United States v. Lum

• Decision Date: 25 June 2020
• Docket Number: Case No. 18-cr-00073-DKW
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. NATHAN YUEN GRIT LUM, Defendant.
• Court: U.S. District Court — District of Hawaii

UNITED STATES OF AMERICA, Plaintiff, v. NATHAN YUEN GRIT LUM, Defendant.

Case No. 18-cr-00073-DKW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI'I

June 25, 2020

ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE

Inmate Nathan Lum filed a motion pursuant to 18 U.S.C. § 3582(c)(1), Dkt. No. 47, requesting that this Court reduce his term of imprisonment to "time served" due to his current health conditions and his concerns about "the growing COVID-19 pandemic." Id. at 2. Because Lum's health issues and the state of affairs at the facility where he is incarcerated do not amount to "extraordinary and compelling" circumstances, and in light of the fact that Lum has served less than 4 months of his 30-month term of imprisonment, Lum's motion is DENIED.

FACTUAL & PROCEDURAL BACKGROUND

Lum pled guilty to one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1); and one count of failure to file a tax return in violation of 26 U.S.C. § 7203. See Dkt. No. 27 at 3-4, 7. On January 29, 2020, this Court sentenced Lum to a total term of 30 months' incarceration and a one-year term of supervised release, Dkt. Nos. 40, 41, a sentence that was below the guideline range. See Dkt. No. 42 at 3. In imposing this sentence, the Court adopted the presentence investigation report (PSR) in full, Dkt. No. 42 at 1, which indicates Lum is 5 feet 11 inches tall and weighs 230 pounds (Body Mass Index of 32.1); has high blood pressure, high cholesterol, "borderline diabetes," asthma, chronic back pain, and low testosterone; was previously hospitalized in October 2019 for sepsis, secondary to group A strep pyogenes bacteremia and "gouty arthritis" of the right knee and ankle; underwent a catheter ablation procedure in January 2020 to correct symptomatic chronic atrial fibrillation; takes seven different medications; and is now 63 years of age. See Dkt. No. 38 at 2, 15; see also Dkt. No. 63 at 2-5. The PSR also notes that Lum has no history of mental or emotional problems. Dkt. No. 38 at 15. At the sentencing hearing, the Court allowed Lum to self-surrender to a facility to be designated by the Federal Bureau of Prisons (BOP) on March 11, 2020, Dkt. No. 41 at 2, which he did.

Lum is currently incarcerated in the minimum-security satellite camp at USP Lompoc in Santa Barbara County, California.¹ Having served less than four months of his sentence, Lum is scheduled to be released on April 27, 2022. Id.

On April 6, 2020, Lum's counsel sent a letter to the warden at USP Lompoc, requesting that Lum be released to home confinement for the remainder of his term of incarceration, or that the warden file a motion for compassionate release pursuantto 18 U.S. C. § 3582(c)(1)(A). Dkt. No. 47-4 at 1, 5. Lum's request was denied by letter dated April 14, 2020. Dkt. No. 47-6 at 4.

LEGAL STANDARD

"'[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 (2010) (alterations in original) (quoting 18 U.S.C. § 3582(b)). Such circumstances must be "expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." See 18 U.S.C. § 3583(c)(1)(B); see also Dillon, 560 U.S. at 827, 831; United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Congress carved out such an exception in 18 U.S.C. Section 3582(c)(1), as amended by the First Step Act of 2018 (FSA), Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (2018).² Under Section 3582(c)(1), courts may "modify a term of imprisonment" where, as here, the inmate files a motion, if three requirements are satisfied:

(1) the inmate "has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion" on behalf of the inmate "or the lapse of 30 days from the receipt of such a request" by the relevant warden;³(2) the inmate has established 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"; and

(3) the court has "consider[ed] the factors set forth in [18 U.S.C. Section] 3553(a)" and found that the inmate is "not a danger to the safety of any other person or the community, as provided under [18 U.S.C. Section] 3142(g)."

