Order: Reduction in Sentence, Amendment 821 — United States v. Melinda Sue Hernandez (Dkt. 151, M.D. Fla.)

Summary

An Order, Document 151, filed 10/31/24, in United States of America v. Melinda Sue Hernandez, Case No. 8:22-cr-123-WFJ-TGW, Middle District of Florida, Tampa Division. She moved unopposed (Dkt. 149) for a reduction under Amendment 821; the Probation Office reports she is eligible, which would lower her advisory range to 30-37, and the Federal Defender seeks a total of 36 months, but the Court denies the motion under 18 U.S.C. § 3553(a). It notes she already received a six-level downward departure for substantial assistance, and her conspiracy and aggravated identity theft exploited the Families First Coronavirus Act and CARES Act, in a scheme totaling over $1 million, and her 42-month sentence stays in place.

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Case 8:22-cr-00123-WFJ-TGW Document 151 Filed 10/31/24 Page 1 of 5 PageID 560




                     UNITED STATES DISTRICT COURT
                      MIDDLE DISTRICT OF FLORIDA
                            TAMPA DIVISION

UNITED STATES OF AMERICA

v.                                                Case No.: 8:22-cr-123-WFJ-TGW

MELINDA SUE HERNANDEZ
___________________________________/

                                      ORDER

      Citing Amendment 821 to the United States Sentencing Guidelines, Melinda

Sue Hernandez, USM#: 93833-509, moves (Dkt. 149) unopposed for a reduction in

sentence. Amendment 821, Part B, amends Section 4C1.1, United States

Sentencing Guidelines, to permit a two-level decrease to a defendant’s offense

level if a defendant satisfies the criteria in Section 4C1.1(a), including the absence

of a criminal history point under Chapter 4.

      Under 18 U.S.C. § 3582(c)(2), an incarcerated defendant’s prison sentence

might warrant a retroactive reduction if the advisory sentencing range on which the

defendant’s sentence was based “has subsequently been lowered by the Sentencing

Commission . . . [and] if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” Under 28 U.S.C. § 994(u), if

the Sentencing Commission lowers the advisory sentencing range for a “particular

offense or category of offense,” the Sentencing Commission must “specify in what

circumstances and by what amount the sentences of prisoners serving terms of
Case 8:22-cr-00123-WFJ-TGW Document 151 Filed 10/31/24 Page 2 of 5 PageID 561




imprisonment for the offense may be reduced.” Section 1B1.10, United States

Sentencing Guidelines, expressly permits a retroactive reduction for an

incarcerated defendant to whom Amendment 821 applies, but any reduction cannot

decrease a sentence below the time that the defendant “has already served.”

      Accordingly, because Amendment 821 lowers the advisory sentencing range

for a defendant without, among other things, a criminal history point, Section

3582, Section 994(u), and Section 1B1.10 permit a reduction in an incarcerated

defendant’s prison term if at sentencing the defendant had no criminal history

points, if the offense of conviction satisfies the criteria in Section 4C1.1(a), and if a

reduction is consistent with 18 U.S.C. § 3553(a).

      On September 26, 2022, Melinda Sue Hernandez was sentenced under 18

U.S.C. §§ 371, 1342, 1028A to 42 months (comprised of an 18-month term as to

Count One and a consecutive 24-month term as to Count Eight). Melinda Sue

Hernandez’s total offense level was 21. She was assessed no criminal history

points, and her criminal history was category I. Ms. Hernandez’s advisory

sentencing range was 37-46 months, and she received a sentence well below the

bottom of the advisory range. She was granted a six-level downward departure




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Case 8:22-cr-00123-WFJ-TGW Document 151 Filed 10/31/24 Page 3 of 5 PageID 562




based on substantial assistance (5k1.1). The Bureau of Prisons reports that her

projected release is April 26, 2025.1

      In accord with the Middle District of Florida’s administrative order (Dkt.

115 in 3:21-mc-1-TJC) implementing Amendment 821, the United States

Probation Office must submit a memorandum (1) that states whether a movant is

eligible for a sentence reduction under Amendment 821 and (2) if the movant is

eligible, that proposes a new advisory sentencing range based on the decrease

authorized by Amendment 821. USPO submits a memorandum reporting that

Melinda Sue Hernandez is eligible for a sentence reduction and reporting that a

two-level decrease based on Amendment 821 reduces the offense level to 19 and

reduces her advisory sentencing range to 30-37. The Federal Defender appears,

confirms Melinda Sue Hernandez’s eligibility for a reduction, and moves

unopposed to reduce her sentence to 36 months total (a 6-month overall reduction

in sentence). Specifically, a sentence of 12 months, as opposed to 18 months, is

sought for Count One. The mandatory consecutive 24-month sentence on Count

Eight remains.

      The Court’s discretion is guided by the sentencing factors in 18 U.S.C. §

3553(a), and the Court finds those factors militate against a reduction in sentence.



1
 The BOP website shows her release date is December 12, 2024. See
https://www.bop.gov/inmateloc/ (last checked 10/30/2024).
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Case 8:22-cr-00123-WFJ-TGW Document 151 Filed 10/31/24 Page 4 of 5 PageID 563




First, this Defendant already received a six-level downward departure for

substantial assistance (5k1.1). Second, the conspiracy and aggravated identity theft

took advantage of the Families First Coronavirus Act and the Coronavirus Aid,

Relief, and Economic Security (CARES) Act. This Defendant used her position as

a medical assistant at a hospital to gain access to an electronic patient chart

database containing personal identifying information. She and her co-defendant

conspired to obtain and use the personal information of others, which her co-

defendant then fraudulently submitted to state workforce agencies to collect

unemployment insurance benefits. This Defendant further provided her co-

defendant with her neighbors’ addresses to enable the award letters and debit cards

to be mailed and intercepted by herself and her co-defendant. The amount totaled

over $1 million.

      The Court finds that the sentencing factors in 18 U.S.C. § 3553(a) require

this motion to be denied. The current sentence is in line with those factors,

specifically and properly reflecting the “nature and circumstances of the offense”

after input and consideration of the present motion, and also after the detailed input

and the parties’, USPO’s, and judicial careful labor at the time of sentencing. See

id. at (a)(1) (consideration of nature and circumstances of the offense). To reduce

this sentence further would not properly “reflect the seriousness of the offense” or

“promote respect for the law.” See id. at (2)(A). The sentences courts impose (and

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Case 8:22-cr-00123-WFJ-TGW Document 151 Filed 10/31/24 Page 5 of 5 PageID 564




the sentences courts reduce) have an effect upon deterrence (see id. at (2)(B)) and

deterrence would be impaired by this proposed reduction.

      Melinda Sue Hernandez’s Second Amended Motion for Sentence Reduction

under Amendment 821 (Dkt. 149) is DENIED.

      DONE AND ORDERED at Tampa, Florida on October 31, 2024.




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