United States v. Nygren
| Decision Date | 22 July 2020 |
| Docket Number | 1:16-cr-00106-JAW |
| Parties | UNITED STATES OF AMERICA v. STEVEN NYGREN |
| Court | U.S. District Court — District of Maine |
An incarcerated individual moves for compassionate release to home confinement and a period of supervised release under 18 U.S.C. § 3582(c)(1)(A)(i). Though the incarcerated individual's severe obesity, chronic kidney disease, and hypertension present a serious case for compassionate release, the Court concludes that the likelihood he will reoffend, along with the short amount of time he has served in relation to the total length of his sentence, caution against release. The Court denies the motion.
On May 25, 2018, the Court sentenced Steven Nygren to ninety-five months of imprisonment concurrent with two sixty-month terms, five years of supervised release concurrent with two three-year terms, no fine, $815,496.27 restitution, and a $6500 special assessment for bank fraud in violation of 18 U.S.C. § 1344(2), access device fraud in violation of 18 U.S.C. § 1029(a)(2), and tax evasion in violation of 26 U.S.C. § 7201. Min. Entry (ECF No. 71); J. (ECF No. 74). On June 8, 2018, Mr. Nygren filed a notice of appeal. Def.'s Notice of Appeal (ECF No. 76). On August 6, 2019, the United States Court of Appeals for the First Circuit affirmed this Court's sentence. J. (ECF No. 91); United States v. Nygren, 933 F.3d 76 (1st Cir. 2019). The Court received the mandate of the First Circuit on August 27, 2019. Mandate (ECF No. 92).
On May 22, 2020, Mr. Nygren filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Emergency Mot. for Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) in Light of Imminent Threat of Contracting COVID-19 Virus (ECF No. 95) (Def.'s Mot.). On June 2, 2020, Mr. Nygren filed a supplemental brief to his compassionate release motion. Pet'r's Suppl. Br. to Emergency Mot. for Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) in Light of Imminent Threat of Contracting COVID-19 Virus (ECF No. 99) . On June 9, 2020, the Government responded in opposition. Gov't's Resp. to Def.'s Mot. to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (ECF No. 100) (Gov't's Resp.). Mr. Nygren filed a second supplemental brief on June 18, 2020. Pet'r's Suppl. Br. # 2 to Emergency Mot. for Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) in Light of Imminent Threat of Contracting COVID-19 Virus (ECF No. 109) . On June 30, 2020, the Government filed a supplemental memorandum. Suppl. Mem. in Support of Gov't's Resp. to Def.'s Mot. for Compassionate Release (ECF No. 110) .
Mr. Nygren asks "that his sentence be modified to Home Confinement or reduced" because prison conditions increase his risk of contracting COVID-19 and he has pre-existing conditions that increase his risks of suffering significant adverseconsequences from COVID-19. Def.'s Mot. at 1. He asserts that as of the date he filed his motion, the Federal Medical Center, Devens (FMC Devens)—the Bureau of Prisons (BOP) facility where he resides—"has reported 15 infected inmates and two staff, a far cry from the Warden's assertion that the facility is doing an extraordinary job." Id. He states that he "is a 53 year old, Caucasian male, who suffers from Hypertension and liver failure" and that the United States Centers for Disease Control and Prevention (CDC) and United States Surgeon General have identified these conditions as serious risk factors for COVID-19. Id.
Mr. Nygren states that he is incarcerated at FMC Devens and has a scheduled release date of October 2, 2025, which means that he "has served a little over 30% of his sentence." Id. at 1-2. He states that he filed a request for compassionate release with the warden of FMC Devens on April 4, 2020, which the warden denied on April 25, 2020. Id. at 2. Mr. Nygren then discusses the Court's authority to grant him compassionate release. Id. at 2-3.
Mr. Nygren asserts that his hypertension, liver failure, and previous stroke—in combination with the risk of COVID-19—present extraordinary and compelling reasons for his release. Id. at 3. He argues that FMC Devens' COVID-19 response violates the Eighth Amendment because they are not enabling social distancing and states that further exhaustion would be futile and the Court may excuse it. Id. at 3-5. He represents that the United States Surgeon General has stated that individuals with conditions like Mr. Nygren's who contract COVID-19 "could develop very severe symptoms and [are] more likely to die." Id. at 5. He argues that COVID-19 iswreaking havoc at FMC Devens, that prisons are not environments where social distancing and other hygiene measures are practical, and that release of significant numbers of incarcerated individuals will save lives. Id. at 5-6.
