every fact which the law makes
essential to a punishment. Defendant argues had he been sentenced today, in order for the Court
to impose a mandatory life sentence, Defendant would have had to be indicted under section 848(b)
specifically, and the jury would have to find beyond a reasonable doubt that he was a principal or
one of several principals, and the required drug quantity amount or the amount of money in gross
receipts. (See id. 13).
In response, the Government advances several arguments. First, it states the issue
Defendant tries to frame as “newly discovered” or “manifest error” is not so; the issue was raised
and argued extensively by both sides at Defendant’s sentencing hearing. (Resp. 12 (quotation
marks omitted; citing Mot., Ex. 7, Sentencing Hr’g Tr. 3–11). And the trial judge rejected it,
noting “the jury was instructed on the requirements of 848(b).” (Sentencing Hr’g Tr. 11:4–5). The
Government notes Defendant’s counsel, while framing his argument in terms of the Government’s
failure to indict for a section 848(b) violation and thereby give notice, nevertheless acknowledged
“the government at trial has established compliance with 848(b)(2)(a).” (Id. 7:12–13). According
to the Government, defense counsel affirmed the accuracy of the Guidelines computation,
admitting, “there is no question that the Court has no discretion . . . and that the sentence required
is life” (Resp. 12 (alteration added; quotation marks omitted)), while ignoring that in the next
gross receipts during any twelve-month period of its existence for the manufacture,
importation, or distribution of a substance described in . . . this title.
Id. (alterations added).

