United States v. Sun

United States of America, Plaintiff, v. David Sun, Defendant.

No. 2:17-cr-00223-KJM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 12, 2021

ORDER

Defendant David Sun moves for a reduction of his sentence under 18 U.S.C. § 3582(c)(1)(A). He argues his hypertension, type II diabetes, hyperlipidemia, history of smoking and consumption of necessary prescription immunosuppressant medication place him at risk of contracting severe illness from COVID-19 and provide "extraordinary and compelling reasons" to grant his request. The government opposes. It concedes Mr. Sun may have some medical conditions that increase his risk of severe illness from COVID-19 but argues the Bureau of Prisons (BOP) is managing his conditions and the § 3553 sentencing factors do not support a reduction in his sentence. For the following reasons, the court grants the motion.

I. BACKGROUND

Mr. Sun is currently incarcerated at FCI Lompoc, having been convicted by a jury of ten counts of identity fraud and related charges stemming from criminal conduct over a six-year period. Opp'n at 2-3; see J. & Commitment at 1, 3, ECF No. 153. From at least November 2010 through January 2016, Mr. Sun ran a commercial truck driving school in Richmond, California. Presentence Report (PSR) ¶ 8, ECF No. 154 (under seal). In exchange for cash, Mr. Sun helped his students bypass written testing requirements and obtain illegal learner's permits. Id. ¶ 9. He also helped students obtain commercial driver's licenses despite failing the necessary driving tests. Id. ¶¶ 8-12. His students thus drove large commercial trucks across the country despite never passing the required tests. Id. On September 13, 2019, the jury found Mr. Sun guilty of one count of conspiracy to commit unauthorized access of a computer and to commit identity fraud in violation of 18 U.S.C. § 371, eight counts of production of identity documents without lawful authority in violation of 18 U.S.C. § 1028 (a)(1), and one count of conspiracy to produce identification documents without lawful authority in violation of 18 U.S.C. § 1028(f). See Hr'g Minutes at 2, ECF No. 124; J. & Commitment at 1. On December 19, 2019, this court sentenced Mr. Sun to thirty-seven months' imprisonment and thirty-six months' supervised release. J. & Commitment at 3-4. As of the date of this order, Mr. Sun has served just shy of fifteen months of his 37-month sentence; this time amounts to forty percent of his original sentence. Inmate Data at 3, ECF No.161-1.

Mr. Sun now moves to reduce his custodial sentence to time served under 18 U.S.C. § 3582(c). He argues not only that his chronic illnesses and FCI Lompoc housing conditions make him especially vulnerable to serious COVID-19 symptoms, but also that the sentencing factors weigh in favor of his release and his release plan mitigates any possible danger to the community. See generally Mot. The government opposes the motion, arguing prison staff can properly care for Mr. Sun's medical conditions and his release would pose too great a danger to the community due to the nature of his fraud convictions. See generally Opp'n. The matter is fully briefed, see Reply, ECF No. 164, and was submitted on the papers, see E.D. Cal. L.R. 230(g).

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 exhaustedadministrative remedies, the analysis is twofold. First, 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).

Section 3582 further requires a reduction to be "consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(1)(A). In 2006, the Sentencing Commission issued a policy statement addressing what qualifies as "extraordinary and compelling reasons" to release a defendant from BOP custody. See U.S.S.G. § 1B1.13 (last amended November 1, 2018). The Ninth Circuit recently has clarified: "[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." United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). Thus, the court here adheres to its prior practice of considering the Sentencing Commission's policy statement as guidance, recognizing that applying the policy statement is not required.

Although the Ninth Circuit has not 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 agree that the burden remains with the defendant." United States v. Becerra, No. 18-0080, 2021 WL 535432, at *3 (E.D. Cal. Feb. 12, 2021).

III. ANALYSIS

The parties do not dispute that Mr. Sun has exhausted his administrative remedies as required by § 3582(c). Mot. at 3; Opp'n at 3-4. The court thus considers (A) whether Mr. Sun's request is supported by extraordinary and compelling reasons and (B) whether the applicable sentencing factors of § 3553(a) weigh in favor of a reduction.

