USA v. Gagliardi

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
VS. 	No. 6:22-cr-60006—SOH-1
MICHAEL L. GAGLIARDI 	DEFENDANT
REPORT AND RECOMMENDATION
Before the Court are the Motion to Reduce Sentence and a Supplemental Motion to Reduce
Sentence filed by Defendant MICHAEL L. GAGLIARDI (“Gagliardi”). 	ECF Nos. 40, 44. 1
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O. Hickey,
Chief United States District Judge, referred this case to the undersigned for consideration. ECF
No. 41. The Government has responded to the Motion. ECF No. 47. Gagliardi has filed a Reply.
ECF No. 49. The matter is now ripe for decision.
I. 	BACKGROUND
On October 5, 2022, Gagliardi pled guilty to Possession with Intent to Distribute More than
50 Grams of a Mixture or Substance Containing a Detectable Amount of Methamphetamine, in
violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(viii). ECF No. 21.
According to the Final Presentence Investigation Report (“PSR”), Gagliardi’s base offense level
was set at 32 pursuant to U.S.S.G. § 2D1.1(c)(4) as it was determined he was accountable for 231.4
grams of actual methamphetamine. ECF No. 35, ¶ 20. However, Gagliardi was determined to be a
career offender based on previous convictions for robbery and possession with purpose to deliver
1 Gagliardi filed the original Motion pro se. ECF No. 40. On December 11, 2024, the Federal Defender was
appointed to represent Gagliardi (ECF No. 42) and filed his Supplemental Motion on January 13, 2025. (ECF No.
44).
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methamphetamine, resulting in an adjusted offense level of 34. ECF No. 35, ¶ 26. After a three-
point adjustment for acceptance of responsibility, the final offense level was determined to be 31.
ECF No. 35, ¶ 27-29.
Gagliardi’s criminal history score was initially 9, but because he had committed the instant
offense while serving lifetime parole, 2 points were added increasing his criminal history score to
11, which established a criminal history category of V. ECF No. 35, ¶ 48-50. However, because
Gagliardi is a career offender, his criminal history category was VI. ECF No. 35, ¶ 51. Gagliardi
faced a minimum of 5 years imprisonment and a statutory maximum term of 40 years
imprisonment. ECF No. 35, ¶ 93. An offense level of 31 and a criminal history category of VI
resulted in a sentencing guideline range of 188 to 235 months imprisonment. ECF No. 35, ¶ 94.
Gagliardi appeared for sentencing on October 25, 2023. ECF No. 37. The Court sentenced
Gagliardi to 110 months imprisonment, 5 years supervised release, and $100 special assessment.
ECF No. 38. The Court determined that a downward variance to a sentence of 110 months was
sufficient but not greater than necessary to comply with the § 3553(a) factors. ECF No. 39, ¶ VIII.
On October 31, 2024, Gagliardi filed a pro se Motion for Sentence Reduction Pursuant to
18 U.S.C. § 3582(c)(1)(A) requesting release based on the allegation that he is the only available
caregiver for his elderly mother. ECF No. 40. On December 11, 2024, the Court issued an Order
appointing Bruce D. Eddy, Federal Public Defender, to represent Gagliardi with respect to the
Motion. ECF No. 42. On January 13, 2025, the Federal Public Defender filed a Supplemental
Motion for a Sentence Reduction Pursuant to Section 603 of the First Step Act of 2018 and 18
U.S.C. § 3582(c)(1)(A)(i) arguing that Gagliardi meets the requirement of § 1B1.13(b)(3)(C) –
the incapacitation of the defendant’s parent when the defendant would be the only available
caregiver for the parent. ECF No. 44.
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The Bureau of Prisons (“BOP”) sentence monitoring computation data filed under seal as
Government Exhibit 1 shows that, as of January 27, 2025, the 59-year-old Gagliardi has served
approximately 45.7 percent of his 110-month sentence. ECF No. 47-1. He is projected to be
released from the BOP on November 11, 2028. Id.; see also https://www.bop.gov/inmateloc.
