United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION FOR COMPASSIONATE
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Randal Kent Hansen, moves for a sentence reduction under 18
U.S.C. § 3583(c)(1)(A). Docket 105. The United States
opposes the motion. Docket 110. For the following reasons,
the court denies Hansen's motion.
2014, Hansen was found guilty after a jury trial of 29 counts
of wire and mail fraud and conspiracy to commit wire or mail
fraud. Docket 54. He was sentenced on May 21, 2014, to 108
months of imprisonment, 3 years of supervised release, and
restitution in the amount of $17, 514, 258.89. Docket 77.
Hansen has now filed a motion for compassionate release based
on the recently enacted First Step Act (FSA). Docket 105. The
FSA permits defendants to move a sentencing court for
modification of sentence after the defendant has fully
exhausted all administrative rights. 18 U.S.C. §
3582(c)(1)(A). Both parties agree that Hansen has exhausted
all administrative rights.
Compassionate Release under FSA
2018, Congress passed the FSA. Pub. L. No. 115-391, 132 Stat.
5194 (2018). In pertinent part, the FSA amends 18 U.S.C.
§ 3582(c)(1)(A) to permit inmates in specified
circumstances to file motions in the court where they were
convicted seeking compassionate release. Compassionate
release provides a narrow path for defendants in
“extraordinary and compelling reasons” to leave
prison early. 18 U.S.C. § 3582(c)(1)(A)(i). Such a
sentence must comply with the 18 U.S.C. § 3553(a)
sentencing factors and “applicable policy statements
issued by the Sentencing Commission[.]” 18 U.S.C.
§ 3582(c)(1)(A). The Sentencing Commission's policy
statement, which was adopted before the FSA, requires both
“extraordinary and compelling reasons” and that
“the defendant is not a danger to the safety of any
other person or to the community, as provided in 18 U.S.C.
§ 3142(g)[.]” U.S.S.G. § 1B1.13.
did not define what constitutes “extraordinary and
compelling, ” but did state that
“[r]ehabilitation of the defendant alone” is not
sufficient. 28 U.S.C. § 994(t). Rather, the Sentencing
Commission was directed to promulgate “the criteria to
be applied and a list of specific” extraordinary and
compelling examples. Id. Prior to Congress passing
the FSA, the Sentencing Commission limited
“extraordinary and compelling reasons” to four
scenarios. U.S.S.G. § 1B1.13 cmt. n.1(A)-(D). After the
FSA was passed, the Sentencing Commission did not update its
policy statement because the Sentencing Commission has not
had a quorum. As a result, district courts are left to
determine whether the policy statement of the Sentencing
Commission that was in existence when the FSA was passed
still applies. See United States v. Rodd, 2019 WL
5623973, at *3 (D. Minn. Oct. 31, 2019); United States v.
Brown, 2019 WL 4942051, at *2 (S.D. Iowa Oct. 8, 2019).
It is clear that Congress wishes to “[i]ncreas[e] the
[u]se . . . of [c]ompassionate [r]elease” by allowing
district courts to grant petitions “consistent with
applicable policy statements” from the Sentencing
Commission. See 132 Stat. at 5239; 18 U.S.C. §
3582(c)(1)(A). But the Commission has not addressed whether
the policy statement from the old regime is applicable to the
new statute nor has it adopted a new policy statement. This
court need not determine whether it is bound to apply the
criteria in U.S.S.G. § 1B1.13 cmt. n.1(A)-(D) or whether
it has the discretion on its own to determine whether any
extraordinary and compelling reasons other than those
delineated in the Sentencing Guidelines warrant granting
relief, because under either scenario, Hansen would not be
entitled to relief.
Hansen's Alleged “Extraordinary and
states that he is 71 years of age and has served over 55
percent of his sentence. Docket 105 at 3. His medical records
show a history of: hyperlipidemia, severe depression,
hypermetropia, hearing loss, adjustment disorder, and chronic
sinusitis. Docket 105-1 at 2. Additionally, he claims to
suffer from arthritis in his hands and back, deteriorating
vision, allergies, and chronic infections of both the
prostrate and the sinuses. Docket 110 at 4. He states he has
had three surgeries, two biopsies, broken teeth, and he is
starting to suffer from PTSD and short-term memory loss.
Id. Hansen takes multiple medications daily. Docket
105 at 4. He also has a 70-year old spouse at home who has
suffered a heart attack. Id.
Bureau of Prisons' Medical Director, relying on
Hansen's medical providers, concluded that Hansen's
medical conditions were well-controlled and “he is able
to ambulate without adaptive equipment and has no work
restrictions.” Docket 110-3. The Medical Director found
that “Mr. Hansen does not have any age related issues
that impair his ability to function in a correctional
environment.” Id. He specifically found that
Hansen's condition is not terminal and “[h]e is
independent with his ADLs [Activities of Daily Living] and
IADLs [Instrumental Activities of Daily Living], and is not
experiencing deteriorating mental or physical health that
substantially diminishes his ability to function in a
correctional facility.” Id. The Clinical
Director also reviewed all the available medical records of
Hansen and reached a similar conclusion. See Docket
Application of Standards to Hansen's Reasons
Hansen describes pain and discomfort and several chronic
illnesses, none of the issues he raises are without treatment
possibilities. His issues are not nearly as severe as the
health issues contemplated under the notes to the Sentencing
Guidelines, which list “metastatic solid-tumor cancer,
amyotrophic lateral sclerosis (ALS), end-stage organ disease,
and advanced dementia” as types of qualifying medical
conditions. U.S.S.G. § 1B1.13 cmt. n.1(A)(i). None of
Hansen's self-reported or medically diagnosed ailments
approach this level of seriousness. Even if the Sentencing
Guidelines do not apply, the court finds that Hansen's
conditions do not rise to the level of extraordinary and
compelling reasons for early release.
it appears that Hansen is able to provide self-care within
the correctional facility. See U.S.S.G. §
1B1.13 cmt. n.1(A)(ii). There is no evidence in the record ...