See 18 U.S.C. § 3582(c)(1); U.S.S.G. § 1B1.13 (policy statement). The inmate bears the burden of establishing the requirements for a sentence reduction by a preponderance of the evidence. See, e.g., United States v. Sprague, 135 F.3d 1301, 1306-07 (9th Cir. 1998); see also United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016); United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013); Walton v. Ariz., 497 U.S. 639, 650 (1990) (holding that a defendant's due process rights "are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency."), overruled on other grounds by Ring v. Ariz., 536 U.S. 584, 609 (2002).

DISCUSSION

The crux of the parties' dispute centers on the second and third requirements for a sentence reduction under Section 3582(c)(1), as outlined above. For the reasons that follow, Lum has satisfied neither of these two requirements.

I. Extraordinary and Compelling Reasons

Section 3582(c)(1) permits a sentence reduction only upon a showing of "extraordinary and compelling reasons," and only if "such a reduction is consistentwith applicable policy statements issued by the Sentencing Commission" (the "Commission"). Lum has failed to make the requisite showing because he is not suffering from a condition that elevates his risk of becoming seriously ill from COVID-19 and, if Lum did become infected, nothing suggests Lum's ability "to provide self-care within the . . . correctional facility" would be "substantially diminishe[d]" such that he would "not [be] expected to recover." See U.S.S.G. § 1B1.13 cmt. n.1(A).

A. The Commission's Commentary in U.S.S.G. § 1B1.13 Defining "Extraordinary and Compelling" is Binding on Federal Courts

Congress did not delineate the bounds for what constitutes "extraordinary and compelling," except to state that "[r]ehabilitation of the defendant alone" is not enough. 28 U.S.C. § 994(t). Instead, Congress directed the Commission to promulgate policy statements "describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." Id. The Commission did just that under Application Note 1 to U.S.S.G. § 1B1.13, albeit prior to the enactment of the FSA. The Commission outlined the following four categories of circumstances that may constitute "extraordinary and compelling reasons" for a sentence reduction:

(A) the inmate is "suffering from a terminal illness," or a "serious" physical or cognitive condition "that substantially diminishes" the inmate's ability "to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover";(B) the defendant is at least 65 years old, is "experiencing a serious deterioration in physical or mental health because of the aging process," and "has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less";

(C) family circumstances involving "the death or incapacitation of the caregiver of the defendant's minor child," or the "incapacitation of the defendant's spouse or registered partner," leaving the inmate as "the only available caregiver for the spouse or registered partner"; or

(D) "[a]s determined by the Director of the [BOP]," in the inmate's case there is "an extraordinary and compelling reason other than, or in combination with," the other three reasons described.

See U.S.S.G. § 1B1.13 cmt. n.1.

Several district courts have concluded (as Lum urges this Court to do) that because the policy statement is "outdated" and does not account for the fact that an inmate may now seek relief directly from the court,⁴ the definition of "extraordinary and compelling" is no longer limited to the examples set forth in the Commission's policy statement above, and courts are free to independently make that determination.⁵ Dkt. No. 47-1 at 12-14. The Court is not persuaded.

Courts are not at liberty to treat the Commission's commentary as merely "persuasive," "of only limited authority," or "not binding on the federal courts." Stinson v. United States, 508 U.S. 36, 39, 44-47 (1993) (citation omitted). InStinson, the Supreme Court announced "the standard that governs the decision whether particular interpretive or explanatory commentary is binding." Id. at 43. There, the Court explained:

The Sentencing Commission promulgates the guidelines by virtue of an express congressional delegation of authority for rulemaking, and through the informal rulemaking procedures. Thus, the guidelines are the equivalent of legislative rules adopted by federal agencies. The functional purpose of commentary (of the kind at issue here) is to assist in the interpretation and application of those rules, which are within the Commission's particular area of concern and expertise and which the Commission itself has the first responsibility to formulate and announce. In these respects this type of commentary is akin to an agency's interpretation of its own legislative rules. As we have often stated, provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation."

Stinson, 508 U.S. at 44-45 (internal citations omitted) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Thus, the Court held that "commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly...