| Amid Coronavirus #6ix9ine Released By
Judge Engelmayer Under Order Withheld To 4
PM
By Matthew
Russell Lee, Patreon Thread Scope
BBC
- Guardian
UK - Honduras
- Vulture
SDNY COURTHOUSE,
April 2 – Daniel Hernandez
a/k/a Tekashi 6ix9ine was
sentenced to 24 months of
total imprisonment on December
18 in a proceeding live
tweeted by Inner City
Press before U.S. District
Court Judge Paul A.
Engelmayer.
6ix9ine was ordered released
by an Order that at the US'
request Judge Engelmayer
withheld until 4 pm on April
2, analyzed on Patreon here,
2-minute podcast here:
"The Court accordingly finds
that, in light of the
heightened medical risk
presented to Mr. Hernandez by
the COVID-19 pandemic, there
are extraordinary and
compelling reasons to reduce
Mr. Hernandez’s sentence in
the manner requested––to wit,
releasing Mr. Hernandez from
custody and requiring him to
serve his first four months of
supervised release in home
confinement, on specified
conditions. This conclusion is
supported by the application
of the § 3553(a) factors. Mr.
Hernandez has served 17 months
in federal custody––the
substantial majority of his
prison sentence. And although
the § 3553(a) factors
(particularly the seriousness
of Mr. Hernandez’s
racketeering and related
offenses) earlier led the
Court to require that Mr.
Hernandez serve his entire
sentence (net of statutory
good time) in prison, §
3553(a) requires a sentencing
court consider the “history
and characteristics of the
defendant” and “the need to
provide the defendant with
needed . . . medical care.” 18
U.S.C. § 3553(a). Viewed now
in the light of a raging and
virulent pandemic that has
entered federal prisons in New
York City and that poses a
special risk to Mr.
Hernandez’s health, these
factors, together, now counsel
allowing him to be released
and serve his first four
months of supervised release
in home confinement. For
reasons including those set
out at length at Mr.
Hernandez’s sentencing, the
Court is, further, persuaded
that Mr. Hernandez––having
been prosecuted, pled guilty,
and publicly cooperated
against members of the gang,
the Nine Trey Gangsta Bloods,
in concert with whom his
violent acts were
committed––no longer will
present a meaningful danger to
the community if at liberty.
And the conditions of Mr.
Hernandez’s forthcoming home
confinement will meaningfully
restrict his freedom of
movement during the next four
months. Accordingly, finding
that extraordinary and
compelling reasons warranting
a reduction of Mr. Hernandez’s
sentence, that Mr. Hernandez
does not pose a danger to the
community, that the Case
1:18-cr-00834-PAE Document 451
Filed 04/02/20 Page 7 of 8 8 §
3553(a) factors now support a
reduction of sentence, and
that the reduction sought is
consistent with the Sentencing
Commission’s policy statement,
the Court grants Mr.
Hernandez’s motion for
compassionate release pursuant
to 18 U.S.C. §
3582(c)(1)(A)(i) and orders
his release. The Court will,
by separate order, set out the
terms of Mr. Hernandez’s
release on home confinement
for the first four months of
his five-year term of
supervised release. For
persuasive reasons relating to
security, the Government has
asked the Court, in a letter
properly filed under seal, to
briefly delay the docketing of
this order. Accordingly, the
docketing of this order––and
the Court’s accompanying order
setting out the terms of Mr.
Hernandez’s home
confinement––is to be delayed
until 4 p.m. on Thursday,
April 2, 2020." Watch this
site.
Inner City
Press reported, other others picked
up with credit, that on
March 22 Hernandez / 69's
lawyer Lance Lazzaro asked
Judge Engelmayer to order his
client released citing his
asthma and shortness of
breath, Coronavirus and the case
in the MDC in Brooklyn
(although 69 is it seems in
the private contractor GEO
facility in Queens, the
adherence to BOP protocol and
inclusion in its COVID-19
statistics is not clear).
On March
25 Judge Engelmayer issued a
ruling, denying the request
but instructing the Bureau of
Prisons what he would have
ruled, if he'd known of
Coronavirus. But Lazzaro
argued that his client is
structurally unable to request
relief for BOP, without the US
Attorney's Office consenting
in some way.
Now on the
evening of March 31 Inner City
Press can report that Lazzaro,
though another, made a final
plea to the BOP, which turned
him down:
From: "Shannon
Robbins" at bop.gov Subject:
Re: Daniel Hernadez #86335-054
Date: March 31, 2020 at
1:52:52 PM EDT To: "Elis
Pacheco"
Mr. Pacheco, Mr.
