United States v. Holden, 3:13-cr-00444-BR

• Decision Date: 06 April 2020
• Docket Number: 3:13-cr-00444-BR
• Citation: 452 F.Supp.3d 964
• Parties: UNITED STATES of America, Plaintiff, v. Jack HOLDEN, Defendant.
• Court: U.S. District Court — District of Oregon

452 F.Supp.3d 964

UNITED STATES of America, Plaintiff,

v.Jack HOLDEN, Defendant.

3:13-cr-00444-BR

United States District Court, D. Oregon.

Signed April 6, 2020

BILLY J. WILLIAMS, United States Attorney, CLAIRE M. FAY, DONNA MADDUX, Assistant United States Attorneys, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204, (503) 727-1000, Attorneys for Plaintiff.

LISA C. HAY, Federal Public Defender, JESSICA GREENLICK SNYDER, Research and Writing Attorney, 101 S.W. Main Street, Suite 1700, Portland, OR 97201, (503) 326-2123, Attorneys for Defendant.

OPINION AND ORDER

BROWN, Senior Judge.

This matter comes before the Court on Defendant Jack Holden's Motion (#318) for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). On April 1, 2020, the Court heard oral argument and took the Motion under advisement. For the reasons that follow, the Court DENIES Defendant's Motion with leave to renew when Defendant has satisfied the exhaustion provision of 18 U.S.C. § 3582(c)(1)(A).

The Court DIRECTS counsel for the government to ensure a copy of this Opinion and Order is delivered to FCI Sheridan Warden Josias Salazar.

BACKGROUND

On September 24, 2013, a grand jury charged Defendant Jack Holden and a co-conspirator with one Count of Conspiracy to Commit Mail and Wire Fraud in violation of 18 U.S.C. § 1349, five counts of Wire Fraud in violation of 18 U.S.C. § 1343, three counts of Mail Fraud in violation of 18 U.S.C. § 1341, five counts of Money Laundering in violation of 18 U.S.C. § 1957, and one Count of Conspiracy to Commit Money Laundering in violation of 18 U.S.C. § 1956(h).

The matter went to trial on September 28, 2015. On October 8, 2015, the government dismissed one count of Money Laundering. On October 15, 2015, the jury returned a Verdict finding Defendant guilty on all remaining counts.

On August 5, 2016, the Court entered a Judgment sentencing Defendant to a term of 87 months in prison; restitution of $1,410,760; three years of supervised release; a money judgment of $1,410,760; and a special assessment of $1,500.

On August 11, 2016, Defendant appealed his conviction and sentence.

On November 8, 2018, the Ninth Circuit affirmed Defendant's conviction, but the court vacated Defendant's "custodial sentence" due to this Court's miscalculation of the applicable sentencing range under the United States Sentencing Guidelines and also vacated the restitution portion of the Judgment. The matter was remanded to this Court for further proceedings.

On February 20, 2019, the Court held a resentencing hearing. On February 21, 2019, the Court entered a Judgment sentencing Defendant to a term of 87 months in prison; restitution of $1,410,760; three years of supervised release; a money judgment of $1,410,760; and a special assessment of $1,500.

On March 20, 2020, Defendant filed a Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) in which he seeks an order reducing his sentence to time served on the grounds that he "meets the criteria for compassionate release and ... his vulnerability to infection by the coronavirus (COVID-19) places him at a serious risk of death if he remains in the custody of the Bureau of Prisons."

On March 24, 2020, defense counsel emailed the Court and noted

[Defendant] meets the[ ] criteria [for early release under 18 U.S.C. § 3582(c)(1)(A)(i) ] because he is 79 years old, has served over 75% of his sentence (in fact, 87%), and has serious deterioration in physical health from his diabetes

, low kidney function, and heart issues; he also suffers from cognitive decline.

* * *

The coronavirus pandemic is what makes review of [Defendant's] application urgent.

