United States v. Nygren

UNITED STATES OF AMERICA v. STEVEN NYGREN

No. 1:16-cr-00106-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

May 13, 2021

ORDER ON SECOND MOTION FOR COMPASSIONATE RELEASE

Nine months ago, the Court denied an inmate's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). The inmate again moves for compassionate release, claiming changed circumstances warrant his early release. The Court concludes that the inmate has failed to carry his burden of proving extraordinary and compelling reasons warranting release, and the seriousness of his offense, the relatively short time he has served, and the need for the sentence served to fulfill the sentence imposed continue to preclude his release. The Court dismisses the motion without prejudice.

I. PROCEDURAL BACKGROUND¹

On May 25, 2018, the Court sentenced Steven Nygren to ninety-five months of imprisonment concurrent with two sixty-month terms, five years of supervised release concurrent with two three-year terms, no fine, $815,496.27 restitution, and a $6,500 special assessment for bank fraud in violation of 18 U.S.C. § 1344(2), accessdevice fraud in violation of 18 U.S.C. § 1029(a)(2), and tax evasion in violation of 26 U.S.C. § 7201. Min. Entry (ECF No. 71); J. (ECF No. 74). On June 8, 2018, Mr. Nygren filed a notice of appeal. Def.'s Notice of Appeal (ECF No. 76). On August 6, 2019, the United States Court of Appeals for the First Circuit affirmed this Court's sentence. J. (ECF No. 91); United States v. Nygren, 933 F.3d 76 (1st Cir. 2019). The Court received the mandate of the First Circuit on August 27, 2019. Mandate (ECF No. 92). On December 9, 2019, The United States Supreme Court denied Mr. Nygren's petition for writ of certiorari. Nygren v. United States, 140 S. Ct. 606 (2019).

On May 22, 2020, Mr. Nygren filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Emergency Mot. for Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) in Light of Imminent Threat of Contracting COVID-19 Virus (ECF No. 95) (Def.'s First Mot.). On July 22, 2020, the Court denied Mr. Nygren's motion, concluding that despite his serious medical conditions, "the likelihood that he will reoffend, along with the short amount of time he has served in relation to the total length of his sentence, caution against release." Order on Mot. for Compassionate Release at 1 (ECF No. 111) (Order Denying Def.'s First Mot.).

On August 5, 2020, Mr. Nygren appealed the Court's denial of his motion for compassionate release to the First Circuit. Notice of Appeal of Decision on Mot. for Compassionate Release (ECF No. 112). On August 26, 2020, Mr. Nygren moved pro se for this Court to reconsider its denial, Mot. for Reconsideration (ECF No. 119), which the Court dismissed because the First Circuit's docket reflected thatMr. Nygren had already docketed his motion for reconsideration with the First Circuit. Order Dismissing Mot. for Reconsideration (ECF No. 123). On December 22, 2020, the First Circuit dismissed Mr. Nygren's appeal because he filed an unopposed motion to voluntarily dismiss the appeal, J. (ECF No. 134), and returned the mandate to this Court. Mandate (ECF No. 135).

On December 24, 2020, Mr. Nygren, through Attorney William Maddox, filed a second motion for compassionate release. Pet'r Steven Nygren's Subsequent Emergency Mot. for Compassionate Release and Mot. for Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) (ECF No. 137) (Def.'s Represented Mot.). On January 4, 2021, the Court docketed a pro se motion for compassionate release filed by Mr. Nygren. Emergency Mot. for Modification of Sentence/Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A) in Light of the Im[m]inent Threat of Contracting the COVID-19 Virus and Potential of Death at Higher than Normal Chance Due to Pre-Existing Health Conditions of the Pet'r (ECF No. 145) (Def.'s Pro Se Mot.). Four days later, Attorney Maddox moved to withdraw, citing "irreconcilable differences," Mot. to Withdraw as Counsel (ECF No. 147), which the Court granted. Order Granting William Maddox's Mot. to Withdraw as Att'y (ECF No. 148). On January 14, 2021, the Government responded in opposition to both Mr. Nygren's represented and pro se motions for compassionate release. Gov't Resp. to Second Mot. for Compassionate Release (ECF No. 149) (Gov't's Opp'n). Mr. Nygren replied pro se to the Government's response on January 29, 2021. Def.'s Resp. to the Gov't Resp. to Second Mot. for Compassionate Release (ECF No. 150) (Def.'s Reply).