A. Extraordinary and Compelling Reasons

Many federal district courts, including this court, have found that defendants can demonstrate "extraordinary and compelling reasons" for compassionate release under § 3582(c)(1)(A)(i) if they show (1) their health conditions put them at increased risk of severe COVID-19 symptoms and (2) they are at risk of infection because their facility is currentlysuffering from a COVID-19 outbreak or is at risk of an outbreak. See, e.g., United States v. Terraciano, 492 F. Supp. 3d 1082 (E.D. Cal. 2020).

Mr. Sun is a sixty-six-year-old man who suffers from type 2 diabetes, essential (primary) hypertension and hyperlipidemia, and who has been taking an immune-suppressing medication¹ to treat a severe rash that broke out in October 2020, while he was incarcerated. See BOP Medical Records (Medical) at 1, 39, 48, 55, ECF No. 166 (under seal). Mr. Sun also alleges he smoked from age 26 to 36, citing only an email his daughter sent to his defense counsel. Jane Sun Email at 1, Ex. J. Mot., ECF No. 156-9. The CDC recognizes that several of Mr. Sun's health conditions increase the risk of severe illness from COVID-19. See U.S. Ctrs. for Disease Control & Prevention, People with Certain Medical Conditions (updated Feb. 22, 2021) (listing age greater than 65, type 2 diabetes, use of corticosteroids or "immune weakening medicines," and a history of smoking as conditions that can make one "more likely to get severely ill from COVID-19, and stating that "possibly high blood pressure (hypertension)" may do the same).²

Based on the public health data, district courts have found comorbidities may be an appropriate basis on which to grant compassionate release, as follows:

• District courts have found a defendant's essential hypertension may justify compassionate release. See, e.g., United States v. Richardson, No. 17-00048, 2020U.S. Dist. LEXIS 108043, at *8 (E.D. Cal. June 19, 2020) ("hypertension alone" placed defendant "at higher risk of COVID-19 complications"); United States v. Sanders, No. 19-20288, 2020 U.S. Dist. LEXIS 67595, at *10 (E.D. Mich. Apr. 17, 2020) ("Several courts . . . have identified hypertension as an underlying medical condition that renders a prisoner higher-risk, weighing against continued detention during the COVID-19 pandemic.").

• District courts have reached the same conclusion about a defendant's type 2 diabetes. See, e.g., United States v. Levario, No. 12-00399, 2020 WL 3256918, at *3 (E.D. Cal. June 16, 2020) (each of defendant's comorbidities alone—asthma, diabetes, hypertension, severe obesity—would increase his risk of contracting severe COVID-19).

• A defendant's past history of smoking has weighed in favor of a defendant's release as well. See, e.g., United States v. Galaz, 477 F. Supp. 3d 1134, 1140 (S.D. Cal. 2020) (collecting authority and research about risks of severe COVID-19 among those with history of smoking).

• Many district courts also take into account a defendant's age in evaluating a motion for compassionate release and consider a defendant aged sixty-five or older as facing a higher risk of severe illness from COVID-19. See, e.g., United States v. Nazzal, 466 F. Supp. 3d 753, 757 (E.D. Mich. 2020); United States v. Zukerman, 451 F. Supp. 3d 329, 335-36 (S.D.N.Y. 2020) (granting compassionate release to seventy-five year old defendant with diabetes, hypertension and obesity).

• Some district courts have also found a compromised immune system may warrant compassionate release, and others have granted motions for compassionate release to defendants taking immunosuppressive medications, but it is unclear whether another court has determined a prescription for an immunosuppressive medication can independently serve as the basis for a motion under § 3582(c)(1)(A)(i). See, e.g., United States v. Sanchez, No. 18-00140, 2020 U.S. Dist. LEXIS 70802, at *5-6, *13, *17 (D. Conn. Apr. 22, 2020) (granting compassionate release todefendant with lupus who took an "immune weakening medication" and had taken prednisone previously); United States v. Goins, No. 11-cr-20376, 2020 U.S. Dist. LEXIS 100358, at *8, *20 (E.D. Mich. June 9, 2020) (defendant with hypertension who took prednisone granted compassionate release). The parties have not cited authority addressing whether the same is true of immunosuppressive medications in general or prednisone in particular.

The government acknowledges some of Mr. Sun's health conditions place him at higher risk of contracting severe illness from COVID-19. Even...