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statement, counsel “disagree[d] with . . . [the] mistake by the probation department that it is
mandatory life pursuant to section 848” (Sentencing Hr’g Tr. 3:15–17 (alterations added)).
Finally, the Government also emphasizes this claim was unsuccessfully raised on direct appeal
and in collateral attacks, further showing there is no clear error or manifest injustice. (See Resp.
12; see also Cano v. United States, No. 04-cv-22767, Oct. 24, 2008 Order [ECF No. 53] 3–4
(“[T]he Court notes that in the direct appeal of [Defendant]’s convictions and sentences, the
Eleventh Circuit summarily dismissed [his] claims under Apprendi, noting that they neither had
merit nor warranted discussion.” (alterations added; citing United States v. Cano, 289 F.3d 1354,
1357 (11th Cir. 2002))).
Defendant also shows there was evidence he was not the “principal,” but rather, it was Co-
Defendant Ruben Carillo-Rosales. (See Mot. 14 (citing Suppl. to Def.’s Mot. to Dismiss
Indictment [ECF No. 366] 4)). Defendant’s Pre-Sentence Investigation Report (“Cano PSI”)
stated Carillo-Rosales was “considered to be the distributor of cocaine in New York City[,]” and
Defendant was “considered to be the leader, manager, and supervisor of this conspiracy . . .
responsible for importing approximately 10,000 kilograms of cocaine into the United States.”
(Cano PSI 11–12 (alterations added)). Yet, the Government provided U.S. Probation the following
role assessment for use in Carillo-Rosales’s earlier PSI (“Carillo-Rosales PSI”): “Ruben Carillo-
Rosales . . . is the lead defendant in this case. He has been identified as the owner of the cocaine
and the one in charge of securing Attorney Burnbaum to obtain the information concerning the
location of the 145 kilograms of cocaine. He was the one directing Cuartas, Marcial, Burnbaum,
Tanian Mohler and her parents.” (Carillo-Rosales PSI 8 (alteration added); see also Reply 3
(citation omitted)). Curiously, the Government does not address this apparent contradiction at all
in its Response. (See generally Resp.).
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Defendant notes the Government’s theory was that it was pursuing at least some of the
substantive counts against him under the aiding and abetting statute, evidencing the jury may have
determined Defendant was not a principal or one of several principals and so did not qualify for
mandatory life imprisonment. (See Mot. 14 (citing Ex. 8)). Finally, Defendant draws attention to
his own PSI, where the word “principal” does not appear. (See id.; Cano PSI). Defendant insists
the foregoing described issues present an extraordinary and compelling reason to grant him
compassionate release. While Defendant’s Apprendi claim gained no traction in his direct appeal
or post-conviction motions, the “claim” — and in particular the matter of Carillo-Rosales — does
take Defendant closer to satisfying the “extraordinary and compelling reason” requirement for
compassionate release, combined as it is, with the additional issues noted below.
2. Disparities in Sentences
Defendant next states he, a non-violent offender, received a greater sentence than the heads
of the Arellano-Felix cartel, the Gulf and Zetas cartels, and many other notoriously violent drug
kingpins. (See Mot. 15). Of his Co-Defendants, Defendant received the longest sentence by far
— a life term, while the second longest sentence was given to the “leader,” Carillo-Rosales, at 243
months’ imprisonment, later reduced to 120 months for his cooperation. (See id. 15–16; Sept. 10,
2001 Order [ECF No. 698] 1). Again, Defendant emphasizes the almost-identical descriptions of
his and Carillo-Rosales’s roles in the narcotics organization as supplied by the Government to U.S.
Probation, with Carillo-Rosales identified as “the lead defendant in this case” and “the one in
charge of securing Attorney Burnbaum to obtain the information concerning the location of the
145 kilograms of cocaine[,]” while the Government would later (and without satisfactory
explanation) describe the organization as “Cano’s network[.]” (Reply 3 nn. 1–2 (alterations added;
emphasis, quotation marks, and citations omitted)). Indeed, in contrast to Defendant’s lack of any
10
prior criminal conduct besides a charge of conspiracy to possess with intent to distribute cocaine,
for which Defendant was found not guilty following a jury trial (see Cano PSI 15), Carillo-Rosales
had a prior felony conviction for conspiracy to possess with intent to distribute cocaine, for which
he received a criminal history category of III, was sentenced to a three-year prison sentence, and
upon his release, absconded from supervision (see Carillo-Rosales PSI 11–13). Carillo-Rosales
was released from his prison sentence in this case in February 2004 (see Pet. for Warrant [ECF
No. 733] 1), while to date, Defendant has already served over four years more than the next longest
sentence in this case (see Mot. 16).
Defendant argues the disparity in his life sentence as compared to the 243-month sentence
Carillo-Rosales, “the lead defendant in this case,” initially received, as well as their Co-
Defendants’ significantly shorter sentences (Mot. 14, 16 (emphasis omitted)), present another
extraordinary and compelling reason to grant Defendant compassionate release. See, e.g., United
States v. Fisher, 83-cr-00150, 2020 WL 5992340, *5 (S.D.N.Y. Oct. 9, 2020) (court granted
compassionate release to a defendant serving a life sentence for his participation in an extensive
narcotics enterprise in part because looking at the co-defendants, “it becomes apparent that there
is a danger of creating a disparity in sentencing . . . where [the defendant’s] co-defendant [] , who
was also convicted and sentenced . . . to life imprisonment without parole on the same CCE count
as [the defendant], was granted compassionate release . . . .” (alterations added)). The Court agrees
the disparity, even considering that Carillo-Rosales accepted responsibility by entering a guilty
plea, while Defendant did not, is a compelling reason to grant Defendant compassionate release.
3. Defendant’s Serious Health Conditions and Incarceration at USP Terre Haute
The November 2, 2020 Order addressed the BOP’s measures designed to protect inmates
and staff against COVID-19 infection and Defendant’s health conditions, including Dr. Austin
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Kutscher’s opinions. (See Nov. 2, 2020 Order 5–6; 9–13). Defense counsel advises the
Government previously has admitted FCI Terre Haute “is currently experiencing an uptick in
COVID-19 cases.” (Mot. 8 n.11 (quotation marks and citation omitted)). Furthermore, the prison
where Defendant is incarcerated “is in the midst of a massive COVID-19 outbreak.” (Suppl., Ex.
1 [ECF No. 964-1] 2).
According to Dr. Kutscher’s November 12, 2020 Addendum [ECF No. 959-4], Defendant
“continues to have complications with sinus problems and drainage requiring antibiotics. Given .
. . this virus spreads through the respiratory system and that he has a continued respiratory
infection, COVID-19 continues to be a major concern[.] (Id. (alterations added)). Dr. Kutscher
“also noted that over the past 8 months [Defendant] has had multiple measurements documenting
