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Amid Coronavirus US Says No Objection To Releasing #6ix9ine Now Judge Engelmayer To Rule

By Matthew Russell Lee, Patreon Thread Scope
BBC - Guardian UK - Honduras - Vulture

SDNY COURTHOUSE, April 1 – 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.

  Now it seems he will be ordered released sometime after this 2 pm letter from the US Attorney: "Re: United States v. Daniel Hernandez, S5 18 Cr. 834 (PAE) Dear Judge Engelmayer: The Government writes in response to the Court’s April 1, 2020 Order (ECF No. 446) asking whether the defendant has exhausted all administrative rights set forth in 18 U.S.C. § 3582(c)(1)(A)....During the sentencing of the defendant on December 18, 2019, the Court extensively analyzed the Section 3553(a) factors as applied to the defendant, including, among other factors, the cooperation the defendant provided the Government in its investigation and prosecution of the Nine Trey Gangsta Bloods. The Court further noted in its March 25, 2020 Order (ECF No. 440), that Section 3553(a) instructs the sentencing court to consider “the need to provide the defendant with needed . . . medical care,” (ECF No. 440 at 3 (quoting 18 U.S.C. 3553(a)), and indicated that the Court intended to grant the defendant’s motion if it had the legal authority to do so.

Accordingly, in light of the analysis under Section 3553(a) detailed during the defendant’s sentencing and the Court’s March 25 Order, in the event the Court finds “extraordinary and compelling reasons” presented by the defendant’s medical condition, placing him at high risk during the COVID-19 outbreak, the Government does not oppose the defendant’s motion for compassionate release."

  US does not oppose. Here was Judge Engelmayer's morning order on April 1: "ORDER as to Daniel Hernandez: The Court has received an application from counsel for Daniel Hernandez, Dkt. 445, representing that the Bureau of Prisons has now denied his request for compassionate relief and that the Court's review under 18 U.S.C. § 3582(c) of his application to convert the balance of his term of imprisonment to a term of home confinement is now administratively proper. The Court directs that the Government respond by no later than 5 p.m. today. The parties are advised that, provided that the Court has legal authority to grant the relief requested by defense counsel, the Court intends to do so SO ORDERED. (Signed by Judge Paul A. Engelmayer on 4/1/2020) (lnl)."

 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 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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