United States v. Crisp

1

UNITED STATES OF AMERICA, Plaintiff, v. DAVID MARSHALL CRISP, Defendant.

No. 1:11-cr-00026-JLT-1

United States District Court, E.D. California

August 17, 2022

ORDER DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE

(Doc. 675)

On September 14, 2020, David Marshall Crisp filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) based on his medical condition and the risks allegedly posed to him by the ongoing COVID-19 pandemic. (Doc. 664.) The Court denied Defendant's motion on August 18, 2021. (Doc. 675.) On March 4, 2022, Crisp filed a second motion for compassionate release.^[1] (Doc. 676.) The motion was referred to the Federal Defender's Office, counsel for which filed a supplemental brief in support of Defendant's motion. (Doc. 678; 679.) The Government filed its opposition on May 5, 2022 (Doc. 682) and Defendant filed his reply on May 19, 2022. (Doc. 687.) For the reasons set forth below, Defendant's second motion for compassionate release is DENIED.^[2]

I. Background

On January 13, 2011, Defendant was charged by way of indictment with one count of conspiracy to commit mail fraud, wire fraud, and bank fraud in violation of 18 U.S.C. § 1349 (Count 1); 33 counts of mail fraud in violation of 18 U.S.C § 1341 (Counts 2-34); 10 counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts 35-44); 11 counts of bank fraud and aiding and abetting bank fraud in violation of 18 U.S.C. § 1344 and 2 (Counts 45-55); and one count of conspiracy to launder money in violation of 18 U.S.C § 1956(h) (Count 56). (Doc. 1.) The Government's case against Defendant focused on his leadership role in a massive scheme to defraud various mortgage lenders through straw buyers to artificially inflate the prices of homes so that the true owners of the properties could fraudulently extract the purported increased equity from each home sale. (Doc. 348 at 5-8.) Defendant and his co-defendant Carlyle Lee Cole owned and operated Crisp, Cole Associates (a.k.a. Crisp & Cole Real Estate), a real estate brokerage firm, and Tower Lending, an affiliated mortgage brokerage. (Id. at 6.) Crisp, Cole, and, to a lesser degree co-defendant Julie Farmer were found to have managed the conspiracy to defraud the lenders and it was they who directed their many codefendants, including family members, in carrying out the massive fraud. (Id.) The mortgage lenders suffered losses totaling nearly $30 million due to Defendants' fraudulent scheme. (Id. at 7.)

On December 16, 2013, Defendant entered a guilty plea to Count 1 (conspiracy to commit mail fraud, wire fraud, and bank fraud). (Doc. 278, 284, 297.) Pursuant to his plea agreement, defendant Crisp agreed not to seek any downward departure from the advisory U.S. Sentencing Guidelines (“U.S.S.G.”) with respect to his offense level or his criminal history category and retained the right only to argue at sentencing for a downward variance from the guidelines based upon consideration of the factors set forth at 18 U.S.C. § 3553(a) to a sentence of not less than 10 years in prison. (Doc. 278 at 4-5.) Following his guilty plea, the Court determined that Defendant's adjusted offense level was 38, and his criminal history placed him in category I, according to the U.S.S.G.; this resulted in an advisory sentencing guideline range calling for a term of imprisonment of between 235 and 293 months. (Id. at 4.) The U.S. Probation Office recommended a sentence of 235 months. (Id.) On March 31, 2014, the Court sentenced Defendant to 211 months in prison with a 60-month term of supervised release to follow.^[3] (Doc. 433.) In addition, the Court ordered Defendant to pay the mandatory $100 special assessment fee and $28,210,420.48 in restitution. (Id.) Pursuant to the parties' plea agreement, the Government dismissed the remaining counts against Defendant at sentencing.

Defendant is currently serving his sentence at United States Penitentiary, Satellite Prison Camp in Atwater, California.^[4] On March 4, 2022, Defendant filed the instant motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Doc. 676.) On May 5, 2022, the Government filed its opposition to the motion (Doc. 682), and on May 19, 2022, Defendant filed his reply thereto. (Doc. 687.)

II. Legal Standard

A court generally “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 824 (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.”). Those limited circumstances include compassionate release in extraordinary cases. See United States v. Holden, 452 F.Supp.3d 964, 968 (D. Or. 2020). Prior to the enactment of the First Step Act of 2018 (“FSA”), motions for compassionate release could only be filed by the Bureau of Prisons. 18 U.S.C. § 3582(c)(1)(A) (2002). Under the FSA, however, imprisoned defendants may now bring their own motions for compassionate release in the district court. 18 U.S.C. § 3582(c)(1)(A) (2018). In this regard, the FSA specifically provides that a court may

upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf^[5] 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 (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 [18 U.S.C. §] 3553(a) to the extent that they are applicable, if it finds that -

(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the [BOP] that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

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

18 U.S.C. § 3582(c)(1)(A)(i) and (ii).^[6]

The policy statement with respect to compassionate release in the U.S. Sentencing Guidelines sets out criteria and circumstances describing “extraordinary and compelling reasons.” U.S.S.G. § 1B1.13^[7]; see also United States v. Gonzalez, 451 F.Supp.3d 1194, 1197 (E.D. Wash. 2020) (noting that courts “universally” rely on U.S.S.G. § 1B1.13 to define “extraordinary and compelling reasons,” even though that policy statement was issued before Congress passed the FSA and authorized defendants to file compassionate release motions). However, the Ninth Circuit recently held that “the current version of U.S.S.G. §1B1.13 is not an ‘applicable policy statement[ ]' for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.” United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). “In other words, the Sentencing Commission has not yet issued a policy statement ‘applicable' to § 3582(c)(1)(A) motions filed by a defendant.” Id. The Ninth Circuit clarified that “[t]he Sentencing Commission's statements in U.S.S.G. § 1B1.13 may inform a district court's discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.” Id. (citing United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020)).

In so holding, the Ninth Circuit joined the five other circuits who have addressed this issue and have unanimously held “that U.S.S.G. § 1B1.13 only applies to § 3582(c)(1)(A) motions filed by the BOP Director, and does not apply to § 3582(c)(1)(A) motions filed by a defendant.” Id.; see also, e.g. United States v. Brooker (Zullo), 976 F.3d 228, 237 (2d Cir. 2020) (“[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release. Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court's discretion.”); United States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020) (“In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define ‘extraordinary and compelling' without consulting the policy statement §1B1.13.”); Gunn, 980 F.3d at 1181 (“[T]he Guidelines Manual lacks an ‘applicable' policy statement covering prisoner-initiated applications for compassionate release. District judges must operate under the statutory criteria-‘extraordinary and compelling reasons'-subject to deferential appellate review.”); United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020) (“In short, we agree with the Second Circuit and the emerging consensus in the district courts: There is as of now no ‘applicable' policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.'” (citation omitted)); United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021) (“We therefore agree with the district court that under the second part of § 3582(c)(1)(A)'s test, its finding that extraordinary and compelling reasons warranted a reduction in [defendant's] case was not constrained by the Sentencing Commission's existing policy statement, ...