Hernandez is currently housed
at the GEO facility in the
custody of the US Marshals
Service. We do not have any
authority or oversight of his
case as he is not in a BOP
facility. If the Court orders
a compassionate release for
him, that information will be
provided to the US Marshals
Service and the GEO facility
for processing. I am hopeful
this information will be
helpful. Shannon Shannon
Robbins, Section Chief
Designation and Sentence
Computation Center 346 Marine
Forces Drive Grand Prairie,
Texas 75051
So Lazzaro
has renewed his appeal to
Judge Engelmayer: " BOP has
now denied Mr. Hernandez’s
administrative request for
compassionate release. As per
the attached e-mail dated
March 31, 2020, Section Chief
Shannon Robbins with
BOP’sDesignation and Sentence
Computation Center, Mr.
Hernandez’s administrative
request to BOP for
compassionate release was
denied because as a non-BOP
inmate, BOP is refusing to
grant Mr. Hernandez
compassionate release.
According to 18 U.S.C. §
3582(c), a court may, upon a
finding of extraordinary and
compelling circumstances,
reduce the prison term of a
defendant’s sentence if BOP
has denied compassionate
release after the defendant
has exhausted all
administrative remedies with
BOP. Accordingly, in this
case, your Honor now has the
statutory authority to modify
Mr. Hernandez’s sentence so as
to immediately release him
from prison." Watch this site.
The
US Attorney's Office, AUSA
Longyear, did not consent to
Kooda's release pending
sentencing. But on March 30,
Judge Engelmayer granted
release on conditions: "ORDER
as to Kintea McKenzie (11):
The Court accordingly grants
Mr. McKenzie's application for
release, pursuant to 18 U.S.C.
§ 3145(c), on the same bond
and conditions upon which he
was released prior to entering
his plea of guilty and during
the two weeks following that.
This release is to occur only
upon the instatement of all of
these conditions, including
securing written confirmation
by the co-signers of the bond
of their willingness to again
so serve. Mr. McKenzie's
release is to last only as
long as the current public
health emergency, or until
otherwise ordered. The Court
further notifies Mr. McKenzie
that it expects scrupulous
compliance with all conditions
of release, and that a
violation of any condition
will subject Mr. McKenzie to
immediate remand. Mr.
McKenzie's sentencing remains
scheduled for June 24, 2020, a
date the parties should treat
as firm. SO ORDERED. (Signed
by Judge Paul A. Engelmayer on
3/30/2020)."
Here's from the
docket, on 69: "ORDER as to
(18-Cr-834-04) Daniel
Hernandez. The Court has
received a letter request from
defense counsel seeking a
modification of the sentence
of defendant Daniel Hernandez.
Dkt. 437. Counsel represents
that Mr. Hernandez is expected
to be released from custody on
or about July 31, 2020.
Counsel asks the Court to
modify the sentence to provide
that the remaining months of
Mr. Hernandez's prison
sentence be served pursuant to
home confinement, to reduce
the risk that Mr. Hernandez,
who has been diagnosed with
asthma, will contract COVID-19
in prison. Id. The Court has
also received a letter from
the Government opposing this
request, largely on the ground
that the Court lacks authority
to grant this request, Dkt.
438, and a letter reply from
counsel for Mr. Hernandez,
Dkt. 439. The Court is
constrained to deny Mr.
Hernandez's request. Having
canvassed potential sources of
legal authority, the Court
concludes that it lacks the
legal authority to thus modify
his sentence. And counsel for
Mr. Hernandez, in his letters,
has not identified any
available such authority.
Briefly:...[See this Order]...
The Court, however, is
prepared to state the
following, as it may be
instructive guidance to the
Bureau of Prisons in
considering an application by
Mr. Hernandez for release on
home confinement. The Court's
judgment at sentencing was
that the § 3553(a) factors
required imposition of the
sentence imposed. And based on
the same assessment, the Court
later rejected Hernandez's
motion to modify his sentence
to substitute home confinement
for the balance of his term of
imprisonment, Dkt. 409, on the
grounds that such a
modification "would disserve
the assembled 18 U.S.C. §
3553(a) factors, including
that Mr. Hernandez's sentence
reflect the seriousness of his
crimes." Dkt. 411. At the time
of sentencing, however, the
Court did not know and could
not have known that the final
four months of Mr. Hernandez's
sentence would be served at a
time of a worldwide pandemic
to which persons with asthma,
like Mr. Hernandez, have
heightened vulnerability.
Section 3553(a) instructs a
sentencing court to consider,
inter alia, the "history and
characteristics of the
defendant" and "the need to
provide the defendant with
needed... medical care." 18
U.S.C. § 3553(a). Had the
Court known that sentencing
Mr. Hernandez to serve the
final four months of his term
in a federal prison would have
exposed him to a heightened
health risk, the Court would
have directed that these four
months be served instead in
home confinement. The Court
accordingly denies Mr.
Hernandez's motion for relief.
SO ORDERED. (Signed by Judge
Paul A. Engelmayer on
3/25/2020)(bw) ."
On March
24, after Assistant US
Attorney Michael Longyear
replied, Lazzaro wrote a
second time, that "It is
somewhat ironic and extremely
unfair that, given Mr.
Hernandez has provided
substantial assistance to the
government and the government
maintains a hold on Mr.
