United States v. Van Sickle

Decision Date07 May 2020
Docket NumberCASE NO. CR18-0250JLR
CourtU.S. District Court — Western District of Washington
PartiesUNITED STATES OF AMERICA, Plaintiff, v. TROY CLINTON VAN SICKLE, Defendant.
ORDER DENYING MOTION FOR COMPASSIONATE RELEASE
I. INTRODUCTION

Before the court is Defendant Troy Clinton Van Sickle's motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(1), commonly referred to as a motion for compassionate release. (See Mot. (Dkt. # 54); see also Reply (Dkt. # 61); Mestel Supp. Decl. (Dkt. # 65) (sealed).) Defendant United States of America ("the Government") opposes Mr. Van Sickle's motion. (See Resp. (Dkt. # 60) (sealed).) The court has considered Mr. Van Sickle's motion, the parties' submissions filed in support of and in

// opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised,1 the court DENIES Mr. Van Sickle's motion.

II. BACKGROUND

On June 24, 2019, Mr. Van Sickle entered a guilty plea to an advanced-fee scheme charged as mail fraud. (See Plea Agreement (Dkt. # 36); R&R re: Guilty Plea (Dkt. # 37); 6/24/19 Min. Entry for Change of Plea Hr. (Dkt. # 34); Guilty Plea Order of Acceptance (Dkt. # 38).) The scheme involved contacting investors and offering to assist them in recovering investment losses in exchange for a fee. (See Plea Agreement ¶ 9.) Part of the scheme involved falsely and fraudulently seeking to create the illusion of genuine romantic relationships with certain individuals in order to win the investors' trust. (See id.) Mr. Van Sickle solicited loans from the investors that he never intended to use to facilitate the recovery of investors' prior investment losses and never intended to repay as he had promised to do. (See id.) Instead, he fraudulently converted investors' funds for his own use. (See id.)

Prior to the September 30, 2019, sentencing hearing, the Probation Office prepared a Presentence Report ("PSR"). (See PSR (Dkt. # 39) (sealed).) The Probation Office determined that Mr. Van Sickle's criminal history category was VI, his total offense level was 11, and his sentencing guideline range was 27 to 33 months' imprisonment. (See id.

//¶¶ 32, 44, 67.) In calculating Mr. Van Sickle's criminal history, the Probation Office noted that since 1991, Mr. Van Sickle has been convicted of numerous felonies, including: (1) perjury in the second degree (id. ¶ 38); (2) theft in the first degree on three separate occasions (id. ¶¶ 34, 37, 41); (3) felony theft and felony fraudulent schemes (id. ¶ 42); and (4) trafficking in stolen property (id. ¶ 43). The Probation Office also noted that Mr. Van Sickle had been convicted of other offenses which did not count in calculating his criminal history, including: (1) theft in the first degree (id. ¶ 35); (2) unlawful issuance of bank checks (id. ¶ 36); and (3) violation of a protective order—domestic violence (id. ¶¶ 39-40). Ultimately, the court sentenced Mr. Van Sickle, who was 48 years old at the time, to 30 months' imprisonment and three years of supervised release. (See 9/30/19 Min. Entry (Dkt. # 48); see also Judgment (Dkt. # 49).)

In the PSR, the Probation Office also discussed Mr. Van Sickle's health, noting that he "is in generally good health though he suffers from high blood pressure and tinnitus," and further noting that he "is not taking medications, prescription or otherwise, at this time." (Id. ¶ 57.)

On October 30, 2019, Mr. Sickle timely self-reported to FCI Terminal Island to begin his sentence. (See Gov. Ex. 1 (Dkt. # 60-1) at 1, 3; see also Reply ¶ 4 (stating that "the Court allowed Mr. Van Sickle to self-surrender to FCI [Terminal Island]," and he "reported on the day and time ordered by BOP").) During his health screening that day, he denied having respiratory issues, but did report having high cholesterol, for which he took the medication Simvastatin. (See Gov. Ex. 1 at 1, 3.) On November 7, 2019, Mr. Van Sickle told prison medical personnel that he was a healthy person withoutcomplaints, that he was not taking any medications, and that his hypertension had "resolved." (Gov. Ex. 2 (Dkt. # 60-1) at 1.)

Prison medical personnel examined Mr. Van Sickle again on November 12, 2019. (See Gov. Ex. 3 (Dkt. # 60-1).) He again denied having any respiratory conditions (id. at 1), which the prison medical personnel confirmed with a finding that Mr. Van Sickle's "Respiratory System" was "Within Normal Limits" (id. at 7). In addition, Mr. Van Sickle's blood pressure was 115/78, which is consistent with his earlier report that his high blood pressure issues had resolved. (Id. at 5.) Subsequent tests of Mr. Van Sickle's blood pressure, between November 2019 and January 2020, were also consistent his prior report that these issues had resolved. (See Gov. Ex. 4 (Dkt. # 60-1) at 1-2 (indicating blood pressure measurements of 124/88, 119/80, and 119/79).)

