USA v. Rudden

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Criminal Case No. 18-cr-00508-PAB
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. DANIEL B. RUDDEN,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
The matters before the Court are defendant Daniel B. Rudden’s Motion to
Reduce Sentence Pursuant to Amendment 821 of the U.S. Sentencing Guidelines and
Request for the Appointment of a Federal Defender [Docket No. 106] and Request for
Appointment of New CJA Counsel [Docket No. 111]. 1 The government responded to
Mr. Rudden’s motion for a sentence reduction. Docket No. 110.
On December 7, 2018, Mr. Rudden pled guilty to one count of wire fraud, in
violation of 18 U.S.C. § 1343. Docket No. 32. On June 20, 2019, Judge Christine M.
Arguello sentenced Mr. Rudden to 121 months of imprisonment followed by three years
of supervised release. Docket No. 60; Docket No. 61 at 2-3. Judge Arguello ordered
Mr. Rudden to pay restitution in the amount of $19,609,905.21. Docket No. 61 at 6.
Judge Arguello found the total offense level to be 30 and determined Mr. Rudden’s
1 Because Mr. Rudden is proceeding pro se, the Court construes his filings
liberally without serving as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991).
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Criminal History Category to be I, which resulted in a sentencing range of 97 to 121
months imprisonment. Docket No. 62 at 1. Mr. Rudden is currently incarcerated at
Phoenix RRM, a residential reentry management field office in Arizona. See Federal
Bureau of Prisons, Inmate Locator, https://www.bop.gov/inmateloc/. Mr. Rudden’s
projected release date is January 1, 2027. Id.
A. Motion for a Reduction in Sentence
On March 18, 2024, Mr. Rudden filed a pro se motion for a reduction in his
sentence based on Amendment 821 to the Sentencing Guidelines. Docket No. 106.
The government filed a response opposing Mr. Rudden’s motion. Docket No. 110.
Generally, a federal court may not alter a term of imprisonment once it has been
imposed. See Dillon v. United States, 560 U.S. 817, 824 (2010); 18 U.S.C. § 3582(c).
However, under 18 U.S.C. § 3582(c)(2), a court may reduce a defendant’s sentence
when the defendant “has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2). Section 3582(c)(2)
“establishes a two-step inquiry.” Dillon, 560 U.S. at 826. “At step one, § 3582(c)(2)
requires the court to follow the Commission’s instructions in [USSG] § 1B1.10 to
determine the prisoner’s eligibility for a sentence modification and the extent of the
reduction authorized.” Id. at 827. “At step two of the inquiry, § 3582(c)(2) instructs a
court to consider any applicable § 3553(a) factors and determine whether, in its
discretion, the reduction authorized by reference to the policies relevant at step one is
warranted in whole or in part under the particular circumstances of the case.” Id.
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On November 1, 2023, the Sentencing Commission adopted Amendment 821 to
the Sentencing Guidelines in order to “make[ ] targeted changes to reduce the impact of
providing additional criminal history points for offenders under a criminal justice
sentence (commonly known as “status points”), to reduce recommended guideline
ranges for offenders with zero criminal history points under the guidelines (“zero-point
offenders”), and to recognize the changing legal landscape as it pertains to simple
possession of marihuana offenses.” See U.S.S.G., Supp. to App. C., Amend. 821 (U.S.
Sentencing Comm’n 2023). Before November 2023, the Sentencing Guidelines
assessed two criminal history points, known as “status points,” for an offense committed
“while under any criminal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status.” United States v. Espinoza-
Pena, 2024 WL 1675672, at *1 (D.N.M. Apr. 18, 2024) (citing U.S.S.G. § 4A1.1(d)
(2022)). In Part A of Amendment 821, the Sentencing Commission altered the “status
points” provision such that a person who has seven or more criminal history points now
receives only one additional “status point,” instead of two. Id. In addition, a person with
six or fewer criminal history points now receives no status points. Id.