arterial hypertension. Any systolic BP above 130 mmHg is concern[ing]. It remained elevated
7/8/20 at 157/82 mmHg. On 9/2/20, at least 6 weeks after his surgery, it was elevated to 172/88
mmHg and on repeat measurement still 168mmHg systolic.” (Id. (alterations added)). Dr.
Kutscher saw “no further documented measurements of [Defendant’s] BP, despite the request of
the physician who cared for him.” (Id. (alteration added)). With the lack of documented
measurements of Defendant’s blood pressure despite the request of his physician, Dr. Kutscher
concludes “it has been 8 weeks since [Defendant] has been examined and [he has] no records that
[Defendant] has received appropriate medical care of this potentially life threatening condition.”
(Id. (alterations added)).
While it attempted to, the Government does not dispel the conclusion Defendant is not
receiving appropriate medical care for his hypertension. (See Resp. 7–8 (noting BOP medical
records show an October 6 flu immunization; October 8 physical therapy; a November 6 “still
higher than normal” BP measurement; and a November 13 visit to ENT, with renewals of
12
Defendant’s medication, nebulizer and nasal drainage treatments (citation omitted))). As
Defendant aptly observes, “[t]he Government’s evidence regarding [Defendant’s] proper care
would be comical if not for the serious nature of the issue at hand. A flu shot, one session of
physical therapy, a single blood pressure check, and a visit to the ENT is [sic] not evidence that
[the] BOP is treating [Defendant’s] high blood pressure.” (Reply 5 (alterations added; bold text
omitted)). The Court agrees with Defendant: one blood pressure check in the last two months is
overwhelming evidence Defendant’s health conditions place him at great risk of a worse outcome
if he contracts COVID-19 at a BOP facility confronting the challenges of a massive COVID-19
outbreak. Here, too, Defendant persuades he satisfies the “extraordinary and compelling” standard
for compassionate release.
4. The Section 3553(a) Factors and Defendant’s Lack of Dangerousness
In United States v. Millan, No. 91-cr-685, 2020 WL 1674058 (S.D.N.Y. Apr. 6, 2020), the
court granted compassionate release to a first-time non-violent offender, “leader of a large-scale
narcotics distribution organization,” who had served more than 28 years of a life sentence
following a jury trial and conviction under section 848(b). Id. at *8. The court found the defendant
“is no longer the immature and irresponsible young man who committed his offenses in his early
20s. Rather, today he is a mature and evolved adult of 57 years. In the almost three decades that
have passed . . . and despite having had no realistic hope of release, [the defendant] has done
everything in his power to rehabilitate himself, as demonstrated by his genuinely exceptional
accomplishments and meritorious prison record.” Id. (alterations added). And “[a]lthough
Congress provided that rehabilitation alone cannot serve as an ‘extraordinary and compelling
reasons’ for a sentence reduction, [the defendant’s] educational and rehabilitative
accomplishments are unique and distinctively important because he engaged in all such positive
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activities without any tangible incentive other than self-improvement, given . . . his life
sentence[.]” Id. at *9 (alterations added).
The Court’s observations in Millan could have been written with Defendant in mind. The
present Motion includes several character letters from BOP case managers and counselors attesting
to Defendant’s good moral character, rehabilitation, and ability to be a contributing member of the
larger society. (See Mot., Ex. 10). Like the defendant in Millan, over the 24 years of his
imprisonment, and all the while he has been serving (and battling with appeals and post-conviction
motions against) a life sentence, Defendant has taken countless hours of educational courses and
only incurred a single minor disciplinary infraction for possessing too many postal stamps. (See
Mot. 17). His risk needs and assessment (PATTERN) score places him in the lowest category of
“minimum.” (Id. (quotation marks omitted)). One of his case managers commented, “the 24 years
he has served [] is more than is required for a non-violent drug offense[] and should serve as a
deterrence to anyone in the future. As a first time non-violent drug offender, [Defendant] has paid
dearly” for his mistakes. (Id. 19 (alterations added; citation and bold-text omitted)).
Given the foregoing, the undersigned is satisfied the section 3553(a) factors of Defendant’s
personal history and characteristics, promoting respect for the law, specific and general deterrence,
and avoiding disparities in sentencing will be well-served by Defendant’s compassionate release.
The Court is also satisfied Defendant’s good conduct over the last 24 years is a reliable indicator
that he is not a danger to the community and is not likely to recidivate. See Pepper v. United
States, 562 U.S. 476, 491 (2011) (“In assessing deterrence, protection of the public and
rehabilitation, 18 U.S.C. [section] 3553(a)(2)(B)(C) & (D), there would seem to be no better
evidence than a defendant’s post-incarceration conduct.” (alteration adopted, other alteration
added; quotation marks and citation omitted)). Defendant also offers a concrete reentry plan,
14
consisting of residing with his nephew in McAllen, Texas and employment with his nephew’s
company, GrainChain. (See Mot. 23 (citations omitted)).
Defendant’s offense conduct was certainly serious and brazen. (Nov. 2, 2020 Order 15).
So, too, was the conduct of his Co-Defendant, whom the Government described at one time as the
“lead defendant in this case” and “owner of the cocaine” involved in the criminal enterprise. At
the time of the November 2, 2020 Order, Defendant’s much harsher sentence as compared to that
of his Co-Defendant prior to that Defendant’s Rule 35 sentence reduction was irrelevant to the
Court’s consideration of the request for compassionate release. (See id. 14 (citation omitted)).
Four circuit courts of appeals have now held otherwise. See Brooker, 976 F.3d 228; Jones, 980
F.3d 1098; Gunn, 980 F.3d 1178; and McCoy, 2020 WL 7050097.
Given all of the foregoing reasons, the Court finds Defendant has satisfied his burden.
Accordingly, it is
ORDERED AND ADJUDGED that Defendant, Luis Cano’s Motion for Reconsideration
[ECF No. 959] is GRANTED. Defendant’s life sentence, as reflected in the Amended Judgment
[ECF No. 851], is reduced to a term of time served, to be followed by a total of five years of
supervised release — five years as to Counts 1 through 12, and three years as to Counts 14 through
26, 28 through 31, and 38 through 76. (See id. 4). In addition to the supervised release conditions
noted in the Amended Judgment, Defendant shall actively seek and maintain full-time employment
and not be unemployed for more than 30 days. Defendant is allowed to relocate to McAllen, Texas
to reside with his nephew and shall report to U.S. Probation within 24 hours of arriving in McAllen,
Texas.
15
DONE AND ORDERED in Miami, Florida, this 16th day of December, 2020.
_______________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc: counsel of record
16