On April 3, 2020, the Attorney General directed the Bureau of Prisons ("BOP") facilities where Coronavirus Disease 2019 ("COVID-19") was materially affecting operations to review all inmates who had COVID-19 health risk factors to determine if any of those inmates were suitable for home confinement and, if so, to immediately process those inmates for transfer. (See Resp. at 4-5.)

On April 10, 2020, Mr. Van Sickle reported to BOP that he had a history of asthma, high cholesterol, and high blood pressure. (Gov. Ex. 5 (Dkt. # 60-1) at 1.) In taking his blood pressure that day, prison medical personnel found that it was elevated at 161/105 and prescribed him Lisinopril. (Id.) In addition, prison medical personnel scheduled a peak and flow test to evaluate Mr. Sickle for asthma and to determine if he qualified for an albuterol inhaler. (Id.) At the present time, Mr. Van Sickle is receivingmedications for both hypertension and asthma. (Mestrel Supp. Decl. ¶ 2.a, App. A.) Based on tests related to his blood sugar, prison medical personnel also concluded that Mr. Van Sickle is pre-diabetic. (Id. ¶ 2.b, App. A.) Prison medical personnel also tested Mr. Van Sickle for COVID-19, but the test was negative. (Id. ¶ 2.c, App. A.)

As of April 30, 2020, 570 inmates and ten staff at FCI Terminal Island had tested positive for COVID-19, and two inmates had died from the disease. (See id. ¶ 5.) By May 6, 2020, less than one week later, BOP confirms 621 inmates and 15 staff at FCI Terminal Island are positive for COVID-19, and six inmates have died. See https://www.bop.gov/coronavirus/ (last visited May 6, 2020).2 The BOP reports that there are currently 1,051 inmates at FCI Terminal Island. See https://www.bop.gov/locations/institutions/trm/ (last visited May 6, 2020).3 Thus, approximately 59% of the inmates at the facility have tested positive for the virus.

Mr. Van Sickle states that on March 14, 2020, he submitted a written request for compassionate release to the FCI Terminal Island's warden, and that on March 27, 2020, the warden orally denied his request. (Mot. at 3.) Mr. Van Sickle reports that his form was returned to him "without a written reason for its denial." (Reply ¶ 2.) Mr. Van Sickle states that the warden orally advised him that because he was not 65 years old and had not completed 75% of his sentence, he was not eligible for release. (See Mot. at 3.) Mr. Van Sickle did not receive a written decision from the warden. (See id.) Mr. VanSickle did not attach a copy of his written request for compassionate release to the warden to his motion. (See generally id.)

The Government requested a copy of Mr. Van Sickle's compassionate release request from BOP. (Resp. at 5.) BOP responded that its database did not reflect the filing of such a request, although BOP acknowledged that FCI Terminal Island is behind in logging its compassionate release requests. (Id.)

On April 17, 2019, Mr. Van Sickle filed the current motion for compassionate release alleging that he suffers from medical conditions that qualify as risk factors for COVID-19. (See generally Mot.) He asks the court to reduce his sentence to time-served based on the COVID-19 crisis and the risk he asserts COVID-19 poses to him particularly. (See generally id.) Mr. Van Sickle is presently 49 years old and has a release date of December 15, 2021. (Resp. at 5.) The court now considers Mr. Van Sickle's motion.

III. ANALYSIS

A court generally may not correct or modify a prison sentence once it has been imposed, unless permitted by statute or by Federal Rule of Criminal Procedure 35. United States v. Penna, 315 F.3d 509, 511 (9th Cir. 2003); see also Dillon v. United States, 506 U.S. 817, 824-25 (2010) ("'[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.") (quoting 18 U.S.C. § 3582(b)). One such statute is 18 U.S.C. § 3582(c)(1), which governs motions for compassionate release. See United States v. Fuller, No. CR17-0324JLR, 2020 WL 1847751, at * 2 (W.D. Wash. Apr.13, 2020). Until recently, only BOP could bring a motion for the compassionate release of a prisoner, but the First Step Act of 2018 amended 18 U.S.C. § 3582(c)(1) so that federal prisoners may now seek such release directly from the court. The statute now provides the court with authority to reduce a sentence upon the motion of an inmate if three conditions are met: (1) the inmate has either exhausted his or her administrative appeal rights of BOP's failure to bring such a motion on the inmate's behalf or has waited until 30 days after the applicable warden has received such a request; (2) the inmate has established "extraordinary and compelling reasons" for the requested sentence reduction; and (3) the reduction is consistent with the United States Sentencing Commission's policy statement. See 18 U.S.C. § 3582(c)(1)(A)(i); see also Riley v. United States, No. C19-1522JLR, 2020 WL 1819838, at *5 (W.D. Wash. Apr. 10, 2020).

The first condition the court considers is whether Mr. Van Sickle has exhausted his...

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