“Part B of Amendment 821 creates a new guideline, § 4C1.1, which provides for
a decrease of two offense levels for ‘Zero-Point Offenders.’” United States v. Espinoza,
No. 21-cr-00250-WJM, 2024 WL 4108576, at *1 (D. Colo. Sept. 6, 2024). Under this
provision, defendants are “eligible for a decrease of two offense levels if they are a
‘Zero-Point Offender,’ i.e., a defendant with no criminal history points.” Id. To be
eligible, a defendant must also meet the following criteria:
(1) the defendant did not receive any criminal history points from Chapter Four,
Part A;
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(2) the defendant did not receive an adjustment under § 3A1.4 (Terrorism);
(3) the defendant did not use violence or credible threats of violence in
connection with the offense;
(4) the offense did not result in death or serious bodily injury;
(5) the instant offense of conviction is not a sex offense;
(6) the defendant did not personally cause substantial financial hardship;
(7) the defendant did not possess, receive, purchase, transport, transfer, sell, or
otherwise dispose of a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense;
(8) the instant offense of conviction is not covered by § 2H1.1 (Offenses Involving
Individual Rights);
(9) the defendant did not receive an adjustment under § 3A1.1 (Hate Crime
Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and
(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating
Role) and was not engaged in a continuing criminal enterprise, as defined in 21
U.S.C. § 848.
Id. at *1-2 (citing U.S.S.G. § 4C1.1(a)). Amendment 821 applies retroactively. United
States v. Stites, 2024 WL 3535120, at *1 (D. Kan. July 24, 2024).
Mr. Rudden maintains that Part B of Amendment 821 altered his sentencing
guideline range by reducing the offense level by two levels. See Docket No. 106 at 2-3,
¶¶ 4-6. The government states that, while Mr. Rudden had no criminal history points at
the time of his sentencing, Mr. Rudden is not eligible for a sentence reduction because
Mr. Rudden “personally caused substantial financial hardships to numerous victims in
the commission of his instant offenses.” Docket No. 110 at 3 (citing U.S.S.G.
§ 4C1.1(a)(6)) (internal quotations omitted).
“In determining whether the defendant’s acts or omissions resulted in ‘substantial
financial hardship’ to a victim, the court shall consider, among other things, the non-
exhaustive list of factors provided in Application Note 4(F) of the Commentary to
§ 2B1.1.” U.S.S.G. § 4C1.1(b)(3). These factors include whether the offense at issue
resulted in victims:
(i) becoming insolvent;
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(ii) filing for bankruptcy under the Bankruptcy Code (title 11, United States Code);
(iii) suffering substantial loss of a retirement, education, or other savings or
investment fund;
(iv) making substantial changes to his or her employment, such as postponing
his or her retirement plans;
(v) making substantial changes to his or her living arrangements, such as
relocating to a less expensive home; and
(vi) suffering substantial harm to his or her ability to obtain credit.
U.S.S.G. § 2B1.1 n.4F.
The Court finds that Mr. Rudden is not eligible for the sentence reduction he
seeks because he “personally cause[d] substantial financial hardship.” U.S.S.G.
§ 4C1.1(a)(6). At sentencing, Judge Arguello accepted the Presentence Investigation
Report (“PSIR”). Docket No. 62 at 1. In the PSIR, the probation officer “determined that
the offense resulted in substantial financial hardship to five or more victims (but less
than 25 victims)” that resulted in “an increase of 4 levels.” Docket No. 51 at 10, ¶ 48.
The PSIR states that Mr. Rudden’s victims checked boxes on their Victim Impact
Statements that indicated that they experienced one or more of the circumstances
enumerated in U.S.S.G. § 2B1.1 n.4F. Id.; see also Docket No. 51-3. For instance, a
victim stated that Mr. Rudden’s offense resulted in the victim’s loss of his
“grandchildren’s college fund and his own retirement” that took “20 years to
accumulate.” Docket No. 51 at 7, ¶ 29. Another victim stated that, as a result of the
defendant’s offense, she and her husband lost all of their savings, she could not afford
knee replacement surgery, and that “their losses have been ‘a disaster.’” Id., ¶ 30.
Another victim indicated that he lost “95 percent of his family’s savings” and that upon
learning of the fraud he was “depressed and felt like running his bike into a brick wall or
jumping off a cliff.” Id. at 8, ¶ 34. As a result of Mr. Rudden’s offense, another victim
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“believes she will now never be able to retire and makes it ‘paycheck by paycheck.’” Id.,
¶ 39; see United States v. Hanson, 124 F.4th 1013, 1018 (6th Cir. 2025) (holding that
“the district court made sufficiently specific findings of substantial financial harm” where
“the district court’s final order cited and quoted relevant portions of the government’s
opposition brief that discussed individual examples of how specific victims had suffered
substantial financial hardship and the extent of their individual hardships”).
