United States v. Ngyuen

1

UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL NGYUEN, Defendant.

No. CR. 13-00653-SOM-07

United States District Court, D. Hawaii

August 23, 2022

ORDER GRANTING DEFENDANT MICHAEL NGYUEN'S MOTION TO REDUCE SENTENCE

Susan Oki Mollway United States District Judge

I. INTRODUCTION.

In a 2013 Superseding Indictment, Defendant Michael Ngyuen and eight co-Defendants were charged with various methamphetamine crimes. See ECF No. 88. On August 14, 2014, Ngyuen entered a plea of guilty to Count I of the Superseding Indictment (conspiracy to possess with intent to distribute 50 grams or more of methamphetamine) pursuant to a plea agreement. See ECF Nos. 215, 216.

The Government had filed a Special Information as to Prior Drug Conviction, which had the effect under 21 U.S.C. §§ 841(b)(1)(A) and 851 of enhancing the sentence Ngyuen faced given a state-court drug offense. That prior conviction was for promoting a dangerous drug in the second degree in violation of section 712-1242 of Hawaii Revised Statutes in Criminal No. 07-11038. Ngyuen was sentenced to five years of probation in that state case. See ECF No. 209. Based on this, Ngyuen had a statutory mandatory minimum prison sentence of 240 months in the present case, although his advisory sentencing guideline range was 168 to 210 months. See Presentence Investigation Report, ECF No. 325, PageID #s 1109, 1111, 1117-18 (placing Ngyuen at Total Offense Level 33 and in Criminal History Category III); Transcript of Proceeding (Sentencing) (Dec. 8, 2014), ECF No. 780, PageID #s 5955-56 (adopting Presentence Investigation Report). Ngyuen was ineligible for the safety valve under the law in effect at the time, as he had more than one criminal history point. See 18 U.S.C. § 3553(f)(1) (2014).

Before the sentencing hearing, the Government filed a Motion for Downward Departure on the basis of Ngyuen's “substantial cooperation and assistance to law enforcement authorities in the investigation and prosecution of another.” See ECF No. 298, PageID # 1006. The Government explained:

Immediately after his arrest, Defendant waived his rights and agreed to give a comprehensive statement regarding his drug trafficking activity. Defendant also agreed to assist the Government by agreeing to testify in the trial against his supplier codefendant, John Penitani. Defendant has always been forthright, completely truthful and cooperated to the fullest extent possible, never wavering from his commitment to assist the government. ....

Defendant was regarded as the highest volume distributor for co-defendant John Penitani. As a result, Defendant's cooperation and early plea contributed to the later change of plea and cooperation of codefendant John Penetani.

Id., PageID #s 1006-07. The Government recommended a 60-month reduction from the 240-month mandatory minimum. Id., PageID # 1007. At sentencing, the Government also recognized that Ngyuen feared retaliation from Penitani. See ECF No. 780, PageID # 5969. Given Ngyuen's substantial assistance and the risk to him, this court departed downward to 168 months of imprisonment. Id., PageID #s 5971, 5976.

Ngyuen has been in custody since June 25, 2013. See ECF No. 325, PageID # 1091. He is 42 years old and incarcerated at Sheridan FCI. His projected release date, taking potential good time credit into account, is July 3, 2025. See https://www.bop.gov/inmateloc/ (input BOP Register Number 00706122) (last visited August 18, 2022). Ngyuen has served about 110 months of his 168-month sentence. According to the BOP website, Sheridan FCI currently has 5 inmates and 11 employees who have COVID-19. See https://www.bop.gov/coronavirus/ (last visted August 18, 2022).

Ngyuen seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A), arguing that the enormous disparity between his 168-month sentence and the sentence he would receive if he were sentenced today amounts to an extraordinary and compelling reason warranting a sentence reduction to time served. While Ngyuen says his “motion is not based on the dangers of the COVID-19 pandemic,” ECF No. 771, PageID # 5810, he nevertheless submitted medical records showing he was at risk of a serious case of COVID-19, as he has a BMI placing him in the overweight category and just below the obese category. See ECF No. 774, PageID # 5844; ECF No. 325, PageID # 1114; https://www.cdc.gov/healthyweight/assessing/bmi/adultbmi/english bmicalculator/bmicalculator.html (last visited August 18, 2022) (adult BMI calculator); https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/ people-with-:medical-conditions.html (last visited August 18, 2022) (noting that people who are overweight are more likely to get very sick from COVID-19).