Mr. Nygren further argues that the United States Attorney General "has directed the B[OP] to start releasing at risk inmates, based on certain Criteria" and that Mr. Nygren's recidivism risk is minimal. Id. at 7. He states that FMC Devens is "operating in defiance" of the Attorney General's direction, that other courts have released incarcerated individuals based in part on COVID-19, and that in addition to his health conditions, Mr. Nygren does not pose a danger to the community and has a release plan that will enable him to begin paying restitution. Id. at 7-10.
Mr. Nygren begins by giving background about COVID-19 in prisons and how courts across the country are reacting. Def.'s Suppl. Br. at 1-9. He then provides background about how COVID-19 affects older individuals, noting that he is fifty-three years old. Id. at 8-11. He then discusses the dangers of certain pre-existing conditions, including diabetes, heart conditions, and lung conditions. Id. at 11-13. Mr. Nygren points out that he is obese and notes that "[p]eople with obesity are more susceptible to contracting viruses and prone to complications from these viruses." Id. at 13-14.
The Government argues that Mr. Nygren "has not met his burden to show extraordinary circumstances exist in his case to warrant the reduction in sentence"and, even if he has, he "fails to meet his burden in showing that a reduction of sentence would be appropriate under any application of 3553([a]) factors, given his particular history, the facts surrounding the commission of his offenses, and that he has served less than 30 percent of his total sentence."1 Gov't's Resp. at 1. The Government also states that the Court should deny Mr. Nygren's "alternative request for an order directing BOP to transfer him to home confinement." Id.
The Government next lays out the background of Mr. Nygren's case and the BOP's response to COVID-19. Id. at 1-8. The Government states that Mr. Nygren has served only "29.1% of his projected statutory term," which is why—according to his BOP case manager—the BOP has not considered him for home confinement. Id. at 7. The Government expresses its view of the legal framework governing compassionate release motions. Id. at 8-9.
The Government argues that "[t]he mere existence of the COVID-19 pandemic . . . could not alone provide a basis for a sentence reduction." Id. at 11. Though it acknowledges that severe obesity "is a risk factor that can in some cases lead to a finding of exceptional circumstances," the Government proceeds to encourage the Court to discount Mr. Nygren's obesity, arguing that he has lost weight in the pastand may lose weight in the future. Id. at 12-13. The Government suggests the Court should also disregard Mr. Nygren's diagnosis of hypertension because it is primary hypertension, rather than pulmonary hypertension, and it is treated by medication. Id. at 13-14. The Government further argues that Mr. Nygren is not old enough for his age to be a risk factor. Id. at 14. Taken together, the Government contends that Mr. Nygren's health conditions do not add up to extraordinary and compelling reasons for a sentence reduction. Id.
Should the Court disagree with the Government's medical conclusion, however, the Government contends that the Court still should not release Mr. Nygren "because he has failed to demonstrate that he otherwise merits release under the [18 U.S.C.] § 3553(a) factors." Id. at 15. The Government contends that "the disease is sadly rampant in Essex County where [Mr. Nygren] says he would return to live." Id. at 15-16. The Government says that Mr. Nygren's "substantial history of defrauding others of money," as well as indications that Mr. Nygren "continued his fraudulent schemes and tax evasion throughout his sentencing process, and even after sentencing up to the time he self-reported to BOP," make him a danger to the community. Id. at 16. The Government points out that Mr. Nygren has made no restitution payments and notes that his release plan has him working from home, where he "committed a substantial portion of his criminal misconduct," and working in sales, "an occupation that often involves accepting forms of payment from customers who may not be aware of the defendant's history with other people's checksand credit cards." Id. at 16-17. Finally, the Government argues that the Court has no authority to direct BOP to place Mr. Nygren in home confinement.2 Id. at 17-18.
Mr. Nygren begins by incorporating an attached offer of employment, stating that the Court should consider the employment offer despite the fact that "the business in question is connected to a prison acquaintance," as "[t]he business in question appears legitimate and historically appears to have significant revenues and multiple locations." Def.'s Second Suppl. Br. at 1; see also id., Attach. 1, Letter to Steven Nygren (Employment Letter). Mr. Nygren states...
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