On March 24, 2020, the Court held a telephone status conference to assess the urgency of the matter after which the Court directed the parties to file supplemental briefing and set oral argument on the Motion for April 1, 2020.

Before the hearing defense counsel emailed the Court on March 30, 2020, with the following information:

(1) "The government identified a math error in the defense petition, which the defense concedes. [Defendant] has not yet served 75% of the imposed term of imprisonment, as would be required for relief under Application note 1(B) of the guideline [ U.S.S.G. § 1B1.13 ]. For this reason, the defense is now asserting that [Defendant's] advanced illnesses and deteriorating physical health qualify him for relief under App. Note 1(A)(i) and (ii), rather than under Note (B), and that in the alternative, the COVID pandemic constitutes a compelling reason for relief";

(2) Defendant "is currently scheduled for release to home confinement pursuant to the Second Chance Act's eligible elderly offender program on September 2, 2020"; and

(3) Defendant submitted a request for compassionate release at some point, but the parties agree[ ] ... 30 days have not elapsed since it was submitted.

Also on March 30, 2020, the government filed its Response to Defendant's Motion and Defendant filed a Supplemental Brief on his Motion.

On April 1, 2020, the Court heard oral argument by telephone on Defendant's Motion and took it under advisement.

On April 2, 2020, Defendant filed a Second Supplemental Brief on his Motion, and on April 3, 2020, the government provided the Court with additional authority by email.

DISCUSSION

As noted, Defendant moves for an order reducing his sentence to time served pursuant to the First Step Act (FSA), 18 U.S.C. § 3582(c)(1)(A), on the grounds that he has serious degenerative physical conditions or, in the alternative, that the COVID-19 pandemic provides an independent ground for release.

I. FSA Compassionate Release Standards

" ‘[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment’ and may not be modified by a district court except in limited circumstances."

Dillon v. United States , 560 U.S. 817, 824–25, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (quoting 18 U.S.C. § 3582(b) ). Compassionate release provides an exception in extraordinary cases.

Prior to December 21, 2018, the provision of Title 18 relating to compassionate release of prisoners provided:

[T]he court, upon motion of the Director of the Bureau of Prisons, 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 it finds that--

(i) extraordinary and compelling reasons warrant such a reduction

* * *

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.¹

18 U.S.C. § 3582(c)(1)(A)(i)(2018).

On December 21, 2018, the FSA amended 18 U.S.C. § 3582(c)(1)(A) to provide:

[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier may reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that--

(i) extraordinary and compelling reasons warrant such a reduction

* * *

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

First Step Act of 2018, PL 115-391, December 21, 2018, 132 Stat. 5194 (emphasis added).

The applicable Sentencing Commission policy statement relating to the FSA is found at U.S.S.G. § 1B1.13. Application Note 1 to § 1B1.13 sets out the extraordinary and compelling reasons as follows:

1. Extraordinary and Compelling Reasons . - ... extraordinary and compelling reasons exist under any of the circumstances set forth below:

(A) Medical Condition of the Defendant. --

(i) The defendant is suffering from a terminal illness (i.e. , a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e. , a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor

cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(ii) The defendant is--

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

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.

(B) Age of the Defendant .-- The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

* * *

(D) Other Reasons .--As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).

Emphasis in original.

A defendant seeking a reduction in his terms of imprisonment bears the burden to establish both that he has satisfied the procedural prerequisites for judicial review and that compelling and extraordinary reasons exist to justify compassionate release. 18 U.S.C. § 3582(c)(1)(A).

II. Court's Authority to Modify Defendant's Sentence

As noted, " ‘[a] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment’ and may not be modified by a district court except in limited circumstances." Dillon , 560 U.S. at 824–25, 130 S.Ct. 2683 (2010) (quoting 18 U.S.C. § 3582(b) ). See also United States v. Penna , 319 F.3d 509, 511 (9th Cir. 2003) (courts generally...