United States v. Head, 2:08-cr-00093-KJM

United States of America, Plaintiff, v. Charles Head, Defendant.

Nos. 2:08-cr-00093-KJM, 2:08-cr-00116-KJM

United States District Court, E.D. California

June 6, 2022

ORDER

Charles Head moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). He argues he is at increased risk of severe illness from COVID-19 and that “changed circumstances” warrant either a reduction in his lengthy sentence to time served or a reduced sentence to correct an unwarranted sentencing disparity. The government opposes. For the following reasons, the court denies the motion.

I. BACKGROUND

Charles Head was the leader and organizer of two large and sophisticated mortgage fraud schemes: a “foreclosure rescue” scheme and an “equity stripping” scheme. See Presentence Investigation Rep. (PSR) ¶¶ 1-23; Head I Superseding Indictment at 2, ^[1] ECF No. 303; Head II Superseding Indictment at 2, ECF No. 153. Both schemes operated with the same goal: to target homeowners in financial distress and, through false and fraudulent representations, obtain title to their properties and steal any existing equity in their homes. PSR ¶¶ 3, 11. Ultimately, Head and his coconspirators defrauded hundreds of lenders and financially vulnerable homeowners out of tens of millions of dollars. Id. ¶¶ 9, 17.

On May 30, 2013, after a sixteen-day trial, a unanimous jury found Head guilty of conspiracy to commit mail fraud and four counts of mail fraud related to his “foreclosure rescue” scheme. See May 30, 2013 Hr'g Mins., ECF No. 770; Head I Verdict, ECF No. 773. On December 2, 2013, after a separate eighteen-day trial, a different unanimous jury found Head guilty of conspiracy to commit mail fraud and three counts of mail fraud related to his “equity stripping” scheme. See Dec 2, 2013 Hr'g Mins., ECF No. 459; Head II Verdict, ECF No. 463. All in all, Head was convicted of seven counts of mail fraud and two counts of conspiracy to commit mail fraud.

Head's advisory Guidelines range was life in prison, which by operation of law was reduced to the statutory maximum of 180 years. See PSR at 5. On September 11, 2014, this court sentenced Head to 210 months for his conviction in Head I, and 210 months for his conviction in Head II. See Head I J. and Commitment, ECF No. 983; Head II J. and Commitment, ECF No. 583. The court ordered the sentences to run consecutively for a total of 420 months, or 35 years, a 145-year downward variance from the 180-year Guidelines recommendation. See Head I J. and Commitment at 3; Head II J. and Commitment at 3. Head was also ordered to pay a total of $17, 097, 950.47 in restitution. See Head I Am. J. at 6, ECF No. 1191 ($9, 534, 240.21); Head II Am. J. at 6, ECF No. 653 ($7, 563, 710.26).

Head, through appointed counsel, now moves to reduce his 420-month sentence, of which he has served roughly one-third, to time served under 18 U.S.C. § 3582(c)(1)(A)(i). See generally Mot., ECF No. 1734. Alternatively, he requests a reduction in his sentence to 210 months to avoid an unwarranted sentencing disparity with his co-defendants. Id. The government opposes, primarily on the grounds that Head refused the COVID-19 vaccine, and because the relevant 3553(a) factors do not warrant a reduction to Head's sentence. See generally Opp'n, ECF No. 1736. It is not clear from the record whether Head refused the vaccine or whether, as Head claims, the BOP refused to give him the vaccine. See Reply at 2, ECF No. 1746. In any event, Head has now received at least two vaccine shots after having contracted COVID-19. See BOP Immunizations at 2, Gov't's Resp. Ex. 1, ECF No. 1749-1. The government still opposes. See generally Gov't Resp., ECF No. 1749. Head responded. See Def.'s Suppl. Br., ECF No. 1750; Suppl. Exs., ECF No. 1753. The court submitted the motion without oral argument and resolves it here.

II. LEGAL STANDARD

The district court that imposed a custodial sentence can modify the term of imprisonment under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018. The defendant must first exhaust administrative remedies. Id. § 3582(c)(1)(A). If a defendant has exhausted administrative remedies, the analysis is twofold. First, to grant relief, the court must find “extraordinary and compelling reasons warrant” the requested reduction. Id. § 3582(c)(1)(A)(i). Second, the court must consider the same factors that were applicable at the original sentencing, enumerated in 18 U.S.C. § 3553(a), to the extent they remain applicable. See id. § 3582(c)(1)(A).