This court grants Ngyuen's motion.

II. ANALYSIS.

Ngyuen's compassionate release request is governed by 18 U.S.C. § 3582(c)(1)(A), which provides:

[T]he court . . . upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf 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 section 3553(a) to the extent that they are applicable, if it finds that--

(i) extraordinary and compelling reasons warrant such a reduction ....

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

In other words, for the court to exercise its authority under § 3582(c)(1)(A), it must initially determine that the defendant exhausted his administrative remedies or that 30 days have passed since he filed an administrative compassionate relief request. If a defendant has satisfied the exhaustion requirement, then the court may only exercise its discretion after examining three considerations. First, it must find that extraordinary and compelling reasons warrant a sentence reduction. Second, it must find that such a reduction is consistent with the Sentencing Commission's policy statements (assuming there are any policy statements applicable to this motion). Third, it must consider and weigh the factors set forth in 18 U.S.C. § 3553(a) to determine under the particular circumstances presented that the requested reduction in sentence is warranted. See United States v. Wright, - F.4th -, 2022 WL 3009398, at *4 (9^th Cir. July 29, 2022); United States v. Scher, 2020 WL 3086234, at *2 (D. Haw.June 10, 2020). “Although a district court must conclude that a defendant satisfies all three predicates before granting a motion for compassionate release, it may deny compassionate release if a defendant fails to satisfy any of these grounds.” Id.

A. Ngyuen Has Satisfied the Time-lapse Requirement of 18 U.S.C. § 3582(c)(1)(A).

Defendants are authorized to petition courts for compassionate release after exhausting their administrative remedies with the Bureau of Prisons. See Wright, 2022 WL 3009398, at *3. Ngyuen submitted an administrative compassionate release request to the warden of his prison, who denied that request on February 14, 2022. See ECF Nos. 771-1 and -2, PageID #s 5813, 5815. That compassionate release request was not based on the changes in the sentencing laws that he now focuses on. Some judges have opined that changing one's arguments can render a matter unexhausted. See United States v. Kanohokula, 2021 WL 5411211, at *3 (D. Haw. Nov. 18, 2021) (“if the basis for compassionate release is not presented to the BOP, the BOP has no ability to address the request on its merits, meaning that the prisoner's claim cannot be exhausted”). To eliminate a failure to exhaust as an issue, Ngyuen, on July 15, 2022, submitted to his warden another compassionate release request based on the issues raised in the present motion. See ECF Nos. 784-1 and 800. The warden denied that second request, See ECF No. 800, and more than 30 days have now passed since Ngyuen submitted that second request. At this point, Ngyuen satisfies the time-lapse provision of the exhaustion requirement in 18 U.S.C. § 3582(c)(1)(A), as the Government conceded at the hearing on this motion.

C. Ngyuen Has Demonstrated That Extraordinary and Compelling Circumstances Justify His Early Release At This Time.

1. The Disparity Between Ngyuen's Actual Sentence and the Sentence He Would Likely Receive Today Amounts to an Extraordinary and Compelling Circumstance Justifying a Sentence Reduction.

Ngyuen bears the burden of establishing an extraordinary and compelling reason warranting compassionate release. See Kanohokula, 2021 WL 5411211, at *4 (D. Haw. Nov. 18, 2021). Ngyuen argues that the sentencing disparity between the 168-month sentence he received and what he would be sentenced to today justifies compassionate release. Ngyuen had a Total Offense Level of 33 and was in Criminal History Category III, which gave him a guideline range of 168 to 210 months. However, his prior state-court drug conviction subjected him to a mandatory minimum sentence of 240 months. 21 U.S.C. § 841 (“If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years ....”) (2014). The Government moved for a downward departure based on substantial assistance and Ngyuen was ultimately sentenced to 168 months of imprisonment.

Under the First Step Act of 2018, PL 115-391 (Dec. 21, 2018), the portion of § 841(b)(1) that raised Ngyuen's mandatory minimum...