II. 	INSTANT MOTIONS TO REDUCE SENTENCE
In his motions Gagliardi requests his sentence be reduced so he can care for his elderly,
disabled mother who has multiple sclerosis, chronic obstructive pulmonary disease, Type-2
diabetes, and several other diseases. ECF No. 44, p. 1. He argues the sentencing factors under 18
U.S.C. § 3553(a) weigh in favor of a reduced sentence. Id. He goes on to state:
…he no longer poses a danger to the public and he has served a significant portion
of his sentence, as his release date is less than four years away. Mr. Gagliardi’s
mother, Sandra Selle, requires long-term medical care and assistance in her daily
tasks for the remainder of her life, and since the passing of her husband, she no
longer has a caregiver. Therefore, he requests that this Court issue an order reducing
his sentence to time served and order a period of home confinement while he is on
supervised release to allow him to be the caregiver of his mother…
ECF No. 44, pp. 1-2.
The record reflects Gagliardi’s mother is 79 years old and previously had surgeries for a
hip and knee replacement, shoulder surgery, colon cancer, and had a tumor removed from her skull
and gall bladder. ECF No. 40, p. 12. Because of the multiple surgeries and diseases, physical
movement for Ms. Selle is both painful and difficult for her and she uses a wheelchair. Id. at p. 11.
When her husband passed, Ms. Selle was left with significantly reduced financial resources and
without a caregiver. Id. at p. 4.
Gagliardi states his mother does not have the financial resources to hire a home health
nurse and urgently needs a caregiver. He also states his sisters reside in California and his mother
lives in Mountain Home, Arkansas. He contends he is the only person available to serve as her
caregiver. ECF No. 44. Gagliardi argues his mother’s age, disability, and medical conditions fall
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within the parameters of the guidelines set forth in U.S.S.G. § 1B1.13(b)(3)(C) and qualify as an
extraordinary and compelling reason for a sentence reduction.
The Government admits Gagliardi has exhausted his administrative remedies, and this
Court has jurisdiction to now consider his request for a modification of his term of imprisonment.
However, the Government argues Gagliardi has failed to show that compassionate release is
appropriate in this case. ECF No. 47.
III. 	LEGAL STANDARD
Because sentences are final judgment, a court ordinarily “may not modify a term of
imprisonment once it has been imposed[.]” 18 U.S.C. § 3582(c). One narrow exception is the First
Step Act (“FSA”), passed by Congress in 2018. Pub. L. No. 115-391, 132 Stat. 5194 (2018). The
FSA amends 18 U.S.C. § 3582(c)(1)(A) to permit incarcerated defendants in certain circumstances
to file motions with the court seeking compassionate release. Id. Compassionate release allows
defendants with “extraordinary and compelling reasons” to leave prison early. 18 U.S.C. §
3582(c)(1)(A)(i). Such a reduction in sentence must consider the § 3553(a) sentencing factors and
be consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C.
§ 3582(c)(1)(A). The burden to establish that a sentence reduction is warranted under 18 U.S.C. §
3582(c) is on the defendant. See United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016).
Congress directed the Sentencing Commission to describe what “should be considered
extraordinary and compelling reasons” for compassionate release and fashion “the criteria to be
applied and a list of specific examples.” See 28 U.S.C. § 994(t). The Sentencing Commission
policy statement, as amended and expanded in November of 2023, responded by identifying
additional categories of “extraordinary and compelling reasons” justifying compassionate release.
U.S.S.G. § 1B1.13(b)(1)-(4), amend. 814. The first four categories pertain to a defendant’s: (1)
medical circumstances; (2) advanced age and deteriorating health in combination with the amount
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of time served; (3) compelling family circumstances; and (4) victimization by correctional staff
while in custody. Id.2
Amendment 814 modified, and expanded, the applicable “family circumstances.”3 Now,
federal prisoners may seek early release to care for family members including grandchildren and
grandparents, “whose relationship with the defendant is similar in kind to that of an immediate
family member, when the defendant would be the only available caregiver for such family
member…” See U.S.S.G. § 1B1.13(b)(3)(D). The changes to the policy statement have expanded
the bases for compassionate release, but this court is still bound by precedent governing such
motions, and the statute itself. “[T]he extraordinary-and-compelling standard sets a very high bar
and authorizes sentence reductions only in ‘truly exceptional cases.’” United States v. Logan, 532
F.Supp.3d 725, 729-730 (D. Minn. Apr. 1, 2021) (quoting United States v. McCoy, 981 F.3d 271,
287-288 (4th Cir. 2020)). Further, the Eighth Circuit has explained that “[t]he compassionate
release statute is not a freewheeling opportunity for resentencing ….” United States v. Crandall,