Furthermore, in his plea agreement, the government and Mr. Rudden stipulated
that “[t]aking into account money returned to investors in the form of ‘interest’ payments,
investors are currently owed approximately $20 million.” Docket No. 33 at 12; see
Hanson, 124 F.4th at 1018 (holding that the district court did not err in its factual
determination that the defendant’s “victims suffered substantial financial hardship under
§ 4C1.1(a)(6),” in part, because the district court fully adopted the PSIR that stated the
“total loss to the victims in this case was $1,122,805.74” and that “at least thirty different
victims” were defrauded); United States v. Hise, 2024 WL 1741590, at *2 (S.D. Ill. Apr.
23, 2024) (finding that the defendant was disqualified from a sentence reduction as a
Zero-Point offender where at sentencing the court “increased [the defendant’s] offense
level by 2 points under U.S.S.G. § 2B1.1(b)(2)(A)(iii) because her offense resulted in a
substantial financial hardship to one or more victims” and that even if “an enhancement
for causing substantial financial hardship is not per se disqualifying, based on the
information from the [PSIR], the sentencing hearing, and the restitution proceedings, the
Court would independently find that [the defendant] personally caused substantial
financial hardship”); United States v. Pagartanis, 2024 WL 2111544, at *2 (E.D.N.Y.
May 10, 2024) (“U.S.S.G. § 4C1.1(a)(6) is present because [the defendant] personally
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stole over $13 million from more than a dozen victims – almost all of whom were elderly
women – through the sale of fraudulent investments and Ponzi scheme-like activity.”).
Given the nearly $20 million in loss, the substantial financial loss enhancement
adopted by Judge Arguello, and evidence of individualized financial hardship caused by
Mr. Rudden’s offense, the Court finds that Mr. Rudden is not eligible for a reduction in
his sentence under Part B of Amendment 821.
B. Motion for Appointment of CJA Counsel
Mr. Rudden asks that the Court appoint counsel pursuant to the Criminal Justice
Act (“CJA”), 18 U.S.C. § 3006A, to “help with [his] critical medical care as well as [his]
Motion for Early Termination of my sentence.” Docket No. 111 at 1. Because the Court
will deny Mr. Rudden’s motion for a reduction in sentence, it will deny that portion of Mr.
Rudden’s motion that seeks appointment of CJA counsel for purposes of seeking a
reduction in his sentence. As for Mr. Rudden’s request that he be appointed CJA
counsel for purposes of obtaining medical care, the CJA does not provide for
representation in such a case. Title 18 U.S.C. § 3006A(a)(1) states:
(1) Representation shall be provided for any financially eligible person who—
(A) is charged with a felony or a Class A misdemeanor;
(B) is a juvenile alleged to have committed an act of juvenile delinquency
as defined in section 5031 of this title;
(C) is charged with a violation of probation;
(D) is under arrest, when such representation is required by law;
(E) is charged with a violation of supervised release or faces modification,
reduction, or enlargement of a condition, or extension or revocation of a
term of supervised release;
(F) is subject to a mental condition hearing under chapter 313 of this title;
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(G) is in custody as a material witness;
(H) is entitled to appointment of counsel under the sixth amendment to the
Constitution;
(I) faces loss of liberty in a case, and Federal law requires the
appointment of counsel; or
(J) is entitled to the appointment of counsel under section 4109 of this title.
18 U.S.C. § 3006A(a)(1). Mr. Rudden has not demonstrated that he is an individual that
is entitled to representation under the CJA pursuant to § 3006A(a)(1).
Therefore, it is,
ORDERED that the Motion to Reduce Sentence Pursuant to Amendment 821 of
the U.S. Sentencing Guidelines and Request for the Appointment of a Federal Defender
[Docket No. 106] is DENIED. It is further
ORDERED that the Request for Appointment of New CJA Counsel [Docket
No. 111] is DENIED.
DATED April 15, 2025.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
______________________________________________________________	_ __________________________________________	__	__	__	_________________	___	_________
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