On April 8, 2021, the Court ordered Mr. Nygren to answer six questions regarding his vaccination status: "(1) has a vaccination been offered to Mr. Nygren, (2) did he accept the vaccination, (3) when was he vaccinated, (4) has he received one or two vaccinations, (5) if he is fully vaccinated, when did he become fully vaccinated, and (6) if he refused the vaccination, why." Order (ECF No. 158). On April 23, 2021, the Government informed the Court that Mr. Nygren received the Moderna vaccine on April 12, 2021 with the second shot to be administered in the coming weeks. Gov't's Resp. to Court Order Directing Update of Vaccination Status (ECF No. 159) (Gov't's Resp. to Vaccine Status Order). That same day, the Court docketed Mr. Nygren's response, in which he states he "reluctantly" accepted the vaccine on April 12, 2021 but explains that he continues to ask for compassionate release "due to the COVID-19 and risks involved of potential death by remaining incarcerated." Resp. to the Order by the Honorable Judge Woodcock re: Second Mot. for Compassionate Release at 8 (ECF No. 160) (Def.'s Resp. to Vaccine Status Order).

II. THE PARTIES' POSITIONS

A. Steven Nygren's Motions for Compassionate Release

There are currently two motions for compassionate release pending before the Court—one filed by Mr. Nygren through counsel and another filed by Mr. Nygren acting pro se. Even though Mr. Nygren is now proceeding pro se, the Court will consider both motions.

1. Steven Nygren's Represented Motion

In Mr. Nygren's motion filed through counsel, he moves the Court for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) "given his high riskfactors related to his age, medical condition, including a prior stroke, and weight." Def.'s Represented Mot. at 1. He states that his projected release date is March 8, 2025, meaning he has served about 38% of his incarcerative term. Id. Before making his compassionate release argument, he brings the Court's attention to a document entitled "Institutional Referral for CCC Placement," known colloquially as "Form 210," which states that Mr. Nygren "has a PATTERN score of Minimum"² and says "Unit Team is referring inmate Nygren for COVID-19 Early Home Confinement." Id. at 1-2 (citing id., Attach. 1, Institutional Referral for CCC Placement). He next claims that because he was "denied a request for compassionate release by the Warden of FMC Devens," he satisfied the exhaustion requirement. Id. at 5.

Turning to the merits of his motion, Mr. Nygren argues that he has two medical conditions, "chronic kidney disease and severe obesity," that the Centers for Disease Control and Prevention (CDC) recognizes as increasing the risk of severe illness from COVID-19 for adults of any age. Id. at 7. He also points to two more conditions, "cerebrovascular disease and hypertension or high blood pressure," that place him at increased risk of severe illness. Id.

Next Mr. Nygren argues that he is not a danger to the community. Id. He contends that if released, he would "reside with his wife in the location and under thecircumstances with which are mentioned in the Form 210." Id. He claims he would submit himself to any additional conditions of supervised release. Id. Lastly, he cites the current COVID-19 infection statistics from FMC Devens. Id. at 8.

Mr. Nygren concludes by arguing that "his four risk factors, not three as listed in the order of July 22, 2020, as well as his PATTERN Score of Minimum, his Unit Team recommendation of early home confinement and his increased percentage of time served more than offset the reasons mentioned in the Court Order of July 22, 2020 denying release." Id.

2. Steven Nygren's Pro Se Motion

Mr. Nygren's pro se motion makes similar arguments to his represented motion. He claims that "[a] number of factors have changed and other new factors need to [be] brought into the light that once the Court is aware of these the 'balance' will shift." Def.'s Pro Se Mot. at 2. He first recounts the current COVID-19 situation at all BOP institutions and at FMC Devens. Id. at 2-3. He next addresses the "quantum of risk," noting that "[t]he Court has already established that 'Mr. Nygren would have some degree of lower risk of contracting COVID-19 than he would have if he remained at FMC Devens,'" and reiterates that he is at lower risk at home with his wife in Salem, Massachusetts than at FMC Devens. Id. at 4-6 (quoting Order Denying Def.'s First Mot.). He further asserts that his medical conditions "now includes atrial fibrillation and is caused by cardiovascular disease" and claims that "[t]he Court previously fell short of calling that risk what it is; a situation with a high potential of contracting COVID-19 being fatal for Mr. Nygren." Id. at 5-6.

Mr. Nygren next addresses recidivism. He admits that his "behavior is inexcusable and inexplicable" and "[a]ny attempt to try will only sound like excuses for which there are none." Id. at 7. However, he confines his behavior to 2012-2015 and claims that "[n]o one lasts in the same service business for twenty four years if they make a habit of 'perpetrating financial fraud against trusting souls.'" Id. at 7. He says that "perpetrating financial crimes is not part of" his future plans and the "only priorities in [his] life are continuing to build a personal relationship with Jesus Christ by finding a strong Bible based church and repaying his debts, plus interest." Id. at 8.

Mr....