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Case 1:95-cr-00481-CMA Document 965 Entered on FLSD Docket 12/16/2020 Page 1 of 16

UNITED STATES DISTRICT COURT

CASE NO. 95-00481-CR-ALTONAGA

UNITED STATES OF AMERICA,

CASE NO. 95-00481-CR-ALTONAGA

marks and citation omitted).

CASE NO. 95-00481-CR-ALTONAGA

The Government opposes reconsideration, arguing “the extraordinary remedy of

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and present no basis for reconsideration. (See id. 13–14).

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The Second Circuit in Brooker explained why:

Significantly, the statute’s text, while it requires courts when adjudicating

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severability of the Application Note. But we prefer to save as much of the

7050097, at *9 (“There is as of now no ‘applicable’ policy statement governing compassionate-

976 F.3d at 230)).

CASE NO. 95-00481-CR-ALTONAGA

(4) the section 3553(a) factors and his lack of dangerousness.

1. “Issues” with Defendant’s Judgment and Sentence

of several principal” organizers or leaders, as is required to trigger a mandatory life imprisonment

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(See id. 11–12).

receipts. (See id. 13).

Id. (alterations added).

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1357 (11th Cir. 2002))).

in its Response. (See generally Resp.).

CASE NO. 95-00481-CR-ALTONAGA

CASE NO. 95-00481-CR-ALTONAGA

sentence in this case (see Mot. 16).

is a danger of creating a disparity in sentencing . . . where [the defendant’s] co-defendant [] , who

3. Defendant’s Serious Health Conditions and Incarceration at USP Terre Haute

CASE NO. 95-00481-CR-ALTONAGA

1 [ECF No. 964-1] 2).

(Id. (alterations added)).

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Defendant’s medication, nebulizer and nasal drainage treatments (citation omitted))). As

if he contracts COVID-19 at a BOP facility confronting the challenges of a massive COVID-19

for compassionate release.

4. The Section 3553(a) Factors and Defendant’s Lack of Dangerousness

court granted compassionate release to a first-time non-violent offender, “leader of a large-scale

everything in his power to rehabilitate himself, as demonstrated by his genuinely exceptional

reasons’ for a sentence reduction, [the defendant’s] educational and rehabilitative

CASE NO. 95-00481-CR-ALTONAGA

sentence[.]” Id. at *9 (alterations added).

and avoiding disparities in sentencing will be well-served by Defendant’s compassionate release.

evidence than a defendant’s post-incarceration conduct.” (alteration adopted, other alteration

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company, GrainChain. (See Mot. 23 (citations omitted)).

CASE NO. 95-00481-CR-ALTONAGA

cc: counsel of record

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