Although the Ninth Circuit has not expressly decided which party “bears the burden in the context of a motion for compassionate release brought pursuant to § 3582(c) as amended by the [First Step Act], district courts to have done so, ” including this court, “agree that the burden remains with the defendant.” United States v. Mathews, 557 F.Supp.3d 1057, 1061 (E.D. Cal. 2021) (internal quotation marks and citation omitted).

III. ANALYSIS

The parties do not dispute that Head has exhausted his administrative remedies as required by § 3582(c). Mot. at 19-20; Opp'n at 7. Thus, the remaining questions are whether (1) Head's request is supported by “extraordinary and compelling” reasons, and (2) the relevant § 3553(a) sentencing factors weigh in favor of a reduction. Because the absence of either condition forecloses a sentence reduction, the court need not address these questions in any particular order. See United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (“[A]lthough a district court must perform this sequential inquiry before it grants compassionate release, a district court that properly denies compassionate release need not evaluate each step.” (emphasis in original)).

Head has submitted evidence and testimony regarding numerous conditions he argues may put him at increased risk from reinfection with COVID-19, particularly at FCI Cumberland, where he was housed.^[2] See generally Mot.; Suppl. Br. Assuming without deciding that Head's asserted health conditions, his having tested positive for COVID-19, and the circumstances of his incarceration weigh in his favor, separately or in combination, Head has not shown that the applicable sentencing factors of § 3553(a) weigh in favor of a reduction of the court's below-guideline sentence, as discussed below.

Guided by 18 U.S.C. § 3553(a), the court considers four groups of factors here. First, the court reflects on the “nature and circumstances of the offense.” See 18 U.S.C. § 3553(a)(1).

Head's crimes, while non-violent, were extremely serious and harmful: He led two large and sophisticated schemes that resulted in a loss of at least $22, 658, 446.42, including to many persons who lost their homes. See PSR at 10. Specifically, as the court summarized at Head's sentencing hearing:

[Head] create[d] and implement[ed] a very cynical repair scheme. . . Because of the nature of those he targeted through targeted mailings . . . he naturally identified people who were very vulnerable. The Court has heard this morning and has read in the letters of the victims the human dimension of that vulnerability. There are many different reasons why folks found themselves to be so vulnerable. Sometimes it was health. Sometimes it was family member's health, loss of a job. Often those persons went looking for the right fit for their particular distress[ed] situation, and they found Mr. Head. He not only took advantage of them, he took advantage of gaping holes in the system And ultimately, for many, in fact most of the victims, there was loss of a home, which was central to their personal and financial stability. And so the nature of the offense is a very serious one and argues for a very significant sentence.

J. & Sentence Tr. at 52:14-53:23, ECF No. 1058; cf. United States v. Samchuk, No. 12-cr-66-KJM, 2021 WL 2577012, at *4 (E.D. Cal. June 23, 2021) (describing offense resulting in much lower $739, 362 loss to victim banks as “undeniably serious”).

Second, and relatedly, the court considers the history and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). Head argues his history and characteristics now appear in a very different light than they did at the time of sentencing. See Mot. at 38-42. Specifically, Head notes that “[t]wo prior cases that informed the Court's sentencing choice . . . have been dismissed-the possession of an assault rifle misdemeanor that accounted for three points of his four-point criminal history score, and the Pennsylvania charges that formed the sole basis to revoke his pretrial release.” Id. at 12. Thus, Head argues, if he were sentenced today, a “significantly lower sentence would be warranted” because his “criminal history score would be 1 instead of 4, resulting in a criminal history category of I. And as the Pennsylvania case no longer exists, it is not a proper basis to find Mr. Head was not compliant with pretrial release.” Id. at 38.

Neither of these changed circumstances warrant a lower, much less a “significantly lower, ” sentence. The relevant 2013 Sentencing Table recommends life imprisonment for anyone with a total offense level of at least 43. See United States Sent'g Comm'n, Guidelines Manual, ch 5, pt. A (Nov. 2013). This is true whether a defendant's criminal history category is zero or “13 or more.” Id. Head's offense level, which remains unchanged, was 47. PSR at 18. Thus, although it does appear Head's conviction for possession of an assault rifle, which accounted for three points of his four-point criminal history score, was overturned on the grounds that he was “factually innocent” of the offense, see Stipulation to Plea Withdrawal, Mot. Ex. D, ECF No. 1734-1, this would not have changed the Guidelines range of life imprisonment. Nor would it have changed this court's ultimate conclusion that the...