Hernandez as a cooperator, the
government has effectively
prevented him from being a BOP
prisoner and the government
now opposes Mr. Hernandez’s
release because he has not
made an administrative appeal
with BOP. Most inmates with
Mr. Hernandez’s 24-month
sentence would already be on
home confinement or a half-way
house. See 18 U.S.C. §§ 3621,
3624. Title 18, section
3624(c) of the United States
Code requires the Bureau of
Prisons to ensure that
prisoners serving a term of
imprisonment spend a portion
of the final months of that
term under conditions that
will afford the prisoner a
reasonable opportunity to
adjust to and prepare for
reentry into the community. As
a non-BOP prisoner, Mr.
Hernandez is incapable of
taking any administrative
action with BOP. Mr. Hernandez
has done everything that the
government has ever asked, and
in return, the government now
opposes Mr. Hernandez’s
request for home confinement,
in an attempt to protect his
health, based upon his
inability to perform an
administrative function which
the government itself has made
impossible. Therefore, given
Mr. Hernandez’s high risk of
death or serious complications
if he contracts COVID-19,
please issue an order
modifying his sentence to
allow him to begin home
confinement immediately. New
York Governor Andrew Cuomo has
stated recently that New York
City can expect a significant
surge and spike of coronavirus
cases within the next couple
of weeks. As stated today by
the Trump coronavirus task
force, this country has seen
52,000 COVID-19 cases to date,
with 685 deaths and 144 deaths
today alone. Additionally, 60
percent of all new COVID-19
cases are coming out of the
New York City metro
area." We'll have more
on this.
On March 9 Inner
City Press reported that the
US Bureau of Prison has listed
under "Daniel Hernandez,
White, 23, Not in BOP Custody"
a release date of August 2,
2020, here.
As a
cooperator, #6ix9ine has been
in the GEO private prison in
Queens. Meanwhile Inner City
Press' reporting of the
proceedings before SDNY Judge
Engelmayer has been demonetized
by Google for including from
the transcript the F-word and
N-word. These were said. More
on all this to follow.
On February
17 the US Attorney's Office
asked Judge Engelmayer to
sentence one of the two
defendants convicted at trial
with 69's testimony, Aljermiah
"Nuke" Mack, to at least
thirty years in prison.
On February
24, Inner City Press
live-tweeted the more than
three hour sentencing
proceeding, here.
Judge Engelmayer came out at a
sentencing guideline of 235 to
293 months. As well as reading
from apparently every letter
received, Judge Engelmayer
said that not accepting
responsibility, going to trial
despite extensive audio and
other evidence, militated
years higher than he would
otherwise have gone.
He compare
Mack to Jamel Jones, noting
that Jamel not Nuke was caught
on take threatening to
"super-violated" #6ix9ine but
also had less of a criminal
history. He cited Mack robbing
Roland Martin of a Range Rover
and a Rolex, brandishing a
gun. He focused on selling
fentanyl as heroin.
Judge
Engelmayer imposed a sentence
on Aljermiah Mack of 204
months or 17 years. The
government urged that it not
be on the East Coast but Judge
Engelmayer proposed near NYC,
pending language to be
submitted by defense attorney
Louis Fasulo overnight.
Anthony
"Harv" Elisson's sentencing
has been pushed back to April
1. Inner City Press will be
there.
On
February 12 another of 69's
initial co-defendants Fuguan
Lovick a/k/a Fu Banga entered
in shackles for sentencing by
Judge Engelmayer. Inner City
Press aimed to at least
partially live tweet, but it
was not possible: no phone use
in courtroom and for various
reasons not otherwise
possible. The government was
asking for a sentence of from
90 to 96 months in jail, 84 of
them for pleading guilty to
shooting a gun at the
Barclay's Center in downtown
Brooklyn. Lovick declined to
speak (he had written a
letter); his lawyer Jeffrey
Pittel asked for one day on
Count 6.
Judge Engelmayer noted that
while Lovick had a number of
run ins with the law since
1999, none in the past seven
years, and jobs in Home Depot
and construction. His father
made him sell heroin; he
witnessed a murder on the way
to school.
As to the
shot, Judge Engelmayer said
that Daniel Hernandez was to
give a performance and Lovick
shot a gun over the heads of a
rival rapper's entourage.
Judge
Engelmayer: "I should say that
many shots taken in the
Barclays Center miss" - then
he credited Lovick with
missing his gun shot on
purpose, but still said it was
dangerous. He imposed a
sentence of 85 months, then
three years of Supervised
Release, in Connecticut where
Lovick's son lives. He wished
Lovick, and two relatives in
the gallery, well. And Inner
City Press, prohibited from
live tweeting the thoughtful
sentencing, ran and wrote
this. We'll have more,
including on April 1.
Inner City Press
covered the trial
Hernandez testified at, and
the other sentencings
in the case and will continue
to. The case is US v.
Jones, 18-cr-834
(Engelmayer). More on Patreon
here.
***
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