25 F.4th 582, 586 (8th Cir. 2022).
Pursuant to Section 3582(c)(1)(A), a district court “may” grant a motion for sentence
reduction only if the following three requirements are met: (1) there are extraordinary and
compelling reasons warranting the reduction; (2) the reduction is consistent with the applicable
policy statements issued by the United States Sentencing Commission; and (3) the district court
considers the factors set forth in § 3553(a), to the extent they are applicable. If the district court
2 Additional categories include a catch-all, other reasons category, for a “circumstance or combination of
circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1)
through (4), are similar in gravity to those described in paragraphs (1) through (4)” and a category for “unusually long
sentences,” neither of which are applicable here. U.S.S.G. § 1B1.13(b)(5) and (6).
3 2023 Amendments in Brief, U.S. Sent’g Comm’n, https://www.ussc.gov/sites/default/files/pdf/amendment-
process/amendments-in-brief/AIB_814.pdf (last visited October 23, 2024).
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finds all these requirements are met, then § 3582(c)(1)(A)(i) provides that a district court “may
reduce” the sentence. The use of “may” is “quintessential discretionary language.” United States
v. Sutton, 962 F.3d 979, 986 (7th Cir. 2020); United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir.
2020) (“This last requirement confirms an overarching point: The district court has substantial
discretion. The statute says that the district court “may” reduce a sentence if it finds the first two
requirements met; it does not say that the district court must do so. Even if those conditions are
met, therefore, a district court may still deny relief if it finds that the “applicable” 3553(a) factors
do not justify it.”) (internal citations omitted).
IV. 	DISCUSSION
A. For compassionate release, Gagliardi must demonstrate he is the only available
caregiver, and his elderly mother is incapacitated.
Gagliardi alleges that he has an extraordinary and compelling reason for a sentence
reduction under § 1B1.13(b)(3)(C) because his mother has health conditions that require her not
to live alone. Gagliardi provides medical records from August 21, 2024, and a letter from his
mother dated August 27, 2024, in which she lists her various medical conditions. The Government
states it is not able to dispute Gagliardi’s claims regarding his mother’s conditions, however, it
argues the records and the letter do not adequately provide insight into the level of care necessary
to sustain her daily. See United States v. Guest, No. ELH-16-0499, 2022 WL 2104492, at *13 (D.
Md. June 9, 2022) (noting that “incapacitation” is a “high bar.”).
The circumstances of Gagliardi’s mother’s diagnoses appear to be extremely difficult.
Even so, Gagliardi has not presented enough evidence of the effect the ailments have on his
mother’s ability to care for herself. In his Reply, Gagliardi acknowledges his mother is able to
drive during the day “on occasions when she is not experiencing severe back pain … she usually
relies on a neighbor to take her to doctor’s appointments and to the grocery store.” ECF No. 49, p.
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3. Courts are not inclined to grant release where the defendant has not provided evidence that the
family member the defendant seeks to care for is truly incapacitated. See United States v.
Thompson, No. 05-144 (DWF/JSM) 2024 WL 5137182, at *2 (D. Minn. Dec. 17, 2024) (defendant
failed to establish sister was incapable of self-care); United States v. Bass, No. 4:19-CR-35 RLW,
2024 WL 3552030, at *3 (E.D. Mo. July 26, 2024) (finding defendant failed to present evidence
that his father was incapacitated); United States v. Sanders, No. JKB-20-0168, 2024 WL 1014095,
at *2 (D. Md. Mar. 8, 2024) (denying compassionate release where defendant showed that his
child’s grandfather was ill, but did not show that the grandfather was incapacitated or that the
defendant was the only person available to care for the child).
Gagliardi also points to a change in circumstances since his incarceration, that his mother’s
husband passed away. Consequently, Gagliardi asserts that he is his mother’s only available
caregiver. United States Sentencing Guidelines §1B1.13(b)(3)(C) provides extraordinary and
compelling reasons exists through “[t]he incapacitation of the defendant’s parent when the
defendant would be the only available caregiver for the parent.” That provision only applies if the
defendant’s family member is incapacitated, and the defendant would be the only available care
giver for the family member. His PSR reflects that he has two sisters and two adult children. ECF
No. 35 ¶ 73.
In his Reply, Gagliardi states one of the sisters is estranged from the family and has “cut
off” communication with the family years ago. In addition, he states although his mother has
“intermittent communication” with her youngest daughter, the daughter resides in California and
is unable to take care of herself, much less her mother.” ECF No. 49, p. 3. Gagliardi also states
“other family members are also estranged from both Ms. Seel and Gagliardi. Although Gagliardi
has three children who reside in either Missouri or Hot Springs, Arkansas, they have not been in
contact with Ms. Selle for more than 10 years.” Id.
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Even if the Court could find that Gagliardi’s mother is incapacitated, the Court is not
convinced there is no other family member who could provide care for her. The record is simply
insufficient to conclude that Gagliardi is the sole available caregiver for his mother. United States
v. Hill, 2020 WL 3037226, at *3 (W.D. Ark. June 5, 2020) (Assuming defendant’s wife was
incapacitated, the court “would still need additional, credible evidence as to the lack of alternative
caregivers in order to make a definitive finding that [the defendant] is the only available
caregiver”).
B. Section 3553(a) Factors weigh against Gagliardi’s reduction in sentence.
Even if Gagliardi could demonstrate extraordinary and compelling circumstances – i.e. that
his mother is incapacitated, and he is the only available caregiver - he must still establish that his
release is warranted under the factors set forth in 18 U.S.C. §3553(a). United States v. Greenhaw,
No. 3:16 CR 30011-006, (W.D. Ark. July 21, 2020); United States v. Mock, No. 3:17 CR 30006,
(W.D. Ark. July 10, 2020). Any reasonable consideration of the §3553(a) factors in this case goes
against a sentence reduction.
During sentencing, this Court thoroughly considered how the §3553(a) factors apply in
Gagliardi’s case. The Court found a 110-month sentence (a 78-month downward variance from
the low end of his guideline calculation) was sufficient, but not greater than necessary to promote
the statutory aims of sentencing. Gagliardi’s 110-month sentence promotes respect for the law by
considering the serious nature and circumstances of his offense, distributing methamphetamine, as
well as his persistent and protracted recidivism as a Career Offender.
Gagliardi has a lengthy and serious criminal history with prior convictions that include
multiple burglary, robbery, and theft convictions along with multiple controlled substance
convictions. ECF No. 35, ¶ 35-47. For example, Gagliardi received a life sentence without parole
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for robbing a convenience store in 1994 while armed with a deadly weapon. ECF No. 35, ¶ 42.4
Given his recidivist criminal history, the Court finds Gagliardi still poses some danger to the
community. In addition, over half of Gagliardi’s sentence remains to be served. Here, the sentence
imposed by this Court was commensurate with the nature and circumstances of Gagliardi’s crime
and was just punishment under the §3553(a) factors. These factors continue to support Gagliardi’s
incarceration.
V. 	CONCLUSION
For the reasons set out above, I recommend that Gagliardi’s Motion to Reduce Sentence
and Supplemental Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) (ECF Nos.
40, 44) be DENIED.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
IT IS SO RECOMMENDED this 26th day of February 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
4 On March 23, 2006, the sentence was reduced to life with the possibility of parole. On July 2, 2007, Gagliardi was
released on parole, and is now serving the remainder of his life sentence on parole (with a projected expiration date
of 2099). ECF No. 35, ¶ 49.
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